Me gustaría que nos representaras tu coche con todo tu cuerpo Y que nos dijeras cómo eres, de qué estás hecho, qué funciones tienes, para

IHL does not expressly recognize the status of terrorist as such: “[t]here is neither any special legal status for ‘terrorists’, nor any lacuna excluding them, in IHL.”49 _In this subsection, we identify some examples of how allegations of terrorist violence may arise in IAC or in NIAC and what the corresponding status under IHL of those engaging in such conduct may be. That status—which can be highly fact- dependent—is important here because the scope of protections for a terrorist may turn on her status or function under IHL.50

Two prefatory notes are in order. First, an individual may have a dual legal status: one under a source of counterterrorism law and another under IHL. For example, someone may be considered a terrorist under domestic legislation but also a member of the state armed forces or of an organized armed group under IHL. The two statuses are not mutually exclusive.51

Second, in situations of armed conflict, civilians enjoy significant protections under IHL. Most importantly, they are generally immune from direct attack. That immunity lasts, under AP I and AP II, unless and for such time as they take a direct

47. Dinstein subdivides violence during NIAC into three categories: hostilities, ordinary crimes, and war crimes. Dinstein, NIACs in International Law, supra note 11, at pp. 11–17.

48. See, e.g., R v. Mohammed Gul [2012] EWCA Crim 280 [60] (concluding that “[t]hose who attacked the military forces of a government or the Coalition forces in Afghanistan or Iraq with the requisite intention set out in the Act are terrorists. There is nothing in international law which either compels or persuades us to read down the clear terms of the 2000 Act to exempt such persons from the definition in the Act.”); U.S. Department of Defense, Law of War

Manual § 17.4 (2015).

49. Id. at p. 222.

50. With respect to the IHL considerations concerning who may be targeted, see, e.g., Pejic, “Extraterritorial targeting,” supra note 16, at pp. 20–23.

51. Saul, “Terrorism and international humanitarian law,” supra note 41, at p. 213. As noted above, however, certain anti-terrorism conventions exclude from their scope of application armed forces in situations of armed conflict. See supra Section 2: “Definition and Classification of Armed Conflicts under IHL.”

part in hostilities.52 _{Thus, while IHL does not prohibit civilians from conducting} hostilities (so long as they do so in accordance with the laws of war), under IHL civilians forfeit their immunity against direct attack while directly participating in hostilities. One of the most pressing and disputed questions in contemporary IHL practice and scholarship concerns the exact definitional contours of such direct participation in hostilities.53

International armed conflict

Under IHL, in IAC “a person is generally either a combatant or a civilian,”54 _and “[g]enerally speaking, members of the armed forces (other than medical personnel and chaplains) are combatants.”55 _{(The so-called “special” status of medical personnel} who are authorized by a party to a conflict is highlighted in section 4.) The distinction matters chiefly because combatants “cannot be prosecuted for lawful acts of war in the course of military operations even if their behaviour would constitute a serious crime in peacetime. […] Once captured, combatants are entitled to prisoner-of-war status and to benefit from the protection of ” GC III.56

A state may also deploy “irregular” forces in an IAC,57 _{and those forces may be}

52. Articles 51(3) AP I and 13(3) AP II. Pursuant to Common Article 3(1), in NIAC “[p]ersons taking no active part in the hostilities” shall be treated in accordance with the protections laid down therein. Italics added. The United States does not seem to accept the qualifying phrase “for such time.” See U.S. Department of Defense, Law of War Manual §§ 2.9.1.2 and 2.9.4 (2015). Nor apparently does Israel; see Yoram Dinstein, “The ICRC Customary International Humanitarian Law Study,” 82 ILS (2006) 107 [citations omitted] (originally published in 36 IYHR 2006).

53. See, e.g., 42 NYUJILP 3 (2010); Michael N. Schmitt, “The Interpretive Guidance on the Notion of Direct Participation in Hostilities: A Critical Analysis,” 1 HNSJ (2010) 5.

54. Id. See article 4(A) GC III; article 43 AP I.

55. Knut Dörmann, “The legal situation of ‘unlawful/unprivileged combatants,’” 85 IRRC No. 849 (2003) 45–46. Note the distinct legal position of members of a levée en masse, who, pursuant to article 4(A)(6) GC III, are not combatants but are entitled to prisoner-of-war status upon falling into the hands of the enemy. Under IHL, religious personnel have a particular protected status; we do not discuss or address that status in this report. Where an IHL provision includes protections for both medical and religious personnel, we focus only on those pertaining to the former and elide those pertaining to the latter.

56. Id. at p. 45. Combatants “can be prosecuted only for violations of international humanitarian law, in particular for war crimes.” Id. See also article 43(2) AP I.

accused of terrorist conduct. The key questions as to the status of those persons are whether the terrorists serving as such irregular forces “belong” in IHL terms to the relevant state party to the conflict and whether they comply with the four minimum conditions of combatancy.58 _{International law scholar Ben Saul explains that “[w]} hile autonomous terrorist groups (such as Al-Qaeda) do not ‘belong’ to any state, it is conceivable for a terrorist group to be sufficiently connected to and commanded by state authorities in a given situation.”59

Also in IAC, the conduct of “guerilla” forces who fall under article 44(3) AP I (by carrying their arms openly preceding and during a hostile act60_{)— and thus who also} qualify as combatants under that regime—may give rise to terrorism allegations.61

In addition to combatants and irregular forces, a number of other actors’ conduct may elicit allegations of terrorist violence during an IAC. For example, accusations of terrorist violence may arise “where civilians spontaneously resist the invading forces of a foreign state (a levée en masse).”62

58. Article 4(A)(2) GC III.

59. Saul, “Terrorism and international humanitarian law,” supra note 41, at p. 210. 60. More specifically, pursuant to article 44(3) AP I, an armed combatant

shall retain his status as a combatant, provided that, in [situations of armed conflicts where, owing to the nature of the hostilities, he cannot distinguish himself from the civilian population while he is engaged in an attack or in a military operation preparatory to an attack], he carries his arms openly: (a) during each military engagement, and (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.

61. Article 44(3) is one of the grounds on which the U.S. has elected not to become a party to AP I. Detailed

Analysis of Provisions, Attachment 1 to George P. Shultz, Letter of Submittal, December 13, 1986, Message from the President Transmitting AP II, p. IX (stating that “Article 44(3), in a single subordinate clause, sweeps away years

of law by ‘recognizing’ that an armed irregular ‘cannot’ always distinguish himself from non-combatants; it would grant combatant status to such an irregular anyway. As the essence of terrorist criminality is the obliteration of the distinction between combatants and noncombatants, it would be hard to square ratification of this Protocol with the United States’ announced policy of combatting terrorism.”)

62. Saul, “Terrorism and international humanitarian law,” supra note 41, at p. 211. Article 4(A)(6) GC III defines a levée en masse as “[i]nhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.” Members of a levée en masse, despite not technically belonging to or forming part the armed forces of a party to the IAC, are entitled to prisoner-of-war status if they fall into the hands of the enemy. Article 4(A)(6) GC III.

Terrorism allegations may also arise “where a state occupies another state’s territory without initially meeting armed resistance, whether from the military or irregular forces of the occupied state or a levée en masse.”63 _{In that case, according} to Saul, “[s]ubsequent ‘terrorist’ violence by civilian resistance forces of occupied territory may still be classified as part of the international conflict brought about by occupation.”64 _{In a similar vein, terrorist violence may form part of an IAC “involving} civilian resistance forces which succeed any national armed forces that resisted an invading military but dissolved upon the establishment of the occupation.”65 _Finally, terrorist violence may form part of an IAC where a so-called national liberation movement is recognized pursuant to AP I.66

Non-international armed conflict

Terrorist violence may also form part of a NIAC.67 _{Such violence may, for instance,}

63. Saul, “Terrorism and international humanitarian law,” supra note 41, at p. 211. See also Akande, “Classification of Armed Conflicts,” supra note 18, at p. 47 (arguing that “it is the law of occupation and other rules of international armed conflict (including the law of targeting) that conditions how the occupier may respond to an uprising in the foreign territory of which it has temporary occupation.”). But see Marko Milanovic, “Lessons for human rights and humanitarian law in the war on terror: comparing Hamdan and the Israeli Targeted Killings case,” 89 IRRC No. 866 (2007) 381–385.

64. Saul, “Terrorism and international humanitarian law,” supra note 41, at p. 211.

65. Id. Saul identifies “Israel’s conflict against Palestinian terrorist organisations” as one such IAC, “albeit with sui

generis characteristics.” Id. [citation omitted]. In relation to that form of IAC, according to Saul, “a distinction should

be drawn between non-state groups comprised of inhabitants of occupied territory and foreign terrorist groups which fight an occupying power; only the latter may be characterised as part of an international conflict, while the former may form part of a separate non-international conflict.” Id.

66. Article 1(4) AP I. Saul, “Terrorism and international humanitarian law,” supra note 41, at p. 211. Saul argues that that states not party to AP I

(relevantly including Israel, occupying Palestine, and Morocco, occupying Western Sahara) remain free to treat liberation fighters as domestic rebels, including to criminalise them as ‘terrorists’ under domestic law (for attacks on the state’s own territory) or the military law applicable in occupied territory (to the extent that the prior domestic law of the occupied territory has been displaced for security reasons).

Id. at p. 212.

67. In a 1997 judgment, the Trial Chamber of the ICTY added the precondition of the intensity of violence to help distinguish armed conflicts from “banditry, unorganized and short-lived insurrections, or terrorist activities.” ICTY, Prosecutor v. Tadić, Trial Chamber, Opinion and Judgment, Case No IT-94-1-T, May 7, 1997, para. 562 [citations omitted; italics added]. However, according to Dinstein, that reference to terrorist activities should “be taken as relating not to the nature of the acts but to their sporadic incidence. It is only when terrorist activities do not meet the required

be committed by:

• A member of the state armed forces; • A member of the dissident armed forces; • A member of an organized armed group; or • A civilian directly participating in hostilities.

(AP II also contemplates the “special” status of medical personnel in NIAC. Among the conditions to obtain that status is that those assigned personnel do not commit acts, outside their humanitarian function, harmful to the enemy.68₎

States have not agreed in NIAC treaties to extend the “combatant’s privilege”— and, upon capture, the corresponding status of prisoner of war—to members of organized armed groups or to civilians directly participating in hostilities.69 _{Parties to} a NIAC may, however, extend POW status to captured fighters as a policy matter.70

preconditions of a NIAC that they would move into another legal arena [i.e., one other than IHL].” Dinstein, NIACs

in International Law, supra note 11, at p. 34.

68. See infra Section 4: “Corollary Protections for Medical Caregivers, Transports, Units, and Supplies — Respect and protection of medical personnel, units, and transports: prohibition on knowingly attacking, firing upon, or unnecessarily preventing them from discharging their proper functions” and id at. “Prohibition on illegitimate compulsion.” 69. See Dinstein, NIACs in International Law, supra note 11, at pp. 58–63. The IHL criteria for membership in an organized armed group are a matter of dispute. See, e.g., Kenneth Watkin, “Opportunity Lost: Organized Armed Groups and the ICRC ‘Direct Participation in Hostilities’ Interpretive Guidance,” 42 NYUJILP 641 (2010).

70. Pursuant to Common Article 3(2), “[t]he Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.”; pursuant to article 6(5) AP II, “[a]t the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.”

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