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TERRORISM UNDER INTERNATIONAL HUMANITARIAN
LAW
From the perspective of political science, international relations and sociology, there are good
reasons to understand many forms of terrorism and of combating terrorism as a kind of war.
This is particularly true for the category of terrorism which presently engenders the greatest
international attention to the worldwide struggle between the nebula of international terrorism
invoking extremist Islamic ideologies, personified by Al Qaeda and Osama Bin Laden, on the
one hand, and states lead by the US, on the other. It has been shown convincingly that both
Al Qaeda (since the mid 1990s) and the US administration (at least since 11 September 2001)
refer to this struggle as ‘war’, and it has been argued that the behaviour, aspirations and the
solution of that struggle must be analysed in terms of war.1 While that descriptive analysis
may be correct, in international law, as in all law, terms are used for a normative purpose, i.e.
to make certain rules applicable and to provoke certain legal effects. The terminology used in
law is, therefore, often different from that used in social sciences or the media. 2 War is
regulated by two distinct and completely separate branches of international law: the jus ad
bellum prohibiting and exceptionally authorizing the use of force, and the jus in bello,
regulating, mainly for humanitarian purposes, that use of force independently of whether it is
lawful or unlawful under jus ad bellum and regardless of the causes espoused by or attributed
to the parties to the conflict.3 No matter the legitimacy of the use of force in the first place,
the laws on how force may be used apply equally to all parties to a conflict. 4 Traditionally,
the rule of international law prohibiting the use of force applies to states. Individuals and
non-state groups are prohibited to use force by domestic law. A use of force, whether the
methods used are lawful or unlawful for example, terrorist therefore, only violates jus ad
bellum if it can be attributed to a state.5 Attribution to a state may occur either because force
is used by its own armed forces, or because individuals or groups act de facto under the
effective or global control of a state. 6 A state directing or controlling terrorists who attack

1
M.-M. Ould Mohamedou, ‘Non-Linearity of Engagement: Transnational Armed Groups, International
Law, and the Conflict between Al Qaeda and the United States’, Harvard Program on Humanitarian
Policy and Conflict Research, available online at http://www.hpcr.org (visited 12 January 2006).
2
L. Henkin, ‘General Course on Public International Law’, 216/IV Collected Courses (1989) 9, at 159.
3
International Convention for the Suppression of Financing of Terrorism, 9 December 1999, 2178 UNTS 229,
Art. 2(1)(b).
4
M. Sasso'li and A. Bouvier, How Does Law Protect in War? (2nd edn., Geneva: ICRC, 2006), at 102-107,
1029, 1045-1046.
5
G.M. Travalio, ‘Terrorism, International Law, and the Use of Military Force’, 18 Wisconsin International Law
Journal (2000) 145^191, at 187.
6
Draft Art. 8 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, in United
Nations, International Law Commission, Report on the Work of Its Fifty-third Session (23 April^1June and 2
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another state, therefore, commits a prohibited armed attack. Terrorist groups that are not
controlled by a state cannot violate jus ad bellum. 7 The traditional majority opinion is that
their use of force is not an armed attack that gives rise to the right to self-defence under
international law.8 This state-centric concept, which corresponds to the Westphalian structure
of the international society, was reaffirmed in two recent pronouncements of the International
Court of Justice,10 but states seemed to disagree with that traditional understanding when
they unanimously referred to the right of self-defence of the US after the 11 September 2001
attacks.9 Only states can be parties to the Conventions. Al Qaeda and/or terrorism are not
states. Therefore, the Conventions do not apply to a conflict between the US and these non-
state actors and amorphous concepts. As for customary international law, there is no
indication confirming what seems to be the view of the US administration, i.e. that the
concept of international armed conflict under customary international law is broader. 10 Some
acts of terrorism and some parts of the ‘war on terrorism’ are covered by the law of
international armed conflicts, including all hostilities directed against the armed forces or the
territory of one state by forces representing another state or acting de facto under the
direction or control of such state (which may have been the case for Al Qaeda forces in
Afghanistan, but not elsewhere).11 Other parts of that ‘war’ are clearly not covered by IHL of
international armed conflicts. Until now, it was regretted that once there was an international
element to a conflict in a given territory, the entire conflict could not be classified as wholly
international, but under consistent state practice, had to be split off into its components. 12 It is
even less arguable that a worldwide conflict may be characterized as international simply
because some of its components are international. Indeed, this never occurred during the Cold

July^10 August 2001), UN Doc. A/56/10 (SUPP).

7
M. Schmitt, ‘Deconstructing October 7th: A Case Study in the Lawfullness of Counterterrorist Military
Operations’,
8
Y. Sandoz, C. Swinarski, B. Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to
the Geneva Conventions of 12 August 1949 (Geneva, Dordrecht: ICRC, Martinus Nijhoff Publishers, 1987),
4538.
9
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, 9 July 2004, ICJ Reports 2004, at Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda), Judgment, 19 December 2005, available online at http://www.icj-
cij.org/icjwww/idocket/ico/icoframe.htm (visited 5 January 2006), at xx 146^147.
10
J.-M. Henckaerts and L. Doswald-Beck (eds), Customary International Humantiarian Law (Cambridge:
Cambridge University Press, 2005).
11
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits,
ICJ Reports (1986) 14, at x 115, and, for the overall control standard, ICTY, Judgment, Tadic¤(IT-94-1-A),
Appeals Chamber, 15 July 1999, xx 116^144.
12
D. Schindler, ‘The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols’,
163/II Collected Courses (1979) 119
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War.13 Applying the aforementioned definitions and minimum thresholds, under existing
IHL, a sustained ‘war’ between one or several states, on the one side, and a transnational
terrorist group such as Al Qaeda on the other side could theoretically fall under the concept of
a non-international armed conflict.14 This, however, exclusively depends upon the facts,
which are controversial. In armed conflicts, any act which could reasonably be labelled as
‘terrorist’ is prohibited by IHL if it is linked with the armed conflict and committed
on the territory of one of the states affected by the conflict (or on the High Seas).15
First, the very term ‘terrorism’ appears in prohibitions set out in Article 33 of Convention IV
(concerning protected civilians, i.e. basically civilians who find themselves in the hands of
the enemy, in international armed conflicts) and in Article 4(2)(d) of Protocol II (concerning
all persons not or no longer taking a direct part in hostilities in non-international armed
conflicts).16 However, that factor is not decisive. The context and field of application of those
provisions shows that their purpose was to prohibit collective measures taken by (mainly
state) authorities against a civilian population under their control to terrorize them in order to
forestall hostile acts.17 There are two exceptions: de lege lata, when terrorist acts are
committed in an armed conflict as defined by the usual rules of IHL, they are covered by
IHL and all acts that could reasonably be labelled as terrorist are prohibited by that law.
IHL, however, also protects those who are affected by armed conflicts and suspected of,
accused of or convicted for terrorist acts. The second, de lege ferenda exception is that it
might be useful to define terrorist acts in peacetime by analogy to what is prohibited in
wartime. This approach would still necessitate the solution of some legal problems, but it
would solve many political problems. Current discussions about a comprehensive convention
against terrorism do not go into this direction. In this and other discussions about the
definition of terrorism, people from very different horizons make the fight against terrorism
more difficult by selectively referring to war and the laws of war. The basic options for the
relationship between terrorism and war are first either to exclude or to include acts committed

13
H. McCoubrey and N.D. White, International Law and Armed Conflict (Aldershot and Vermont: Dartmouth
Publishing, 1992), 318.
14
Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, OEA/ Ser.
L/V/II.116 Doc. 5 rev. 1 corr., 22 October 20.02, available online at
http://www.cidh.oas.org/Terrorism/Eng/toc.htm
15
G.M. Travalio, ‘Terrorism, International Law, and the Use of Military Force’, 18 Wisconsin International Law
Journal (2000) 145^191, at 187.
16
Y. Sandoz, C. Swinarski, B. Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to
the Geneva Conventions of 12 August 1949 (Geneva, Dordrecht: ICRC, Martinus Nijhoff Publishers, 1987), x
4538.
17
E.-C. Gillard, ‘The Complementary Nature of Human Rights Law, International Humanitarian Law and
Refugee Law’, in Schmitt and Beruto, supra note 8, 50 at 52-53
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in armed conflicts in the definition of terrorism. Second, it is controversial whether state
behaviour should be included or excluded from the definition of terrorism. Third, it is
controversial if the term should only cover acts prohibited by IHL. This is mainly an issue if
the definition includes behaviour in armed conflicts, because a negative answer implies
contradictions between IHL and international anti-terrorism law. However, those
controversies are solved, the solution should not refer to the legitimacy of the cause for which
someone is fighting, but to the methods they are applying. Furthermore, the two sides of a
genuine armed conflict should not be treated differently by international anti-terrorism law.
Finally, it would be preferable not to criminalize in armed conflicts an act as terrorist if that
act is not prohibited by IHL, because such a definition would weaken the incentives to
comply with IHL.