IHL and Terrorism, Part IV - Ben Saul responds

We continue our Series and exchange of views on the conflation of armed conflict and terrorism with a guest post by Professor Ben Saul , of the University of Sidney Law School. 

The ICRC’s report on IHL and the challenges of contemporary armed conflict makes three critical points about terrorism. First, existing IHL is reasonably capable of regulating violent methods of war which are commonly described as terrorism. There is thus little apparent benefit from superimposing an additional regime of counter-terrorism law on armed conflict. 

Secondly, the international legal suppression and criminalization of terrorism interferes in incentives under IHL – such as they are – for armed groups to comply with IHL, because if treated as terrorists they have little to lose by violating IHL and gain little by respecting it.

Thirdly, extended forms of criminal responsibility for terrorism (such as providing material support for terrorism, or associating with terrorists) may result in the criminalization of legitimate humanitarian action by neutral and independent actors like the ICRC, impeding their work and aggravating human suffering in war.

In my view, all three points are persuasive and by and large valid, though in the spirit of debate I will argue that things are more complex than the ICRC suggests. Global counter-terrorism law is attractive to states precisely because it extends the reach of the legal regulation of violence against civilians, far from merely duplicating prohibitions in IHL, and not always in ways which necessarily undermine IHL.

For instance, members of diaspora communities who raise funds in a neutral state for suicide bombing in a civil war or an occupation in another state can be prosecuted under terrorist financing laws, whereas war crimes liability might not extend so far (such as where the funds are not for specific attacks, and because material support for terrorism is not a war crime). 

Holding the financers criminally liable in the neutral state not only enhances the protection of civilians in war, but it is also hard to see how it could undermine incentives for armed groups on the ground – that is, the fighters themselves – to comply with IHL on the battlefield. 

This underscores a more nuanced point that while some anti-terrorism law might add nothing to IHL, or interfere with it, not all of it does. Much depends on how counter-terrorism law is crafted. The key problem is that much of it is not well crafted at all. Some of the most problematic anti-terrorism laws are not products of considered international anti-terrorism treaties – many of which exclude armed conflict – but derive from the haphazard, discretionary national implementation of UN Security Council resolution 1373.

Thus states like Britain and Australia criminalize terrorism regardless of whether it occurs in peacetime or armed conflict – and even if those using violence attack only military targets using proportionate means. Likewise, the United States’ law against material support for terrorism imposes strict liability with no exceptions, criminalising even those who train armed forces in IHL, or humanitarian actors who legitimately deal with armed groups. 

At the same time, national and international counter-terrorism laws are often selectively or incoherently applied – for much of the west, the Tamil Tigers (LTTE) were branded a terrorist organisation after 9/11. The result was catastrophic. International legitimation of the Sri Lankan government’s cause in rooting out ‘terrorists’ encouraged an escalation of government violence into systematic war crimes or crimes against humanity, including deliberate shelling of hospitals and civilian safe zones. 

At the same time, the LTTE felt pressured into using more and more desperate tactics, from using human shields to executing fleeing civilians. As a recent inquiry shows, the United Nations politically sanitised its own reporting of the conflict, in the process forsaking its advocacy for civilians at risk. The global counter-terrorism paradigm radically and fatally undermined IHL on all sides.

At the same time, the world remains fickle in its labelling of terrorism. Thus, the fighters in Libya and Syria are feted by the west as rebels in a civil war fighting to overthrow tyranny. Some of our states even supply them with weapons. There is no law but politics here.

If terrorism is viewed as a shared international problem, IHL is further disrupted by the apparent obligation on states to cooperate with one another in repressing each other’s political enemies – as defined unilaterally by each state. Thus the doctrine of non-interference in the political self-determination of other states – including where peoples resort to civil war to decide their differences – falls by the way side. Global counter-terrorism law comes to destroy the precious space of political freedom to resist repression by authoritarian states, a zone of freedom in which IHL historically – and quite rightly – took a back seat. 

I would possibly query the ICRC’s assumptions about just how much incentive current IHL provides for certain armed groups to comply with it. Despite our routine incantations that IHL contains such incentives – what else can we say? – empirically we hardly know much about whether such incentives really work in practice. 

For example, do non-state armed groups really comply with IHL on the off chance that at the end of the conflict they might get an amnesty? Is that faint promise really an incentive when IHL leaves national law free to criminalise any such violence – even proportionate attacks on military objectives – as a crime under domestic law, whether called terrorism, rebellion, or something else? What about liberation movements not covered by Protocol I, who fictitiously remain ‘domestic’ criminals and who probably feel little enthusiasm for IHL? 

Further, do armed groups in civil wars see anything meaningful in IHL’s agnostic approach to them – neither authorising nor prohibiting their violence, and throwing them to the dogs of (often repressive) national law? There is no equality amongst the parties in such conflicts. The best we can say is that IHL doesn’t interfere – which is really saying it sides with the government by not recognising the combatant status or immunity of rebels. And what about the indeterminate concept of direct participation in hostilities, which means such different things to different states, leaving members of armed groups guessing about their status and thus about what IHL protections offers them – or denies them?

On the other hand, don’t most armed groups care, at some level, about their legitimacy and their audience, and thus are somehow susceptible to the influence of IHL’s normative power? But is there a qualitative difference in the attitude of different groups? Are some extreme, religious organisations simply not interested in playing by any secular rules, and can never be socialised into IHL? If so, what is lost by branding them as terrorists, outlaws beyond the pale, with whom no deal can ever be done? Or can even Al Qaeda, or Al Shabaab, be reasoned with at some level, as the experience of the ICRC itself probably shows?

One final clarification is worth making. The ICRC suggests that the labelling of groups as “terrorist” may be an obstacle to peace negotiations or reconciliation. That is often true because it polarises the politics of conflict resolution and heightens the price of negotiation for politicians concerned about domestic constituencies or the views of powerful allies. 

At the same time, counter-terrorism law is so unsatisfactory precisely because it is so slippery. A terrorist group one day can still become a mainstream political party, or even a government, the next. It happens all the time, from the IRA in Britain to the Maoists in Nepal, and now possibly FARC in Columbia or the Mindanao insurgents in the Philippines. 

It is of course easier when terrorism remains a rubbery political and not a hard legal concept. But the creation of anti-terrorism law seldom stops in its tracks a necessary transition from terrorism to politics, at least when the stakes are high enough – and the belligerents are sufficiently exhausted by too many deaths over too long a time. 

Pessimistically, in the same way, being a war criminal under IHL sometimes does little to stop such a person entering the political mainstream. Every day the west relies on vicious warlords in Afghanistan, or their equivalents in other places, to maintain peace – often whatever the cost to justice and accountability, and to the fragile fabric of IHL norms.

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

IHL and Terrorism, Part III, by Gabor Rona, Human Rights First

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