IHL Challenges Series - IHL and Terrorism, Part V - Wrap Up

ICRC Washington Deputy Legal Advisor Andrea Harrison wraps up the IHL and Terrorism section of our IHL Challenges series by summarizing the arguments made by our contributors during the last three weeks. Next up will be an exchange of views on new technologies and IHL.

I will begin by thanking all of the contributors to this segment on IHL and Terrorism. Jelena Pejic, Bobby Chesney, Gabor Rona and Ben Saul all provided excellent insights into many of the more problematic aspects of the interaction between the legal regimes of counterterrorism and IHL, and I will address some of their comments below.

The ICRC Challenges Report’s section on IHL and Terrorism, as addressed by Jelena Pejic in Part I of this segment, tries to identify some of the risks posed by conflating armed conflict and terrorism. The Challenges Report pointed out that in armed conflict, certain conduct - such as direct participation in hostilities – is lawful under international humanitarian law, whereas domestic or international law may prohibit the same actions as acts of “terrorism.” 

The interaction of domestic law and the law of non-international armed conflicts (NIAC), creates an imbalance between members of state security forces and members of non-state armed groups, thereby creating a strong disincentive for the latter to comply with IHL. If acts permitted by IHL, such as direct attacks on military objectives, are designated as terrorist acts when committed by non-state armed groups but as lawful acts when committed by agents of the state, the Challenges Report warns that it will not only further discourage IHL compliance but could also become an obstacle to peace negotiations and reconciliation efforts in the future.

Another major issue is the effect of designating as “terrorist” non-state armed groups which are party to an armed conflict, particularly when it signifies that humanitarian organizations will no longer be able to carry out humanitarian activities in combat zones due to their fear of being penalized for providing "direct" or "indirect" support to terrorist groups. While the ICRC is not opposed to counterterrorism measures as such, the placement of non-state parties to armed conflicts on a terrorist list often results in the fact that civilians living in areas controlled by so-called terrorist groups are hindered from receiving humanitarian aid, and it certainly makes it difficult for organizations like the ICRC to operate in a neutral and impartial manner consistent with its mandate. These decisions should not be taken lightly and better care should be taken to protect humanitarian space from overly broad counter-terrorism laws and regulations.

While all the contributors agreed with the ICRC Challenges Report’s assertion that there are serious risks when terrorism and armed conflict are conflated, there was also some disagreement on the nature and scope of this conflation.

Bobby Chesney’s post makes an interesting link between the general criticisms of the Challenges Report regarding the conflation of domestic and international terrorism offenses with armed conflict and the current U.S. law that imports domestic criminal law offenses – including terrorism offenses – into the military commissions system as war crimes. While the Report does not make this link, it is a compelling example of why notions of armed conflict must be separated from terrorism. In his contribution, Bobby Chesney interprets the Challenges Report as precluding the application of IHL as soon as an act was designated as a terrorist act under some domestic or international rule. This is not the ICRC’s view, in fact, it is the inverse.  The point the Report was trying to make is that the term "terrorist act" should be used, in a situation of armed conflict, only in relation to the very few acts specifically designated as such under IHL treaties, and considered war crimes. One such crime is “acts or threats of violence the primary purpose of which is to spread terror among the civilian population”, which contains a specific intent requirement. Other than that, the term "terrorist act" should not be used in relation to situations of armed conflict, for the reasons mentioned above: some acts of violence are allowed by IHL (attacks against military objectives), while other acts (direct and deliberate attacks against civilians and civilian objects), are already prohibited as well known war crimes. The ICRC does not see the added value in additionally calling the latter "terrorist acts" as matter of law, and is of the view that the overlap also has other potentially harmful effects of a practical and policy nature. 

Gabor Rona’s post draws out a very important issue that is also not addressed directly in the Challenges Report.  He focuses on the fact that more often than not, references to “terrorism” are more political than legal. He also calls for the term “terrorism” to only be used when referring to “hostile acts against civilians and civilian objects” - even during peacetime - so long as such acts would have been characterized as terrorist acts under IHL had the context been armed conflict. At the very least, the ICRC would agree with Rona’s comment that counterterrorism legislation should be narrowly tailored so as not to conflate the notions of armed conflict and terrorism.

In the final exchange of the segment, Ben Saul continues to develop Gabor Rona’s point on the crucial difference between law and politics. Specifically, he points out the shortcomings in many of the domestic laws that implement international treaties on terrorism, and how these domestic laws have “criminalize[d] terrorism regardless of whether it occurs in peacetime or armed conflict.” Indeed, as mentioned earlier, this conflates war crimes with “lesser crimes” and thus threatens to undermine the prohibition on certain types of acts which are considered to be somehow set apart as universally reprehensible. Saul also questions the Report’s reliance on IHL’s incentives (i.e. amnesties) to non-state armed groups to comply with IHL. This is a valid point and certainly the subject of a longstanding debate on the willingness of armed groups to follow IHL rules. As Saul points out, some groups are more eager to gain legitimacy than others by complying with IHL, but even if only a portion of armed groups are persuaded to comply with IHL, the ICRC’s position would be that this is still a better outcome than no compliance at all.  

In bringing this very dynamic exchange of views to a close, I will echo Gabor Rona’s comment that the Challenges Report does not purport to be a comprehensive analysis of all the issues surrounding IHL and terrorism, but I do believe that it highlights the major legal and practical issues that states need to take into account when devising measures to fight terrorism. IHL may not be a perfect legal regime, but by undermining IHL through legally questionable counterterrorism legislation and politically motivated characterizations of certain acts or groups, states risk undermining the tangible protections provided by IHL to countless persons affected by armed conflict.

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 IHL and Terrorism, Part IV, by Professor Ben Saul, University of Sidney Law School 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.