Confirming It’s Legal to Speak About the Right Occupied Peoples Have to Armed Resistance

Krautungalung elder Uncle Robbie Thorpe and Sydney-based lawyer Daniel Taylor have teamed up again on a legal action, this time concerning the legal right to speak about the implications that international law has in regard to Israel’s occupation of the Palestinian territory, as well as the right of the occupied to armed resistance and our rights to freely discuss such matters in public.

The matter arose out of a discussion Thorpe was having with the Black Peoples Union’s Keiran Stewart-Assheton on the 30 October 2024 episode of 3CR Radio program Bunjil’s Fire, about the designation of Hamas as a terrorist organisation by Australia and other western nations, whilst other systems of law actually recognise it as an armed resistance group of an occupied people.

Thorpe turned the on-air discussion to some points Taylor had provided earlier, which included that a July 2024 ruling of the International Court of Justice confirmed Israel’s occupation of the Occupied Palestinian Territory – Gaza, the West Bank and East Jerusalem – since 1967, as illegal and that the Palestinians are an “occupied population”, which implies their right to armed resistance.

The most controversial point made on the program was that the right to armed resistance extended to operations, such as the 7 October Hamas incursions into Israeli territory. And just to be clear, no one was asserting any war crimes committed by the occupied or the occupier on that day were lawful, rather what was posited was the right of the occupied to rise up against their occupier.

These concepts that Thorpe and Taylor have been discussing over Victorian radio waves are clearly set out in international law, yet ever since October 2023, there has been an unofficial prohibition on publicly speaking about these matters and many other truths related to the Gaza genocide, so Uncle Robbie and Dan have lodged a claim with the Federal Court to verify their right to speak the truth.

Freedom of political communication

The 17 April 2024 filing of the legal action with the Federal Court of Australia seeks declaration from the Australian attorney general and the Commonwealth that comments made on 3CR Radio regarding Hamas having the right to armed resistance under international law, based on its being a resistance group representing an occupied people, is guaranteed speech in Australian law.

The plaintiffs assert that the comments made are lawful because they’re guaranteed by the implied right to political communication under the Australian Constitution. But they’re also aware the comments could be misconstrued as providing support to a terror group, under section 102.8 of the Criminal Code Act 1995 (Cth), which contains the offence of associating with a terrorist organisation.

In terms having the right to express such matters, Thorpe and Taylor point to subsection 102.8(6) of the Code, which provides that the offence of associating with a terrorist organisation under that section does not apply “to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication”.

The pair are also seeking further confirmation that this section 102.8(6) protection extends to calls that were too made on-air regarding the Australian government delisting Hamas and Hezbollah as terrorist organisations due to the harm this classification causes. The claim implies that the listing of Hamas as a terror group and calls for its annihilation provide justification for the Gaza genocide.

The right to armed resistance

According to the International Committee of the Red Cross, the right to armed resistance of occupied peoples is part of the law of belligerent occupation, which is a section of international humanitarian law established via The Hague Regulations of 1899 and 1907, as well as The Fourth 1949 Geneva Convention, while this was later strengthened by Article 75 of the Additional Protocol of 1977.

Of course, the ICJ last year once again confirmed that the Palestinian Occupied Territory continues to be under the unwelcome control of Israel since 1967.

Territory is occupied when it is under partial or total occupation of a hostile military. Invasion of territory shifts to occupation when the invaders establish control.

Occupied civilians bear no allegiance to occupiers. Occupied civilians retain their human and legal rights, and they cannot renounce them, while discrimination against the occupied based on national, ethnical, racial or religious group is unlawful.

An occupying force cannot remove occupied individuals or conduct the mass transfer of the occupied from their lands. And there is a general prohibition against the killing of civilians under international humanitarian law.

“After effective occupation of territory, members of the territory’s armed forces who have not surrendered, organised resistance movements and genuine national liberation movements may resist the occupation,” explains the International Red Cross. The organisation also explains that such resisters may bear arms and must distinguish themselves from the rest of the populace.

Civilians partaking in resistance lose their protected status while taking part in such actions. The right of occupied peoples to armed resistance, however, does not permit the resisters to commit atrocity crimes, such as war crimes, crimes against humanity or genocide.

Asserting legal resistance

The recent case filing was approved by a Federal Court registrar on 24 April 2024. Federal Court Justice Graeme Hill will be presiding over the civil case that turns on a point of law that triggers the right to free speech and the implied constitutional right of political communication. And his Honour has just called for a case management hearing to be scheduled as soon as possible.

These legal proceedings have implications for all of us living on this continent, regardless of whether individuals are aware of them or not, as they touch on the rights of all citizens and residents in this country to be able to speak the truth, especially when it comes to human rights, international law and justice.

Since October 2023, there have been ever-increasing attempts to prevent the general public from even acknowledging that the mass slaughter in Gaza is a full blown genocide.

However, Uncle Robbie has explained to Sydney Criminal Lawyers in the past that when it comes to the issue of genocide, there has been a prohibition on raising this international criminal offence on this continent, since British invasion commenced.

“The International Court of Justice found specifically that the right of armed resistance is a right that Palestinians have, and they have a right to exercise the right of armed resistance against Israeli occupation,” Taylor said on the 20 November 2024 episode of Bunjil’s Fire.

“And we have no business calling that terrorism in Australia,” the lawyer added.