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Published online by Cambridge University Press: 11 June 2015
One of the least clarified areas of international law is the legal regime applicable to non-international armed conflict (NIAC) – that is, where hostilities occur between state and non-state actors (NSAs) or between two or more NSAs.1 This can be explained by the reticence of states to grant legality to such movements and their preference to label them as criminal movements or terrorist groups.2 The result is that the regulation of NIAC is still limited to the application of Common Article 3 of the Geneva Conventions of 1949 (GCs) and their Additional Protocol II of 1977 (Additional Protocol II or AP II).3 While Common Article 3 provides only a rudimentary framework of minimum standards, Additional Protocol II, which usefully supplements it, is still less detailed than the rules governing international armed conflict (IAC). Moreover, in contrast to Common Article 3,4 it has not yet attained customary status.5 This situation is a source of concern. Faced with the horrors committed in NIACs such as those in Rwanda, Sierra Leone and Liberia in the 1990s, and the awareness of an inadequate legal framework, the international criminal law (ICL) community decided to resort to international human rights law (IHRL) and ICL to fill the gaps of international humanitarian law (IHL) applicable to NIAC.6
1 For a definition of IAC and NIAC see Geneva Convention (I) Relative to the Amelioration of the Wounded and Sick in Armed Forces in the Field (entered into force 21 October 1950) 75 UNTS 31 (GC I), common arts 2 and 3; Geneva Convention (II) Relative to the Amelioration of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (entered into force 21 October 1950) 75 UNTS 85 (GC II), common arts 2 and 3; Geneva Convention (III) Relative to the Treatment of Prisoners of War (entered into force 21 October 1950) 75 UNTS 135 (GC III), common arts 2 and 3; Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287 (GC IV), common arts 2 and 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 609 (AP II), art 1(2).
2 See, eg, Ruprecht Polenz, ‘NATO Doc. 174 PCTR 07 E rev 1, The Fight against Terrorism – Impact and Implications for the Atlantic Alliance’, NATO Parliamentary Assembly, 6 October 2007, http://www.nato-pa.int/default.asp?shortcut=1175; Saul, Ben, ‘Terrorism and International Humanitarian Law’ in Saul, Ben (ed), Research Handbook on International Law and Terrorism (Edward Elgar 2014) 208, 212CrossRefGoogle Scholar.
3 GCs I–IV and AP II (n 1); Henckaerts, Jean-Marie, ‘Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict’ (2005) 87 International Review of the Red Cross 175, 177CrossRefGoogle Scholar.
4 A well accepted customary rule: see Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1966] ICJ Rep 226, [79], [82] (with respect to the Geneva Conventions); Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US), Merits, Judgment [1986] ICJ Rep 500 [218] (with respect to common art 3).
5 Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, Vol I: Rules (International Committee of the Red Cross and Cambridge University Press 2005, revised 2009) xxxiv–xxxvCrossRefGoogle Scholar.
6 Sivakumaran, Sandesh, The Law of Non-International Armed Conflict (Oxford University Press, 2012) 54–55Google Scholar.
7 See, eg, 311.0 Swiss Criminal Code, 1 January 1942; art 246c(2) para 2 provides that the conduct amounting to grave breaches under para 1 of the Code are to be considered in equal terms to grave breaches when committed in times of NIAC.
8 GC I (n 1) art 50; GC II (n 1) art 51; GC III (n 11) art 130; GC IV (n 11) art 147; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 3 (AP I), arts 11, 85.
9 Arnold, Roberta, ‘The Development of the Notion of War Crimes in Non-International Conflicts through the Jurisprudence of the UN Ad Hoc Tribunals’ (2002) 3 Humanitäres Völkerrecht 134–42Google Scholar.
10 Whether this is really a ‘new’ body of law in the view of some academics (eg Christophe Paulussen from TMC Asser Instituut) is not clear. That would assume, to use Paulussen's words, some sort of comprehensiveness or unity of the system. However, given that there is so much indistinctness about the rules, how they are formed and the exact correlation between IHRL and IHL, he questions whether we can really say so. He questions whether we are talking about a situation that simply needs greater clarity about which, and the extent to which, existing bodies of law (IHRL and IHL) apply to this situation. These views were exchanged informally between the reviewer and Paulussen in 2014.
11 Geneva Call is a neutral and impartial non-governmental organisation dedicated to promoting respect by armed non-state actors (ANSAs) for international humanitarian norms in armed conflict and other situations of violence, in particular those related to the protection of civilians: see the organisation's website at http://www.genevacall.org.
12 ie the regulation of the protection of specific categories of persons.
13 ie the regulation of the conduct of hostilities.
14 Sivakumaran (n 6) 29.
15 ibid 53.
16 ibid 54.
17 ibid 53.
18 ibid 95.
19 Examples are offered from case studies on the situation of the LTTE in Sri Lanka, the FARC in Colombia and the SPLM in Sudan: ibid 98.
20 ibid 156.
21 ibid 156–62.
22 ibid 155.
23 ibid.
24 Sandoz, Yves, Swinarski, Christophe and Zimmermann, Bruno (eds), Commentary on the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (International Committee of the Red Cross and Martinus Nijhoff 1987) 1348Google Scholar; Stewart, James, ‘Towards a Single Definition of Armed Conflict in International Humanitarian Law’ (2003) (85)850International Review of the Red Cross 313, 317–18Google Scholar. Pursuant to this, IAC covers all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognised by one of them.
25 Sivakumaran (n 6) 155.
26 See, in particular, ibid Ch 6.
27 ibid 235.
28 ICRC, ‘International Humanitarian Law and the Challenges of Contemporary Armed Conflicts – Report’, 31st International Conference of the Red Cross and Red Crescent, 31IC/11/5.1.2, Geneva, October 2011, 10; Arnold, Roberta, The ICC as a New Instrument for Repressing Terrorism (Transnational 2004) 114–16Google Scholar; for arguments both in support and against see Saul (n 2) 215–16.
29 See, eg, HCJ 769/02 The Public Committee Against Torture in Israel and the Palestinian Society for the Protection of Human Rights and the Environment v Israel and Others ILDC 597 (IL 2006) [2006].
30 Sivakumaran (n 6) 235.
31 ibid 155.
32 ibid 251.
33 ICTR, Prosecutor v Kayishema and Ruzindana, Judgment, ICTR-95-1-T, Trial Chamber II, 21 May 1999, [176]; for arguments both in support and against see Saul (n 2) 215–16.
34 Sivakumaran (n 6) 252; also referring to Arimatsu, Louise, ‘Territory, Boundaries and the Law of Armed Conflict’ (2009) 12 Yearbook of International Humanitarian Law 157, 189CrossRefGoogle Scholar.
35 Sivakumaran (n 6) 165.
36 ICTY, Prosecutor v Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, Appeals Chamber, 2 October 1995, [70].
37 Such as the prohibition of the use of terror as a warfare strategy, which is proscribed by arts 4(d)(2) or 13 AP II (n 1).
38 Sivakumaran (n 6) 204; Cassese, Antonio, ‘The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia’ (2007) 18 European Journal of International Law 649, 652CrossRefGoogle Scholar.
39 AP II (n 1), which develops and supplements art 3 common to GC I–IV (n 1) without modifying its existing conditions of application, is to apply to all armed conflicts which are not covered by art 1 AP I (n 8), and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organised armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement the Protocol.
40 Sivakumaran (n 6) 184.
41 ibid 173.
42 ibid 175, 183.
43 eg the Swiss Criminal Code (n 7) art 260 ter.
44 This problem arises in particular with regard to Swiss Criminal Code (n 7) art 260 ter, which outlaws international organised crime. Its application may become problematic when the group at stake has been conducting hostilities within the framework of a NIAC not recognised as such by the affected state. As observed by Sivakumaran (n 6) 210: ‘[I]nsufficient attention has been paid to armed groups, their structure, and workings. Little attention has been paid to why it is that organization of the armed group is an element of the definition of a non-international armed conflict. Even less has been paid to the relationship between organization and enforcement of the law. Furthermore, the notion of responsible command is traditionally interpreted by reference to a hierarchical pyramidal structure which does not always map onto the structure of armed groups. The structure of armed groups is also often compared with that of the armed forces of the state, skewing the notion of organization. The important nexus between the scope of application of the law and its substantive content also remains under-explored. In sum, the element of organization and the workings of armed groups are only just starting to be understood’.
45 Sivakumaran (n 6) 156.
46 ibid Ch 8 ‘The Protection of Civilians and Persons Hors de Combat’.
47 ibid 99–100.
48 Roberta Arnold and Stefan Wehrenberg, ‘Die Strafbarkeit des Vorgesetzten nach Art. 264k StGB’ [2013] Military Law and the Laws of War Review 3; Arnold, Roberta, ‘Article 28 Responsibility of Commanders and Other Superiors’ in Triffterer, Otto and Ambos, Kai (eds), Commentary to the Rome Statute for an International Criminal Court (3rd edn, Nomos Verlagsgesellschaft 2015)Google Scholar.
49 Sivakumaran (n 6) 335.
50 ibid 100.
51 See ibid, Ch 9 ‘Conduct of Hostilities’ for details.
52 For a complete list of the United Nations Conventions on terrorism deposited with the Secretary-General of the UN, see the UN Treaty Collection at https://treaties.un.org/Pages/DB.aspx?path=DB/studies/page2_en.xml.
53 ICTY, Prosecutor v Galić, Judgment, IT-98-29-A, Appeals Chamber, 30 November 2006, [87].
54 Sivakumaran (n 6) 341. See also Arnold (n 28) 66–111, discussing in detail the criminalisation of the use of terror in times of armed conflict; Arnold, Roberta, ‘The Judicial Contribution of the Special Court for Sierra Leone to the Prosecution of Terrorism’ in Jalloh, Charles C (ed), The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law (Cambridge University Press 2014) 260–88Google Scholar.
55 On this see, in particular, Saul (n 2) 213, 219 and 225–31; Arnold (n 28); Roberta Arnold, ‘Terrorism, War Crimes and the International Criminal Court’ in Saul (n 2) 282–98.
56 Sandra Kraehenmann, ‘Foreign Fighters under International Law’, Geneva Academy of International Humanitarian Law and Human Rights, Academy Briefing No 7, October 2014.
57 Sivakumaran (n 6) 439–40.
58 ibid 474, 548.
59 ibid 513.
60 ie the idea that persons will not be subject to prosecution under domestic law for taking part in the armed conflict and for committing lawful acts of war: ibid 514.
61 ibid 514.
62 ibid 525.
63 ibid 525.
64 ibid 533, 538–42.
65 The Deed of Commitment is a mechanism that allows armed NSAs to pledge to respect humanitarian norms and be held publically accountable for their commitments. Deeds of Commitment are signed by the ANSA leadership and countersigned by Geneva Call and the government of the Republic and Canton of Geneva, usually at a ceremony in the Alabama Room in Geneva's City Hall, where the first Geneva Convention was adopted in 1864. The signed documents are deposited with the Canton of Geneva, which serves as custodian. For more information see the website of Geneva Call, http://www.genevacall.org/who-we-are/faqs.
66 Sivakumaran (n 6) 533, 547.
67 ibid 541.
68 For examples, see ibid 549–56.
69 ibid 558.
70 ibid.
71 ibid 562.
72 ibid.
73 ibid 563.
74 ibid 566.
75 ibid 100.
76 For this reason, as an example, the general clause contained in art 109 of the Old Military Criminal Code of Switzerland – which referred to the laws and customs of warfare as a basis for the prosecution of war crimes – was considered to be incompatible with the principle of legality and was replaced with a detailed war crimes catalogue in the Criminal Code and Military Criminal Code (MCC) of Switzerland: ‘Message of the Swiss Federal Council for the Implementation of the Rome Statute for an International Criminal Court’ (Botschaftüber die Änderung von Bundesgesetzen zur Umsetzung des Römer Statuts des Internationalen Strafgerichtshofs), 23.04.2008, BBl 2008, 3863,3882, http://www.admin.ch/opc/de/federal-gazette/2008/3863.pdf.
77 Sivakumaran (n 6) 100.
78 Kraehenmann (n 56).
79 Saul (n 2) 230; Special Tribunal for Lebanon (STL), The Prosecutor v Ayyash and Others, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, STL-11-01/I, Appeals Chamber, 16 February 2011, 3: ‘On the basis of treaties, UN resolutions and the legislative and judicial practice of States, there is convincing evidence that a customary rule of international law has evolved on terrorism in time of peace’.
80 These outlaw the war crime of the intentional use of acts of terror against the civilian population of the adversary: Arnold (n 28) 197–202. On the problems related to the borderline between the law enforcement and the laws of war paradigms with regard to acts of terrorism, see Cassese, Antonio and others, ‘Terrorism’ in International Criminal Law – Cases & Commentary (Oxford University Press 2011) 286–311Google Scholar; Roberts, Adam, ‘Counter-Terrorism, Armed Force and the Laws of War’ (2002) 44 Survival 7–32CrossRefGoogle Scholar, http://essays.ssrc.org/sept11/essays/roberts.htm; Yuval Shany, ‘The International Struggle Against Terrorism – the Law Enforcement Paradigm and the Armed Conflict Paradigm’, The Israel Democracy Institute, 10 September 2008, http://en.idi.org.il/14005.aspx; Saul (n 2) 230.
81 Graditzky, Thomas, ‘Individual Criminal Responsibility for Violations of International Humanitarian Law Committed in Non-International Armed Conflicts’ (1998) 80 International Review of the Red Cross 29–57CrossRefGoogle Scholar; ICTY, Prosecutor v Mucić and Others, Judgment, IT-96–21–T, Trial Chamber,16 November 1998, [202]. See, however, the different view expressed in Prosecutor v Tadić (n 36) Separate Opinion of Judge Abi-Saab, [83]. For an analysis of this subject, see Willmott, Deidre, ‘Removing the Distinction Between International and Non-International Armed Conflict in the Rome Statute of the International Criminal Court’ (2004) 5 Melbourne Journal of International Law 196–219Google Scholar.
82 Arnold (n 9) 134.
83 Greenwood, Christopher, ‘International Humanitarian Law and the Tadic Case’ (1996) 7 European Journal of International Law 265, 275CrossRefGoogle Scholar.
84 eg the Service Regulations of 2002 of the Swiss Armed Forces, Ch 3, preamble. See also GC III (n 1) art 4(A)(2); Michael N Schmitt, Charles HB Garraway and Yoram Dinstein, The San Remo Manual on the Law of Non-International Armed Conflict with Commentary (International Institute of Humanitarian Law 2006) para 4, http://www.iihl.org/iihl/Documents/The%20Manual%20on%20the%20Law%20of%20NIAC.pdf.
85 Pictet, Jean S (ed), The Geneva Conventions of 12 August 1949: Commentary – III Geneva Convention Relative to the Treatment of Prisoners of War (International Committee of the Red Cross 1960) 55–56Google Scholar.
86 Arnold (n 48); Arnold, Roberta and Nybondas, Maria L, ‘Command Responsibility and Its Applicability to Civilian Superiors – Book Review’ (2013) 11 Journal of International Criminal Justice 943–51CrossRefGoogle Scholar.
87 Sivakumaran (n 6) 175.
88 ibid 515; Sivakumaran, Sandesh, ‘Lessons for the Law of Armed Conflict from Commitments of Armed Groups: Identification of Legitimate Targets and Prisoners of War’ (2011) 93 International Review of the Red Cross 463, 477CrossRefGoogle Scholar; Jens David Ohlin, ‘The Combatant's Privilege in Asymmetric and Covert Conflicts’, Cornell University School of Law, Cornell Legal Studies Research Paper No 14-33, 29 July 2014, 14, 18; Melzer, Nils, Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (International Committee of the Red Cross 2009) 84Google Scholar.
89 See on this also Saul (n 2) 213.
90 Swiss Criminal Code (n 7) art 260 ter (1).
91 For a list of the existing United Nations conventions on terrorism, see the UN Treaty Collection Database, https://treaties.un.org/Pages/DB.aspx?path=DB/studies/page2_en.xml. On the problem of the concomitant application of IHL and anti-terrorism legislation, see also Kraehenmann (n 56) 23 ss.
92 Sivakumaran (n 6) 559, with reference to ICC, Prosecutor v Bemba, Decision pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo, ICC-01/05-01/08, 15 June 2009, [501].
93 Sivakumaran (n 6) 559.
94 On this see International Humanitarian Law, Anti-Terrorism Laws and Non-State Actors, Centre for Military & Security Law, Australian National University College of Law, Briefing Note, December 2013, 5ff; Roberts (n 80).
95 As remarked by Sivakumaran (n 6) 71: ‘One sovereignty concern that has had, and continues to have, a very real impact on the substantive law of non-international armed conflict relates to the lack of combatant privilege. Pursuant to this idea, combatants have the authority to participate in hostilities. Accordingly, they cannot be prosecuted for taking part in hostilities and committing lawful acts of war. Importantly, however, the notion of combatant, and therefore also the combatant privilege, is limited to international armed conflicts. States are unwilling to afford the combatant privilege to members of non-state armed groups that fight against them. Instead, they leave open the possibility of prosecuting such members for treason, sedition, or some other offence under domestic law. For this reason, the law of non-international armed conflict cannot be exactly equivalent to the law of international armed conflict. The lack of combatant immunity in non-international armed conflict is recognized as a hurdle for advocating compliance with the law on the part of non-state armed groups’. See also Saul (n 2) 223–28.
96 Swiss Criminal Code (n 7).
97 ibid, art 260 ter.
98 With regard to the problem of inequality of treatment, and the concurrent application of transnational (anti-terrorism) criminal law and IHL, see Arnold (n 28) 144ff; Daniel O'Donnell, ‘International Treaties against Terrorism and the Use of Terrorism during Armed Conflict and by Armed Forces’ (2006) 88 International Review of the Red Cross 853, 863, 879. On the dual character of terrorist activity (both as a crime and in armed conflict) see Saul (n 2) 213, according to whom the two are not mutually exclusive; see, however, the discussion on the exclusion clauses contained in anti-terrorism legislation.
99 Akande, Dapo, ‘Classification of Armed Conflicts: Relevant Legal Concepts’ in Wilmshurst, Elizabeth (ed), International Law and the Classification of Conflicts (Oxford University Press 2012) 32, 52Google Scholar.
100 The distinction between the military and political wings of a NSA seems to be the approach that was followed by the Swiss Military Justice in its judgment of 22 November 2013 with regard to a Swiss national who had supported the PKK: Military Tribunal 1, Judgment of 22 November 2013 (in French), Case No TM1 07 287, available upon request from the Swiss Military Justice. For a case report see Roberta Arnold, ‘Case Report on the Judgement of the Swiss Military Tribunal 1 of 22nd November 2013 for Contribution to the PKK’ [2015] Military Law and Laws of War Review (forthcoming). See also the case summary available on the website of the International Crimes Database Project, maintained by the TMC Asser Instituut, The Hague, http://www.internationalcrimesdatabase.org (forthcoming).
101 International Convention against the Taking of Hostages (entered into force 3 June 1983) 1316 UNTS 206 (Hostages Convention), art 12 grants priority to the 1949 GCs and the 1977 Additional Protocols whenever they can. For more on the issue of the application of the international conventions addressing acts labelled as ‘terrorist’ acts (such as hostage taking, aircraft hijacking, etc) see Arnold (n 28) 15.
102 International Convention for the Suppression of Terrorist Bombings (entered into force 23 May 2001) 2149 UNTS 256; O'Donnell (n 98) 869: ‘The correct interpretation of the exclusionary clauses would seem to be that this treaty (as well as the Convention against nuclear terrorism, which contains an identical clause in Article 4(2)) is not applicable to acts of terrorism committed during an armed conflict by an armed group that is organized and under responsible command, and that exercises sufficient control over territory to be able to mount sustained military operations and apply humanitarian law – provided, of course, that the act of terrorism committed also violates international humanitarian law. It would be applicable to acts of terrorism committed by individuals who do not form part of an armed group, or by armed groups that are not organized or are not under responsible command, or by armed groups that do not control sufficient territory to be able to mount sustained military operations and apply humanitarian law’.
103 On this see Arnold (n 28) 335; Saul (n 2) 230ff with post 9/11 measures such as UNSC Resolution 1373(2001), which authorised states to criminalise terrorism under domestic law, without providing a definition, the separation of the two regimes – the law of armed conflict and international anti-terrorism legislation – was blurred.
104 i.e. acts committed with the primary purpose of terrifying the population of the adverse party. This is not the same as the ‘peacetime’ legal conception of terrorism. The meaning of terrorism under IHL is more limited: Saul (n 2) 227ff; Arnold (n 28) 69ff.
105 Sivakumaran (n 6) 341. Prosecutor v Galić (n 53) [87]; AP II (n 1) arts 4(2)(d) and 13(2); Arnold (n 55) 291–96.
106 This question has been the subject of debates on ‘the geographical scope of the battlefield’, which is beyond the scope of this article. See Noam Lubell and Nathan Derejko, ‘A Global Battlefield? Drones and the Geographical Scope of Armed Conflict’ (2013) 11 Journal of International Criminal Justice 65–88. In Sivakumaran's view, for instance, if the US admitted to be in a NIAC with Al Qaeda, the targeting of Osama bin Laden in Pakistan would be covered by IHL. In the reviewer's opinion, however, in this kind of scenario the two parties to the conflict should be bound by IHL, in so far as issues such as targeting, status of captives and the like are concerned. By contrast, the third state ‘hosting’ the members of the NSA should not be so bound, unless it consented to the stationing of the parties to the conflict on its soil. The cross-border element does not per se internationalise the conflict. This means that the ‘host state’ may apply its domestic criminal law provisions: Sivakumaran (n 6) 251. See Saul (n 2) 218–19, according to whom if one adopts a restrictive approach to common art 3, which assumed that armed conflicts would be confined to the territory of the state experiencing the conflict, then eg Al Qaeda fighters outside the primary territory would not constitute part of the existing conflict.
107 The anti-terrorism conventions normally contain exclusion clauses which determine either their application or that of IHL: see, eg, Hostages Convention (n 101) art 12; Suppression of Unlawful Acts Against the Safety of Maritime Navigation (entered into force 1 March 1992) 1678 UNTS 221, art 2. For a list of the existing United Nations conventions on terrorism, see the UN Treaty Collection Database (n 91). For more details see Arnold (n 28) 7ff and 13ff; O'Donnell (n 98) 863; Saul (n 2) 214ff, 219ff.
108 ICTY, Prosecutor v Perišić, Judgment, IT-04-81-A, Appeals Chamber, 28 February 2013, paras 54–58.
109 Sivakumaran (n 6) 568.
110 ibid 569.
111 See, eg, UNSC Res 2178(2014), 24 September 2014, UN Doc S/RES/2178 (2104), preamble, which reads: ‘Bearing in mind the need to address the conditions conducive to the spread of terrorism, and affirming Member States’ determination to continue to do all they can to resolve conflict and to deny terrorist groups the ability to put down roots and establish safe havens to address better the growing threat posed by terrorism’. See also the following paragraph: ‘Reaffirming that Member States must ensure that any measures taken to counter terrorism comply with all their obligations under international law, in particular international human rights law, international refugee law, and international humanitarian law’.
112 Sivakumaran (n 6) 82.