Armed conflicts and the war against terror

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Lecture 13

• Armed conflicts and the war against terror

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Overview

• Definition of terrorism
• Terrorism and the UN (and EU)
• 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

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1. Definition of terrorism

• No agreed international definition of
• Terrorist
• Terrorist Group
• Act of Terror

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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?

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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

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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

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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.)

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• 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)

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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.

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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.

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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.

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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)

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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, ...

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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.

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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

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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, .)

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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)

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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, .

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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..

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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)

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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

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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)

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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)

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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)

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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)

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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.

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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

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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.

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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

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• 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

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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))

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• 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.

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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.

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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..

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Protection and immunities
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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?

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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

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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