[Prefatory Note: I publish here my foreword to Shannonbrooke Murphy’s pathbreaking book on the right of resistance. Murphy provides readers with a comprehensive framework for thinking about resistance to public authority in a variety of settings without the controversial baggage of commentaries on such salient cases as Palestine, Ireland, Kashmir. Exempt from direct consideration is also self-defense instances of resistance, which are not treated except historically, and then as matters of the security rights of sovereign states rather than human rights. It may disappoint some readers that none of these three classic instances of popular resistance is discussed in the text and hence not even referred to in the index. The author fruitfully conceptualizes the right of resistance as a human right that has a universal, if amorphous, resonance in international law and in the constitutional foundations of legitimate national governance in all parts of the world.
The manipulation of language in the context of the October 7 lethal attack on Israeli border villages by political forces living under a punitive siege in Gaza imposed in 2007 in response to a Hamas victory in internationally monitored elections held the prior year and supplemented by Hamas prevailing in an intra-Palestinian power struggle with its rival, the Palestine Liberation Organization (linked to the internationally recognized Palestinian Authority that shares partial administrative, collaborative control over the West Bank with Israel). It is widely believed that Hamas’ rise was due to its advocacy and practice of a politics of resistance in contrast to the politics of accommodation pursued by the Palestinian Authority and PLO.
October 7 is so pivotal for an appreciation of the contradictory agenda of Israel and the Palestinian people. On the side of the established order favored by governments and elites in the West and resting on the geopolitical primacy of the Global West in the Middle East, the attack on Israel was a terrorist disruption of order executed in a barbaric manner. On the side of the Palestinians and much of the post-colonial Global South, the attack was perceived as a justifiable action of resistance to a settler colonial project that had long denied Palestinian rights, above all, Palestine’s inalienable right to self-determination as enshrined in Article 1 of both human rights covenants that frame recourse to resistance by reference to law. The commission of violations by the resisters during the attack were commingled with Israeli official justifications for an extreme response, articulated ‘legally’ as ‘Israel’s right to defend itself’ or simply as an appropriate claim of self-defense or as ‘counterterrorism.’ It not surprising that in the ensuing six months influential media platforms of the West accepted the Israel approach, decontextualizing Israel’s pre-October 7 behavior toward the Palestinians in general and Gaza in particular. Only after months of devastating attack on Gaza did this simplistic portrayal of the attack begin to be challenged by referencing the historical background, civil society protest activity, daily atrocity images and witness testimony, genocidal tactics and intentionality, and by disclosure of territorial ambitions and an ethnic cleansing agenda. At this stage, only the firmest defenders of Israel’s conduct, forgo the rhetoric of genocide in describing the attacks, thereby subverting Western official posture of punishing the use of the word genocide as a hate crime, a mainstream taboo. An encroaching Palestinian right of resistance rarely is even considered. Instead, even peace-oriented groups often limit their goals to achieving a non-judgmental ceasefire.
A careful application of Murphy’s way of analyzing the role of resistance claims and practice would produce a more balanced, less propagandistic and geopolitical tinged, battle of words as between terrorist violence and resistance, and between the security of sovereign states and the human rights of people considered both individually and collectively. The Ukraine War and the recently commenced Iran War are further illustrations of the degree to which mainstream normative discourse on armed struggle is not deployed as a source of objectively interpreted legal norms and principles in conflict situations but rather used as a policy instrument to condemn the actions of adversaries and lend protective support to friends and partners. Thus, Russia is condemned, without any account of NATO provocations, while Israel is given the benefit of the doubt despite its unprovoked aggression and its unacknowledged yet widely known, arsenal of nuclear weaponry.
To gain a deeper, more constructive understanding of these and other issues, Shannonbrooke’s guidance is indispensable. Her book is available at all the usual places.]
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Foreword to Shannonbrooke Murphy, The Human Right to Resist in International and Constitutional Law, Cambridge University.
As I read this jurisprudentially fascinating and exceptionally learned book, the media was consumed by its daily accounts of the massive military operation conducted by Israel against the Palestinian civilian population of Gaza. It was a gruesome story rationalized on one side as self-defense against Hamas cast as a terrorist organization that carried out a barbaric attack on October 7, 2023, and as such, could be legitimately situated outside the protection that international law by setting limits on the violence of warfare, although compliance was often problematic. On the other side, criticism mounted that what was being called self-defense would be better understood if interpreted as a deliberate and unabashed recourse to genocide by Israel whose slaughter of Gazans that amounted to a humanitarian catastrophe affecting the whole of the Palestinian people. By and large, political leaders in the West endorsed Israel’s shocking response to the horrific Hamas attack on 22 villages in southern Israel, which resulted in the death of an estimated 1,400 Jewish civilians and soldiers, as well as the seizure of an estimated 240 hostages, severe war crimes committed by Hamas that seemed to qualify as crimes against humanity.
In contrast, were exceptionally large and aggressive public demonstrations in cities around the world, including in the United States, UK, and other governments whose governments were giving unconditional support to Israel. These street protests were denouncing the scope, targeting, intensity, severity of Israel’s response as amounting to the crime of crimes, genocide, although the milder events in the West tended to confine their demands to calls for an immediate ceasefire, which Israel and the United States opposed at the UN and in its diplomatic stance. Both views, however contradictory their political outlooks seem, were connected by invoking law to justify and explain their impassioned partisanship. A reading of Shannonbrooke Murphy’s timely and conceptually brilliant book, while itself demanding a reader’s sophisticated and dedicated attention, is the most illuminating treatment of these and kindred issues of how law can be used in good faith to uphold a politics of armed resistance while at the same time putting strict limits on the legally grounded human right of people to resist various forms of oppressive conditions. It is an unusual situation, but far from unprecedented, for law to exist in certain respects but still lacking sufficient clarity to offer definitive guidance to parties in conflict as to what is behaviorally permitted and what is not, enabling the more powerful actors to engage in lawfare as part of its strategic approach.
Murphy does not examine specific cases of conflicts between the forces of order and the rights of resistance in trying to depict and improve upon the conceptual landscape that throughout history has surrounded this inherently controversial set of issues. Instead, she considers resistance from the perspective of human rights law as it currently functions in international law and constitutional law, while presenting a learned and relevant account of historical antecedents in the work of past celebrated jurists and other normative sources of reflection on the dual role of law in prohibiting and permitting resistance. A prominent feature of the human right to resist is that it functions as a right of exception to the normal duty to obey. It is a matter of varying circumstances that give rise to resistance in a variety of context because existing arrangements of governance are harming individuals, groups, and peoples in socially unacceptable ways, often reflecting changing or evolving societal values. Such a potential role for positive law affirms that the contested behavior in addition to being morally and politically deplorable, can be further stigmatized as sufficiently legally deplorable as to vindicate the existence and exercise of the human right of resist. Domestic law typically wrestles with such issues at the level of the individual or group. These issues may be features of governance (for instance, colonialism, apartheid) of characteristics of civil society (for instance, homophobia, racial and religious prejudice, patriarchy).
Such a human right to resist became prominent in the United States in the 1960s due to the refusal of individuals to comply with the legal obligation to serve for a limited period of time in the U.S. armed forces during the Vietnam War. Western democracies had previously wrestled with this issue during World War II, generally granting individuals and groups such a right if it derived from religious convictions and was directed against all wars, or warfare as such. During the Vietnam War an increasing number of secularly motivated young Americans developed a legal argument that became known as ‘selective conscientious objection’ in which justification for the refusal to join the armed forces was based on moral/legal/political objections to this particular war in Vietnam. Revealingly, as the Vietnam War became more unpopular with the citizenry over time, courts in the U.S. looked with greater favor on this once novel secular rationale for conscientious objection. To be more attuned to Murphy’s conceptual clarity, this set of issues of political propriety is addressed as a ‘cognate’ notion that influences but is distinct from the penumbra of the ‘human right of resistance.’ In such a spirit, Murphy subtly balances positivist concerns with achieving as much conceptual precision as possible against the importance of retaining enough flexibility to enable law to evolve as societal values and circumstances change. Her jurisprudential stance favors codification efforts that take sensitive account of changing conditions and societal values while recognizing the benefits of achieving maximum conceptual precision and stability with regard to prevailing expectations about the content of the human right to resist.
The originality of this learned discussion of the human right to resist, which should be of particular interest to common law countries such as the United States, is the decision of the author not to address specific cases of collective resistance such as the Irish or Palestinian struggle for human rights, including some form of self-rule or even the radical forms of opposition to Nazi genocide. In this sense, Murphy’s jurisprudentially impressive study can be fruitfully read as a complement to Noura Erakat’s fine Justice for Some: Law and the Question of Palestine (Stanford University Press, 2019). What Erakat gains by way of readability and context is somewhat offset by her fully acknowledged substantive sympathies that become part of the policy analysis that underpins her critique of the ways international law has failed the Palestinian people. In this same sense, what Murphy, despite the lucidity of her prose, loses by way of readability is fully redeemed by a fundamental rethinking, with partisan undertones, of what is at stake when a right of exception is given to individuals, groups, and peoples to violate the law legally, but within a secondary framework of authoritative legal limits.
I am a great admirer of both works, but for different, yet interlinked reasons. In Erakat’s case because I share her compelling concern for delegitimizing Palestinian victimization via lawfare, while in Murphy’s case because I am made far more aware of the complexity of the issues involved in legalizing resistance, taking account of its continuing evolution and persisting conceptual gaps, and explicating and exploring linkages to other kindred issues that bear centrally on limiting the power of the state. These linkages pertain both to incorporating the right to resist authority into domestic constitutional texts and by way of applicable international human rights standards that have evolved into moral aspirations to become legal obligations. In this latter instance, for instance, such crimes as apartheid and genocide are not conceptually insulated from legal accountability by invoking claims of unlimited sovereignty over territorial governance or by constitutional provisions that accord superiority to domestic sources of law whenever clashes with international law are present.
In one important respect, Murphy’s positivist presentation of issues associated with resistance legality takes our attention away from the political contexts of enforcement. We could end up with an admirably coherent conceptual framework but with a useless, or even regressively opportunistically legalistic approach to various categories of grievances emanating from those who are deemed as class adversaries or international rivals. The authority of law has radically uneven limits in its functioning within and among sovereign states. For instance, such ‘legal’ developments as the Nuremberg and Tokyo war crimes trials accepted the taint of ‘victors’ justice’ because of foreclosing inquiry, much less accountability, into the crimes of the victors. Even more consequential for evolving a humane global rule of law was the right of veto inserted into the UN Charter, thereby both hampering and tainting the operations of the United Nations. International law is weak when it comes to vital issues because its implementation tends to be disrupted by and subordinated to the primacy of geopolitics, which rests protection of rights on such unreliable restraints as imposed by deterrence threats and prudence, if at all. This results in major resistance claims being manipulated to reflect the interest and policy priorities of powerful states and domestic elites. What is evident is that the selective implementation of human rights law in general creates images of moral hypocrisy and double standards as diluting the authority of and respect for international legal discourse. True, some creative tension has emerged internationally due to the collapse of European colonialism, although Israel is a reminder of what colonialism meant for oppressed native peoples and is expressed by the establishment of counter-hegemonic legal arenas, including among jurists as exemplified by TWAIL (Third World Approaches to International Law) scholarship reflecting the Global South’s experience of the hegemonic uses of international law relied on by colonial Europe in exploiting the resources and dehumanizing non-Western peoples. Resistance to colonialism has in the post-colonial era of international relations inspired the determined effort to generate support for a counter-hegemonic approach to international and constitutional law, which is expressed by
the transnational bonding of Global South jurists in the TWAIL enterprise.
Shannonbrooke Murphy is fully aware of the incompleteness of a purely positivist focus on the human right to resist, while here setting for herself this already Herculean challenge of conceptual clarification. Her contributions to contemporary jurisprudence are profound, and rendered in ways that permit and encourage diverse inquiries into other bodies of human rights pertaining to a range of topics, including rights of self-defense, freedom of expression and freedom of religion in relation to such sensitive policy questions as recourse to war, rights of secession by ethnic or religious minorities, as well as the more sensitive personal issues of gender parity and identity. Let the legal architects produce responsive blueprints. Let the debates begin!
Fifty or so years ago a British graduate student at the Yale Law School, Rosalyn Higgins, who like me fell under the charismatic influence of Myres McDougal in studying international law, but was troubled by the subjectivity and seeming ideological bias of a jurisprudential approach that gave legal hegemony to the Cold War values prevalent in the West. I was also troubled, but on different grounds. I questioned the jurisprudential necessity for such an ideological bias and instead sought a contextually sensitive approach to law that was guided by the type of secular humanism that infuses the Universal Declaration of Human Rights and the Preamble to the UN Charter.
Professor Higgins, who later became a distinguished judge at the International Court of Justice, organized a conference in London to explore these rifts between the British and American approaches to law. Without the benefit of Murphy’s conceptual mapping, I found the conference most intriguing because of the gathering of fine legal scholars for such an unusual conversation, yet intellectually unrewarding as it merely reproduced the tensions between a British insistence that the subjectivity of the New Haven School of International Law undermined the authority of law and the American claim that law without a political and ethical context is artificially cut off from reality. If we were to arrange such a meeting in the future, I would insist that Shannonbrooke Murphy’s book be required background reading believing that both sides could valuably learn from it. Also, I cannot imagine a better beginning for an advanced course in either human rights, resistance claims, or the interplay of international and constitutional law than by assigning this demanding, yet remarkably imaginative, erudite, and rigorously conceptualized contribution to an improved understanding of the interactions between law, resistance, and human rights in a variety of substantive contexts.
Richard Falk
Yalikavak, Turkey
November 6, 2023
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Global Justice in the 21st Century 