International Humanitarian Law and Combating Terorrism (Off-shore)

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.”

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

30. Sana’a, 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