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2. terrorism - 1. report.docx
THE CONFLATION OF IHL AND THE LEGAL FRAMEWORK GOVERNING TERRORISM
While armed conflict and acts of terrorism are different forms of violence governed by different bodies of law, they have come to be perceived as almost synonymous due to constant conflation in the public domain. The ICRC’s views on the legal classification of what has been called the “war against terrorism” and of the legal status of persons detained was dealt with in previous reports on IHL and the Challenges of Contemporary Armed Conflicts
prepared for the 2003 and 2007 International Conferences. This section aims to provide a brief outline of the legal, policy and practical reasons for which it is believed that it is not helpful to conflate armed conflict and terrorism or the respective legal regimes governing these forms of violence.
1) Legal and Policy Effects
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. As already mentioned, the ultimate aim of armed conflict is to prevail over the enemy's armed forces. 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 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, as well as civilian objects, from the effects of hostilities. IHL thus regulates both lawful and unlawful acts of violence and is the only body of international law that takes such a two-pronged approach.
There is no similar dichotomy in the international norms governing acts of terrorism. 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 current code of terrorist offences comprises 13 so-called ‘sectoral’ treaties adopted at the international level that define specific acts of terrorism. There is also a draft Comprehensive Convention on International Terrorism that has been the subject of negotiations at the UN for over a decade.1 As has been calculated, the treaties currently in force define nearly fifty 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.
The legal regimes governing armed conflict and terrorism also differ in that only IHL is based on the notion of equality of rights and obligations of the parties to an armed conflict (by way of reminder, equality of rights and obligations under IHL does not mean that such equality exists between the parties to a NIAC under domestic law). Thus, any party to an armed conflict is equally prohibited from directly attacking enemy civilians, but is not prohibited from attacking the adversary's military objectives. The same principle obviously does not apply to acts of terrorism.
1 The relationship between the definition of acts deemed terrorist under the draft Convention and acts committed in armed conflict is one of the points of disagreement holding up the conclusion of negotiations. The ICRC believes that it is important that the relevant exclusion clause does not undermine IHL.
A crucial reason for not legally conflating armed conflict and acts of terrorism is that the legal framework governing armed conflict already prohibits the great majority of acts that would be designated as ‘terrorist’ if they were committed in peacetime. IHL both: i) prohibits, as war crimes, specific acts of terrorism perpetrated in armed conflict, and ii) prohibits, as war crimes, a range of other acts that would commonly be deemed ‘terrorist’ if committed outside armed conflict.
“Terrorism” is specifically prohibited in article 33 of the Fourth Geneva Convention, as
well as in article 4 (2)(d) of Additional Protocol II. In the first case, the prohibition aims to protect civilians who find themselves in the power of an adversary
in an 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 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.
In addition, articles 51 (2) of Additional Protocol I and 13 (2) of Additional Protocol II specifically prohibit 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 ICTY determined in the 2006 Galic
judgment that this prohibition is binding not only as treaty law, but is of a customary law nature as well.
Perhaps more important than the fact that IHL specifically prohibits certain acts of
terrorism is that most of its “regular” rules on the conduct of hostilities prohibit acts that would be deemed ‘terrorist’ when committed outside armed conflict.
As already mentioned, 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 in both IAC and NIAC absolutely prohibits direct and deliberate attacks against civilians. This prohibition – of which the prohibition of terrorization discussed above is a specific expression – is also a norm of customary IHL and its violation constitutes a war crime.
In addition to direct and deliberate attacks, IHL proscribes indiscriminate and disproportionate attacks, the definitions of which have already been discussed in other sections of this report.
Like civilians, civilian objects (defined under IHL as “all objects which are not military objectives”) cannot be the target of direct and deliberate attacks. 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.
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 combatants or military objectives. These acts constitute the very essence of armed conflict and, as such, should not be legally defined as “terrorist” under a different body of international law. 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.
It is important to note that the rules on the conduct of hostilities prohibiting attacks against civilians or civilian objects outlined above apply in NIAC as well. There is, however, a crucial
legal difference between international and non international armed 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 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 Additional Protocol II aimed at remedying the imbalance between the belligerents in a NIAC that arises as a result of domestic law. Article 6(5) of the Protocol 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 NIAC based on the practice of a number of states that granted amnesties after NIACs either by special agreements, legislation, or other measures. 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. 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.
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 such labelling is the result of policy or political decisions aimed at disqualifying non-state adversaries by branding them “terrorists”, this may prove to be an obstacle to eventual peace
negotiations or national reconciliation that are necessary in order to end an armed conflict and ensure peace.
In sum, it is believed that the term “terrorist act” 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 the 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 the relevant international legal framework or under domestic law). 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 of armed conflict.
2) Practical effects
The designation of an non-state armed group party to a NIAC as “terrorist” means that it is likely to be included in lists of proscribed terrorists organizations maintained by the UN, regional organizations and states. This may, in practice, have a chilling effect on the activities of humanitarian and other organizations carrying out assistance, protection, and other activities in war zones. It potentially criminalizes a range of humanitarian actors and their personnel, and may create obstacles to the funding of humanitarian work.
The legal avenue by which these effects may be produced are laws and policies adopted at both the international and domestic level aimed at suppressing the financing of terrorism. UN Security Council resolution 1373 of 2001 is illustrative of the risks to humanitarian action posed by the unqualified criminalization of all forms of “support” or "services" to terrorists. The resolution requires states inter alia
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 acts or of entities controlled by such persons […and also to…] refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts […]
In implementing international requirements at the domestic level, some governments have made it a criminal offence to provide "support", "services" and/or "assistance" to entities or persons involved in terrorist acts, and to "intentionally associate with" such entities or persons. The exact content and scope of the offences vary from one state to another. While some states circumscribe the crimes narrowly to exclude humanitarian action, others do not. In general, the relevant provisions tend to be broadly worded and can, as a result, be interpreted to include within their ambit any humanitarian activity involving contact with "individuals or entities associated with terrorism".
The prohibition in criminal legislation of unqualified acts of "material support", "services" and "assistance to” or "association with” terrorist organizations could thus in practice result in the criminalization of the core activities of humanitarian organizations and their personnel aimed at meeting the needs of victims of armed conflicts and situations of violence below that threshold. These could include: visits and material assistance to detainees suspected of or condemned for being members of a terrorist organization; facilitation of family visits to such detainees; first aid
training; war surgery seminars; IHL dissemination to members of armed opposition groups included in terrorist lists; assistance to provide for the basic needs of the civilian population in areas controlled by armed groups associated with terrorism; and large-scale assistance activities to internally displaced persons, where individuals associated with terrorism may be among the beneficiaries.
In addition, the criminalization based on broad definitions of "support or services” to terrorism" may have the effect of governments including “anti-terrorist” funding conditions or restrictions in donor agreements. The relevant funding clauses may impede the provision of humanitarian services such as those mentioned above and would thus be de facto
contrary to the mandates and/or missions of humanitarian organizations.
The potential for criminalization of humanitarian action is of concern to the ICRC for the reasons mentioned above, but also for others particular to the organization’s mandate and mission.
At a basic level, the potential criminalization of humanitarian engagement with organized armed groups designated as "terrorist organizations" may be said to reflect a non-acceptance of the notion of neutral and independent humanitarian action, an approach which the ICRC strives to promote in its operational work in the field.
In legal terms, potential criminalization may be said to be incompatible with the letter and spirit of IHL, which in Common Article 3 specifically allows the ICRC to offer its service to the parties to a NIAC. As has already been explained, that includes the non-state party to such a conflict. The ICRC is permitted and must in practice be free to offer its services for the benefit of civilians and other persons affected by an armed conflict who find themselves in the power of or in the area of control of the non-state party. Broad language, or broad interpretation of language, in criminal legislation prohibiting "services" or "support" to terrorism could prove to be a serious impediment for the ICRC to fulfil its IHL mandate in contexts in which armed groups party to a NIAC are designated “terrorist organizations". The fulfilment of the ICRC's mandate under the Statutes of the International Red Cross and Red Crescent Movement, which provide that it may also offer its humanitarian services in situations of violence other than armed conflicts may likewise be effectively hampered in contexts in which such services would involve contacts with persons or entities associated with "terrorism".
Potential criminalization of humanitarian action may also be said to preclude respect for the Fundamental Principles of the International Red Cross and Red Crescent Movement which bind the ICRC and other components of the Movement.
The principle of neutrality means that the Movement “may not take sides in hostilities or engage at any time in controversies of a political, racial, religious or ideological nature”. The ICRC or the Movement could not abide, or be seen to be abiding by this principle if they were directed, as a result of anti-terrorist legislation or other measures, to carry out their activities for the benefit only of persons on one side of the divide in an armed conflict or other situation of violence. ICRC visits to places of detention worldwide, required or allowed for in the universally ratified Geneva Conventions, illustrate an inherent tension between the prohibition of “services” or “support” language in anti-terrorism legislation and the implementation of the principle of neutrality in the field. The ICRC endeavours to visit all persons detained in relation to an armed conflict regardless of the side to which they belong in order to ensure that they are humanely treated and that other rights are respected. This role, which is widely supported by states, is at the crux of the organization’s work in detention and yet could possibly be called into question due to the lack of exemptions for humanitarian activities in anti-terrorism measures.
Pursuant to the principle of impartiality, the ICRC and other components of the Movement may not discriminate based on “nationality, race, religious beliefs, class or political opinions” and are bound to “relieve the suffering of individuals being guided solely by their needs, and to give priority to the most urgent cases of distress”. The ability of the ICRC and of National Red Cross and Red Crescent Societies to, for example, provide medical assistance to victims of armed conflict and other situations of violence in keeping with the principle of impartiality could be rendered difficult based on the broad language of anti-terrorism legislation. A strict reading could imply that medical services to persons rendered hors de combat
by wounds or sickness, as well as to other persons under the control of a non-state party designated as “terrorist” could be prohibited as support or services to “terrorism”. This is a result that would call into question the very idea behind the creation of the ICRC – and subsequently of National Red Cross and Red Crescent Societies – over 150 years ago.
In sum, there appears to be a need for greater awareness by states of the necessity to harmonize their policies and legal obligations in the humanitarian and anti-terrorism realms in order to properly achieve the desired aims in both. It is submitted that, to this end:
Measures adopted by governments, whether internationally and nationally, aimed at criminally repressing acts of terrorism should be crafted so as not to impede humanitarian action. In particular, legislation creating criminal offences of "material support", "services" and "assistance" to or "association" with persons or entities involved in terrorism should exclude from the ambit of such offences activities that are exclusively humanitarian and impartial in character and are conducted without adverse distinction.
In respect of the ICRC in particular, it should be recognized that humanitarianengagement of non-state armed groups is a task foreseen and expected from the ICRC under Common Article 3 to the Geneva Conventions, which allows the ICRC to offer its services to the parties to NIACs. Criminalization of humanitarian action would thus run counter to the letter and spirit of the Geneva Conventions, i.e. broad language prohibiting "services" or "support" to terrorism could make it impossible for the ICRC to fulfil its conventional (and statutory) mandate in contexts where the armed groups party to a NIAC are designated “terrorist organizations".
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