- UN General Assembly — UN Security Council — Armed conflict, international — Prisoners of war — Conduct of hostilities — Aut dedere aut judicare — Individual criminal responsibility — Appeals Chamber — Actus reus — Travaux préparatoires — International Criminal Tribunal for the former Yugoslavia (ICTY) — International Criminal Court (ICC)
There is a (Big) Difference
Neither armed conflict nor terrorism are new forms of violence. Both have existed for hundreds of years and have for the most part been understood to be separate phenomena, as demonstrated by the different legal frameworks that have evolved to regulate them. The perception that war and terrorism differ was radically altered by the attacks of 9/11 and the subsequent launching of the so-called ‘global war on terrorism’. While that moniker is no longer in official circulation, the resultant blurring of armed conflict and terrorism persists. The years of conflated use of the terms ‘armed conflict’ and ‘terrorism’ by political actors, parts of the legal profession, and the media, have led to a situation in which it seems almost futile to examine the blur and try to explain why it is legally incorrect, politically unhelpful, and practically counterproductive. Yet, this is the attempt that will be made here. The largest parts of this chapter—Sections 2 and 3—provide an overview of the law governing armed conflict and terrorism respectively, and discuss the differences between them. Section 4 is devoted to the draft United Nations (UN) Comprehensive Convention on International Terrorism, while Section 5 touches on political definitions of terrorism. Section 6 outlines some non-legal reasons why armed conflict and terrorism should not be blurred and Section 7 briefly discusses whether there is a ‘global war on terrorism’ and the legal consequences of such a view. Section 8 proposes some conclusions and recommendations.
References(p. 172) 2. The Law Governing Armed Conflict
There are several important distinctions between the legal frameworks governing armed conflict and terrorism, based primarily on the different reality that each seeks to govern. The main divergence is that, in legal terms, armed conflict is a situation in which certain acts of violence are allowed (lawful) and others prohibited (unlawful), while any act of violence designated as terrorist is always unlawful. In armed conflict, it is a given that prevailing over the enemy’s forces is the ultimate aim of military operations. For this reason the parties are permitted, or at least are not prohibited from, attacking each other’s military objectives. Violence directed at those targets is not prohibited as a matter of international humanitarian law (IHL), regardless of whether it is inflicted by a state or a non-state party. Acts of violence against civilians and civilian objects are, by contrast, unlawful because one of the main purposes of IHL is to spare civilians—and objects necessary to their life and survival—from the effects of hostilities. IHL thus regulates both lawful and unlawful acts of violence and is the only body of international law dealing with the protection of persons that takes such a two-pronged approach. There is no similar dichotomy in either international human rights law or refugee law, to name the two most significant branches of international law that also aim to protect persons.1 There is also no similar dichotomy in the international norms governing acts of terrorism.
The need to protect persons affected by armed conflict gives rise to another feature not replicated in other bodies of international law governing the protection of persons or in international treaties on acts of terrorism—the equality of rights and obligations of the parties under IHL.2 Pursuant to this body of norms, also known as the jus in bello, each side to an armed conflict has to comply with the same rules. This is because the purpose of IHL is not to determine which party was ‘right’ in resorting to the use of armed force against the other (the purview of the jus ad bellum), but to ensure the equal protection of persons and objects affected by armed conflict regardless of the lawfulness of the first use of force. Thus, any party to an armed conflict is equally prohibited from directly attacking enemy civilians or torturing enemy personnel in its hands, but is not prohibited from attacking the adversary’s military objectives. In this sense IHL may be said to govern an essentially horizontal relationship between the parties to an armed conflict.3 (p. 173) Other bodies of international law govern a primarily vertical relationship, between a state and individuals within its territory or jurisdiction.
A further crucial feature of the legal framework governing armed conflict is that it already prohibits the great majority of acts that would be designated as ‘terrorist’ if they were committed in peacetime. IHL both:
(1) prohibits, as war crimes, specific acts of terrorism perpetrated in armed conflict; and
(2) prohibits, as war crimes, a range of other acts that would commonly be deemed ‘terrorist’ if committed outside armed conflict.
Under IHL, war crimes are subject to prosecution by the territorial state or by the state of nationality of the perpetrator and, in some circumstances, to the mandatory or permissive universal jurisdiction of third states.
‘Terrorism’ is specifically prohibited in Article 33 Fourth Geneva Convention (GC IV),4 as well as in Article 4(2)(d) Additional Protocol II (AP II).5 In the first case, the prohibition aims to protect civilians who find themselves in the power of an adversary in an international armed conflict (IAC). In the second case the prohibition relates to persons not or no longer participating directly in hostilities who similarly find themselves in the power of an adversary in a non-international armed conflict (NIAC). The placement and scope of both provisions make it clear that the aim is to ensure that a party to an armed conflict is barred from terrorizing civilians under its control, particularly by means of inflicting collective punishments.6
While IHL thus prohibits as terrorism specific acts of violence against civilians who are already in the enemy’s power, most acts that would commonly be considered ‘terrorist’ if they were carried out in peacetime actually take place during the conduct of hostilities in armed conflict, that is they involve acts of violence against civilians or the civilian population who are not in the adversary’s power. In response, Articles 51(2) Additional Protocol I (AP I)7 and 13(2) AP II specifically prohibit References(p. 174) acts of terrorism in the conduct of hostilities, providing that ‘[a]cts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited’. The International Criminal Tribunal for the former Yugoslavia (ICTY) determined in the Galic case that this prohibition is binding not only as treaty law, but is of a customary law nature as well.8
iii) the violation must be ‘serious’, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim. Thus, for instance, the fact of a combatant simply appropriating a loaf of bread in an occupied village would not amount to a ‘serious violation of international humanitarian law’ although it may be regarded as falling foul of the basic principle laid down in Article 46(1) of the Hague Regulations (and the corresponding rule of customary international law) whereby ‘private property must be respected’ by any army occupying an enemy territory;
iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.9
The prohibition of ‘acts or threats of violence which have the primary object of spreading terror’ is directed to intentional conduct specifically directed toward the spreading of terror and excludes terror which was not intended by a belligerent and terror that is merely an incidental effect of acts of warfare which have another primary object and are in all other respects lawful.12
2.2. The Prohibition, as War Crimes, of a Range of Other Acts that Would Commonly be Deemed ‘Terrorist’ if Committed Outside Armed Conflict
Perhaps more important than the fact that IHL specifically prohibits the spreading of terror among civilians and the civilian population is that most of its ‘regular’ rules on the conduct of hostilities prohibit acts that would be deemed ‘terrorist’ when committed outside armed conflict.
If there is one overriding IHL obligation of belligerents in the conduct of hostilities it is distinction. The principle of distinction is provided for in a section of AP I on the ‘general protection [of the civilian population] against the effects of hostilities’, under the title ‘basic rule’,13 and is also recognized as constituting customary law. Pursuant to this rule the parties to an armed conflict ‘shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives, and accordingly shall direct their operations only against military objectives’.14
The principle of distinction informs the totality of the other rules on the conduct of hostilities under IHL. For the purpose of demonstrating why the legal regimes of armed conflict and terrorism need not be blurred it must be recalled that, based on the principle of distinction, IHL absolutely prohibits direct and deliberate attacks against civilians, that is acts of violence that would be classified as ‘terrorist’ if committed outside armed conflict. The relevant treaty provisions, applicable in both IACs and NIACs, stipulate that ‘[t]he civilian population as such, as well as individual civilians, shall not be the object of attack’.15 This prohibition—of which the prohibition References(p. 176) of terrorization discussed above is a specific expression—is also a norm of customary IHL and its violation constitutes a war crime.16
(2) which employ weapons or methods of warfare that are incapable of being directed at a specific military objective; and
(3) which employ weapons or methods of warfare the effects of which cannot be limited as required by the Protocol; and consequently, in each case, are ‘of a nature to strike military objectives and civilians or civilian objects without distinction’.18
Disproportionate attacks—those that may be expected to cause incidental loss of civilian life or damage to civilian objects (or a combination thereof) that is excessive in relation to the concrete and direct military advantage anticipated19—are likewise prohibited and constitute war crimes.20 The use of human shields is another prohibition provided for in IHL treaties; it is also a norm of customary law and constitutes a war crime.
Like civilians, civilian objects (defined under IHL as ‘all objects which are not military objectives’21) cannot be the target of direct and deliberate attacks.22 In case of doubt as to whether an object normally dedicated to civilian purposes—such as a house or school—is being used to make an effective contribution to military action—and has thus become a military objective—it must be presumed not to be so.23
IHL likewise contains specific additional rules protecting cultural objects and places of worship,24 objects indispensable to the survival of the civilian population (for example, foodstuffs, drinking water installations, etc),25 the natural environment,26 References(p. 177) and works and objects containing dangerous forces (that is, dams, dykes, and nuclear electricity generating stations).27
While, as mentioned above, one prong of IHL governs (prohibits) acts of violence against civilians and civilian objects in armed conflict, the other prong allows, or at least does not prohibit, attacks against military objectives, including enemy personnel. These acts constitute the very essence of armed conflict and, as such, should never be legally defined as ‘terrorist’ under a different body of international law (namely, international treaties governing acts of terrorism, discussed below). To do so would imply that they are prohibited acts which must be subject to criminalization under that other international legal framework. This would stand at odds with the dichotomous regulation of acts of violence which is at the core of IHL.
In IAC, members of the armed forces of a state or of groups assimilated thereto28 have an express right to participate directly in hostilities.29 This means that they may target the adversary’s military objectives within the parameters set out in IHL and may not be punished for doing so upon capture by the opposing side. They enjoy what is known as combatants’ immunity from prosecution by the detaining state for lawful acts of war. It would thus be contrary to the very logic of combatant/prisoner of war (POW) status if a person lawfully taking a direct part in hostilities were to be legally classified as a ‘terrorist’ as that would allow prosecution by the opponent for conduct specifically authorized under IHL. Needless to say, the right to take a direct part in hostilities is restricted to ‘lawful’ combatants,30 who, in addition, may not resort to perfidy in order to kill, injure, or capture an adversary; perfidy being a war crime.31
The issue of who is a lawful combatant in IAC is not the subject of this chapter32 and will only be briefly mentioned here. As already noted above, combatants are members of the armed forces of a state or of groups assimilated thereto as provided for in the References(p. 178) Third Geneva Convention (GC III).33 AP I modified the scope of combatant and POW status as a result of its enlargement of the notion of IAC. Pursuant to API such conflicts (in addition to inter-state wars) include ‘armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations’.34
As is well known, AP I was partly drafted in response to wars of national liberation that had taken place in various parts of the world from the 1950s to the 1970s. It was believed by an important number of states that IHL needed to adapt to the reality of guerrilla warfare if it was to continue adequately to perform its protective role. The incorporation of wars of national liberation thus led to a modification of the notions of combatant and POW status, and to a loosening—under Article 44(3) AP I—of the obligation of combatants to distinguish themselves in order to accommodate guerrilla warfare. The changes may be summarized as follows: ‘[W]hile, traditionally, belligerents who did not distinguish themselves from the civilian population in a permanent manner lost their right to combatant status, Additional Protocol I now allowed combatants in certain circumstances to distinguish themselves only by carrying arms openly during a military engagement and while they are visible to the enemy in a military deployment preceding an attack.’35
As demonstrated by the travaux préparatoires it was understood by the delegates to the Diplomatic Conference who drafted AP I that situations in which ‘owing to the nature of hostilities’36 an armed combatant could not distinguish him/herself except by carrying arms openly during a military engagement or prior to it would be truly exceptional.37 Only two exceptions were intended: wars of national liberation and situations of occupation. Nevertheless, the change introduced by AP I was one of the main reasons for which some states, including the United States (US), rejected ratification of the treaty. Their view was that the provisions on combatant status and POWs were ‘highly undesirable’ (and would by implication encourage ‘terrorism’) due, inter alia, to the relaxation of the obligation of combatants to distinguish themselves from the civilian population in those exceptional circumstances.38
References(p. 179) Despite the amount of academic and other writing devoted to it over the past few decades, this issue would appear not to be as significant nowadays. First, it must be emphasized that AP I did not in any way relax the obligations of the parties to a conflict to abide by the rules on the conduct of hostilities outlined above. The prohibitions aimed at protecting civilians, the civilian population, and civilian objects are absolute and must be observed by any actors involved in a conflict, regardless of any issues surrounding their legal status. If, on the other hand, an act of violence is aimed at a military objective by combatants it is lawful under IHL and is therefore not terrorism.39 This would include an attack against a military target in wars of national liberation or in situations of occupation mentioned above. Moreover, the vast majority of countries have since become parties to AP I (170 as of July 2010),40 meaning they have agreed to the modifications introduced by that treaty and do not share the view that they encourage terrorism. Finally, the relaxation of the obligation to distinguish is less relevant in purely practical terms because the number of current armed conflicts involving national liberation movements or situations of occupation is very small.41
Under IHL civilians are all persons who are not combatants;42 they may not be the object of attack, as explained above, ‘unless and for such time as they take a direct part in hostilities’.43 Contrary to certain claims,44 direct participation by civilians in hostilities—colloquially referred to as ‘unlawful’ or ‘unprivileged’ combatancy or belligerency—is not a war crime as such (unless carried out perfidiously), because it is an inevitable fact of armed conflict. It is, however, sanctioned in a variety of ways by both international and domestic law. First, under IHL civilians lose protection from attack during such time as they take a direct part in hostilities, meaning that they can be targeted and killed by the adversary. What is meant by direct civilian participation in hostilities (is it firing artillery shells or cooking for members of an armed force?) is not defined in treaty law, but was the subject of a several year long expert process led by the International Committee of the Red Cross (ICRC) which resulted in the publication in 2009 of the ICRC’s ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities Under IHL’.45 Second, under IHL References(p. 180) civilians who take a direct part in hostilities may be interned by the detaining state on the grounds that they constitute an imperative threat to its security. They can remain interned for as long as they are deemed to constitute such a threat, provided appropriate procedural safeguards are implemented. Similar to POW internment, this may, at the outer limit, last until the end of active hostilities in relation to which a person was interned.46
For the purposes of this chapter, it is most important to note that, third, civilians are prohibited from attacking other civilians or civilian objects and may be prosecuted by the detaining state, or by another state under the principle of universal jurisdiction, for war crimes (grave breaches) if they do so. In other words, IHL provides that violations of the rules on the conduct of hostilities protecting civilians and the civilian population outlined above are war crimes whether committed by civilians or lawful combatants. However, in contradistinction to combatants civilians may, in addition, be prosecuted by a detaining state under its domestic law for the very fact of having taken up arms and for any act of violence committed in hostilities. This includes attacks against military objectives, including enemy personnel, which, as already noted, are not unlawful under IHL and are therefore not acts of ‘terrorism’.
Given the comprehensiveness of the sanctioning of civilian participation in hostilities ensured by the interplay of international and domestic law, it is difficult to see what purpose is served by designating as ‘terrorist’ acts of violence committed by civilians in armed conflict. In legal terms it entails an inevitable duplication of criminal charges for the same act, the practical significance of which is unclear whether in sentencing or perception (need for condemnation) terms. War crimes are already established to be exceptionally serious acts of international concern,47 meaning that they are inter alia both universally condemned and penalized in accordance with their very grave nature. It is thus submitted that the current blurring of acts of violence committed in armed conflict and acts of terrorism is not necessary as a matter of law. It cannot be defended based on an alleged inadequacy of the existing legal framework to deal with unlawful acts of violence committed in armed conflict. The reasons for this current blurring seem rather to lie in the political domain, and are the result of considerations that do not facilitate the ultimate goal of preventing or stopping unlawful conduct in armed conflict, as will be discussed below.
As already noted, the dichotomy of legal regulation of acts of violence that is a feature of IHL and the principle of equality of rights and obligations of the parties under this body of rules also apply in NIAC. By way of reminder, NIACs are by far References(p. 181) the most prevalent type of conflicts in the world today, causing the greatest number of deaths, injury, and destruction.
A traditional form of NIAC is that waged between a government and one or more organized armed groups (often labelled ‘insurgents’, ‘rebels’, or, nowadays, most frequently ‘terrorists’), or between such groups themselves in the territory of a state. Over the past decade other situations that may be classified as NIACs, in which the non-state side has likewise been called ‘terrorist’, have also occurred.48 Into this category would fall armed conflicts involving multinational or foreign forces fighting in the territory of a ‘host’ state—with the host government’s consent—against one or more organized armed groups. The intervening forces may be mandated by an international organization (ISAF in Afghanistan),49 or by a regional organization (AMISOM in Somalia),50 or not be internationally mandated (the US ‘Operation Enduring Freedom’ also in Afghanistan).51 A new type of NIAC, at least partly,52 was the one that took place across an international border between Israel and Hezbollah in 2006. This was a conflict that the host state’s (Lebanon’s) armed forces neither initiated nor wanted.53 Another example, for the purposes of this chapter, are what may be called ‘spill-over’ armed conflicts, namely those in which two or more parties to a traditional NIAC carry their fighting over into the territory of a neighbouring state without that state’s forces getting involved on any of the sides (for example, Colombia’s pursuit of FARC members in the territory of Ecuador).54
IHL does not provide a definition of the most common kind of NIAC; those governed by Common Article 3 Geneva Conventions.55 However, based on state References(p. 182) practice, doctrine and judicial pronouncements it is well established that at least two conditions must be fulfilled for a situation of violence to be classified as a Common Article 3 armed conflict: the existence of a non-state party to the conflict, and a certain intensity of violence.
Common Article 3 expressly refers to ‘each Party to the conflict’ thereby implying that a precondition for its application is the existence of at least two ‘parties’.56 While it is usually not difficult to establish whether a state party exists, determining whether a non-state armed group may be said to constitute a ‘party’ for the purposes of Common Article 3 can be complicated, mainly because of lack of clarity as to the precise facts. Nevertheless, it has been widely recognized that a non-state party to a NIAC means an armed group with a certain level of organization that would essentially enable it to implement IHL. International jurisprudence has developed indicative factors on the basis of which the ‘organization’ criterion may be assessed. They include the existence of a command structure and disciplinary rules and mechanisms within the armed group; the existence of headquarters; the ability to procure, transport and distribute arms; the group’s ability to plan, coordinate and carry out military operations, including troop movements and logistics; its ability to negotiate and conclude agreements such as cease-fire or peace accords, etc.57 Differently stated, even though the level of violence in a given situation may be very high (in a situation of mass riots for example), unless there is an organized armed group on the other side, one cannot speak of a NIAC.
… the number, duration and intensity of individual confrontations, the type of weapons and other military equipment used, the number and calibre of munitions fired, the number of persons and types of forces partaking in the fighting, the number of casualties, the extent of material destruction, and the number of civilians fleeing combat zones. The involvement of the UN Security Council may also be a reflection of the intensity of a conflict.58
References(p. 183) Pursuant to international case law the element of protractedness of violence also serves to determine whether the intensity criterion has been fulfilled. The ICTY has deemed there to be a NIAC in the sense of Common Article 3 ‘whenever there is … protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’.59 A similar definition is incorporated in the International Criminal Court (ICC) Statute which, in addition to proscribing as war crimes serious violations of Common Article 3, contains a list of other serious violations of the laws and customs applicable in armed conflicts not of an international character, namely armed conflicts ‘that take place in the territory of State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups’.60
There is some debate within the legal literature as to whether the ICC Statute in fact created two different types of NIAC as a result of the wording mentioned above.61 It is submitted that the better view is that the NIAC referred to in Article 8(2)(f) ICC Statute has the same threshold of applicability as Common Article 3, and that the ICC Statute did not intend to infer a different trigger. Based on this reading a 2008 ICRC opinion paper on the definition of armed conflict under IHL defined NIAC as ‘protracted armed confrontations occurring between governmental armed forces and the forces of one or more armed groups, or between such groups arising on the territory of a State (party to the Geneva Conventions). The armed confrontation must reach a minimum level of intensity and the parties involved in the conflict must show a minimum of organization.’62
It is very important to note that all the substantive rules on the conduct of hostilities prohibiting attacks against civilians or civilian objects outlined above apply in NIAC as well, and will therefore not be repeated here. There is, however, a crucial legal difference between the two types of conflicts. Under IHL, there is no ‘combatant’ or ‘POW’ status in NIAC. States’ domestic law prohibits and penalizes violence perpetrated by private persons or groups, including all acts of violence that would be committed in the course of an armed conflict. A non-state party thus has no right References(p. 184) under domestic law to take up arms and engage in hostilities against the armed forces of a government adversary (the essence of combatant status), nor can it expect to be granted immunity from prosecution for attacks against military targets (the essence of combatant privilege). In other words, all acts of violence perpetrated in a NIAC by an organized non-state armed group are regularly prohibited and usually severely penalized under domestic law, regardless of their lawfulness under IHL.
The interplay of IHL and domestic law in a NIAC thus leads to a situation in which members of non-state armed groups are likely to face stiff sentences under domestic law even for acts of violence that are not prohibited by IHL (for example, attacks against military objectives). This inherent contradiction between the two legal frameworks is part of the reason why non-state armed groups often disregard IHL norms, including those prohibiting attacks against civilians and civilian objects. They have no explicit legal incentive to abide by IHL norms as they can be equally punished upon capture by the government whether they fought according to the laws and customs of war—and respected civilians and civilian objects—or violated the rules.
The drafters of IHL treaties were well aware of the problem and introduced certain provisions in AP II aimed at remedying the imbalance between the belligerents in a NIAC that arises as a result of domestic law. Article 6(5) AP II provides: ‘At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.’
This is also a rule of customary law applicable in NIAC63 based on the practice of a number of states that granted amnesties after NIACs either by special agreements, legislation, or other measures.64 The UN Security Council, the General Assembly, and other UN and regional bodies have likewise encouraged or welcomed amnesties granted by states at the end of armed conflicts.65 By way of reminder, the amnesties referred to do not relate to war crimes (or other crimes under international law such as genocide or crimes against humanity), that might have been committed in NIAC, as that would be contrary to the obligation of states to investigate and prosecute such acts.66
The ICRC had hoped that AP II would provide even stronger incentives for non-state groups to respect IHL. It had proposed additional measures at the 1974–1977 Diplomatic Conference that negotiated the treaty: first that the text should include References(p. 185) a prohibition on the imposition of the death penalty during an armed conflict; and second, that courts sentencing a person for participation in a NIAC be mandated to take into account—as much as possible—whether the accused respected IHL or not.67 Unfortunately, these suggestions were rejected and the fact is that IHL currently does not provide non-state armed groups with the expectation of reciprocity of legal treatment upon capture by the government side, as is the case with the parties to an IAC.
The interface between international and domestic law thus results in a lopsided legal situation unfavourable to non-state armed group compliance with IHL. It is submitted that adding an additional layer of incrimination, that is designating as ‘terrorist’ acts committed in armed conflict that are not prohibited under IHL reduces the likelihood of obtaining respect for its rules even further. As explained above, attacks against military objectives carried out by non-state actors are prohibited by domestic law. The proposition that amnesties, or any other means of acknowledging the behaviour of groups that attempted to fight according to laws of war becomes legally (and politically) very difficult once such acts are designated as ‘terrorist’. As regards attacks against civilians and civilian objects, they are already prohibited under both IHL (war crimes) and domestic law. It is thus not clear what legal advantage is to be gained from also charging them as ‘terrorist’ given the sufficient proscriptions provided for under the existing two legal frameworks. If the aim is purely political, namely to disqualify political opponents by branding them ‘terrorists’, there are sufficient reasons to show that this is unhelpful, as will be discussed below.
It is believed that the term ‘act of terrorism’ should be used, in the context of armed conflict, only in relation to the few acts specifically designated as such under the treaties of IHL. It should not be used to describe acts that are lawful or not prohibited by IHL. While there is clearly an overlap in terms of prohibition of attacks against civilians and civilian objects under both IHL and domestic law, it is believed that, overall, there are more disadvantages than advantages to additionally designating such acts as ‘terrorist’ when committed in situations of armed conflict (whether under domestic law or another branch of international law, as explained below). Thus, with the exception of the few specific acts of terrorism that may take place in armed conflict, it is submitted that the term ‘act of terrorism’ should be reserved for acts of violence committed outside armed conflict.
References(p. 186) 3. The Law Governing Acts of Terrorism
As already noted, the defining feature of any act legally classified as ‘terrorist’ under either international or domestic law is that it is always penalized as criminal: no act of violence legally designated ‘terrorist’ is, or can be, exempt from prosecution.
The international legal framework governing acts of terrorism has been many decades in the making, starting with the often cited Convention for the Prevention and Punishment of Terrorism 1937, which never came into force.68 The current code of terrorist offences comprises 13 so-called ‘sectoral’ treaties that define specific acts of terrorism adopted at the international level.69 There is also a draft Comprehensive Convention on International Terrorism (CCIT) that has been the subject of negotiations at the UN for over a decade.70 As has been calculated, the treaties currently in force ‘define nearly 50 offences, including some ten crimes against civil aviation, some sixteen crimes against shipping or continental platforms, a dozen crimes against the person, seven crimes involving the use, possession or threatened use of “bombs” or nuclear materials, and two crimes concerning the financing of terrorism’.71
The sectoral treaties share several common features. They define the crime(s) and oblige states to incorporate and penalize them appropriately under domestic law.72 The parties likewise accept to take the necessary measures to establish jurisdiction over the crime in question when committed in their territory; on board a vessel or aircraft flying the flag or registered in that state, respectively; or when perpetrated by a national.73 The establishment of other bases of jurisdiction (such as over an offence committed against a national of the state), non-mandatory in nature, is also provided for.74 In addition, the conventions include aut dedere aut judicare clauses, according to which states must either extradite or initiate criminal proceedings against a suspect found in their territory.75 With a view to facilitating extradition, References(p. 187) the treaties furthermore state that the specific crimes will not be subject to the political offence exception,76 and regulate various forms of cooperation meant to prevent the act in question or enable investigation and prosecution of the offence.77
As regards scope of application, there is no indication in most of the treaties that they are to apply in situations other than peacetime and therefore they do not blur acts of violence committed in armed conflict with acts of terrorism. Two of the treaties protecting the safety of civil aviation expressly provide that they ‘shall not apply to aircraft used in military, customs or police services’.78 The 1988 Protocol to the Montreal Hijacking Convention also provides that it shall apply only to ‘airports serving international civil aviation’.79 Even more clearly, in a rather long exclusion clause, the Hostages Convention stipulates that ‘the Convention shall not apply to an act of hostage-taking committed in the course of armed conflicts as defined in the Geneva Conventions of 1949 and the Protocols thereto’.80 Hostage-taking is explicitly prohibited in several IHL treaties,81 and constitutes a war crime when committed in armed conflict.82 The Hostages Convention’s exclusion clause exempts hostage-taking from being considered an act of terrorism in armed conflict (even though the text of the Convention does not refer to ‘terrorism’ as such),83 whether committed by state actors or organized non-state armed groups, as evidenced by its reference to the Geneva Conventions, which include Common Article 3 governing NIAC, and to AP II.
Terrorism treaties adopted in the 1980s took a similar approach. The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988 explicitly excludes warships, police and customs vessels from its scope of application, and its 1998 Protocol limits its application to platforms in the continental shelf used for economic purposes.84 The Convention on the Physical References(p. 188) Protection of Nuclear Material 1980 is a specific case. While it applies only to ‘nuclear material used for peaceful purposes while in international nuclear transport’,85 states are obliged to make punishable under domestic law any unauthorized and intentional ‘receipt, possession, use, transfer, alteration, disposal or dispersal of nuclear material’ which causes or is likely to cause ‘death or serious injury to any person or substantial damage to property’.86 The text also requires states to penalize a threat to use nuclear material that would have the same consequences.87 In other words, the treaty does not necessarily exclude the use or dispersal of nuclear material against military objectives, including personnel, from its scope of application. Given the very particular nature of nuclear material this was perhaps intended.
Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.88
As mentioned above, IHL prohibits direct and other forms of attacks against civilians, the civilian population, and civilian objects (war crimes), but does not prohibit or penalize the financing of such attacks. The Convention thus targets the financing of serious acts of violence directed against civilians and other persons not taking a direct part in hostilities, who are protected under IHL. It does, not, however, designate the financing of attacks against military objectives as an act of terrorism.
The Suppression of Terrorist Bombing 1997 and the Suppression of Nuclear Terrorism 2005 Conventions contain identical exclusion clauses that are ambiguous enough to allow an interpretation according to which situations of armed conflict are entirely outside their scope of application. Under these treaties ‘[t]he activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention’.89 The key phrase of course is ‘as those terms are References(p. 189) understood under international humanitarian law’. It could be read to mean that the activities of both state and non-state armed forces—regardless of their lawfulness under IHL—are not considered terrorist acts under the respective Conventions. This is because the term ‘armed forces’, used in Common Article 3, clearly refers to the armed forces of both the state and non-state party to a NIAC.90 Unfortunately, ongoing negotiations on the draft CCIT have possibly disrupted the outlined—and it is believed correct—interpretation of the exclusion clauses ex post (see below).
In this context it should be mentioned that, according to some views, situations of occupation are not exempt from coverage of the 1997 and 2005 Conventions because the exclusion clauses ‘appl[y] only to acts committed during an armed conflict, and not to other situations in which international humanitarian law is applicable, such as occupation’.91 (The same position has been advanced by some states in discussions on the draft CCIT.) It is submitted that this conclusion is erroneous because it is based on a misunderstanding of the interaction between the concepts of ‘armed conflict’, ‘occupation’, and ‘hostilities’. Occupation is by definition a situation of IAC to which the four Geneva Conventions apply pursuant to Common Article 2.92 In most cases, occupation will be preceded by hostilities, while occasionally there will be no resistance to the adversary’s forces. In either scenario, that is a situation of IAC, defined as ‘any difference arising between two states and leading to the intervention of members of the armed forces’.93 (That is, of one state’s armed forces against those of another, even if they meet no resistance while entering the latter’s territory and eventually occupy it.) In addition, occupation and hostilities are not mutually exclusive. The fact that a territory is occupied does not exclude the possibility of continuation or resumption of fully-fledged hostilities. Hostilities may reduce the degree of effective control exercised by the occupant; however, armed resistance does not necessarily mean that effective control has dissipated and that the occupation has been terminated.
As for acts of violence committed by ‘irregular’ armed forces in a situation of occupation, they are governed by IHL applicable to IACs if such forces belong to a party to the conflict.94 If the irregulars do not belong to a party, but fight independently, a parallel situation of NIAC may exist, provided the requisite criteria (intensity of References(p. 190) violence and organization of the non-state party) have been met.95 In sum, the clauses of the two treaties being examined should be read to exclude acts of violence committed in situations of occupation whenever they are caused by a party to the conflict. This should be the case whether the conflict is purely international or if there is a concurrent NIAC. Put differently, while it might be helpful to include an explicit reference to situations of occupation in the treaty texts, it is not essential as omission does not change the legal consequences.
While the treaties mentioned above either expressly exclude or may be interpreted to exclude acts committed in armed conflict from their scope, disagreement over inter alia the IHL exclusion clause is one of the main reasons preventing agreement being reached on the draft CCIT.96 The aim of the Convention is to provide a generic definition of terrorism—hence its title—but, depending on how its relationship to the existing anti-terrorism treaties is resolved, it should probably be renamed a ‘general’ convention.97
Any person commits an offence within the meaning of the Convention if that person, by any means, unlawfully and intentionally, causes:
(c) Damage to property, places, facilities, or systems referred to in paragraph 1 (b) of this article, resulting or likely to result in major economic loss, when the purpose of the conduct, by its nature or context, is to intimidate a population, References(p. 191) or to compel a Government or an international organization to do or abstain from doing any act …98
As may be concluded, many of the acts listed in the draft treaty as terrorist are not unlawful under IHL when directed against military objectives or personnel, whether in IAC or NIAC. For example, IHL permits (in IAC), or does not prohibit (in NIAC), the killing of or causing serious bodily injury to enemy belligerents. However, such acts would fall within the scope of Article 2 draft CCIT. Similarly, damaging military installations and other military objectives—which appear to fall within the terms ‘state or government facility’—would also be a crime under the draft CCIT even though attacks against such targets, when committed in the context of an armed conflict, are not prohibited by IHL. When such acts are committed by civilians taking a direct part in hostilities, regardless of the classification of the armed conflict, they are invariably prohibited under domestic law. If they are directed against civilian targets they are prohibited under domestic law and also constitute war crimes. Given the potentially broad scope of the prohibitions listed, it is clear that the IHL exclusion clause is critical.
The initial draft text of the Convention, submitted by India,99 contained an exclusion clause identical to those provided for in the Conventions on the Suppression of Terrorist Bombing 1997 and on the Suppression of Nuclear Terrorism 2005, which eventually garnered agreement.100 However, when the Ad Hoc Committee mandated by the UN General Assembly to negotiate the text of the draft CCIT met again a few months after the attacks of 9/11, and the subsequent launching of the ‘global war on terrorism’, it was evident that the political—and therefore legal—landscape had changed. Differences over understandings of what constitutes (an act of) terrorism and how such an act may be legally defined—which could previously be papered over by ambiguous legal wording—erupted into the open. The blurring of the legal frameworks governing armed conflict and terrorism became the unspoken order of the day driven by the disparate political and ideological interests of the two main negotiating groups. One group, including the US and the EU, supports the Coordinator’s text, which reproduces the IHL exclusion clause contained in the 1997 and 2005 Conventions which states that ‘the activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention’ (emphasis added).101 An alternative text, proposed by Member States of the Organisation of Islamic Cooperation (OIC) provides: ‘The activities of the parties during an armed conflict, including in situations of foreign occupation, as References(p. 192) those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention’ (emphasis added).102
Given the introduction of the OIC text with its use of the legally correct IHL term ‘parties’ (see below), it has become evident that the term ‘armed forces’ in the Coordinator’s text must be read to mean that only the acts of state armed forces carried out in armed conflict would be exempt from being deemed ‘terrorist’ within the meaning of the Convention. This has in fact been confirmed during the negotiations. Members of the first negotiating group have informally indicated that the term ‘armed forces’ should be interpreted to mean that any attack on their armed forces, except by the forces of another state, would be classified as a terrorist act under the CCIT. This position thus disregards the fact that certain acts committed by non-state armed groups in NIAC (for example, attacks against military installations or personnel), are not prohibited under IHL and should not be deemed ‘terrorist’ if both the logic and rules governing NIAC are to be preserved.
It should also be noted that, similar to the other terrorism treaties, the draft CCIT creates an ‘extradite or prosecute’ obligation with respect to acts that fall within its scope.103 While the future Convention does not apply to acts committed within a single state when both the perpetrators and victims are its nationals,104 it is obvious that the number of NIACs with a significant international presence is growing in the world today. In other words, unless NIAC is also excluded from the scope of the CCIT, the treaty would oblige third—neutral—states to prosecute or extradite—as a ‘terrorist’—a non-state actor who fled to their territory, even though such a person might have behaved entirely in accordance with IHL. It is submitted that the legal and political difficulties that would arise as a result of this do not seem to be fully appreciated by supporters of the Coordinator’s proposal.
The OIC’s incorporation of the term ‘parties’ in the IHL exclusion clause is correct as a matter of IHL because that is the term of art used to designate the opposing sides in an armed conflict, whether international or non-international.105 It is through its armed forces that a party engages in hostilities; as explained above, one of the IHL criteria for considering that a non-state group may be deemed a party to a NIAC is that it has reached a sufficient organizational threshold, demonstrated by the existence of an armed force with the capacity to implement IHL.
It seems that the group supporting the Coordinator’s text further believes that the term ‘parties’ is overbroad as it would allow the activities of a variety of non-state References(p. 193) armed groups—that are not sufficiently organized to constitute a ‘party’ to an armed conflict within the IHL meaning of that term—to escape being qualified as ‘terrorist’. This argument, it must be noted, goes to the factual issue of when a non-state armed group may be said to be party to a NIAC. While the determination may at times be somewhat difficult because of a possible lack of sufficient information on the ground, it does not mean that the legal standard as such is not correct.
For its part, the OIC’s legal position seems also to be driven by political considerations. As explained earlier, its insistence on the inclusion of a reference to ‘foreign occupation’ in the exclusion clause is legally redundant because any situation of occupation is by definition governed by IHL rules applicable in IAC, including IHL rules on the conduct of hostilities.106
Unrelated to the IHL exclusion clause, the OIC also wants to include a reference to the right of peoples to self-determination in the treaty,107 with the possible implication that acts of violence committed within the context of such struggles are excluded from the CCIT’s scope. If the aim is to justify attacks against civilians and civilian objects, this would be contrary to IHL. The real or perceived ‘justness’ of a cause cannot legitimize an act otherwise prohibited by IHL; this is at the very heart of the necessary distinction between the jus in bello and the jus ad bellum.
A stalemate in negotiations on a draft CCIT continues at the time of writing. Many proposals, both formal and informal, have been made by states and observers in an effort to legally bridge the divergent political views. They will not be further mentioned here as the chances of acceptance of the current proposals will once again depend on political agreement. Whether such agreement will be translated into a correct IHL exclusion clause is uncertain.
References(p. 194) 5. Political Definitions of Terrorism
If the effort to craft a legally binding comprehensive definition of terrorism has been frustrated by disagreement over its proper delineation from armed conflict, subsequent attempts at political definitions may be said to have further complicated the debate. Three definitions will be briefly mentioned here, chosen because of the traction they have acquired since adoption.
In 2004, the High-Level Panel on Threats, Challenges and Change convened by the UN Secretary-General delivered a wide ranging report108 which dealt with inter alia the issue of defining terrorism,109 and strongly endorsed the adoption of a comprehensive convention. In the relevant section, the wording vacillates between political and legal reasons as being the primary cause of the international community’s inability effectively to prevent and suppress terrorism,110 even though it clearly states that the law is actually sufficient. In an illustrative passage, the report first stresses that norms governing the use of force by non-state actors have ‘not kept pace’ with those pertaining to states. It then confusingly adds that this is ‘not so much a legal question as a political one’ and immediately contradicts the first statement by confirming that ‘virtually all forms of terrorism are prohibited’ by international law.111
… any action, in addition to actions already specified by the existing conventions on aspects of terrorism, the Geneva Conventions and Security Council resolution 1566 (2004), that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or abstain from doing any act.112
It is fairly evident from the wording that the High-Level Panel in fact endorsed the view laid out in the Coordinator’s proposal regarding the draft CCIT. This proposal seeks to exclude from the comprehensive definition of terrorism activities carried out by state armed forces, while including those of non-state actors. As already References(p. 195) explained, it is believed that this approach would disrupt the balance that IHL establishes between the parties to a NIAC in terms of their rights and obligations under that body of law.
The High-Level Panel’s definition was taken up a year later (2005) in a report issued by the UN Secretary-General entitled ‘In Larger Freedom’.113 In an often quoted passage, this Report urges heads of state and governments to declare that ‘any action that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature or context, is to intimidate a population or to compel a Government or an international organization to do or to abstain from doing any act, constitutes an act of terrorism’.114
The Secretary-General’s definition is widely referred to as the definition of terrorism, even though it is by no means complete or legally binding. While it leaves the issue of ‘state terrorism’ unresolved by suggesting that the acts involved are terrorist regardless of by whom committed, it reiterates the troubling reference to ‘civilians and non-combatants’ used by the High-Level Panel. The term ‘civilian’ belongs to the legal lexicon of IHL and describes either a legal status (in IAC) and/or a category of persons who do not participate in hostilities and are protected by IHL. Even though it is sometimes colloquially used to describe the general population in time of peace it nevertheless carries a law of war connotation. The term ‘non-combatants’ is nowadays mainly used as shorthand to describe medical and religious personnel accompanying the armed forces in an IAC.
Thus, the definition of terrorism employed in the Secretary-General’s report is entirely based on concepts of humanitarian law associated with situations of armed conflict. There is a risk that a strict legal reading of the text would in fact lead to the conclusion that acts of terrorism can only be committed in war. Surely this is not what was intended. Moreover, as submitted earlier, it is believed that the term ‘terrorism’ should be reserved for acts undertaken in peacetime and that unlawful behaviour in war is sufficiently regulated by international and domestic law. Therefore, the non-legal definition is not helpful to ensuring a proper understanding of the differences between acts of violence committed in armed conflict, and terrorism.
… criminal acts, including against civilians committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate References(p. 196) a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism, are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature …116
The Council’s parallel use of the terms ‘civilians’ and ‘general public’ renders the scope of the definition’s application unclear (in time of peace as well as in time of war?). In addition, most of the terrorism treaties referred to exclude their application to situations of armed conflict by means of the clauses outlined above. Did the Council intend through a Chapter VII resolution to amend the scope of their application by including attacks against civilians within the definitions of the specific acts of terrorism? Once again, the lack of legal rigour in the wording makes it hard to tell.
In addition to legal reasons for not blurring armed conflict and terrorism, there are at least two non-legal reasons militating against it. The first, political, relates to the impact that a ‘terrorist’ designation may have on processes of national reconciliation, as well as on international efforts to foster them. The second, practical, involves the impact of the terrorist label on the activities of humanitarian and other (for example, human rights) organizations. Each will be briefly addressed in turn.
While it is a platitude to say that ‘one man’s freedom fighter is another man’s terrorist’, that adage nevertheless sums up the political controversy surrounding the designation of an organized non-state armed group as ‘terrorist’. The main political purpose of this highly emotive term is to signal that its bearer, or bearers, are political adversaries who are considered to be beyond the pale and cannot or should not be reconciled with. And yet, times change, and those who were deemed political renegades on occasion become the government of a state, and at other times must be brought into the political fold if peace is to be achieved.
In either scenario, the terrorist label must be dropped against the armed group involved or criminal proceedings discontinued against its leaders. Prominent historical examples include the African National Congress (ANC), the Palestinian Liberation Organization (PLO), and the Irish Republican Army (IRA). By way of References(p. 197) reminder, the heads of the first two organizations were even awarded Nobel Peace Prizes in 1993 and 1994 respectively.
A more recent example is the reversal of the terrorist label for the Maoist movement in Nepal and the dropping of terrorism charges against its leaders prior to their agreeing to take part in national elections in the spring of 2008. The elections, in which the Maoists were voted into top positions in the Government, were preceded by a two year peace process during which the group gave up a ten year insurgency and joined mainstream politics. The Maoist’s electoral victory was not only stunning in terms of the ramifications for the Nepali political scene, but also created a conundrum for states that had included them in domestic terrorist lists, but also wanted to assist the peace process.117
The most recent example involves the effort by the Afghan authorities and their international partners to foster a possible peace process in that country by including moderate members of the Taliban in the Government. It has been reported that President Hamid Karzai plans to ask the UN to remove as many as 50 names of former Taliban members who ‘are not part of al-Qaeda and are not terrorists’ (about a quarter of the total) from a UN ‘blacklist’, with the aim of ‘advancing reconciliation talks with the insurgents’.118 UN Security Council Resolution 1267119 had frozen the assets and limited the travel of senior figures linked to the Taliban, as well as al Qaeda, but it was reported that ‘recent Afghan efforts to engage some insurgents in diplomacy ha[d] raised doubts about who should be on the list’.120
Needless to say, there would be no reason for such reversals in policy, either at a domestic or international level, had the policies not been resorted to in the first place. Regarding the application of the ‘terrorist’ label to acts not unlawful under IHL (attacks against military objectives), it has been mentioned above that this body of rules encourages states to grant amnesties under domestic law. If war crimes (attacks against civilians and civilian objects) are committed, prosecution must be undertaken as a matter of international law. As is well-known, unfinished justice often leads to unfinished peace, breeding new cycles of violence because of impunity for crimes under international law committed in the previous round. It must References(p. 198) be pointed out that domestic and international insistence on war crimes prosecutions in the aftermath of a NIAC would serve to strengthen the awareness of existing (and future) organized armed groups that attacks against civilians and civilian objects will be punished, which could over time enhance the implementation of IHL. However, this can only be achieved if the legal terms used have a defined meaning (‘war crimes’), rather than an inherently political content (‘terrorism’).
Finally, it must be recalled that it is not only organized armed groups or their leaders that must be brought into the political fold for the end of a NIAC to be negotiated or the peace maintained. This type of conflict usually also leads to extreme polarization among the general population, segments of which politically support one side or the other while the fighting is ongoing. In this sense introducing—or more precisely, having to remove—a terrorist label may create an obstacle to reconciliation at the level of local and regional communities as well as the nation as a whole, because plausible explanations have to be found for why the ‘terrorists’ are no longer ‘terrorists’. The problem should be avoided to begin with by applying legal instead of emotive characterizations of political opponents, regardless of how unacceptable some of their practices might be.
An insufficiently known consequence of designating armed groups involved in NIACs as ‘terrorist’ is the chilling effect this has had—and may continue to have—on the activities of humanitarian and other organizations carrying out assistance, protection, and other activities in war zones. The main effect is the possible prevention of humanitarian work, although there are others as well.
Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons [involved in] terrorist References(p. 199) acts [… and also to …] refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts ….123
As is evident, the resolution is unambiguous in terms of prohibiting any person or entity from providing ‘related services’ for the benefit of persons involved in terrorist acts, but does not list what such services might be, nor does it define what ‘support’ to terrorism is. Simply put, the combination of the wording and vagueness of some of the terms employed means that states could—and are in fact obliged to—criminalize under domestic law as ‘services’ or ‘support’ to terrorism many of the ongoing activities of humanitarian and other organizations in the world today, because the majority of organized non-state armed groups they deal with in the field are included in either international or domestic lists of ‘terrorist’ organizations. The practical consequences are: first, that humanitarian organizations and their personnel could be criminally prosecuted under domestic law for alleged ‘services’ or ‘support’ to terrorism; and second, that international and domestic funding for their previously regular activities could (must) be withdrawn. It is not clear whether the Security Council envisaged this particular result when it assumed a de facto legislative role by means of a Chapter VII resolution devoted to the financing of terrorism, but that is what its broad brush approach has produced.
The language of the Resolution is incompatible with the mandate and humanitarian mission of organizations belonging to the International Red Cross and Red Crescent Movement, including the ICRC. For example, collecting and caring for the sick, wounded and shipwrecked without adverse distinction is a fundamental obligation of parties to an armed conflict under IHL treaties. The ICRC and the Movement as a whole are clearly bound by the same principle.124 It would be contrary to the very reason underlying the creation of the ICRC 150 years ago to suggest that its medical activities for victims of war could constitute ‘support’ to terrorism and must be prohibited. ICRC visits to places of detention worldwide, required or allowed for in the universally ratified Geneva Conventions, likewise illustrate the inherent contradiction between the ‘service’ or ‘support’ language and the practical implementation of the Movement’s principles. The ICRC endeavours to visit all persons detained in relation to an armed conflict regardless of the side to which they belong. Many of the persons visited by the ICRC in the past as well as nowadays were/are suspected of or even convicted of ‘terrorism’ under domestic law (for example, in References(p. 200) South Africa, Peru, Sri Lanka, Colombia, Guantánamo Bay), and yet states had never called into question the ICRC’s role, as a neutral organization, to undertake such visits. On the contrary, they need(ed) and facilitate(d) them.
In an ideal world, the UN Security Council would revisit some of the Chapter VII anti-terrorist financing resolutions and modify certain sweeping clauses by carving out the necessary exceptions. As that is unlikely, another option would be for the relevant state decision-makers to be mindful of the problems outlined above when crafting—and enforcing—domestic anti-terrorism legislation and related measures, whether adopted to implement Security Council resolutions or not. Unfortunately, many domestic anti-terrorism laws are broad and/or vague in the language employed and a recent US Supreme Court decision demonstrates just how potentially stifling of humanitarian or civil society action their interpretation may be.
In a 2010 case, Holder v Humanitarian Law Project,125 the US Supreme Court upheld the constitutionality of a domestic statute that provides that it is a federal crime knowingly to provide material support or resources to a foreign terrorist organization. Pursuant to the statute, the term ‘material support or resources’ means ‘any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance …, personnel (1 or more individuals, who may be or include oneself), and transportation, except medicine or religious material’.126
The plaintiffs in the litigation, two US citizens and six non-governmental organizations (NGOs), who were seeking to facilitate only the lawful, non-violent activities of two foreign non-state armed groups listed as terrorist organizations by the US State Department, challenged the statute as potentially preventing them from doing so. (They wanted inter alia to train members of one of the groups to use humanitarian and international law to resolve disputes peacefully, and to teach them how to petition various representative bodies such as the UN for relief). The plaintiffs claimed that the statute was too vague and that it infringed their rights to freedom of speech and association under the US Constitution.
The Supreme Court rejected the plaintiff’s claims, confirming that the specific activities that the NGOs wanted to engage in—training and teaching in international law, and in access to international bodies—were covered by the prohibition of ‘material support’ to terrorism. The Supreme Court even stated as follows: ‘Material support meant to “promot[e] peaceable, lawful conduct” … can further terrorism by foreign groups in multiple ways. “Material support” is a valuable resource by definition. Such support frees up other resources within the organization References(p. 201) that may be put to violent ends. It also importantly helps lend legitimacy to foreign terrorist groups …’127 The judges also concluded that the political branches, namely US Congress and the Executive, had ‘adequately substantiated their determination that, to serve the Government’s interest in preventing terrorism, it was necessary to prohibit providing material support in the form of training, expert advice, personnel and services to foreign terrorist groups, even if the supporters meant to promote only the groups’ non-violent ends’.128
The Supreme Court’s rejection of the need for a variety of actors to engage with certain non-state armed groups in order to promote their non-violent activities is likely seriously to impede the regular and heretofore accepted activities of many organizations, both domestic and international. The legal and practical consequences of the ruling are still being examined at the time of writing.
An examination of armed conflict and terrorism would not be complete without at least an abridged outline of an issue that has been at the forefront of international legal debate over the past few years, and that is the legal classification of the so-called ‘(global) war on terrorism’. While that term is no longer in official use, aspects of the practice it used to refer to are still in evidence.
Based on the available facts, and the application of humanitarian law to those facts, it is submitted that there is no armed conflict of global reach, either international or non-international, taking place at present.129 What is occurring is a multifaceted fight against terrorism in which a range of measures are being employed to prevent or put a stop to acts of violence prohibited under international law. At one end of the spectrum are peaceful or non-violent means such as negotiations, diplomacy, criminal investigations and prosecution, financial and other sanctions, and so on. It is only when acts of violence and the responses thereto meet the threshold of armed conflict—that is, they reach the other end of the spectrum—that a situation may be classified as an armed conflict triggering the application of IHL. In other words, each situation of violence should be examined on its own merits to determine how it should be legally classified, even when it is otherwise rhetorically referred to as part of the ‘(global) war on terrorism’.
Thus, the 2001 war between the US led coalition and the Taliban regime in Afghanistan—waged as part of the ‘global war on terrorism’—was clearly an IAC to References(p. 202) which the Geneva Conventions, other IHL treaties (depending on ratification), and the rules of customary IHL applied. That armed conflict was international in nature until the establishment of the Karzai Government and its international recognition, after which the multinational forces’ presence in the country was consented to by Government. The current conflict in Afghanistan—also considered to be part of the ‘global war on terrorism’—is a NIAC, albeit with a significant international presence on one side, because it is being waged with the consent and support of the domestic authorities and does not involve two or more opposing states. The ongoing hostilities in Afghanistan are thus governed by IHL rules applicable to NIAC found in both treaty-based and customary IHL. The same body of rules governs other NIACs colloquially included in the ‘global war on terrorism’, such as those in Iraq and Somalia.
The question that remains is whether, taken together, all the acts of terrorism carried out in various parts of the world (outside situations of armed conflict such as those mentioned above) are part of one and the same conflict in the legal sense. In other words, can it be said that bombings attempted or carried out in New York, Mumbai, Bali, London, or Madrid can be attributed to one and the same party to an armed conflict as understood under IHL? Can it be said that the level of violence in each of those cities (states) has reached the level of armed conflict? It would appear not.
It is clear, moreover, that the authorities of the states concerned did not apply IHL conduct of hostilities rules when dealing with the persons suspected of planning or of having carried out acts of terrorism, which they could have done if they had opted for an armed conflict paradigm. IHL rules would have permitted them to target the suspects directly and even to cause what is known as ‘collateral damage’ to civilians and civilian objects in the vicinity provided that the incidental civilian damage was not excessive in relation to the military advantage anticipated (the principle of proportionality in attack). Instead, they applied the rules of law enforcement. They attempted to capture the suspects for later trial and took care in doing so to protect the general population and infrastructure in order to avoid all injury to persons, building and objects nearby.
In summary, each situation of organized armed violence should be examined in the specific context in which it takes place and be legally classified as armed conflict, or not, based on the factual circumstances. The law of war was tailored for situations of armed conflict, both from a practical and a legal standpoint. It bears reminding that IHL rules governing the taking of life or on detention for security reasons allow for more flexibility than the rules applicable outside armed conflicts governed by other bodies of law, such as human rights. In other words, it is both dangerous and unnecessary, in practical terms, to apply IHL to situations that do not amount to war.
References(p. 203) 8. Conclusions
To suggest that armed conflict and terrorism should not be conflated could be likened to fighting a losing battle given the fairly entrenched public perception that the two are indistinguishable. There are nevertheless good reasons consistently to refute the amalgamation of these distinct phenomena, as has been attempted above. Acts of violence committed in armed conflict and outside it belong to different legal frameworks. IHL governs both permitted and prohibited violence, while the legal regime governing terrorism regulates acts that are always prohibited. If the international law against terrorism were to be applied to acts committed in war it would risk criminalizing acts that are not normally prohibited in armed conflict. If anti-terrorism law is applied to acts already prohibited under IHL, it risks creating an additional disincentive to the application of IHL rules by organized armed non-state actors on the ground. There are additional political and practical reasons for not blurring terrorism and war. One is that the ‘terrorist’ label must be shed if an organized armed non-state actor is to be coaxed into agreeing to face its erstwhile opponents at a peace conference or at the ballot box. The other is that the terrorist label may in the long run serve to hamper, or even prevent, the provision of humanitarian protection and assistance to persons affected by situations of armed conflict. For this reason alone, the need to maintain a clear understanding of the legal—and other—differences between armed conflict and terrorism is not only necessary, but pressing.
The following recommendations are made:
(1) International actors (states, international organizations, NGOs, the media and others) should not conflate terrorism and war, and should make every effort to gain a better understanding of the legal, political and practical consequences of designating as ‘terrorist’ acts of violence committed in armed conflict. The term ‘terrorism’ should, as a matter of international law, be reserved for acts of violence committed in time of peace or for the few acts designated specifically as terrorist under IHL. The same approach should be taken in domestic legislation.
(2) States negotiating the draft CCIT should make every effort to craft an IHL savings clause that would exclude from the Convention’s scope the activities of the parties to an armed conflict, both international and non-international.
(3) States should ensure that domestic anti-terrorism legislation and other measures are drafted so as to exclude the activities of neutral, independent and impartial humanitarian organizations from their scope. Donor funding clauses, whether drafted by states or international organizations, should likewise allow References(p. 204) the unimpeded work of neutral, independent and impartial humanitarian organizations.
(4) The UN Security Council should likewise make every effort to ensure that any future Chapter VII anti-terrorism resolutions are drafted so as to exclude the activities of neutral, independent, and impartial humanitarian organizations from its scope. It should consider amending or revising already existing resolutions with this aim in mind.
1 This is not to say that there cannot be lawful use of force by state agents under human rights law. Such use of force, however, is always undertaken in response to a previously unlawful act by an individual or group of persons. That is not the case with IHL, where direct participation in hostilities is in some cases allowed and in other cases not prohibited ab initio.
3 While it is true that a non-state party to a non-international armed conflict might not always be practically able to implement certain obligations in full—to conduct a fair trial by a regularly constituted court, for example—the principle of equality of rights and obligations is nevertheless a cornerstone of IHL. As will be discussed later, equality of rights and obligations under IHL does not mean that such equality exists between the parties to a non-international armed conflict under domestic law.
5 Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-international Armed Conflicts (Protocol II) (adopted 8 June 1977, entered into force 7 December 1978) (AP II).
7 Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978) (AP I).
10 ‘The nature of the acts or threats of violence directed against the civilian population can vary; the primary concern, as explained below, is that those acts or threats of violence be committed with the specific intent to spread terror among the civilian population. Further, the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population is not a case in which an explosive device was planted outside of an ongoing military attack but rather a case of “extensive trauma and psychological damage” being caused by “attacks [which] were designed to keep the inhabitants in a constant state of terror”. Such extensive trauma and psychological damage form part of the acts or threats of violence’. Galic (n 8) para 102.
16 UN General Assembly, Rome Statute of the International Criminal Court (last amended January 2002) (adopted 17 July 1998, entered into force 1 July 2002) (ICC Statute) arts 8(2)(b)(i)–(iv), 8(2)(e)(i)–(iv).
20 In this context it must be recalled that IHL seeks to protect civilians and the civilian populations from the dangers arising from military operations; it cannot, however, protect them from harm absolutely, an unfortunate reality of war that is encapsulated in the principle of proportionality. The practical operation of that principle, for the benefit of civilians and civilian objects, is further buttressed by IHL rules on precautions in attack that those who plan or carry out an attack must observe. See art 57(2)(a)(iii) AP I.
29 Art 43(2) AP I: ‘Members of armed forces of a party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.’ This is also a norm of customary IHL—see JM Henckaerts and L Doswald-Beck (eds), Customary International Humanitarian Law—Volume I: Rules (CUP, Cambridge 2005) 11 (Rule 3). Also available at 〈http://www.icrc.org/customary-ihl/eng/docs/home〉 accessed 14 December 2010.
30 It should be noted that POW status is not co-extensive with combatant status, but is wider. For example, certain persons who accompany the armed forces without being members thereof—such as civilian members of military aircraft crews, war correspondents, supply contractors and members of labour units or of services responsible for the welfare of the armed forces with appropriate authorization—have the right to POW status upon capture. See art 4(4) and (5) GCIII.
32 See further D Turns, ‘Classification, Administration, and Treatment of Battlefield Detainees’, Chapter 17 of this volume.
40 See ICRC ratification chart updated as of 11 November 2010 〈http://www.icrc.org/IHL.nsf/(SPF)/party_main_treaties/$File/IHL_and_other_related_Treaties.pdf〉 accessed 14 December 2010.
44 See, for example, Canada, National Defence and the Canadian Forces, Law of armed conflict at the Operational and Technical level, B-GJ-005–104/FP-021 (Office of the Judge Advocate General, Ottawa 2003), 16–4 para 1609(3)(g) 〈http://www.forces.gc.ca/jag/training-formation/index-eng.asp〉 accessed 14 December 2010.
45 N Melzer, ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities Under IHL’ (ICRC, Geneva 2009) 〈http://www.icrc.org/eng/assets/files/other/irrc-872-reports-documents.pdf 〉 accessed 14 December 2010.
48 It should also be mentioned that there are situations of violence in various parts of the world which would according to IHL criteria constitute a NIAC, but which the relevant government refuses to classify as such, mainly for political reasons.
49 International Security Assistance Force (ISAF). See, for example, UNSC Res 1386 (20 December 2001) UN Doc S/RES/1386; UNSC Res 1413 (23 May 2002) UN Doc S/RES/1413; UNSC Res 1444 (27 November 2002) UN Doc S/RES/1444; UNSC Res 1510 (13 October 2003) UN Doc S/RES/1510; UNSC Res 1563 (17 September 2004) UN Doc S/RES/1563; UNSC Res 1623 (13 September 2005) UN Doc S/RES/1623; UNSC Res 1707 (12 September 2006) UN Doc S/RES/1707; UNSC Res 1776 (19 September 2007) UN Doc S/RES/1776; UNSC Res 1833 (22 September 2008) UN Doc S/RES/1833.
51 ‘Authorization for the Use of Military Force Against Terrorists’, Pub L 107–40 115 Stat 224 (2001) 〈http://news.findlaw.com/wp/docs/terrorism/sjres23.es.html〉 accessed 16 February 2011.
53 See Congressional Research Service Report, Lebanon: The Israel-Hamas-Hezbollah Conflict (updated 15 September 2006) 1 〈http://www.fas.org/sgp/crs/mideast/RL33566.pdf〉 accessed 14 December 2010.
54 See K Mcbride, ‘Colombian-Ecuadorian Relations: One Year After’ Americas Quarterly (web exclusive) 〈http://www.americasquarterly.org/node/478〉 accessed 14 December 2010.
55 The second type of NIAC is defined in art 1(1) AP II. These are armed conflicts ‘which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol’. AP II thus has a higher threshold of application than common art 3 and does not apply to armed conflicts waged exclusively between non-state armed groups themselves. The legal reading proposed in this text on the differences between acts of violence in armed conflict and acts of terrorism is equally relevant for AP II NIAC.
61 For one view see T Meron, ‘The Humanization of Humanitarian Law’ (2000) 94 AJIL 239; M Bothe, ‘War Crimes’ in A Cassese, P Gaeta and JWD Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (OUP, Oxford 2002) 423. For the opposing view see A Bouvier and M Sassoli (eds), How Does Law Protect in War (Volume I) (ICRC, Geneva 2006) 110; R Provost, International Human Rights and Humanitarian Law (CUP, Cambridge 2002) 268; WA Schabas, An Introduction to the International Criminal Court (3rd edn CUP, Cambridge 2007) 116. See also the singular position of E David who does not think that art 2(f) created a third type of NIAC, but believes that this expanded definition of armed conflict replaces that of AP II as lex posterior, E David, Principes de droit des conflits armés (Bruylant, Brussels 2002) 119.
62 ICRC Opinion Paper, ‘How Is the Term “Armed Conflict” Defined in International Humanitarian Law?’ (March 2008) 〈http://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf〉 accessed 14 December 2010.
69 For a full list, see Text and Status of the United Nations Conventions on Terrorism 〈http://treaties.un.org/Pages/DB.aspx?path=DB/studies/page2_en.xml&menu=MTDSG〉 accessed 24 January 2011. These conventions are considered more fully by Ben Saul in ‘Criminality and Terrorism’, Chapter 6 of this volume.
78 Convention for the Suppression of Unlawful Seizure of Aircraft (adopted 16 December 1970, entered into force 14 October 1971) art 3(2); Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (adopted 23 September 1971, entered into force 26 January 1973) art 4(1).
83 With the exception of the most recent international conventions (see below), the other treaties governing acts of what are colloquially called ‘terrorism’ do not expressly use that term either in their titles or in the definitions of the respective crimes. It is nevertheless understood that the 13 international treaties all deal with acts of ‘terrorism’ and are listed on the UN’s website as such (see n 69).
89 Art 19(2) Suppression of Terrorist Bombings Convention; International Convention for the Suppression of Acts of Nuclear Terrorism (adopted 13 April 2005, entered into force 7 July 2007) art 4(2). It may be noted that these clauses refer to ‘international humanitarian law’, thus presumably encompassing norms of customary IHL within the scope of the exclusion, which is not the case with the Hostages Convention, which refers only the Geneva Conventions and their Additional Protocols.
96 The current publicly available text of the draft CCIT is contained in: ‘Report of the Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996’, Sixth Session (28 January–1 February 2002), GAOR Fifty-seventh Session, Supplement No 37 (A/57/37) (Ad Hoc Committee Report 57/37).
97 Given the inevitable duplication between the acts proscribed by the CCIT and the current treaties, a proposal has been made providing that where the CCIT and a treaty dealing with a specific category of terrorist offence would be applicable in relation to the same act as between states that are parties to both treaties, the provisions of the latter would prevail, see Ad Hoc Committee Report 57/37 (n 96) art 2 bis.
106 The final stumbling block in negotiations on a draft CCIT relates to the issue of how the activities of state armed forces undertaken outside armed conflict should be characterized (the ‘state terrorism’ question). While the first group of states maintains that such acts cannot be considered terrorism to the extent that they are governed by other bodies of international law, the OIC believes that they should be considered terrorist if they are not in conformity with such norms. Ad Hoc Committee Report 57/37 (n 96) Annex IV: Text circulated by the Coordinator for discussion; Ad Hoc Committee Report 57/37 (n 96) Annex IV: Text proposed by the Member States of the OIC art 18(3). Given that this issue does not involve interface with IHL it will not be examined further. The position of the UN Secretary-General was enunciated in his Report ‘In Larger Freedom’ as follows: ‘It is time to set aside debates on so-called “State terrorism”. The use of force by states is already thoroughly regulated under international law …’ Report of the Secretary-General ‘In Larger Freedom: Towards Development, Security and Human Rights for All’ (21 March 2005) UN Doc A/59/2005 para 91 (In Larger Freedom).
107 B Saul, ‘Attempts to Define “Terrorism” in International Law’, Sydney Law School Research Paper no 08/115 (October 2008) 22 〈http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1277583##〉 accessed 14 December 2010.
117 For example, it was initially reported that the outcome of the Nepali elections ‘could force the Bush Administration to deal with a group it has considered a terrorist organization’ by F Klug, ‘US Works to Determine How to Deal with Maoists in Nepal’ Washington Post (24 April 2008). It was subsequently reported that ‘the United States has revised its policy and met with former Maoist rebels who have been elected to top position’s in Nepal’s new Government’, but that administration officials ‘would not speculate’ on the group’s possible removal from ‘terror’ lists. See F Klug, ‘US to Deal with ex-Nepalese Rebels’ Washington Post (29 May 2008).
118 ‘Karzai to Ask UN to Trim Taliban Blacklist’ Reuters (Washington 12 July 2010) 〈http://www.reuters.com/assets/print?aid=USTRE66B0N020100712〉 accessed 14 December 2010.
124 Impartiality is a fundamental principle of the International Red Cross and Red Crescent Movement. It means that the Movement ‘makes no discrimination as to nationality, race, religious beliefs, class or political opinions. It endeavours to relieve the suffering of individuals, being guided solely by their needs, and to give priority to the most urgent cases of distress.’ Preamble to the Statutes of the International Red Cross and Red Crescent Movement (adopted by the 25th International Conference of the Red Cross at Geneva, October 1986). See also art 4 ICRC Statutes.
125 Holder v Humanitarian Law Project, 130 S Ct 2705 (2010) 〈http://www.supremecourt.gov/opinions/09pdf/08-1498.pdf〉 accessed 30 November 2010.