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International Humanitarian
Law & Combating Terrorism
        (off-shore)

         Dr Ian Henderson
   Asia-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
Is one man’s
terrorist is
another man’s
freedom
fighter?

   No!
Who is a Terrorist?
• States
• Non-State Organisations
• Individuals
Who is a Terrorist?
• 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?
• States
• Non-State Organisations
• Individuals

Arguably affects the relevant legal paradigm
Relevance of IHL

• On those perpetrating ‘terrorist’ acts
• On those pursuing the ‘terrorists’
Geneva Conventions and the
        Additional Protocols
• 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
• 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.
Why do we (the non-terrorists)
          have to comply with IHL?
“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
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 defence
  must 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.”
Is the "war on terrorism" an
       armed conflict?
• 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".
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

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International Humanitarian Law and Terrorism

  • 1. International Humanitarian Law & Combating Terrorism (off-shore) Dr Ian Henderson Asia-Pacific Centre for Military Law
  • 2. 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
  • 3. 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
  • 4. 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
  • 5. 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
  • 6. Is one man’s terrorist is another man’s freedom fighter? No!
  • 7. Who is a Terrorist? • States • Non-State Organisations • Individuals
  • 8. Who is a Terrorist? • 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
  • 9. Who is a Terrorist? • States • Non-State Organisations • Individuals Arguably affects the relevant legal paradigm
  • 10. Relevance of IHL • On those perpetrating ‘terrorist’ acts • On those pursuing the ‘terrorists’
  • 11. Geneva Conventions and the Additional Protocols • 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.
  • 12. 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)).
  • 13. 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.
  • 14. Why do we (the non-terrorists) have to comply with IHL? “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
  • 15. 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”
  • 16. 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;
  • 17. 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)
  • 18. 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.”
  • 19. 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?”
  • 20. 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.”
  • 21. 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.”
  • 22.
  • 23. 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.
  • 24. 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.
  • 25. National Self-Defence under article 51 • Wait for the first hit? OR • “Anticipatory” self-defence? OR • “Pre-emptive” self-defence?
  • 26. Self Defence: The “Caroline” definition • The necessity of self defence must 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
  • 27. Let’s work through an example
  • 28. 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
  • 29. The city of Shibam in South-East Yemen
  • 31. 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.”
  • 32. Is the "war on terrorism" an armed conflict? • 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.
  • 33. 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.
  • 34. 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".
  • 35. 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