This document provides an overview of terrorism and the applicable international law. It defines terrorism and outlines the challenges in reaching an agreed international definition. It discusses how certain terrorist acts may justify the use of armed force in self-defense under jus ad bellum. It also examines how international humanitarian law and international criminal law regulate terrorist acts during armed conflicts and how perpetrators of such acts may be treated. While states have a legitimate right to fight terrorism, care must be taken to ensure compliance with international law.

1. Lecture 13
Armed conflicts and the “war
against terror”

2. Overview
1. Definition of terrorism
2. Terrorism and the UN (and EU)
3. To what extent are the laws of war applicable
to terrorism
– Terrorism and jus ad bellum
• Self defence
• The “war on terror”
– Terrorism and jus in bello
• Rules concerning terrorist acts in IHL
• Rules on rights of perpetrators of terrorist acts
– Acts of terror under International Criminal Law
4. Status of persons engaging in acts of terror

3. 1. Definition of terrorism
• No agreed international definition of :
– Terrorist
– Terrorist Group
– Act of Terror

4. Elements in act of terror
• Violence or threats of violence
• Against persons and/or things (buildings,
power plants, bridges, airplanes, etc.)
• The individual victims are random
• The aim is to spread fear (or pressuring
national authorities to act in a certain way)
• Must have political or ideological aim?

5. Section 147 a in the Norwegian Penal Code
• First element of “act of terror”: Commission or
preparation of certain acts :
– To cause fire, explosion, flooding, rail or aircraft
accident which may result in loss of life or extensive
damage to property
– Hijacking of ship, aircraft
– To cause damage to power plants, electronic
communication systems or other means of
communication that can cause extensive disruption of
government
– Poisoning of drinking water and spreading of
contagious disease
– To cause serious violence to persons’ life and health

6. Section 147 a in the Norwegian Penal Code
• Second element of “act of terror”: Acts must
have been carried out with the intention of:
– A) Causing serious disruption of basic functions in
society, or
– B) Generating serious fear in a population, or
– C) Forcing (illegally) national public authorities or an
international organisation to do, endure or omit
something that could be of essential value to that
authority or organisation, or to another country or
another organisation

7. International instruments
• Security Council Resolutions (For example
SCR 1373, 28 Sept. 2001)
• Several UN Conventions (On hijacking,
taking of hostages, financing of terrorist
acts etc.)
• Regional instruments (for example OAU
Convention on terror, EU regulations, etc.)

8. Convention on Offences and Certain other Acts Committed On Board
Aircraft (1963)
Convention for the Suppression of Unlawful Seizure of Aircraft (1970)
Convention for the Suppression of Unlawful Acts Against the Safety of Civil
Aviation (1971)
International Convention Against the Taking of Hostages (1979)
Convention on the Physical Protection of Nuclear Material (1979)
Convention for the Suppression of Unlawful Acts Against the Safety of
Maritime Navigation (1988)
Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed
Platforms Located on the Continental Shelf (1988)
Convention on the Marking of Plastic Explosives for the Purpose of
Detection (1991)
International Convention for the Suppression of Terrorist Bombings (1997)
International Convention for the Suppression of the Financing of Terrorism
(1999)
International Convention for the Suppression of Acts of Nuclear Terrorism
(2005)

9. Definition of Terrorist act in the UN
Convention on Terrorist bombings:
• Any person commits an offence within the meaning of
this Convention if that person unlawfully and intentionally
delivers, places, discharges or detonates an explosive or
other lethal device in, into or against a place of public
use, a State or government facility, a public
transportation system or an infrastructure facility:
• With the intent to cause death or serious bodily injury; or
• With the intent to cause extensive destruction of such a
place, facility or system, where such destruction results
in or is likely to result in major economic loss.

10. OAU Convention on the Prevention and
Combating of Terrorism (1999)
“Terrorist act” means:
(a) any act which is a violation of the criminal laws of a State Party and
which may endanger the life, physical integrity or freedom of, or cause
serious injury or death to, any person, any number or group of
persons or causes or may cause damage to public or private property,
natural resources, environmental or cultural heritage and is
calculated or intended to:
(i) intimidate, put in fear, force, coerce or induce any government,
body, institution, the general public or any segment thereof, to
do or abstain from doing any act, or to adopt or abandon a
particular standpoint, or to act according to certain principles;
• or
(ii) disrupt any public service, the delivery of any essential service
to the public or to create a public emergency; or
(iii) create general insurrection in a State.

11. UN Convention on Financing of Terrorism (2000)
• Article 2
• 1. Any person commits an offence within the meaning of
this Convention if that person by any means, directly or
indirectly, unlawfully and wilfully, provides or collects
funds with the intention that they should be used or in
the knowledge that they are to be used, in full or in part,
in order to carry out:
• (a) An act which constitutes an offence within the scope
of and as defined in one of the treaties listed in the
annex; or
• (b) 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.

12. National vs. international terrorism
• International terror acts:
– 11 Sept. 2001, Madrid 2004, London 2005,
etc…(Acts of violence involving groups and
governments from more than one state)
• National terror acts:
– The Oklahoma bombing, ETA-attacks, etc.
(Acts of violence involving groups and
governments from the same state)

13. International instruments are only applicable
to international acts of terror:
• Article 3 of the Convention on Financing of
terrorist acts:
– This Convention shall not apply where the
offence is committed within a single State, the
alleged offender is a national of that State and
is present in the territory of that State and no
other State has a basis under article 7,
paragraph 1 or 2, to exercise jurisdiction, …...

14. SCR 1373 (28 September 2001) on
financing of terrorist acts
• The Security Council…
• Acting under Chapter VII of the Charter…
• Decides that all states shall..
– A) Prevent and suppress financing of terrorist acts
– B) Criminalise provision or collection of means that
could be used to carry out terrorist acts
– C) Freeze funds which may be used to commit
terrorist acts
– D) Prohibit any support to such financing
– etc….

15. The Counter Terrorism Committee
(CTC)
• Legal basis: SCR 1373 (para 6)
• Mandate:
– Receive reports from States on their implementing
measures under SCR 1373/2001
– Give advice and assistance on national
implementation measures
– Counter Terrorism Executive Directorate (CTED) to
provide the CTC with expert advice on all areas
covered by SCR1373
– Receive reports on the implementation of SCR
1624/2005 on incitement to commit terrorist acts

16. Terrorist lists
• International lists
• The UN (Only list of groups or persons related
to Al-Qaida and Taliban, SCR 1267/1999)
– 350 individuals and 123 groups
• The European Union, EU Regulation 881/2002
– The same list as the UN SCR 1267 regime, plus
– General list: 45 individuals and 48 groups
• National lists (UK, US, ….)

17. 2. To what extent are the laws of
war applicable to acts of terrorism?
• Rules on when terrorist acts justifies
armed attack on another State (Jus ad
bellum)
• Rules on how terrorist acts are defined
within the context of armed conflict (jus in
bello)

18. Terrorism and jus ad bellum
• 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, ….

19. SCR 1368, 12 September 2001
• The Security Council…
• Recognizes the inherent right of individual and
collective self-defence in accordance with the
Charter,
• 1. Unequivocally condemns in the strongest
terms the horrifying terrorist attacks which took
place on 11 September 2001 in New York,
Washington DC and Pennsylvania and regards
such acts, like any acts of international terrorism,
as a threat to international peace and security..

20. Possible response to terrorist acts:
• Criminal law enforcement (typical for national
terrorist acts, but also international law
enforcement cooperation)
• Armed military force (Counter terrorist military
operations)
If the terrorist act constituted an armed
attack, the right of self defence could be
invoked (Article 51 of the UN Charter)

21. The “war on terror”
• This is not a legal classification but a
rhetoric expression
• 9/11 did not alter the international legal
order
• Using this term does not justify deviations
from applicable international humanitarian
or human rights law

22. “The war on terror” can be
conducted within the framework of:
– international armed conflict
– non-international armed conflict
– enforcement of criminal jurisdiction (which can
take place domestically or internationally)

23. Terrorism and jus in bello
• Acts of terror conducted in the context of
an international armed conflict or a non-
international armed conflict
• (Acts of terror conducted outside the scope of
application of IHL is regulated by national
criminal law and national and international
human rights law)

24. Acts of terror in situations covered
by IHL (IAC):
• The principle of distinction (Art.48, 51(4) and (5)
of AP I
• Prohibition against collective punishment,
intimidation or terrorism and reprisals against
protected persons (Art.33, GC IV)
• Prohibition against spreading terror among the
civilian population (Art.51 (2), AP I)
• Prohibition against the feigning of civilian, non-
combatant status (Art.37 AP I)

25. Acts of terror in situations covered
by IHL (NIAC):
• Protection of persons not taking direct part in
hostilities against (a) violence … (b) collective
punishments; (c) taking of hostages; (d) acts of
terrorism (Art. 4, APII)
• Prohibition against spreading terror among the
civilian population (Art.13, AP II)
• Protection of persons not taking part in hostilities
against violence to life, torture, outrages on
personal dignity, executions without
judgement…(Common Article 3 GC)

26. Asymmetrical warfare:
Certain acts of asymmetrical warfare tends
to equal certain acts of terrorism
–Not all acts of asymmetrical warfare are
acts of terrorism:
The use civilians as shields, mix with
the civilian population, posing as
civilians, disregard other IHL rules on
perfidy etc.

27. Acts of terror in armed conflict may
amount to grave breaches
• Arts 50/51/130/147 of the GCs define conduct
amounting to grave breaches, including:
– Wilful killing of protected persons
– Wilfully causing great suffering or serious
injury
– Taking of hostages
– Extensive destruction of property, not justified
by military necessity and carried out
unlawfully and wantonly

28. Acts of terror in armed conflict may amount
to grave breaches
• Art. 85 (AP I): expands the list of grave breaches to
include:
• (a) making the civilian population or individual civilians
the object of attack;
(b) launching an indiscriminate attack affecting the
civilian population or civilian objects
• (c) launching an attack against works or installations
containing dangerous forces in the knowledge that such
attack will cause excessive loss of life, injury to civilians
or damage to civilian objects,
(d) making e.g. demilitarized zones object of attack
• (e) making a person the object of attack in the
knowledge that he is ' hors de combat’
• (f) the perfidious use, in violation of Article 37, of the
distinctive emblem of the red cross, red crescent or red
lion and sun or of other protective signs recognized by
the Conventions or this Protocol.

29. Acts of terror under international
criminal law
• Acts of terror may (if the requirements otherwise
are fulfilled) amount to war crimes or genocide
or crimes against humanity:
– When committed in international and non-
international armed conflicts: Art.8 of the ICC Statute
– When committed in peace: Art. 6 (genocide) and 7
(crimes against humanity) of the ICC Statute
• But terrorism as such was deliberately left out of
the ICC statute because of the lack of an agreed
definition

30. • IHL prohibits acts of terror committed in both
international and non-international armed
conflicts
• ICL provides for prosecution and punishment
of individuals for having committed acts of terror,
in both international and non-international armed
conflicts and in peace
• National criminal law also prohibits and
provides for prosecution and punishment of
individuals for having committed acts of terror, in
both international and non-international armed
conflicts and in peace

31. Rules on the rights of perpetrators of
terrorist acts
• Under IHL:
• Perpetrators of terrorist acts in armed
conflicts:
– Depends on their status:
• Regular forces are POWs (protected under the
regime of GC III) but can be prosecuted for war
crimes
• Members of non-state groups are normally non-
combatants if they have committed terrorist acts
(Art.4 (2)(d))

32. • Art.4 A (2), GC III: Members of other militias and
members of other volunteer corps, including those of
organized resistance movements, belonging to a Party to
the conflict … provided that such militias or volunteer
corps, including such organized resistance movements,
fulfil the following conditions:
(a) that of being commanded by a person responsible for
his subordinates;
(b) that of having a fixed distinctive sign recognizable at
a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance
with the laws and customs of war.

33. Rules on the rights of perpetrators of
terrorist acts in armed conflict:
• Art. 45 (3), AP I:
• Any person who has taken part in hostilities, who
is not entitled to prisoner-of-war status and who
does not benefit from more favourable treatment
in accordance with the Fourth Convention shall
have the right at all times to the protection of
Article 75 of this Protocol. In occupied territory,
any such person, unless he is held as a spy,
shall also be entitled, notwithstanding Article 5
of the Fourth Convention, to his rights of
communication under that Convention.

34. Article 75 -- Fundamental
guarantees
• ..persons who are in the power of a Party to the conflict and who do
not benefit from more favourable treatment under the Conventions
or under this Protocol shall be treated humanely in all
circumstances… .
• 2. The following acts are and shall remain prohibited at any time
and in any place whatsoever, whether committed by civilian or by
military agents:
• (a) violence to the life, health, or physical or mental well-being of
persons, in particular:
• (i) murder;
• (ii) torture of all kinds, whether physical or mental;
• (iii) corporal punishment; and (iv) mutilation;
• (b) outrages upon personal dignity, in particular humiliating and
degrading treatment, enforced prostitution and any form of indecent
assault; (c) the taking of hostages; (d) collective punishments; and
(e) threats to commit any of the foregoing acts…..

35. Protection and immunities
Civilians Insurgents
“fighters”
Unlawful
Combat.
Privileged
Combat.
IAC -GC IV
-AP I
- Immunity from
lethal force
-Art. 75 AP I
-No immunity
from prosecution
-No immunity
from lethal force
-Immunity from
prosecution
-POW status
-No immunity from
lethal force
NIAC
C.A3-sit.
- C. Art.3
- Immunity from
lethal force
-C. art.3
-Art.75 AP I
-No immunity
from prosecution
-No immunity
from lethal force
Peace
- Human rights law
- Use of force must
comply with HRL
-Human rights
law
-No immunity
from prosecution
- Use of force
must comply with
HRL

36. Questions to ask with regard to the
“war on terror”:
• What kind of situation is it?
• Does IHL or HRL apply?
• What level of force can be applied?
• How to treat captured persons?

37. Common misconceptions about
terror and IHL
• The fight against terror is new
• Existing IHL does not cover acts of terror
or counter terrorism
• Existing ICL does not cover acts of terror
• Any situation in which acts of terror are
carried out ought to be covered by IHL

38. Important and legitimate for States
to fight terrorist acts
• International law provides for a number of
tools to fight terrorism
• But: The fight against terror must not be
used as a pretext to undermine
humanitarian standards and human rights
standards