Defining the word “terrorism” is a challenge since every state defines it according to its own needs and policy. In UN Security Council resolution 1566, terrorism is defined as “[…] criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act […]”68 The U.S. government defines terrorism as, “[t]he term terrorism means premeditated,
65
Y Sandoz, C Swinarski, B Zimmermann (eds) ICRC Commentary on the Additional Protocols of 8 June
1977 to the Geneva Conventions of 12 August 1977, 1987.
66
The Vienna Convention on the Law of Treaties (1969), Art 31(1) states that treaties are to be construed according to the ‘ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.
67
As defined in art 1(3) and (4) of Protocol I in connection with art 2 common to the Geneva Conventions of 12 August 1949.
68
politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents, usually intended to influence an audience.”69
4.1 The “war on terrorism”: Is it an International Armed Conflict, Non-International Armed Conflict, or something in between?
In the so-called “war on terrorism” proclaimed between the U.S. and al Qaeda after the 9/11 terrorist attacks, it is important to pose a question whether IHL applies, noting that the adversary is not a state, but loose entities carrying out sporadic acts of violence. A determination whether an armed conflict exists is important to discuss the status of civilians in war on terror.
According to the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Tadic case, “an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. [IHL] applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, [IHL] continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.”70
Under the Geneva Conventions of 1949, international armed conflicts are those which are fought between states. Common article 2 of the Geneva Conventions provides the definition of international armed conflict as “…all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.”71 The high contracting parties mentioned in this article refer to the two sovereign states having control over the affairs of the states including the declaration and withdrawal of war. When the case arises where a state supports any rebellion or liberation movement inside another state or supports the governments against armed groups or rebels then the conflict will be of internationalized non-international nature. International armed conflict does not exist in a situation where a state targets an appeal for a third state to operate on their soil.
The mere fact that non-state actors cannot be parties to the relevant IAC treaties has been stressed by the Bush administration in the aftermath of 9/11, but the Bush administration has not been keen on qualifying the conflict as a NIAC either.72 Considering that the terrorist adversary is not a state, the fight against it is not entirely compatible with the “ordinary” NIAC definition. Taken together, these arguments would mean that the war on
69
Henderson, Global Terrorism: The Complete Reference Guide, 2001, at 4. 70
Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Interlocutory Appeal), Case No. IT-94-1-AR72, 2 October 1995, para 70.
71
Common article 2 of Geneva Conventions of 1949. 72
terror is neither an IAC nor a NIAC, which thus creates some sort of a legal vacuum where hostilities actually take place.
The ICRC states that “Terrorism is a phenomenon. Both practically and legally, war cannot be waged against a phenomenon, but only against an identifiable party to an armed conflict. For these reasons, it would be more appropriate to speak of a multifaceted “fight against terrorism” rather than a "war on terrorism."73
4.2 Implications on the Principles of Distinction and Protection
Terrorism poses a challenge on the principles of distinction and protection. This is so because terrorists do not only demonstrate a lack of precision and precaution on their tactics to civilian safety but more often, their very purpose is to attack civilians and inflict as much damage, suffering and fear as possible. Terrorists who attack civilians within the context of an actual armed conflict are civilians unlawfully participating in hostilities, if they have a nexus to the armed conflict, and terrorism constitutes a war crime.74
While nothing justifies callous terrorist attacks on civilians, unfortunately, states often overreact and demonstrate a less than exemplary regard for the principles of distinction and protection of the innocent civilian population. Increasingly, however, states are asserting that, when faced with an unconventional and ruthless enemy, such as terrorists, new methods of policing and combat and an unconventional military response may be required. In the new security environment, the lines between war and peace are blurred, and civilians are becoming targeted in operations which are military in all but name. By the same logic, the persons involved in fighting the war on terror, who are mainly civilians, could be considered to be directly participating in these ‘hostilities’.