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International Humanitarian Law, the Prohibition of Terrorist Acts and the Fight against Terrorism1

Published online by Cambridge University Press:  17 February 2009

Hans-Peter Gasser
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Extract

Terrorism is said to be a substitute for conventional — or classic — warfare. And the response to terrorism is now called a ‘war on terrorism’. Acts of terrorism have always been with us and so has war. Since time immemorial, warfare has been subject to legal regulations: the laws of war. Their foundations can be retraced to age-old practices established to mitigate the effects of recourse to violence when conflicts could not be resolved by peaceful means. These rules used to belong to customs observed by belligerents as a matter of course. Today, international treaties are the main source of the rules governing humanitarian aspects of the conduct of war: the Geneva Conventions for the protection of war victims of 12 August 1949 and their two Additional Protocols of 1977. Is international humanitarian law relevant to the horrors of modern warfare and, in particular, to terrorism? And does it sufficiently take into account the interest of states in combating terrorism?

Type
Current Developments
Information
Yearbook of International Humanitarian Law , Volume 4 , December 2001 , pp. 329 - 347
Copyright
Copyright © T.M.C. Asser Instituut and the Authors 2001

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References

3. Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,Geneva,12 August 1949Google Scholar; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea.Geneva,12 August 1949Google Scholar; Convention (III) relative to the Treatment of Prisoners of War,Geneva,12 August 1949Google Scholar; Convention (IV) relative to the Protection of Civilian Persons in Time of War,Geneva,12 August 1949Google Scholar. The Conventions had 190 States Parties as of 31 January 2003.

4. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977. Respectively, 160 and 153 States Parties at 31 January 2003.

5. Chapter VII of the UN Charter. See also the ongoing debate on a right to ‘humanitarian intervention’.

6. This section draws on the author's article: ‘Acts of terror, ‘terrorism’ and international humanitarian law’, 84 IRRC (09 2002) pp. 547–570Google Scholar.

7. Under the name of ‘militias’, ‘volunteer corps’ or ‘resistance movements’. See Third Geneva Convention, Art. 4A (1) and (2).

8. See in particular, Protocol I, Arts. 1(4) on the status of national liberation movements, and 44(3), on guerrilla warfare.

9. Hague Convention respecting the Laws and Customs of War on Land, 18 October 1907, preamble. The Martens Clause says that, in the absence of a specific prohibition ‘civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience’, in the wording of Art. 1(2), Protocol I.

10. For the exception, see supra nn. 7 and 8.

11. Protocol 1, Art. 35(1).

12. Ferencz, B.B., ‘International Criminal Court’, in Bernhardt, R., ed., 2 Encyclopedia of Public International Law (Amsterdam, Elsevier 1995) p. 1124Google Scholar.

13. UNGA Res. 51/210, 17 December 1996, and ‘Measures to Eliminate International Terrorism’, Report of the Working Group, UN Doc. A/C.6/56/L.9, 29 October 2001.

14. Friedländer, R.A., ‘Terrorism’, in Bernhardt, R., ed., 4 Encyclopedia of Public International Law (Amsterdam, Elsevier 2000) p. 846Google Scholar.

15. ‘“Attacks” means acts of violence against the adversary …’, Art. 49 of Protocol I.

16. Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954, Art. 4. See also Protocol I, Art. 53.

17. Protocol I, Art. 56.

18. Protocol I, Art. 37.

19. In particular, First Geneva Convention, Art. 50; Third Geneva Convention, Art. 130; Fourth Geneva Convention, Art. 147; and Protocol I, Art. 85. The International Criminal Tribunal for the former Yugoslavia has found that serious violations of the law on non-international armed conflicts are also international crimes. See n. 21.

20. Protocol I, Art. 1(2). See also supra n. 9.

21. Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, The Prosecutor v. Duško Tadić, case No. IT-94–1-AR 72, ICTY Appeals Chamber, 2 October 1995.

22. Ibid.

23. Text of the Letter of Transmittal published in ‘AGORA: The U.S. decision not to ratify Protocol Ito the Geneva Conventions on the protection of war victims’, 81 AJIL (1987) p. 910Google Scholar. See also a commentary by the author of the present paper: H.-P. Gasser, ‘An appeal for ratification by the United States’, ibid., p. 912.

24. Feith, D.J., ‘Law in the service of terror: The strange case of the Additional Protocol’, The National Interest, No. 1 (Fall 1985)Google Scholar. At the time of writing this paper Feith was Under Secretary of Defense for Policy in the Bush Administration.

25. Sofaer, A.D., ‘Terrorism and the law’, Foreign Affairs (Summer 1986) p. 901Google Scholar.

26. Art. 1 common to the four 1949 Geneva Conventions recalls this basic truth with the following words: ‘The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.’

27. Such as the Ad Hoc Tribunals for the former Yugoslavia and for Rwanda.

28. Rome Statute of the International Criminal Court, 17 July 1998.

29. ICC Statute, Art. 5(1).

30. ICC Statute, Art. 17. ‘The Statute does not include a ‘crime of terrorism’ (as was the case in early drafts), partly because of US opposition.

31. Supra n. 26.

32. Gasser, H.-P., ‘Ensuring respect for the Geneva Conventions and Protocols: The role of third States and the United Nations’, in Fox, H. and Meyer, M.A., eds., Effecting Compliance (London, The British Institute of International and Comparative Law 1993) pp. 15–49, esp. pp. 27 et seqGoogle Scholar.

33. Roberts, A., ‘Counter-terrorism, armed force and the laws of war’, 44 Survival (Spring 2002) p. 13CrossRefGoogle Scholar.

34. ‘Decision not to regard persons detained in Afghanistan as POWs: Contemporary Practice of the United States’, 96 AJIL (2002) p. 475CrossRefGoogle Scholar.

35. United States Military Assistance Command, Vietnam, ‘Criteria for classification and disposition of detainees’, Annex A of Directive No. 381–46 (Dec. 27. 1967), reprinted in 62 AJIL (1968) p. 766Google Scholar. See also Gasser, op. cit. n. 23, p. 921.

36. Military Order of 13 November 2001. See Paust, J.J., ‘Antiterrorism military commissions: Courting illegality’, 23 Michigan JIL (Fall 2001) p. 1Google Scholar. In response to harsh criticism the rights of the accused have been better brought in line with accepted notions of a fair trial. See ‘Contemporary practice of the United States relating to international law: U.S. Department of Defense rules on military commissions’, 96 AJIL (2002) p. 731CrossRefGoogle Scholar.

37. Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949. Art. 5 of the Fourth Geneva Convention curtails the rights of a person who ‘is definitely suspected of or engaged in activities hostile to the security’ of the state concerned. The right to be treated with humanity and to be given a fair trial is, however, absolute (or, in human rights terminology, nonderogable).

38. In the Abbasi & Anor case (of two UK citizens held in Guántánamo), the UK Court of Appeal held on 6 November 2002 that ‘Mr Abbashi is at present arbitrarily detained in a “legal black-hole”’. Case [2002] EWCA Civ. 1598.

39. Protocol I, Art. 1(2).

40. Israel refused to cooperate with a UN-appointed commission to establish the facts about the events in Jenin refugee camp. SC Res. 1405(2002) of 19 April 2002. See also the Report of the Secretary-General prepared pursuant to General Assembly Resolution GS-10/10 of 7 May 2002.

41. Protocol I, Art. 57.2(a)(iii), and also Art. 51.5(b). On these provisions see Sandoz, Y., Swinarski, C. and Zimmermann, B., eds., Commentary to the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, International Committee of the Red Cross/The Hague, Martinus Nijhoff Publishers 1987)Google Scholar.

42. Statement made at the 58th Annual Session of the UN Commission on Human Rights, Geneva, 26 March 2002.

43. Quotations from ICRC statements on its activities in the Middle East: ‘… security incidents involving Israel Defense Forces soldiers and directed at Red Cross staff, and attacks on its vehicles and premises …’, ICRC Press Release, 5 April 2002; ‘… frequent and often serious instances in which medical personnel were prevented from performing their life-saving duties …’, ‘… sudden degradation of the usual lines of communication between [ICRC delegates] and the Israeli authorities’, ICRC News and Communications, 2 April 2002.

44. Whether the organization of the domestic criminal system is itself an obstacle is another question.