International Humanitarian Law & Combating Terrorism

(off-shore)

Dr Ian HendersonAsia-Pacific Centre for

Military Law

Topics• What is terrorism• When does International Humanitarian

Law (IHL) apply• Lawful actions if IHL applies• Use of Force and detention if not IHL• Case study

Defining Terrorism

•An international definition (almost):–Criminal acts intended or calculated to

provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them;

UNGAR 49/60 Measures to eliminate international terrorism annex A, paragraph 3

Draft Comprehensive Convention on International Terrorism

• Terrorism is currently defined* as a:unlawfully and intentionally causing or threatening to cause violence … which results, or is likely to result, in death or serious bodily injury to a person, a group of persons or serious damage to property ― whether for public use, a State or Government facility, a public transportation system or an infrastructure facility.

∗ This definition is still being negotiated

A domestic definition: Australian Criminal Code (section 100.1)

– Terrorist act means an action or threat of action where:

– the action causes:• death, serious harm, serious damage, or• creates a serious risk to public health or safety, or• seriously interferes with or disrupts or destroys

an electronic system; and– the action is done or the threat is made with the

intention of advancing a political, religious or ideological cause; and

– the action is done or the threat made with the intention of:• coercing, or influencing by intimidation, an

Australian or a foreign government; or• intimidating the public or a section of the public

Is one man’s terrorist is another man’s freedom fighter?

No!

Who is a Terrorist?

• States• Non-State Organisations• Individuals

• 73. Although terrorist … action may give rise to or occur in the context of situations of armed conflict, it must be recalled that the concepts of terrorism and war are distinct. In certain circumstances, terrorist or counter-terrorist actions may involve organized violence of such intensity as to give rise to an armed conflict. Such would be the case, for example, where terrorist or counter-terrorist actions involve resort to armed force between States or low intensity and armed confrontations between a State and a relatively organized armed force or group …

Inter-American Commission on Human Rights: Report on Terrorism and Human Rights

Who is a Terrorist?

Who is a Terrorist?

• States• Non-State Organisations• Individuals

Arguably affects the relevant legal paradigm

Relevance of IHL

• On those perpetrating ‘terrorist’ acts• On those pursuing the ‘terrorists’

• The Fourth Geneva Convention (Article 33) states that "Collective penalties and likewise all measures of intimidation or of terrorism are prohibited", while Additional Protocol II (Article 4) prohibits "acts of terrorism" against persons not or no longer taking part in hostilities. The main aim is to emphasise that neither individuals, nor the civilian population may be subject to collective punishments, which, among other things, obviously induce a state of terror.

Geneva Conventions and the Additional Protocols

Geneva Conventions and the Additional Protocols

• Both Additional Protocols to the Geneva Conventions also prohibit acts aimed at spreading terror among the civilian population. "The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited" (AP I, Article 51(2) and AP II, Article 13(2)).

Geneva Conventions and the Additional Protocols

• These provisions are a key element of IHL rules governing the conduct of hostilities i.e. the way military operations are carried out. They prohibit acts of violence during armed conflict that do not provide a definite military advantage.

“This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual’s liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirits and its strength allows it to overcome its difficulties.”Public Committee against Torture vs. State of Israel Sept. 16, 1999

Why do we (the non-terrorists) have to comply with IHL?

UNSCR 1269 (1999) “on international cooperation in the fight against terrorism”

• “the necessity to intensify the fight against terrorism at the national level and to strengthen, under the auspices of the United Nations, effective international cooperation in this field on the basis of the principles of the Charter of the United Nations and norms of international law, including respect for international humanitarian law and human rights”

UNSCR 1456 (2003) Declaration on the issue of combating terrorism

• 6. States must ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law;

UNSCR 1624 (2005) Threats to international peace and

security • Reaffirming also the imperative to combat

terrorism in all its forms and manifestations by all means, in accordance with the Charter of the United Nations, and also stressing that States must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights law, refugee law, and humanitarian law,

(see also paragraph 4)

UNGAR A/57/219 (2003) Protecting human rights and fundamental freedoms while countering terrorism

• “Affirms that States must ensure that any measure taken to combat terrorism complies with their obligations under international law, in particular international human rights, refugee and humanitarian law.”

If IHL does or does not apply

• “To distinguish between the realms to which humanitarian law does and does not belong is to distinguish between war and peace or, to be more precise, between the existence and absence of armed conflict. Why is it important that the law of armed conflict be restricted in application to that which is truly armed conflict?”

If IHL does or does not apply

• “In peacetime, criminal laws and human rights laws prohibit extrajudicial killing and generally require that persons detained be entitled to contest their detention in a meaningful fashion that involves due process of law-what are otherwise known as judicial guarantees.”

If IHL does or does not apply

• “In war, the law of armed conflict overrides some aspects of criminal law and human rights law. That is, it is permitted, within certain limits, to target enemy soldiers and even civilians who take part in hostilities. It is permitted to intern … soldiers who fight for the enemy without trial. And it is permitted to detain without trial civilians who take part in hostilities or who pose a security risk even without taking part in hostilities.”

Even if not IHL, laws still apply

• With regard to [IHL], the Court recalls that in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons it stated that "a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and 'elementary considerations of humanity' . . .", that they are "to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law“… In the Court's view, these rules incorporate obligations which are essentially of an erga omnes character.

UN Charter Article 51

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.

National Self-Defence under article 51

• Wait for the first hit?OR• “Anticipatory” self-defence?OR• “Pre-emptive” self-defence?

Self Defence:The “Caroline” definition

• The necessity of self defencemust be:– Instant– Overwhelming (menghujani)– Leaving no choice of means– No moment for deliberation (pertimbangan)

• Response must be – Necessary, and– Proportionate– Query whether it must have an element of

Immediacy

Let’s work through an

example

Two Suicide Attacks in Yemen against South Korean Targets

• A suicide bomber carried out an attack in Yemen on 15 March 2009, killing four South Korean tourists and a Yemeni citizen. The attack was carried out at a tourist site in the city of Shibam in the Hadramawt Province in South-East Yemen.

• Three days later, another suicide bomber blew himself up in Sana’a using an explosives belt, when a convoy of cars carrying South Korean investigators and the South Korean Ambassador in Yemen arrived to investigate the circumstances of the 1st attack

The city of Shibam in South-East Yemen

Sana’a, Yemen

Is the "war on terrorism" an armed conflict?

• “As already mentioned IHL is only applicable in armed conflict. A central element of the notion of armed conflict is the existence of "parties" to the conflict. The parties to an international armed conflict are two or more states (or states and national liberation movements), whereas in non-international armed conflict the parties may be either states and armed groups – for example, rebel forces- or just armed groups. In either case, a party to an armed conflict has a military-like formation with a certain level of organization and command structure and, therefore, the ability to respect and ensure respect for IHL.”

• However, much of the ongoing violence taking place in other parts of the world that is usually described as "terrorist" is perpetrated by loosely organized groups (networks), or individuals that, at best, share a common ideology. On the basis of currently available factual evidence it is doubtful whether these groups and networks can be characterised as a "party" to a conflict within the meaning of IHL.

Is the "war on terrorism" an armed conflict?

• Most of the measures taken by states to prevent or suppress terrorist acts do not amount to armed conflict. Measures such as intelligence gathering, police and judicial cooperation, extradition, criminal sanctions, financial investigations, the freezing of assets or diplomatic and economic pressure on states accused of aiding suspected terrorists are not commonly considered acts of war.

Is the "war on terrorism" an armed conflict?

• "Terrorism" is a phenomenon. Both practically and legally, war cannot be waged against a phenomenon, but only against an identifiable party to an armed conflict. For these reasons, it would be more appropriate to speak of a multifaceted "fight against terrorism" rather than a "war on terrorism".

Is the "war on terrorism" an armed conflict?

Useful sites

• ICRC: International humanitarian law and terrorism: questions and answers — http://www.icrc.org/Web/eng/siteeng0.nsf/html/5YNLEV

• UN Action to Counter Terrorism — http://www.un.org/terrorism/United Nations Treaty Collection: Conventions on Terrorism — http://untreaty.un.org/English/Terrorism.asp

• Jurist: Terrorism Law and Policy — http://jurist.law.pitt.edu/terrorism.htm