TERRORISM, INTERNATIONAL CRIMINAL AND HUMANITARIAN LAW

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TERRORISM, INTERNATIONAL CRIMINAL AND
HUMANITARIAN LAW

• Roberta Arnold, Dr. iur., LLM
• Swiss MoD, LOAC Section
• 6th CH PfP Workshop on the OSCE Code of Conduct
• Wed, 22nd September 2004

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Has the war on terror...
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...led to a new interpretation of the law ?

• IUS AD BELLUM
• Wide interpretation of the right of self
  defence (Just war)
• Afghanistan
• Irak

• IUS IN BELLO
• Unlawful combatants doctrine (Guantanamo)

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Aim

• To understand
• The legal framework applicable to terrorism
• The relationship to international criminal law
  (ICL) and international humanitarian law (IHL)
• The reasoning behind the war against terrorism

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Contents

• I. Aspects of the definition of terrorism
• II. Terrorism and international criminal law
  (ICL)
• III. Terrorism and international humanitarian
  law (IHL)
• IV. Conclusions

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I. Aspects of the definition of terrorism

• Is there a universal definition?
• One mans terrorist is another mans freedom
  fighter.
• Terrorism exists in the mind of the beholder,
  depending upon one's political views and national
  origins.
• In the common language
• Terrorism violent and intimidating acts -
  usually against innocent, i.e. irresponsible
  targets - aimed at coercing a government or a
  community to achieve political goals.
• ? Is there a legal definition ?

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II. Terrorism and international criminal law
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A) The Air hijacking Conventions

• 1963 Tokyo Hijacking Convention
• 1970 Hague Convention for the Suppression of
  unlawful seizure of aircraft
• 1971 Montreal Hijacking Convention
• 1988 Montreal Protocol for the Suppression of
  Unlawful Acts of violence at airports serving
  international civil aviation
• PROBLEMS
• No definition of terrorism
• Hijacking isnt always terrorism

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B) Protection of diplomats - hostage taking

• 1973 Convention on the Crimes against
  Internationally Protected Persons
• 1979 UN Convention against the Taking of Hostages
• Problems
• ? Again no definition of terrorism
• ? Not specifically against terrorism

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C) Law of the sea conventions

• 1988 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
• ? Again no definition of terrorism
• ? Only specific aspects addressed.

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D) Regional treaties

• 1972 OAS Convention to prevent and punish the
  acts of terrorism taking the form of crimes
  against persons and related extortion that are of
  international significance
• ? Terrorism kidnapping of diplomats for ransom
  purposes
• 1977 European Anti-Terrorism Convention
• ? Fight against terrorism with extradition law
• ? Exceptions (Art. 13)

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E) Other treaties

• 1997 International Convention for the Suppression
  of Terrorist Bombings
• ? Exhaustive list of devices (Article 1)
• 1998 Draft Convention on the Suppression of Acts
  of Nuclear Terrorism
• ? No consensus on definition
• 1999 International Convention for the Suppression
  of the Financing of Terrorism
• ? Refers to earlier treaties

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F) Conclusions on the anti-terrorism legal
framework

• Terrorism is a criminal law phenomenon!
• Problems
• Piecemeal approach
• No universality
• Extradition law hurdles
• ? Safe havens (Lockerbie Case)
• State terrorism is not addressed.

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III. Terrorism and IHL
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Are all acts of terrorism war crimes?

• War crimes serious violations of the customs
  and laws of warfare (IHL) which have been
  criminalised, i.e. those entailing individual
  criminal responsibility.

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The 1949 Geneva Conventions and the 1977
Additional Protocols

• International conflicts
• I GC (1949) protection of wounded and sick
  members of armed forces in the field
• II GC (1949) protection of wounded and sick
  members of armed forces at sea
• III GC (1949) protection of POWs
• IV GC (1949) protection of civilians
• AP I (1977)

• Non-international conflicts
• Common Article 3 to the four GCs of 1949
• AP II (1977)

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A) IHL provisions banning terrorism

• Art. 33 IV GC (civilians)
• No protected person may be punished for an
  offence he or she has not personally committed.
  Collective penalties and likewise all measures of
  intimidation or of terrorism are prohibited.
  Pillage is prohibited.
• Reprisals against protected persons and their
  property are prohibited.

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IHL provisions banning terrorism

• Art. 51 (2) AP I (Protection of 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.

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IHL provisions banning terrorism

• Art. 4 (2) AP II (Fundamental guarantees)
• without prejudice to the generality of the
  foregoing, the following acts against the persons
  referred to in paragraph 1 1 are and shall
  remain prohibited at any time and in any place
  whatsoever ...
• d. Acts of terrorism ...
• h. Threats to commit any of the foregoing acts.
• 1 All persons who do not take a direct part or
  who have ceased to take part in the hostilities.

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IHL provisions banning terrorism

• Art. 13 AP II (Protection of 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.

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Definition of terrorism under IHL

• Terror Terrorism acts of violence
  primarily aimed at raising fear within people not
  taking part to an armed conflict (civilians or ex
  combatants) or occurring as a side effect not
  justified by military necessity
• relative definition!
• the political element is NOT relevant to decide
  about legitimacy of the acts! (no difference
  between good and bad guys)
• the political element is only relevant to
  distinguish war crimes from common crimes
  perpetrated for private ends. All acts of war
  have a political aim (von Clausewitz)!
• legal definition of terrorism // definition under
  common language.

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B) Categories of breaches of IHL

• Common breaches
• ? administrative sanctions
• War crimes
• ? serious breaches entailing penal consequences
  discretionary universal jurisdiction
• Grave breaches
• ? most serious breaches entailing penal
  consequences mandatory universal jurisdiction

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IMT Judgement on German Major War Criminals

• The territories occupied by Germany were
  administered in violation of the laws of war. The
  evidence is quite overwhelming of a systematic
  rule of violence, brutality and terror. On 7th
  December 1941, Hitler issued the Nacht und
  Nebel Erlass the purpose being to create
  anxiety in the minds of the family of the
  arrested person.
• Hitler's purpose was stated by the defendant
  Keitel to be as follows
• Efficient and enduring intimidation can only
  be achieved either by capital punishment or by
  measures by which the relatives of the criminal
  and the population do not know the fate of the
  criminal.

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IMT Judgement on War Crimes and
Crimes against Humanity

• The practice of keeping hostages to prevent and
  to punish any form of civil disorder was resorted
  to by the Germans such massacres as those of
  Oradour-sur-Glane in France and Lidice in
  Czechoslovakia, are examples of the organised
  use of terror by the occupying forces One of
  the most notorious means of terrorising the
  people in occupied territories was the use of
  concentration camps.

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Belsen Trial of Joseph Kramer, British Military
Court, Luneburg, 17.11.1945

• Lord Wright
• These concentrationcamps were main
  instruments of terrorism and atrocity utilised by
  Hitler and his lieutenants,

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ICTY

• Aleksovski Case, AC
• ... he involved himself in violence against
  those whom he should have been protecting, and
  allowed them to be subjected to psychological
  terror. He also failed to punish those
  responsible.
• ? Breach of common Art. 3 (torture)
• Delalic Case, TC
• Because Delic was a direct participant in the
  creation and maintenance of an atmosphere of
  terror in the Celebici prison-camp, the Trial
  Chamber finds Hazim Delic guilty pursuant to
  Article 7(1) of the Statute of the offence of
  wilfully causing great suffering or serious
  injury to body or health, under Article 2 of the
  Statute, and cruel treatment, under Article 3 of
  the Statute

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ICTY
Tadic Case Of concern here is the terrorising
of the victim, the severity of the physical
attack upon him such that he fell unconscious,
the repetition of the beatings and the sadistic
way in which they were carried out by the group.

• Furundzija Case
• Relying on Tadic ..., the Appellant submits
  that six years is an appropriate benchmark for a
  violation of the laws or customs of war when the
  accused is convicted of particularly cruel and
  terrorising treatment that did not result in the
  victim's death.

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Only acts of terrorism occuring DURING an armed
conflict are covered by IHL!

• Advantages
• no problems related to extradition law
• principle of universality

• Disadvantages
• not all acts of terrorism are covered
• only civilians are protected
• terrorism war crime mainly in international
  conflicts

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9/11 a challenge to IHL?

• The lower threshold of IHL (Art. 1(2) AP II)
• This Protocol shall not apply to situations
  of internal disturbances and tensions, such as
  riots, isolated and sporadic acts of violence and
  other acts of a similar nature, as not being
  armed conflicts.
• IHL applicable since the US occupation of
  Afghanistan!
• And beforehand?

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Terrorism as a war crime other criteria

• Acts of terrorism war crimes if
  (cumulatively!)
• they occur during a conflict
• are perpetrated by combatants
• vs unlawful targets
• ? Otherwise criminal law

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Are terrorists combatants?Status under IHL

• Civilians
• (Art. 4 IV GC, Art. 50 AP I)
• Combatants/POWs
• (Art. 4 III GC, Art. 44 AP I)
• ? Under IHL either someone is a civilian or a
  combatant

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Art. 4 III GC - Combatant/POW status

• A. Prisoners of war... are persons belonging
  to one of the following categories, ...
• (1) Members of the armed forces of a Party to
  the conflict as well as members of militias or
  volunteer corps forming part of such armed
  forces.
• (2) Members of other militias and members of
  other volunteer corps, incuding those of
  organized resistance movements, belonging to a
  Party to the conflict and operating in or outside
  their own territory, even if this territory is
  occupied, provided that such militias or
  volunteer corps, including such organized
  resistance movements, fulfil the following
  conditionsa) that of being commanded by a
  person responsible for his subordinatesb) that
  of having a fixed distinctive sign recognizable
  at a distancec) that of carrying arms
  openlyd) that of conducting their operations in
  accordance with the laws and customs of war.

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Consequences

• Irregulars in breach of IHL
• combatants (Art. 4(A)2 III GC)
• ? civilians
• ? prosecution under criminal law
• Regulars in breach of IHL
• combatants/POW status
• ? prosecution under IHL

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Ex Guantanamo BayWhen did the alleged acts
occur?

• Prior to US occupation
• ? No conflict (?)
• ? No IHL
• ? criminal law
• ? common criminals

• After US occupation
• ? conflict (Art. 2 GCs)
• ? IHL
• ? qualification depends on
• targets
• status of authors

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Qualification of terror acts committed during a
conflict

• Irregulars (Ex. Al Qaida)
• combatants
• civilians
• ? criminal law
• ? Detention only if specific reason given
• (48 hrs)

• Regulars (Ex. Taleban)
• combatants/POWS
• ? IHL
• ? Detention without reason until the end of the
  conflict

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Reasoning behind the unlawful combatants
doctrine

• Terrorists civilians
• ? Deportation allowed (restriction of HR)
• Terrorists combatants
• ? IHL applicable
• ? Detention until the end of the hostilities,
  without specific reason
• Terrorists unlawful combatants
• ? no POW Status!
• ? Neither rights as civilians nor as POWs!
• ? ReasonNo US emergency laws

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IV. Conclusions

• There is NO unlawful combatant status under IHL!
• Combatants who commit terroris acts can be
  prosecuted as war criminals (if the targets were
  civilians!).
• Irregular combatants, who commit terrorist acts
  shall be treated as civilians (subject to
  criminal law)
• ? THIS ALL HOLDS TRUE, IF TERRORISM IS EMPLOYED
  AS A WARFARE METHOD! OTHERWISE, IT IS A CRIMINAL
  LAW MATTER!