IHL Challenges Series - IHL And Terrorism, Part II, Bobby Chesney's response

First guest post in the IHL and Terrorism segment of our ongoing series, where Professor Bobby Chesney - of the University of Texas School of Law and a Lawfare editor - responds to an explanation of the ICRC position by our own Jelena Pejic.

Professor Chesney highlights what in his view is the lack of clarity of certain claims made by the ICRC, and offers a complementary interpretation of the legal framework applicable to terrorism.

Has invocation of an armed-conflict model in connection with counterterrorism over the past dozen years resulted in a problematic conflation of applicable legal norms?  Part VI of the Conference Report contends that the answer is yes, on multiple levels.  

At the narrowest level, the concerns expressed in Part VI boil down to objections to certain controversial offenses that the United States has borrowed from its own domestic criminal law and made triable by military commission (though the United States is not explicitly identified as the object of Part VI’s concerns), including the provision of material support and the notion of unlawful killing.  I have much sympathy with the policy concerns the report expresses on this score (above all with respect to the chilling effect this might have on the capacity of the ICRC itself to do its critical work).  And I agree that it would be a mistake to simply import domestic criminal law relating to terrorism lock-stock-and-barrel into an IHL framework; here I agree in particular that when a person lacking combat privilege attacks a military objective in a manner that is otherwise compliant with IHL, the action is no more (and no less) than a domestic crime. 

Alas, Part VI makes other, more-sweeping claims that strike me as less compelling and perhaps even problematic. Here I have in mind the first several pages of the section, which appear to me to endorse a set of striking claims about the relevance of IHL writ large to the entire category of terrorist activity.  I am hopeful that this is merely a misreading on my part.  If so, clarification would be most welcome.  At any rate, here is how I understood the opening pages of the section:

The section opens with an explicit claim to the effect that “armed conflict and acts of terrorism are different forms of violence governed by different bodies of law” (emphasis mine), and goes on to suggest that these bodies are mutually exclusive.  In my view, this is incorrect for several reasons, and I worry that the categorical formalism implicit in such a claim undermines the fact-sensitive, case-by-case approach to IHL’s field-of-application that is so admirably depicted and defended in Part II of the very same document (and further explored as part of this Intercross series two weeks ago)

To be clear, I certainly do not endorse the view that acts of terrorism necessarily implicate IHL.  Quite obviously this is not the case, and I will happily agree that terrorism and armed conflict ought not to be conflated in that sense.  Yet some acts of terrorism might implicate IHL.  Whether IHL applies in a given instance cannot and should not be determined based on formal categorical notions.  Instead, as with any other circumstance of violence, the relevance of IHL to circumstances involving terrorism ought to be determined on a case-by-case basis in light of the relevant field-of-application test.  

In most cases this will require reference to the NIAC standard, with its fact-dependent examination of the nature and intensity of the surrounding circumstances of violence as well as the degree of organization of the ostensible non-state party to that violence.  If that standard is not satisfied, so be it; the “terrorist” act is no more than a domestic crime.  If it is satisfied, however, the act in question might then be said to constitute not just an ordinary domestic crime but also a war crime (for example, the purposeful killing of civilians not directly participating in hostilities, the slaying of captives, and so forth).  

Part VI appears to argue for a different approach, pursuant to which the applicability of IHL is simply foreclosed once one categorizes a given act of violence as “terrorism.”  Much of the legal argument in support of this view presupposes the existence of a formal regime of “terrorism law” (derived at least in part from the set of multilateral treaties that call upon signatories to criminalize classic examples of terrorism such as hijackings).  I do not think it correct to depict such materials as collectively forming a legal regime in the same sense that IHL is a regime.  But never mind that, for in any event I do not see how that terrorism-law regime acquires any claim to exclusivity.  Just as IHRL might in some circumstances overlap with IHL—and thus may require a deconfliction analysis of some kind—so too with any terrorism-law regime such as the one described here.  

I also an unmoved by the argument that IHL contemplates the existence of both lawful and unlawful violence, whereas the ostensible terrorism-law regime contemplates only unlawful violence.  I say that for two reasons.  First, even if we accept that the terrorism-law regime is wholly and exclusively concerned with illegal acts, co-application of the two regimes is not logically inconsistent.  That is to say, application of IHL to an act of terrorism by no means precludes the position that the act of terrorism remains unlawful.  The report gives the example of an attack on a military objective, which would be a domestic law crime from the terrorism-law perspective but not illegal from an IHL perspective (unless of course perfidy or some other such collateral element of illegality were to be added to the hypothetical).  I see no conflict here, however; application of IHL would not change the domestic illegality of the attack unless the attackers enjoyed combatant privilege, which would not be the case in a NIAC.   (I would add, incidentally, that it seems artificial to depict the terrorism-law regime as being solely concerned with the actions of the terrorist and not also the responsive actions of the state, which might well include perfectly-lawful acts of violence by the police; on that view, both IHL and the ostensible terrorism-law regime contemplate both lawful and unlawful violence.)

Again, I am hopeful that all of this is a matter of miscommunication, and that the point of Part VI is simply to critique the notion that certain domestic crime notions related to terrorism ought to be imported into the IHL framework.  Either way, a clarifying statement would be most welcome. 

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

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