IHL and Terrorism, Part III - HRF's Gabor Rona endorses, broadens ICRC positon

Gabor Rona, international legal director at Human Rights First, responds to our previous posts about the legal framework applicable to terrorism, and discusses the possible implications for humanitarian action.

Many thanks to the ICRC for inviting me to weigh in on the last of five topics in their 2011 "Challenges of Contemporary Armed Conflicts" report:  “The Conflation of IHL and the Legal Framework Governing Terrorism.” 

First, let me note that this is section of the 2011 Report is not a comprehensive analysis of how IHL does, and does not, address terrorism. That topic would implicate every other topic of the report, as well. For example, the first topic, the typology of conflicts, must be addressed because the context of terrorism may or may not be armed conflict, and if armed conflict, it may be international or non-international, and if non-international, it may be governed by Additional Protocol II or merely by Common Article 3. The “qualification of conflict” is both a priori and critical to the determination of applicable legal framework.  The second topic, the role of human rights law, flows from the qualification of the conflict. Whether and how human rights law applies to counter-terrorism operations depends greatly on whether the context is, or is not, armed conflict. Even in armed conflict, the role of human rights law will vary depending on whether the conflict is international or non-international, and on whether the specific questions in play are targeting, as opposed to grounds and procedures for detention, as opposed to what process is due in trials. The third topic, the protective scope of IHL (which conceptually includes the fourth topic: limits to the permissible means and methods of warfare) also directly addresses issues common to counterterrorism operations and other types of conflict, namely, targeting, grounds and procedures for detention, detainee treatment, and due process in trials.

That said, I will stick to the theme of this section - overly broad designation of acts and groups as “terrorist” in two respects: in relation to post-conflict reconciliation and in relation to humanitarian engagement. In both respects, the ICRC correctly identifies the problem as one of national law and policy: overly-broad definitions of what is terrorism and overly-broad impediments to humanitarian action.

I can begin by endorsing the ICRC’s assertion that “acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited” by IHL in both international and non-international armed conflict. This should be, and is, an obvious manifestation of the IHL principle of distinction.

The ICRC notes that IHL does not prohibit participation in hostilities by civilians, so long as their targets are military objectives – that mere participation in hostilities is not a war crime. It notes also that IHL favors granting amnesties at the close of hostilities, but not to those who are chargeable with war crimes. Therefore, it argues that hostilities directed at military objectives should not be labeled “terrorist,” even if committed by unprivileged belligerents, since such a designation would create a hurdle to peace negotiations, reconciliation, and the grant of amnesties that are favored by IHL.

I endorse this concern and add one of my own. It’s well known that there is no single, international legal definition of terrorism. Playing fast and loose with the term does damage to the opprobrium in which the concept of terrorism should be held. Several governments have used the designation to describe legitimate political activity that they don’t like. Such uses devalue the term, legitimating the otherwise silly notion that “one man’s terrorist is another man’s freedom fighter.” The reason this notion is silly is that it mixes jus ad bellum apples (the reasons for resort to force) with jus in bello oranges (a means or method of hostilities, namely the targeting against civilians). In other words, the fight for self-determination and terrorism are not mutually exclusive categories. Acts of terror may well, albeit illegally, be employed in the fight for freedom and by no means are all terrorists fighting for freedom. For all these reasons, the term terrorism should be limited to hostile acts against civilians and civilian objects.

This is not problematic in international armed conflict, with its relatively clear distinctions between combatants and civilians. It is slightly more complicated in non-international armed conflict, where the combatant/civilian distinction does not exist, but where the principle of distinction is equally applicable. In peacetime it is more complicated still, as there is no application of the principle of distinction. Here, it is less clear that the term terrorism should exclude the targeting of soldiers or military installations - persons or objects that would be military objectives had the context been armed conflict. Still, given the relatively large grey zone between peace and non-international armed conflict (as distinct from the bright line between peace and international armed conflict), the better practice appears to be to limit the concept of terrorism to acts that target what would be civilians and civilian objects had the context been war, and to acts that target civilians and civilian objects in war.  

The ICRC also warns against the “criminalization of humanitarian engagement” resulting from overly broad criminal laws prohibiting “material support” to terrorists and overly broad designation of entities as “terrorist.” I think this criticism is correct, but too narrow. I would add that the notion of neutral and independent humanitarian action is challenged not only by the criminalization of humanitarian engagement, but also by the often severe obstacles that humanitarian providers face in receiving funding, due to counter-terrorism legislation. In addition, such restrictions impede the ability of parties to armed conflict to comply with their own humanitarian obligations to civilian populations affected by war. These obligations are particularly important in situations of occupation, where civilian populations depend on occupying powers for their safety and welfare. For example, Rule 55 of the 4th Geneva Convention obligates occupying powers to ensure, to the fullest extent of the means available to it, food and medical supplies of the population. Article 69 of Additional Protocol I adds clothing, bedding, shelter and other supplies essential to the survival of the civilian population and objects necessary for religious worship.

Prohibitions of engagement with non-state armed groups and other terrorist organizations or individuals serve defensible policy objectives. But they must be imposed with a scalpel rather than a sledge hammer. Blanket prohibitions against “material support” inhibit humanitarian providers and parties to armed conflict from meeting their legal obligations to civilians and their mandates. They also contribute to the maintenance of the very conditions that lead to conflict and terrorism - conditions that threaten international peace and security.

Previous posts in the IHL And The Challenges Of Contemporary Armed Conflicts series:

Introduction by Knut Doermann, Head of the ICRC Legal Division.

Typology of conflicts, in five parts.

IHL and Terrorism, Part I, by Jelena Pejic, Legal Expert, ICRC Legal Division

IHL and Terrorism, Part II, by Professor Bobby Chesney, University of Texas School of Law

International Law And The Challenges Of Contemporary Armed Conflicts, an ICRC Report presented at the 31st International Conference of the Red Cross And Red Crescent, Geneva, 2011.

IHL Challenges Report - IHL and Terrorism section.pdf