CHAPTER-1

TERRORISM AND INTERNATIONAL HUMANITARIAN

LAW

International humanitarian law is the body of rules applicable when armed violence reaches
the level of armed conflict, whether international or non-international. The international
humanitarian law treaties most commonly referred to are, of course, the four Geneva
Conventions of 1949 and their two Additional Protocols of 1977, although this body of law
encompasses a range of other legally binding instruments, as well as customary international
humanitarian law. International humanitarian law does not itself provide a definition of
terrorism, but it prohibits most acts against civilians and civilian objects committed in armed
conflict that would commonly be considered “terrorist” if committed in peacetime.
It is a basic principle of international humanitarian law that persons engaged in armed
conflict must at all times distinguish between civilians and combatants and between civilian
objects and military objectives.1 The principle of distinction is a cornerstone of international
humanitarian law. Derived from it are specific rules aimed at protecting civilians, such as the
prohibition of deliberate or direct attacks against civilians and civilian objects, the prohibition
of indiscriminate attacks, and the use of “human shields”, 2 as well as other rules on the
conduct of hostilities aimed at sparing civilians from their effects. 3 International humanitarian
law also prohibits hostage taking, whether against civilians or persons no longer taking part
in hostilities.4
Once armed conflict level is reached, it may be argued that there is little added value
in designating most acts of violence against civilians or civilian objects as “terrorist” because
such acts would already constitute war crimes under international humanitarian law.
Individuals suspected of war crimes may be criminally prosecuted by states under existing
bases of jurisdiction under international law; and, in the case of grave breaches provided for
in the Geneva Conventions and Additional Protocol I, they must be criminally prosecuted,
including under the principle of universal jurisdiction.

1
Additional Protocol I (‘AP I’), article 48.
2
See AP I, article 51.
3
See AP I, article 57.
4
Hostage taking is a grave breach of GC IV (article 147). See also common article 3 to the Geneva Conventions
and AP I, article 75.

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International humanitarian law also specifically prohibits “measures of terrorism” and “acts
of terrorism”. The context in which these prohibitions are referred to suggest that the main
aim is to underline a general principle of law: that criminal responsibility is individual and
that neither individuals nor the civilian population may be subject to collective punishments,
which are, obviously, measures likely to induce terror. Thus, the Fourth Geneva Convention
(article 33) provides that “Collective penalties and likewise all measures of intimidation or of
terrorism are prohibited”, while Additional Protocol II (article 4 (2) (d)) prohibits “acts of
terrorism” against persons not or no longer taking part in hostilities.
Both of the Additional Protocols to the Geneva Conventions also prohibit acts aimed
at spreading terror among the civilian population.
“The civilian population as such, as well as individual civilians, shall not be the
object of attack. Acts or threats of violence the primary purpose of which is to spread
terror among the civilian population are prohibited”,5
The primary purpose of these provisions, referred to in the context of rules on the conduct of
hostilities, is to emphasize that acts committed in international or non-international armed
conflict that do not provide a definite military advantage are prohibited. While even a lawful
attack against a military objective is likely to spread fear among civilians, these rules attempt
to prohibit attacks specifically designed to terrorise civilians – such as campaigns of shelling
or sniping at civilians in urban areas – that cannot be justified by reference to the military
advantage that results from them.6
The explicit prohibitions of acts of terrorism against persons in the power of the
adversary,7 as well as the prohibitions of such acts committed in the course of hostilities 8 just
mentioned above – alongside other rules prohibiting acts that would commonly be called
“terrorist” outside armed conflict9 – demonstrate that international humanitarian law protects

5
Additional Protocol I, article 51 (2) and Additional Protocol II, article 13 (2).
6
See The Prosecutor v. Stanislav Galic, Case IT-98-29-T, 5 December 2003, para. 138. (“The Majority is of the
view that an offence constituted of acts of violence wilfully directed against the civilian population or individual
civilians causing death or serious injury to body or health within the civilian population with the primary
purpose of spreading terror among the civilian population – namely the crime of terror as a violation of the laws
or customs of war – formed part of the law to which the Accused and his subordinates were subject to during the
Indictment period. The Accused knew or should have known that this was so. Terror as a crime within
international humanitarian law was made effective in this case by treaty law. The Tribunal has jurisdiction
ratione materiae by way of Article 3 of the Statute. Whether the crime of terror also has a foundation in
customary law is not a question which the Majority is required to answer”.)
7
GC IV, article 33; AP II, article 4 (2) (d).
8
AP I, article 51 (2); AP II, article 13 (2).
9
Hostage taking, for example. See GC IV, article 147, AP I, article 75 (2) (c) and common article 3 (1) (b).

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civilians and civilian objects10 against these types of assaults when committed in armed
conflict.
One challenge to international humanitarian law in the current context is the tendency
of states to label as “terrorist” all acts of warfare committed by opposition armed groups in
the course of non-international armed conflicts. Although it is generally accepted that
belligerents in international armed conflicts may under international humanitarian law
lawfully attack each other's military objectives, states have been much more reluctant to
recognize the same principle in non-international armed conflicts. Since the launching of the
“global war on terrorism” states engaged in such conflicts have almost universally labelled
any act committed by domestic insurgents as an act of “terrorism” even though, under
international humanitarian law, such an act might not have been unlawful (e.g. attacks against
military personnel or installations).
Non-international armed conflicts thus lie at the centre of the delicate balance that
needs to be struck between international humanitarian law and anti-terrorism measures.
While acts of violence against military objectives in internal armed conflicts remain subject
to domestic criminal law, the tendency to designate them as “terrorist” completely
undermines whatever incentive armed groups have to respect international humanitarian law.
Humanitarian law tries to provide such an incentive by encouraging states to grant “the
broadest possible amnesty to persons who have participated in the armed conflict” 11 at the
end of hostilities. The assumption, of course, is that such an amnesty would be granted to
those who had respected the laws of war and not to those suspected of war crimes or of other
crimes under international law. If at the end of an internal armed conflict all persons who
took up arms against the government are labelled “terrorists” it is unlikely that a government
would – or even could – consider granting them amnesty. The stifling effect on the national
reconciliation, usually necessary after the end of a civil war, is obvious enough. Removing
the protection of international humanitarian law from persons detained in relation to an
internal armed conflict – by designating them domestically as “terrorists” – could also have
grave consequences for the individuals involved.

10
Article 51 (1) of Additional Protocol I specifies that “Civilian objects shall not be the object of attack or of
reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2”.
11
AP II, article 6 (5).

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As is well known, the fair trial rights provided for in common article 3 to the Geneva
Conventions12 and in Additional Protocol II13 are non-derogable, which is not necessarily the
case under domestic law or even as a matter of international human rights law.
Lastly, mere participation in a non-international armed conflict is not a crime under
international humanitarian law, and third states are currently not under an obligation to
prosecute or extradite persons who have participated in hostilities and may have fled to their
territory. If, however, the conduct in question is considered “terrorist” under international
conventions – including the draft UN Comprehensive Convention – third states would be
under such an obligation. It is therefore essential that terrorism conventions systematically
exclude acts governed by and consistent with international humanitarian law from their
scope. The current blurring of the distinction between lawful and unlawful acts of war may
well be counterproductive.

Relationship between IHL and Counter-Terrorism Law

12
Common article 3 (1) (d).
13
AP II, article 6.

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The interaction between IHL and international counter-terrorism law (CTL) is complex and
varies according to the context. CTL is not a unified field of international law 14 but comprises
disparate norms emanating from multiple sources. Foremost are the 18 ‘sectoral’
counterterrorism treaties adopted since 1963, which require states parties to criminalise
particular methods of transnational violence commonly used by terrorists, establish extensive
jurisdiction over the offences, and investigate, apprehend and ‘prosecute or extradite’
offenders. In addition, Security Council resolutions adopted since 1999 have imposed
sanctions regimes on specific terrorist actors, while resolutions since 2001 have required
broader legislative and enforcement measures to be taken by states against terrorist threats in
general. There are also numerous ‘soft law’ norms on terrorism, including those in UN
General Assembly resolutions and its Global Counter-Terrorism Strategy 2006.

It is clear that CTL does not simply extinguish IHL or vice versa. UN Security
Council and General Assembly resolutions have repeatedly emphasised that states must
respect their obligations under IHL when countering terrorism. There is, however, no further
guidance from the UN organs on the precise relationship between CTL and IHL, nor any
general rule of international law specifying the relationship.

The international law principle of lex specialis does not readily provide a definitive
answer to potential conflicts of norms between the two areas, since each of CTL and IHL
could be viewed as the more specific norms addressing the same subject matter. CTL
addresses the sub-set of violence described as terrorism, potentially whether within or outside
of armed conflict. IHL addresses the sub-set of violence known as armed conflict, whether
also qualifying as terrorism or not. Each could therefore be seen as best adapted to the
overlapping, exceptional violence that they address.

In place of a general rule, different CTL norms specify varying relationships to IHL.
In the first place, individuals and entities listed, under Security Council sanctions resolutions,
as associated with Al Qaeda or the Taliban are subject to those restrictive financial measures
even if they are also non-state armed groups that are parties to a non-international armed
conflict, or individual members of such armed groups. The implications of such designation
for compliance with IHL are considered later below.

14
Ben Saul, ‘The Emerging International Law of Terrorism’ in Ben Saul (ed), Terrorism: Documents in
International Law (Hart 2012) 67.

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Secondly, the sectoral CTL treaties are generally limited to transnational offences and thus
exclude purely domestic acts of violence. 15 In consequence, violence in non-international
armed conflicts that is purely domestic – such as classic civil wars involving nationals of a
single state within the state’s territory – will not be covered by the sectoral CTL treaties and
instead will be solely regulated by IHL (as well as applicable international criminal law and
international human rights law).

Thirdly, one sectoral CTL treaty can potentially be entirely inapplicable in armed
conflict. The Hostages Convention 1979 provides that it does not apply to hostage taking in
armed conflict where states parties are bound to prosecute or extradite a hostage-taker under
the Geneva Conventions of 1949 and Additional Protocols of 1977. IHL is thus accorded
precedence as the lex specialis. IHL prohibits and criminalises hostage taking in international
and non-international conflicts. The definition of hostage taking in peacetime and during
armed conflict is similar.

The exclusion of hostage taking in armed conflict from the Hostages Convention is,
however, limited to where there exists an IHL treaty obligation to prosecute or extradite it.
No such obligation arises in non-international armed conflicts, whether under common
Article 3 of the four Geneva Conventions 1949 or Additional Protocol II 1977, since neither
of those treaties recognises hostage taking as a ‘grave breach’ war crime subject to
prosecution or extradition. This is the case notwithstanding that hostage taking in non-
international conflict is a war crime under customary IHL and under the Rome Statute of the
ICC. As such, the Hostages Convention applies to hostage taking in non-international armed
conflict, criminalising it and thereby supplementing the IHL treaty provisions that prohibit
but do not criminalise it.

Fourthly, some of the sectoral CTL treaties applying to transnational aviation and
maritime safety do not apply to military, customs or police aircraft or ships 16, or do not apply

15
Specifically, the treaties typically do not apply where an offence is committed in a single state, the offender
and victims are nationals of that state, the offender is found in the state’s territory and no other state has
jurisdiction under those treaties: Tokyo Convention 1963 article 5(1); Hague Convention 1970 article 3(3)-(4);
Hague Convention 1970 article 3(5) as amended by the Beijing Protocol 2010; Montreal Convention 1971
articles 4(2)-(5); Rome Convention 1988 article 4(1)-(2); Rome Protocol 1988 article 1(2); Hostages Convention
1979 article 13; Vienna Convention 1980 article 14; Nuclear Terrorism Convention 2005 article 3; Terrorist
Bombings Convention 1997 article 3; Terrorist Financing Convention 1999 article 3.
16
Tokyo Convention 1963 article 1(4); Hague Convention 1970 article 3(2); Montreal Convention 1971 article
4; Rome Convention 1988 article 2.

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to military air bases (instead only applying to civilian airports).17 As a result, attacks on such
targets during armed conflict are not covered by the CTL instruments and are instead
exclusively regulated by IHL. On the other hand, transnational attacks on civilian aircraft,
ships or airports during armed conflict, whether by state military forces, non-state armed
groups, or civilians taking a direct part in hostilities, fall within both the CTL treaties and
IHL and could simultaneously constitute crimes under both regimes.

In a similar vein, the Terrorist Financing Convention 1999 prohibits the financing of
terrorist acts, in peace or war, against civilians or others out of combat (such as prisoners of
war), but not against persons taking an active part in hostilities. There is no exclusion for acts
by armed forces, such that it is a crime to finance attacks on civilians by state forces, non-
state armed groups, disorganised groups, or individual civilians taking part in hostilities). By
contrast, the Terrorist Bombings Convention prohibits bombings against civilian or military
objectives alike, whether in peace or war, but excludes the activities of armed forces (see
below). In conflict it thus makes criminal isolated terrorist attacks on the military where not
committed by organised armed groups.

Fifthly, recent CTL treaties (addressing nuclear terrorism, terrorist bombings, and
aviation safety) exclude the ‘activities of armed forces during armed conflict, as those terms
are understood under international humanitarian law, which are governed by that law’.
‘Armed forces’ under IHL – an expression used in common Article 3 of the four Geneva
Conventions concerning NIACs – refers to both state military forces and organised non-state
armed groups (the criterion of organisation was discussed earlier).70 Military attacks by such
forces in international or non-international conflicts are thus excluded from these CTL
treaties. On the other hand, violence by disorganised armed groups or civilians sporadically
taking a direct part in hostilities will still be covered; even their conduct is also regulated by
IHL’s prohibitions and criminal liabilities.

Moreover, the exclusion applies to any ‘activities’ of armed forces, not just violent
acts in the course of (offensive or defensive) hostilities. Consequently, it exempts not only
non-violent activities connected to the conflict (such as espionage) but also repressive
measures of intimidation taken, for instance, by a state against a civilian population. While
such repression is not ‘terrorism’, it remains governed by IHL.

17
Montreal Protocol 1988 article II.

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The UN Draft Comprehensive Terrorism Convention, under negotiation since 2000, initially
proposed to replicate the above exclusionary provision, based on the consensus reflected in
the Terrorist Bombings Convention 1997. The proposal was challenged by alternative
proposals sponsored by the Organisation of Islamic Cooperation (OIC), which led to an
impasse in the drafting from 2002 to the present (2016). The OIC proposed that a convention
should exclude the activities of the ‘parties’—rather than ‘armed forces’—during armed
conflict18 and ‘including in situations of foreign occupation’. The alternative proposals reflect
semantic, legal and political considerations.

The OIC reference to the ‘parties’, a technical IHL term for both state and non-state
forces, may be designed to counter those states that interpret ‘armed forces’ as only
encompassing state militaries. In that sense, it is unobjectionable and indeed preferable, in
order that belligerent parties are equally exempted and so that states are not placed in a more
favourable position. As already noted, however, properly interpreted ‘armed forces’ also
means state and non-state forces, so the competition between the two formulations is more
semantic than substantive.

On the other hand, some states fear that the OIC intends the term ‘parties’ to embrace
a wider array of actors, such as disorganised armed groups or occasional violence by
civilians loosely affiliated with such groups (including those sporadically supporting
terrorism). Self-determination movements, for example, typically comprise not only armed
wings but wider (and larger) political memberships, whether the Palestine Liberation
Organisation, Hamas or Polisario. On the flipside, a wider range of state actors might also be
excluded under the rubric of the ‘parties’ to a conflict, such as civilian police and intelligence
agencies. On that approach, most violence during a conflict, with the exception of unaffiliated
civilians committing isolated acts, would be excluded from a convention, not just acts by
armed forces.

To some extent, the distinction is one without difference, since IHL applies to
violence whether by armed forces or other actors (including individual civilians).

18
UNGA Sixth Committee (59th Session) ‘Report of the Working Group on Measures to Eliminate
International Terrorism’ (8 October 2004) UN Doc A/C.6/59/L.10; UNGA ‘Report of the Ad Hoc Committee
Established by UNGA Res 51/210’ (17 December 1996) 8th Session (2004) UN Doc Supp No 37 (A/59/37) 11,
para 6; see also UNGA ‘Report of the Ad Hoc Committee Established by UNGA Res 51/210’ (17 December
1996) 7th Session (2003) UN Doc Supp No 37 (A/58/37) 11-12.

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Exempting conduct from a terrorism convention would not confer impunity, but leave
liability to war crimes law. The exclusion debate is thus partly a political struggle over
labelling and the stigmatisation and de-legitimisation it brings, rather than a push to evade
liability whatsoever.

As discussed further below, there are sound policy arguments for leaving armed
conflict to be exclusively regulated by IHL, and for reserving crimes of terrorism for
peacetime. As noted earlier, however, existing CTL treaties do not preserve a neat separation,
but endorse coregulation of certain acts in conflict. There are also real questions of liability at
stake. From a law enforcement standpoint, sweeping preventive offences and special powers
may accompany terrorism but not war crimes. The dual criminalisation of attacks on civilians
as a war crime or the crime of terrorism is largely unobjectionable, even if hostilities between
armed forces ought to be properly left to the exclusive domain of IHL.

The OIC’s proposed exclusion of ‘foreign occupation’ is redundant in that an

occupation is by definition an international armed conflict under common Article 2 of the
four Geneva Conventions 1949, regardless whether there are also hostilities involving state
forces. The view that occupation is not international conflict is legally incorrect. In addition,
organised non-state armed groups involved in hostilities in occupied territory would still be
‘armed forces’ in a NIAC that are also excluded from the convention.

Notably, the OIC has not formally sought a wider exclusion of all self-determination
violence, including that committed outside of armed conflict. In contrast, three recent
regional counter-terrorism conventions, of the OIC, African Union, and Arab League, exempt
altogether struggles for national liberation or self-determination. Pakistan also lodged a
reservation purporting to exclude self-determination struggles from the application of the
Terrorist Bombings Convention 1997, triggering formal objections from many states on the
basis that it was contrary to the treaty’s object and purpose. 19 UN General Assembly and
Security Council resolutions have repeatedly affirmed that all acts of terrorism are ‘criminal
and unjustifiable, wherever and by whomever committed’.

Sixthly, some CTL instruments have a different kind of partial application in armed conflict.
The Nuclear Material Convention 1980 establishes offences relating to interference in
19
Austria, Australia, Canada, Denmark, Finland, France, Germany, India, Israel, Italy, Japan, Netherlands, New
Zealand, Norway, Spain, Sweden, UK, US.

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‘nuclear material used for peaceful purposes while in international nuclear transport’. It thus
has no application to attacks (whether lawful or unlawful under IHL) on a military’s nuclear
weapons facilities during conflict. However, the offences of dealings with peaceful nuclear
materials in ways that cause death or injury or substantial property damage (Article 7) could
still be committed during armed conflict, for instance by stealing nuclear material and
dispersing them against civilian or military targets.

Seventhly, the decentralised national implementation of the Security Council’s CTL

norms has generated normative and policy-oriented friction between CTL and IHL. In
resolution 1373 (2001), the Security Council required states to criminalise terrorist acts in
domestic law but failed to provide a common international definition of such acts or to
stipulate the relationship of such offences to IHL. Many states duly enacted their own
terrorism offences and unilaterally proscribed terrorist organisations.

National approaches to the relationship between terrorism and IHL vary. Canada, for
example, excludes ‘an act or omission that is committed during an armed conflict’ and that is
in accordance with applicable international or customary or treaty law. 20 Violence consistent
with IHL and committed by state or non-state forces could thus be excluded, whereas state or
non-state violence in breach of IHL could be terrorism. Little difficulty arises where national
laws duplicate or complement war crimes against civilians under IHL, or are otherwise
limited to protecting civilians (such as by criminalising the financing of attacks on civilians).
International criminal law already enables certain underlying conduct to be qualified as
different but overlapping crimes, whether war crimes, crimes against humanity or genocide.

More problematically, some national laws have also criminalised violence in armed
conflict without any exception to accommodate armed conflict and the special regime of IHL,
as in the UK and Australia. Such laws may criminalise acts which are not prohibited or
criminalised by IHL, such as proportionate attacks on state military forces or military
objectives by non-state armed groups, or direct participation in hostilities by civilians.

National laws may then trigger exceptional domestic powers of search, seizure, and
surveillance; extend inchoate or preparatory criminal liability; or modify criminal procedure

20
Criminal Code (RSC, 1985, c. C-46) (Canada) s. 83.01(1).

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in favour of national security. They may also serve as a basis for transnational criminal
cooperation with other states to suppress terrorism.

In R v Gul [2013], the UK Supreme Court found that international law does not
prohibit the national criminalization as terrorism of hostile acts in NIACs, even those
confined to targeting military objectives. It found that the international counter-terrorism
instruments, and national laws, were inconsistent in regard to the existence and scope of
exclusionary provisions, and did not establish a general exclusionary rule applicable to
national terrorism offences. It further noted that no combatant immunity exists in NIACs.
While international law may not prohibit such hostilities, nor does it positively authorise
them.

An adverse impact of this approach may be to undermine the effectiveness of IHL and
its humanitarian purposes. The ICRC warns against criminalizing acts that are not already
unlawful under IHL. IHL does not prohibit attacks on military objectives. Criminalizing
fighting by non-state armed groups as terrorism undermines their incentive to comply with
IHL, for there is no longer any difference in legal consequence between proportionately
attacking the military or indiscriminately targeting civilians. All armed resistance to state
forces becomes ‘terrorism’, regardless of how one fights or whether one respects IHL.

Admittedly, in NIACs the state has long been entitled to criminalise members of non-
state armed forces for offences against national security, whether labelled terrorism or
otherwise. There is no combatant immunity in NIACs and at most IHL encourages states to
grant the widest possible amnesty at the end of the conflict for hostile acts that did not violate
IHL. The incentives for armed groups to comply with IHL have always been rather limited,
resulting from state’s concerns to protect their sovereign right to restore law and order within
their territories.

However, the additional criminalisation of non-state hostilities as terrorism

accentuates the existing disincentives for armed groups to comply with IHL. First, current
national legislative efforts carry the imprimatur of implementing UN Security Council
obligations, according them a greater legal authority than ordinary offences.

Secondly, such measures are intended to enable transnational criminal cooperation on

terrorism, whereas hostile acts in NIAC (which are not war crimes) were hitherto typically
treated as non-extraditable, quintessentially ‘political’ offences. Foreign states are thereby

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encouraged to cooperate in the repression of domestic political rebellion. Thirdly, the
labelling of hostilities as terrorism carries a special stigma which widens political and social
divisions between the parties and dampens the prospects for peace and reconciliation.
Fourthly, the criminalisation or proscription of terrorists may stimulate armed groups to
distrust the international community and discourage them from engaging on humanitarian
assistance to civilians, discussed below.

A seventh issue is penumbrally but significantly related to IHL. Recent CTL treaties
exclude the [peacetime] activities of state military forces exercising their official duties
‘inasmuch as they are governed by other rules of international law’. 21 Official duties could
include law enforcement and counter-terrorism operations (including hostage rescue),
evacuation operations, peace operations, UN peacekeeping operations, or humanitarian relief.
The exclusion only extends to state military forces and not other state entities (such as police)
that might be similarly deployed and may also need to use coercive force (for instance, to
control a riot at a food distribution centre or disorder within a displaced persons camp). While
the exemption concerns peacetime duties of state forces, situations such as peacekeeping can
involve the application of intense military force approaching armed conflict. Violence outside
of ‘official duties’ will still come within these conventions.

In the Draft Comprehensive Terrorism Convention, the OIC has sought to further
restrict the exemption to state military forces that are ‘in conformity’ with, and not merely
‘governed by’, international law. The proposal thus aims to qualify excessive state violence
as ‘terrorism’, notwithstanding the application of existing international law to state breaches.
Again, political labelling is at stake, but also real legal consequences. Presently, state
violations of international law (including human rights and state responsibility), does not
always bring criminal liability, whereas non-state actors would be asymmetrically liable
under a terrorism convention.

At the same time, states enjoy special legal personality and are lawfully entitled to utilise
force in various circumstances in which non-state actors enjoy no such rights. States and non-
state actors are therefore not similarly situated when it comes to the qualification of violence

21
Nuclear Terrorism Convention 2005 article 4(2); Terrorist Bombings Convention 1997 article 19(2);
Terrorist Financing Convention 1999 article 2(1)(b); Vienna Convention 1980 (as amended by the Amendment
2005) article 2(4)(b); Hague Convention 1970 (as amended by the Beijing Protocol 2010) article 3 bis; Rome
Convention 1988 (as amended by the Protocol 2005) article 2 bis (2); Plastic Explosives Convention 1991
articles 3-4.

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as terrorism, even if it is desirable, from a rule of law standpoint, to equally criminalise state
and non-state conduct that can be sensibly equated.

An eighth issue relating to IHL does not strictly involve a CTL instrument but a treaty
modelled on a CTL convention and serving a comparable counter-terrorism purpose. The
Convention on the Safety of United Nations and Associated Personnel 1994 is based on the
Protected Persons Convention 1973 and similarly requires states to criminalise ‘kidnapping
or other attack on the person or liberty’ of UN and associated personnel. It explicitly excludes
UN enforcement actions where UN personnel are ‘engaged as combatants against organised
armed forces and to which the law of international armed conflict applies’ (Article 2(2)). This
clause thus excludes attacks on UN combatants by state forces in international conflict, but
the Convention still covers attacks on UN personnel in NIACs by non-state armed groups,
disorganised groups, or individual civilians, even where UN personnel are taking part in
hostilities. It thereby criminalises such hostile acts directed against UN personnel as
combatants.

Finally, CTL norms in customary international law also relate to IHL. In identifying a
customary international law crime of transnational terrorism, the Special Tribunal for
Lebanon held that such crime only exists in peacetime and not in armed conflict. As such,
there can be no overlap between IHL and this CTL norm. The STL indicated, however, that
‘a broader norm that would outlaw terrorist acts during times of armed conflict may also be
emerging’. The STL’s decision that there exists a customary crime of terrorism at all is
controversial and arguably unsupported by state practice.22

Impact of Counter-Terrorism on Humanitarian Relief Operations

Counter-terrorism laws, policies and practices have had serious adverse impacts on
humanitarian assistance in armed conflict. Under IHL, parties to a conflict must allow and
facilitate the rapid and unimpeded passage of impartial humanitarian relief for civilians in
need,23 subject to reasonable measures of control. International law does not permit states to
override this fundamental humanitarian obligation in order to counter terrorism. To the
contrary, the UN Secretary General has urged states ‘to consider the potential humanitarian
22
Ben Saul, ‘Legislating from a Radical Hague: The United Nations Special Tribunal for Lebanon Invents an
International Crime of Transnational Terrorism’ (2011) 24 Leiden Journal of International Law 677.
23
CIHL rule 55; see, eg, GCIV article 23; API article 70(2); APII article 18; Rome Statute article 8(2)(b)(xxv).

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consequences of their legal and policy initiatives and to avoid introducing measures that have
the effect of inhibiting humanitarian actors in their efforts to engage armed groups for…
humanitarian purposes’.

International and national counter-terrorism laws generally do not prohibit mere

contact or engagement with non-state actors for humanitarian purposes, such as securing
access for humanitarian personnel or safe passage and distribution of food or medical
supplies. However, since 9/11, some national laws and policies have restricted or even
prohibited engagement with ‘terrorist’ groups in various ways.24

Firstly, even purely humanitarian dealings with terrorist groups have been
criminalised. For example, it is an offence under United States law to provide ‘material
support or resources to a foreign terrorist organization’, which is defined to include training
and expert advice or assistance. In Holder v Humanitarian Law Project (2010), the US
Supreme Court strictly interpreted this to include training groups such as the Kurdistan
Workers’ Party (PKK) on how to use IHL and international law to peacefully resolve disputes
and how to petition UN bodies for relief. Any support was thought to facilitate the terrorist
activity of the group, even if it does not contribute to a specific attack. For instance,
international law training could lend a group legitimacy, strain the US’ relationship with its
allies, or enable the group to use the international legal system to buy time, ‘threaten,
manipulate, and disrupt’, or seek humanitarian financial aid that could be diverted to
terrorism.

Secondly, some donors have adopted ‘no contact’ policies, which prohibit
humanitarian actors (such as aid agencies or NGOs) from dealing with certain groups (such
as Hamas in Gaza), even to secure access or safety for humanitarian personnel, or the passage
of relief supplies. Thirdly, some donors have imposed restrictive conditions on funding,
which require humanitarian actors, and their partners and contractors, to exercise due
diligence in their operations, or which impose vetting and monitoring requirements, to
prevent diversion of funds to terrorist activities.

Restrictive laws and policies have adversely impacted on humanitarian operations, for
instance by limiting funding to particular places, populations, partners or programs. For
example, after Al-Shabaab was labelled as a terrorist group, US aid to southern Somalia was

24
Kate Mackintosh and Ingrid Macdonald, ‘Counter-terrorism and Humanitarian Action’ (2013) Humanitarian
Exchange Magazine, Issue 58, 23, 24.

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reduced by almost 90% between 2008 and 2010 – in the midst of a famine that killed 260,000
people by 2012. Islamic charities have been particularly hard hit by restrictions.

In addition to increasing the administrative burdens on humanitarian actors, restrictive

laws and policies have led to self-limitation because of uncertainty about legal liabilities and
the chilling effect of restrictive policies. It can result in actors refusing funding from some
donors, ceasing operations in some places or to some populations, or passing on risk to
partners and contractors. It can also impede information sharing, cooperation and
coordination between actors.

Some humanitarian actors, such as the ICRC and UN, enjoy international immunities
from national legal liabilities, but NGOs and contractors do not. Informal engagement is
often tolerated in practice, although this can still leave organisations facing legal uncertainty
or self-restriction. In some cases, specific UN mandates enable limited engagement, as with
Hamas in Gaza or Al Shabaab in Somalia, but this does not necessarily immunize NGOs
from their home states’ laws.

The designation of some armed groups as ‘terrorist’ challenges the principles of

humanitarianism. The four principles of humanitarian action are humanity (addressing
suffering wherever it is found); neutrality (not taking sides in hostilities or preferring some
political, racial, religious or ideological causes over others); impartiality (acting on the basis
of need and without discrimination); and independence (remaining autonomous from the
political, economic, military or other agendas of other actors). Counter-terrorism laws ‘take
sides’ by criminalizing and/or ostracizing some groups. Neutrality and independence can also
be compromised by humanitarian actors being pressured to participate in multinational
stabilization or counter-insurgency efforts, in which humanitarian assistance is co-opted and
militarized as part of strategies to win civilian ‘hearts and minds’. Humanity and impartiality
are further undermined by restrictive policies which discourage aid to certain populations or
places even if they are in most need.

Accountability for Acts of Terrorism

15 | P a g e
There is near unanimity that terrorist acts are crimes under both domestic and international
law.25 The domestic criminal law of most countries enable prosecution for all acts usually
described as “terrorist” – murder, serious bodily injury, damage to government property, etc.
– even in the absence of legislation criminalizing specific acts as terrorist or incorporating
obligations to this effect contained in the relevant treaties. Moreover, there are twelve so-
called sectoral UN conventions on the prevention, suppression or punishment of a range of
terrorist acts, from aircraft hijacking, hostage taking, and attacks on diplomats and other
internationally protected persons, to crimes against the safety of civil aircraft, acts of violence
at airports, terrorist bombings and the financing of terrorism. While not establishing universal
jurisdiction over these international crimes, the treaties provide for an “extradite or
prosecute” (aut dedere aut judicare) regime. In addition to the controversial draft UN
Comprehensive Convention on International Terrorism, a thirteenth sectoral convention has
also been under negotiation for several years, on the suppression of acts of nuclear terrorism.
At present there is no agreement at the international level as to whether, with the
possible adoption of the last two conventions, the international criminal regulation of terrorist
acts would be complete. Some governments appear to think so, while others point out that
acts of “cyberterrorism” would, for example, remain outside the scope of international rules. 26
As already mentioned, there are also eight regional instruments on terrorism, albeit with
different approaches as to how broadly terrorist acts are defined.27
It must not be forgotten that certain attacks against civilians or civilian objects that are
usually described as terrorist may constitute war crimes when committed in armed conflict
and that international humanitarian law also specifically prohibits “acts of terrorism” and
“acts or threats the purpose of which is to spread terror among the civilian population,” as
was outlined above. If acts against civilians meet the required definitional threshold, certain
attacks against a civilian population can also qualify as crimes against humanity, whether
committed during or outside armed conflict. 28
25
Unanimity is precluded by those who claim that acts committed as part of a struggle for national liberation
cannot be qualified as “terrorist”. For a comprehensive review of armed non-state actor accountability see
Liesbeth Zegveld, Accountability of Armed Opposition Groups In International Law, Cambridge University
Press, 2002.
26
This was evident during the Second Meeting of the Council of Europe's Committee of Experts on Terrorism
(CODEXTER), which the author attended in observer capacity from March 29 to April 1, 2004. See note 2
above.
27
See Tomuschat Report, note 3 above.
28
The former UN High Commissioner for Human Rights Mary Robinson characterized the September 11th
attacks as “crimes against humanity”. See Mary Robinson, High Commissioner for Human Rights Meets the
Press, Transcript of the Briefing, Geneva, 25/09/2001 at:
http://www.unhchr.ch/huricane/huricane.nsf/NewsRoom?OpenFrameSet. (“...(W)e concluded in the Office of

16 | P a g e
 The real problem is not the extent of the coverage of the substantive rules, however,
but the many obstacles at the practical level to more effective international cooperation in the
fight against terrorism. Ratification of the UN sectoral conventions was sluggish prior to the
11 September 2001 attacks and not all states that have ratified these or the regional treaties
have translated their international obligations into domestic law.
Just as importantly, regional and international police and judicial cooperation are
essential if states are to prevent, suppress and punish terrorist acts. The international treaties
do not cover all aspects of mutual legal assistance; and bilateral treaties, including those on
extradition, tend to be lacking when they are most needed. Identifying and overcoming
deficiencies in the mechanisms of international cooperation thus remain areas to which much
more attention needs to be paid, provided there is the political will to do so.
In contrast to other areas of international criminal law (for example crimes against
humanity which were only in 1998 set out in the Rome Statue of the International Criminal
Court29) it cannot be said that there is any lack of substantive international rules governing
acts of terrorism. While procedural rules and mechanisms at the international level are also
largely in place, it is the implementation of the totality of rules that may be relied on in
fighting terrorism that needs to be further improved.

CHAPTER-2

INTERNATIONAL ASPECTS- UNITED NATIONS AND

OTHER ORGANISATION
the High Commissioner, that the events of the 11th of September undoubtedly constituted acts of terrorism, but
they also crossed a line. We thought it was important to mark the crossing of that line. To us, the line that was
crossed brought those acts in to what we would characterise as crimes against humanity. The significance of that
is two-fold, I think. One, it immediately rallies the whole global community. If these are crimes against
humanity, every country would owe a duty to work with the United Nations, work with the United States, to
bring the perpetrators to justice. Also, it helps in many different ways to indicate that it is not acceptable that
that line has been crossed and that the world community working together is going to prevent the kind of
widespread scale of terrorism against the civilian population that would amount to a crime against humanity”.)
29
The ICC Statute article 7 definition of crimes against humanity, it must be noted, was established for
jurisdictional purposes.

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International treaties against terrorism

The Convention on Offences and Certain Other Acts Committed on Board Aircraft, adopted
in Tokyo in 1963, is considered to be the first international treaty against terrorism.

Five more were adopted during the 1970s: the 1970 Convention for the Suppression
of Unlawful Seizure of Aircraft, the 1971 Convention for the Suppression of Unlawful Acts
against the Safety of Civil Aviation, the 1973 Convention on the Prevention and Punishment
of Crimes against Internationally Protected Persons, including Diplomatic Agents, the 1979
International Convention against the Taking of Hostages and the 1979 Convention on the
Physical Protection of Nuclear Material. Three treaties were adopted in 1988: the Convention
for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, a Protocol
to that Convention for the Suppression of Unlawful Acts against the Safety of Fixed
Platforms Located on the Continental Shelf, and a Protocol for the Suppression of Unlawful
Acts of Violence at Airports Serving International Civil Aviation, supplementary to the 1971
Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation. The
1990s saw the adoption of the 1991 Convention on the Marking of Plastic Explosives for the
Purpose of Detection,30 the 1997 International Convention for the Suppression of Terrorist
Bombings and the 1999 International Convention for the Suppression of Financing of
Terrorism. The most recent addition is the International Convention for the Suppression of
Acts of Nuclear Terrorism, adopted by the UN General Assembly on 13 April 2005.

These treaties define nearly fifty offences, including some ten crimes against
civil aviation, some sixteen crimes against shipping or continental platforms, a dozen crimes
against the person, seven crimes involving the use, possession or threatened use of ‘‘bombs’’
or nuclear materials, and two crimes concerning the financing of terrorism.

There is a tendency to consider these treaties as establishing a sort of evolving code of

terrorist offences. The most significant evidence of this trend is the 1999 Convention against
the financing of terrorism, which establishes the crime of donating or collecting funds ‘‘with
the intention that they should be used or in the knowledge that they are to be used, in full or

30
Adopted by the International Civil Aviation Organization on 1 March 1991. The treaty entered into force on
21 June 1998 and has 123 states parties, according to the website of the UN CTC

18 | P a g e
in part, in order to carry out (a) An act which constitutes an offence within the scope of and
as defined in one of the treaties listed in the annex’’.

The duties of states parties to this Convention with respect to the crime of financing
the activities defined in the treaties listed in the annex is independent of their ratification of
them, although it does allow states that are not party to one or more of the listed treaties to
make reservations limiting the scope of their obligations under the 1999 Convention with
respect to the financing of the activities prohibited by any unratified treaty or treaties. In 2002
the Organization of American States adopted a second treaty against terrorism, which uses
the same approach. The Inter-American Convention against Terrorism establishes a series of
obligations for states parties with respect to the crimes defined in ten treaties: the 1999
Convention against the financing of terrorism and the nine international treaties listed in the
annex thereto.31

The 1977 European Convention for the Suppression of Terrorism as amended by the
Protocol of 2003 adopts a similar approach, establishing a series of obligations concerning
acts of terrorism as defined in ten international treaties. UN Security Council Resolution 1566
also supports that idea that the crimes recognized by existing international treaties form part
of a code of terrorist offences.

The obligations established by the international treaties against terrorism

The principal obligation set forth in the international treaties against terrorism is to
incorporate the crimes defined in the treaty in question into the domestic criminal law, and to
make them punishable by sentences that reflect the gravity of the offence. The states parties
to these treaties also agree to participate in the construction of ‘‘universal jurisdiction’’ over
these offences, that is, to take the necessary measures to give their courts very broad
jurisdiction over the offences in question, including jurisdiction based on territoriality,
jurisdiction based on the nationality of the offender and the victims and, according to most of
these treaties, jurisdiction based on the mere presence of a suspect in the territory of the state.
In addition, they accept the obligation either to extradite any suspected offenders found in
their territory or to begin criminal proceedings against them. In order to facilitate extradition

31
Article 2(1). (Article 2(2), like Article 2(2) of the Convention against the financing of terrorism, allows
reservations with regard to the crimes defined in unratified treaties.)

19 | P a g e
these treaties invariably provide that the offences in question shall not be considered political
offences, which are not extraditable under most treaties on extradition. 32 In addition, these
treaties require various types of co-operation among the states parties, ranging from co-
operation in preventing terrorist acts to co-operation in the investigation and prosecution of
the relevant offences.

Most of these treaties also contain dispositions concerning the protection of human
rights. Such dispositions are of three kinds: general provisions indicating that the obligations
set forth in the treaty are without prejudice to other international obligations of the state
party; provisions concerning the right of accused or detained persons to due process, and
provisions establishing conditions regarding extradition and the transfer of prisoners. The
clauses concerning the right to due process contained in some of the earlier treaties are rather
vague.

Article 9 of the 1973 Convention on internationally protected persons, for example,

provides simply that ‘‘Any person regarding whom proceedings are being carried out in
connection with any of the crimes set forth in article 2 shall be guaranteed fair treatment in all
stages of the proceedings.’’ Similar provisions are found in the 1979 Convention against
hostage-taking, the 1979 Convention on nuclear material and the 1988 Convention on
maritime navigation.33 The 1997 Convention against terrorist bombings and the 1999
Convention against the financing of terrorism contain the following, more comprehensive
formula:

“Any person who is taken into custody or regarding whom any other measures are
taken or proceedings are carried out pursuant to this Convention shall be guaranteed
fair treatment, including enjoyment of all rights and guarantees in conformity with
the law of the State in the territory of which that person is present and applicable
provisions of international law, including international human rights law.”

32
Article 8 of the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft; Article 8 of the 1971
Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation; Article 8 of the 1973
Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons; Article 10 of
the 1979 International Convention against the Taking of Hostages; Article 11 of the 1979 Convention on the
Physical Protection of Nuclear Materials; Article 11 of the 1988 Convention for the Suppression of Unlawful
Acts against the Safety of Maritime Navigation; Articles 9 and 11 of the 1997 International Convention for the
Suppression of Terrorist Bombings; Articles 13 and 14 of the 1999 International Convention for the Suppression
of Financing of Terrorism; and Articles 14 and 17 of the draft general convention against international terrorism.
33
Articles 8(2), 12 and 10(2), respectively. (The 1970 and 1971 Conventions on civil aviation do not contain
provisions of this kind.)

20 | P a g e
Many of these treaties also recognize the right of a foreign detainee to communicate with, and
in some cases to receive the visit of, his or her consular representative. Like the right to due
process, this right is stated in more generous terms in more recent treaties. The 1997
Convention against terrorist bombings and 1999 Convention against the financing of
terrorism provide that a detainee has the right to be informed of his or her right to contact a
consular representative. With regard to the right to asylum, the saving clause contained in the
1973 Convention on internationally protected persons and the 1979 Convention against
hostage-taking provides that ‘‘The provisions of this Convention shall not affect the
application of the Treaties on Asylum, in force as of the date of the adoption of this
Convention, as between the States which are parties to those Treaties’’. 34 The Convention
against hostage-taking also contains an important provision that, in substance, reaffirms the
principle of nonrefoulement, a cornerstone of international refugee law. The 1997
Convention against terrorist bombings and 1999 Convention against the financing of
terrorism not only recognize this principle, but also extend it to mutual legal assistance.

Recent treaties also contain a provision that in effect prohibits the practices known as
‘‘rendition’’ and ‘‘extraordinary rendition’’, whose links to torture, denial of access to
competent courts, incommunicado detention and other human rights violations have been
documented. Article 13(1) of the Convention against terrorist bombings provides:

“A person who is being detained or is serving a sentence in the territory of one State
Party whose presence in another State Party is requested for purposes of testimony,
identification or otherwise providing assistance in obtaining evidence for the
investigation or prosecution of offences under this Convention may be transferred if
the following conditions are met: (a) The person freely gives his or her informed
consent; (b) The competent authorities of both States agree, subject to such
conditions as those States may deem appropriate.”

Article 16.1 of the Convention against the financing of terrorism and Article 17.1 of the
Convention against nuclear terrorism are substantially identical, although the latter adds that
a prisoner must ‘‘freely’’ consent to his transfer to another country.

The European Union approach to Counter-Terrorism and IHL

34
Articles 12 and 15, respectively

21 | P a g e
From their inception in the 1950s, European institutions have been built on the pursuit of
economic integration (European Coal and Steel Community, European Economic
Community) and the peaceful uses of nuclear energy (European Atomic Energy Community -
Euratom). One should bear in mind that the competences of the institutions are based on the
core principles of European law: attribution of the competence by the Treaties, subsidiarity
and proportionality. In the absence of attribution of the competence in the Treaties, counter-
terrorism could not be addressed by the institutions at European level.

Even with the rise of terrorism in the 70s and 80s, EU counter-terrorism measures
remained essentially within the realm of national governments and initially led to the
reinforcement of traditional intergovernmental cooperation between the Member States. It
has since remained a sensitive matter, and Member States only recently decided to accept the
development of legislative measures by the Union to progress to a joint approach. As a first
step, the European Council in 1975 established ‘the TREVI group’, an informal consultation
mechanism of high officials of the Ministries of Justice and Interior.

The Treaties of Maastricht and Amsterdam

At the beginning of the 90s and following the adoption of the Single European Act, the
development of the EU progressed significantly with the introduction by the Treaties of
Maastricht and Amsterdam of the ‘pillar structure’. The three pillars – economic, foreign and
security policy and freedom, security and justice – allowed for a differentiated and gradual
development of cooperation between Member States in the latter two areas, subject to
specific decision-making procedures and different instruments from those of the first pillar,
the traditional forms of supra-national cooperation. Work progressed along the Common
Foreign and Security Policy (CFSP) angle and – more importantly – through Justice and
Home Affairs.

The introduction of the third pillar enabled the use of the institutional structures of the
European Union, building upon the achievement of TREVI, and led to the adoption of a
variety of legal acts that have been a determining factor for the development of police and
judicial cooperation among competent authorities of Member States. The measures adopted
since by the Council of the European Union include the facilitation measures regarding cross-
border police and judicial cooperation, the European Arrest Warrant and the establishment of

22 | P a g e
the European Police Office (EUROPOL). Counter-terrorism however remained the primary
responsibility of Member States.

The 2002 Council Framework Decision on combatting terrorism

In conformity with the practice in the third pillar, the Council in 2002 adopted its landmark
Council Framework Decision on combatting terrorism which contains definitions of terrorist
offences and of groups, as well as determines the obligations of Member States in
criminalising terrorist offences and establishing jurisdiction. The Decision moreover provides
for measures to be adopted to protect and assist victims of terrorist acts. As may be expected
from the European Union, Article 1, paragraph 2, of the Decision, recalls that fundamental
human rights as enshrined in Article 6 of the Treaty on the European Union are to be upheld
in all circumstances.

The Framework Decision has since been complemented by a variety of legal acts to
promote information exchange and cooperation between the competent national law
enforcement authorities. The measures also addressed the matter of protection and assistance
to victims, building on existing measures concerning victims of criminal acts.

The role of strategies

The next major step in developing the capacities of the Union and its Member States in
counter-terrorism was the adoption by the European Council of the Counter-Terrorism
Strategy 2005. Whilst recalling the commitment to combat terrorism and the compliance with
human rights, the Council agreed on 4 work strands:

 prevention: avoid that people resort to terrorism;

 protect: borders, citizens, infrastructure;
 pursue: cooperation among Member States and with third countries; and
 respond: in a coordinated manner making full use of cooperative mechanisms,
including with regard to the protection of victims.

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The Counter-Terrorism Action plan of 2011 developed concrete proposals in each of the
work strands that are still being implemented today. With the entry into force of the Treaty on
the Functioning of the European Union (TFEU), its Title V ‘Area of Freedom, Security and
Justice’ provides the current legal framework relevant to the Union’s approach to counter-
terrorism. In particular, Articles (judicial cooperation in criminal matters), (minimum rules on
crimes, including terrorism by adoption of directives), (EUROJUST), (police cooperation)
and (EUROPOL) set out the basic principles in furthering cooperation among the institutions
and Member States.

The proposal for a directive on combatting terrorism (2015)

The proposal aims at replacing the Council Framework Decision of 2002 and implementing
the obligations already binding on Member States and the Union by the adoption of, and
accession to, a variety of instruments, including the Council of Europe Convention on the
Prevention of Terrorism and its additional Protocol of 2015, the recommendations of the
Financial Action Task Force (FATF) and various United Nations Security Council
Resolutions (UNSC). It updates the list of criminalised behaviour, incorporates
recommendations by the FATF on the criminalisation of terrorist financing and creates the
legal basis for an increased capacity to tackle preparatory acts, including the prevention of
travelling abroad for terrorist purposes.

In particular, the provisions on terrorism financing have triggered concerns in the

humanitarian community about the potential extra-territorial effect of sanctions that would
inhibit their engagement with non-State armed groups in terms of contacts, medical
assistance and incentives to comply with IHL. These concerns have, inter alia, been
addressed in the International Review of the Red Cross following the Supreme Court ruling
in the case of Holder v. Humanitarian Law Project.

Calls have therefore been made to create a caveat clause for principled humanitarian
interaction with non-State armed groups despite their potential designation as terrorist groups
by the United Nations, international organisations or States. Such a clause should be akin to
the exception of actions by armed forces governed by IHL from the scope of terrorist
offences under the relevant instruments. Proposals for language addressing both the actions
by armed forces under IHL and humanitarian interaction with non-State armed group are

24 | P a g e
currently under discussion between the European Parliament, the Council and the
Commission. It should be noted that – in contrast to the United States (US) – EU Member
States’ jurisdictions are much more reluctant to sanction extra-territorial effects with regard
to perceived unlawful assistance to non-State armed groups.

External aspects of EU policies

Recognising that the internal as well as external security nexus requires the complementarity
of external and internal measures, the European Union cooperates extensively within
international fora, such as the UN and the Global Counter Terrorism Forum, and on a
bilateral basis with third countries through its agreements that generally provide for dialogue
and cooperation on counter-terrorism. A new phenomenon is the development of dedicated
partnership priorities with a number of third countries recognising that terrorism is one of the
main common concerns, also in relation to migration. The Union furthermore substantially
invests in capacity-building in third countries through a variety of (financial) instruments
including through the Common Foreign and Security Policy, the Instrument Contributing to
Stability and Peace and the European Instrument for Democracy and Human Rights, as well
as through development cooperation in general. In its cooperation with third countries, the
EU conducts evaluation and assessment of projects based on the third country’s record and
capacity to respect human rights and IHL.

The EU also conducts a privileged dialogue on legal issues in counter-terrorism

between the legal advisers of the Member States and the legal adviser of the US State
Department.

Recent developments

Article 222 of the Treaty on the Functioning of the European Union contains the ‘solidarity
clause’. Its core obligation reads as follows:

‘1. The Union and its Member States shall act jointly in a spirit of solidarity if a
Member State is the object of a terrorist attack or the victim of a natural or man-made

25 | P a g e
 disaster. The Union shall mobilise all the instruments at its disposal, including the
military resources made available by the Member States, to:

(a) — prevent the terrorist threat in the territory of the Member States;

— protect democratic institutions and the civilian population from any

terrorist attack;

— assist a Member State in its territory, at the request of its political

authorities, in the event of a terrorist attack;

(b) assist a Member State in its territory, at the request of its political
authorities, in the event of a natural or man-made disaster.’

Paragraph 3 of the Article provides that arrangements for the implementation of the solidarity
clause will be defined by a decision adopted by the Council acting on a joint proposal by the
Commission and the High Representative of the Union for Foreign Affairs and Security
Policy. The Council adopted the arrangements on 24 June 2014. Whilst the 2013
arrangements for the EU Integrated Political Crisis Response to be used in the event of a
request by a Member State for assistance following a terrorist attack have been regularly
exercised and used in the context of other events, they have not yet been used in counter-
terrorism situations.

In the wake of the 13 November 2015 Paris attacks, France invoked the mutual
defence clause laid down in Article 42, paragraph 7, of the Treaty on European Union:

‘If a Member State is the victim of armed aggression on its territory, the other
Member States shall have towards it an obligation of aid and assistance by all the
means in their power, in accordance with Article 51 of the United Nations Charter.
This shall not prejudice the specific character of the security and defence policy of
certain Member States’.

Following the 17 November 2015 Foreign Affairs Council, France engaged with individual
Member States to seek assistance regarding its priorities. In light of its urgent requirement to
ensure military and security presence in metropolitan France, it requested Member States and
allies to assist in the substitution of repatriated French contributions to UN, multinational and
EU missions abroad.

26 | P a g e
 As provided in Article 43 of the Treaty on European Union, Common Security and
Defence Policy (CSDP) missions and operations may contribute to the fight against terrorism.
The EU Consolidated Appeals Process (EUCAP) Sahel Niger includes projects on training,
mentoring and advising on the rule of law, in particular Human Rights Law. For the first time
the mandate of this mission explicitly envisages cooperation with the host country in counter-
terrorism as a concrete objective: ‘On 27 May 2013, the Council reiterated its readiness to
discuss, particularly in the context of the CSDP, the options for urgent support for the Malian
authorities in the area of internal security and justice, including the fight against terrorism and
organised crime.’

The EU approach to counter-terrorism is governed by the experience of individual

Member States. The gradual evolution of incentives to co-operate within EU structures – and
beyond, with third States – as well as the awareness of Member States that challenges may
more adequately be addressed by developing their capacity to work together, are obvious. It
involves a variety of strands that cut across the internal and external security nexus and
therefore offer a continuous challenge to law enforcement authorities on a day-to-day basis.
As opposed to IHL, such challenges are – correctly – measured by their compliance with
Human Rights Law.

The scope of international treaties against terrorism

Since treaties concerning terrorism have been elaborated mainly in order to combat
international terrorism, their scope is generally limited to acts that have an international
dimension. The conventions on the safety of civil aviation expressly apply only to
international flights and international airports.35

The Convention on maritime navigation contains a provision indicating that it applies only to
acts affecting ships scheduled to travel in international waters, although an exception
indicates that it also applies when the suspected author of one of the crimes recognized in the
treaty is found in a state other than that of the ship’s registration. The provisions of the 1973
Convention on crimes against internationally protected persons that concern crimes against

35
Article 3(3) of the Convention for the Suppression of Unlawful Seizure of Aircraft; Article 4(2) of the
Convention on the Safety of Civil Aviation; Article 1 of the Protocol for the Suppression of Unlawful Acts of
Violence at Airports; and Article 4(1) of the Convention on the Safety of Maritime Navigation.

27 | P a g e
heads of state and government, ministers of foreign affairs and their family members apply
only when such persons are abroad.

The other persons protected by this treaty include diplomatic personnel and
international civil servants on mission and their family members. Article 13 of the 1979
Convention against hostage-taking specifies that it ‘‘shall not apply where the offence is
committed within a single state and the hostage and alleged offender are nationals of that
state and the alleged offender is found in the territory of that State’’. Article 3 of the
Convention against terrorist bombings and Article 3 of the Convention against financing
terrorism contain substantially identical language, followed by certain exceptions, including
one concerning the extradition of accused persons who have fled abroad. The only treaties
that are generally applicable to acts committed within the territory of a state by a national of
that state are the Convention on the Physical Protection of Nuclear Material and the Protocol
on continental platforms.

The three most recent conventions, adopted by the same working group that is now
attempting to finalize a draft general convention against terrorism, establish two legal
regimes. All of the obligations established by the Convention against terrorist bombings, the
Convention against the financing of terrorism and the Convention against nuclear terrorism,
including the penal provisions, apply to acts that have an international dimension; a more
limited regime applies to acts that lack an international dimension. The latter includes the
duty of the state’s parties to prevent the use of their territory for acts aimed at the commission
of offences in other states; the duty to co-operate with other states in obtaining evidence; the
duty not to consider acts of terrorism as political offences for purposes of extradition; and
certain obligations concerning the human rights of persons suspected of direct or indirect
links with terrorism.

Most acts of terrorism recognized by existing treaties involve crimes against the
person. When acts affecting aircraft or ships are criminalized, it is usually with the express
requirement that the act represents a danger to flight or navigation, which implies a danger to
the life of the crew and passengers. The provisions of the treaty on the protection of nuclear
materials that criminalize the theft of such materials are an exception, but the dangers
inherent in misuse of nuclear materials is such that one may presume that a threat to life is
inherent in all the acts criminalized by this treaty. The provision of the treaty against
financing terrorism that criminalizes the financing of acts other than those criminalized by

28 | P a g e
previous treaties applies only to acts that represent a threat to life. 36 The principal exception
to this rule thus far is the Convention against terrorist bombings, which criminalizes the use
of explosives and other deadly devices against public places and infrastructure with the intent
to cause serious destruction or great economic loss. Another important characteristic of these
treaties concerns the specific intent with which an act is committed. The treaties on the safety
of civil aviation and the 1988 Convention on maritime navigation criminalize certain acts
without any specific requirement as to the intent with which they are committed. In contrast,
motive is a key element of the only act criminalized by the 1979 Convention against hostage-
taking, whose Article 1(1) provides:

“Any person who seizes or detains and threatens to kill, to injure or to continue to
detain another person (hereinafter referred to as the ‘‘hostage’’) in order to compel a third
party, namely, a State, an international intergovernmental organization, a natural or juridical
person, or a group of persons, to do or abstain from doing any act as an explicit or implicit
condition for the release of the hostage commits the offence of taking of hostages (‘‘hostage-
taking’’) within the meaning of this Convention.”

Other treaties criminalize certain acts regardless of the intent with which they are
committed, and criminalize other acts, in particular those that do not involve an act of
violence, only if they are committed with the requisite intent. The 1979 Convention on
nuclear material, for example, criminalizes categorically the theft of such materials and their
threatened use, but criminalizes the threat of theft of nuclear materials only when there is the
intent to ‘‘compel a natural or legal person, international organization or State to do or to
refrain from doing any act’’.37 The Convention on maritime navigation and the Protocol on
platforms on the continental shelf also criminalize acts of violence without any requirement
as to intent, but incorporate threats into the legal regime they establish only when made with
the specific intent to force a natural or legal person to do or not to do something.

The 1999 Convention against the financing of terrorism criminalizes the donation or
collection of funds to support ‘‘Any other act intended to cause death or serious bodily injury
… when the purpose of such act, by its nature or context, is to intimidate a population, or to
compel a government or an international organization to do or to abstain from doing any
act’’. This represents a milestone in the development of international law on terrorism,
because it is the first treaty provision to refer to the purpose of terrorism as recognized by
36
Article 2(1)(b).
37
Article 7(1)(a), (b), (c) and (d)(i) and 7(1)(d)(i), respectively.

29 | P a g e
international humanitarian law, namely, to terrorize the population. Unlike some earlier
treaties, it does not criminalize acts intended to coerce private persons or corporations. This
limitation helps to distinguish terrorism from ordinary crime and underline the uniqueness of
the threat it poses to peace and security.

The older treaties protect primarily civilians and civilian property. The 1970 and 1971
conventions concerning the safety of civil aviation expressly provide that they are not
applicable to military, police or customs aircraft, and the scope of application of the Protocol
to the 1971 convention is limited to ‘‘airports serving international civil aviation’’.

The 1988 Convention on maritime navigation contains a provision expressly

excluding its application to warships and police and customs vessels, and the 1988 Protocol
applies exclusively to platforms on the continental shelf used for economic purposes. The
Convention on crimes against internationally protected persons would protect only a very
limited category of military personal, namely those in diplomatic posts or on assignment with
international organizations. The provisions of the treaty on the physical protection of nuclear
materials that criminalize the dispersal or threat of use of nuclear materials against persons or
property are an exception. The treaty applies only to nuclear material intended for peaceful
civilian use, but makes no distinction as to the civilian or military nature of the persons or
installations targeted or threatened.

The most recent conventions against terrorism, as we shall see below, mark a
departure from this trend, and provide some protection to military as well as civilian
personnel and installations. The scope of their applicability in this regard, as we shall also
see, is generally circumscribed by reference to international humanitarian law.

Act of terrorism, war crime or act of state? The interplay between

international humanitarian law, international law concerning terrorism
and international human rights law

International humanitarian law contains several provisions that expressly prohibit acts of
terrorism. Article 33 of the Fourth Geneva Convention provides in part that ‘‘Collective
penalties and likewise all measures of intimidation or of terrorism are prohibited.’’ A similar

30 | P a g e
provision is found in the two Additional Protocols to the four 1949 Geneva Conventions:
Article 51(2) of Protocol I on international armed conflict and 13(2) of Protocol II on non-
international armed conflict provide in part that ‘‘Acts or threats of violence the primary
purpose of which is to spread terror among the civilian population are prohibited.’’ Article
4(2) of Additional Protocol II provides that ‘‘acts of terrorism’’ against civilians and non-
combatants ‘‘are and shall remain prohibited at any time and in any place whatsoever’’.

International humanitarian law also contains provisions which, without using the term
‘‘terrorism’’, prohibit acts that – depending on the intent, the nationality of the perpetrator
and victim(s) and other such considerations – may be prohibited by one of the treaties against
terrorism. The prohibition in Article 3 common to the four Geneva Conventions of acts of
violence against ‘‘persons taking no active part in hostilities’’, for example, would apply to
some acts of terrorism. Similarly, the prohibition of attacks against nuclear power plants in
Article 56 of Additional Protocol I would apply to some acts prohibited by the 2005
Convention against nuclear terrorism. Four of the treaties against terrorism – the 1979
Convention against hostage-taking, the 1997 Convention against terrorist bombings, the 1999
Convention against the financing of terrorism and the 2005 Convention against nuclear
terrorism – contain provisions referring to international humanitarian law, or to concepts
derived from it.

Most of them are exclusionary clauses, designed to ensure that acts that in principle
come within the scope of both international humanitarian law and international law against
terrorism are governed by one or the other.38 What are the scope and implications of these
clauses? Article 12 of the 1979 Convention against hostage-taking provides that this treaty is
inapplicable to acts of hostage-taking covered by the Geneva Conventions and their
Protocols.

The taking of hostages is prohibited by Article 34 of the Fourth Geneva Convention on the
protection of the civilian population, by Article 75(2)(c) of Additional Protocol I and Article
4(2)(c) of Additional Protocol II, and by Common Article 3 of the Geneva Conventions –
provisions that protect all persons, whether civilian or military. The language of the said
Article 12 suggests that the drafters were particularly interested in excluding the application
of the Convention to movements involved in the struggle for self-determination or against
foreign occupation.

38
The exception is Article 2(1)(b) of the Convention against the financing of terrorism.

31 | P a g e
 However, Article 12 provides that only acts that a state has an obligation to prosecute
(or extradite) under the Geneva Conventions or one of their Protocols are excluded. 39 The
scope of this exclusionary clause therefore is relatively straightforward: if a state has an
obligation to prosecute or extradite a hostage-taker under one of the Geneva Conventions or
Protocols, then the Convention against hostage-taking will not be applied; but if no such
obligation exists, then the Convention against hostage taking must be applied. It should be
noted that, although the prohibition of the taking of hostages is considered a rule of
customary international humanitarian law, this exclusionary clause would not prevent the
Convention against hostage taking from being applied to an act of hostage-taking covered by
customary international humanitarian law, but not by one of the Conventions or Protocols.

The 1997 Convention against terrorist bombings prohibits the unlawful and
intentional delivery, placement, or detonation of an explosive or other lethal device in or
against a place of public use, public transportation system or a state or government facility
with the intent to cause death or serious bodily injury or extensive destruction that results in,
or is likely to result in, major economic loss. The term ‘‘lethal device’’ includes chemical,
biological and radioactive weapons. The material elements of the acts criminalized by this
treaty, in contrast to those of earlier treaties, do not distinguish between acts affecting civilian
or military targets. Consequently, since the use of explosive devices is an intrinsic part of
warfare, the exclusionary clauses are of particular importance for this treaty. It is useful to
analyse the scope of these clauses from three perspectives: their relevance for acts committed
by armed forces during an armed conflict; their relevance for acts against armed forces during
an armed conflict; and their relevance for acts committed by armed forces in the absence of
an armed conflict.

Acts committed by armed forces during an armed conflict

The first of two exclusionary clauses contained in Article 19.2 of the Convention against
terrorist bombings excludes ‘‘The activities of armed forces during an armed conflict, as
those terms are understood under international humanitarian law, which are governed by that
law’’. In contrast to Article 12 of the Convention against hostage-taking, which refers only to
the Geneva Conventions and their Additional Protocols I and II, this exclusionary clause
refers to international humanitarian law in general, thus including customary law.
39
The article provides in part ‘‘in so far as States Parties to this Convention are bound under those conventions
[the Geneva Conventions and Protocols I and II] to prosecute or hand over the hostagetaker, the present
Convention shall not apply to an act of hostage-taking committed in the course of armed conflicts’

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International humanitarian law comprises numerous rules applicable to the use of explosives
and other ‘‘lethal devices’’ of the sort covered by the Convention against terrorist bombings.
One of the most relevant rules, although it does not refer expressly to the use of devices of
this kind, is the prohibition of all attacks against the civilian population.

Indeed, humanitarian law recognizes, implicitly, that attacks against the civilian
population can be considered acts of terrorism. The Protocols to the Geneva Conventions
contain a common provision that states: ‘‘the civilian population as such, as well as
individual civilians, shall not be the object of attack. Acts or threats of violence the primary
purpose of which is to spread terror among the civilian population are prohibited.’’ 40 Other
rules of humanitarian law prohibit the use of certain types of lethal devices even during
armed conflict, or restrict the way in which explosive devices may be used against enemy
forces during armed conflict. The First Geneva Convention, for example, prohibits attacks of
any kind against hospitals or other medical facilities or personnel. The prohibition of acts of
perfidy, including feigning civilian status in order to carry out an attack, applies to the use of
explosive devices.

The 1980 Protocol on the use of mines and other explosive devices prohibits a number
of perfidious uses of explosive devices, such as hiding them in toys, food, medical equipment
and human remains. The use of certain types of devices or substances is banned by treaties
adopted for that specific purpose, such as the 1925 Protocol for the Prohibition of the Use in
War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare;
the 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use
of Chemical Weapons and on Their Destruction; and the 1997 Convention on the Prohibition
of the Use, Stockpiling, Production and Transfer of Antipersonnel Mines and on their
Destruction.

However, compliance with these rules of humanitarian law is immaterial for the purposes of
this exclusionary clause: if the act is committed by an armed force during an armed conflict,
the Convention against terrorist bombings is not applicable regardless of whether the device
is prohibited by humanitarian law or is used in a way that is consistent with humanitarian
law.

40
Article 51(2) of AP I and Article 13(2) of AP II.

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Acts targeting armed forces

The first exclusionary clause – unlike the second, which refers to ‘‘the armed forces of a
State’’ – applies to any armed force, and provides expressly that the meaning of this term is
to be determined by reference to international humanitarian law. This clearly means that acts
committed by irregular forces are excluded from the scope of the Convention against terrorist
bombings, provided that they satisfy the definition of an ‘‘armed force’’. The question of how
the term ‘‘armed forces’’ is defined has long been a sensitive one. 41 The first definition
adopted by the international community is that found in the Hague Regulations respecting the
Laws and Customs of War on Land, which provides:

The laws, rights, and duties of war apply not only to armies, but also to militia and
volunteer corps fulfilling the following conditions:

1. To be commanded by a person responsible for his subordinates;

2. To have a fixed distinctive emblem recognizable at a distance;

3. To carry arms openly; and

4. To conduct their operations in accordance with the laws and customs of war.

The Regulations also provide that the inhabitants of a territory that spontaneously take
up arms at the approach of invading enemy forces are entitled to be regarded as
‘‘belligerents’’, provided that they carry their arms openly and respect the laws and customs
of war.

The Third Geneva Convention reaffirms these four conditions as criteria for determining
when ‘‘militias’’ or ‘‘organized resistance movements’’ are entitled to protection. 42 The
evolution of the strategies and tactics of warfare since 1949 convinced the international
community of the need to adapt the definition of armed forces to contemporary forms of
conflict. This was done by the adoption in 1977 of two Protocols to the Geneva Conventions.
Protocol I, relating to the protection of victims of international armed conflicts, was drafted in
part to adapt the law of armed conflict to the realities of national liberation struggles. It
contains the following definition:
41
See the commentary on Article 3 common to the Geneva Conventions in Jean Pictet (ed.), The Geneva
Conventions of 12 August 1949: Commentary, Vol. 3, ICRC, Geneva, 1958, p. 35, also available at
,www.icrc.org..
42
Article 4.A(2).

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 The armed forces of a Party to a conflict consist of all organized armed forces, groups
and units which are under a command responsible to that Party for the conduct of its
subordinates, even if that Party is represented by a government or an authority not recognized
by an adverse Party. Such armed forces shall be subject to an internal disciplinary system
which, inter alia, shall enforce compliance with the rules of international law applicable in
armed conflict.

The structure of this provision and the content of the second sentence imply that,
although compliance with humanitarian law is an obligation binding upon all armed forces, it
is not an element of the definition of an armed force. Article 44 of Protocol I also supports
the idea that respect for humanitarian law is no longer an element of the definition of an
armed force. The second paragraph of this article provides that

While all combatants are obliged to comply with the rules of international law
applicable in armed conflict, violations of these rules shall not deprive a combatant of his
right to be a combatant or, if he falls into the power of an adverse Party, of his right to be a
prisoner of war …

The paragraph following recognizes that in certain types of conflicts combatants

cannot permanently distinguish themselves from the civilian population. When this is the
case, a combatant retains his or her status as a combatant provided that he or she carries arms
openly during each military engagement and while deploying in preparation for an attack.
Protocol II applies to non-international conflicts, in which the status of irregular forces is a
crucial element.

The threshold for application of Protocol II does not require the existence of a conflict
between a state and an armed group that respects humanitarian law, but it does require the
non-state armed force to ‘‘exercise such control over a part of its territory as to enable them
to carry out sustained and concerted military operations and to implement this Protocol’’. 43 It
also requires that such groups be ‘‘organized’’ and ‘‘under responsible command’’, but these
requirements are not linked expressly to compliance with the laws and customs of war. To
consider compliance with humanitarian law to be an essential part of the definition of the
term ‘‘armed force’’ would greatly narrow the scope of the exclusionary clauses.

43
Article 1(1).

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 This is significant because, while it is vitally important to create incentives for
irregular armed groups to respect humanitarian law, the tactics that irregular forces are often
obliged to adopt in asymmetrical warfare should not be assimilated indiscriminately to
terrorism. As a matter of policy, it would seem desirable to be able to apply the international
treaties against terrorism to groups that indiscriminately detonate explosives in public places.
However, applying the Convention against terrorist bombings to irregular groups would mean
that almost any use of explosives against enemy military forces could be considered an act of
terrorism, which would weaken the incentive for such groups to distinguish between acts that
target civilians and those that target military objectives.

Moreover, it would in effect hold them to a higher standard than regular armed forces,
since the indiscriminate use of explosives against civilian targets by regular armed forces (for
example) would not prevent them from benefiting from the exclusionary clause. It should be
noted that the first exclusionary clause of the Convention against terrorist bombings applies
only to acts committed during an armed conflict, and not to other situations in which
international humanitarian law is applicable, such as occupation. Hence the use of explosive
or other lethal devices by non-state forces against an occupying power would not be excluded
from the scope of the Convention against terrorist bombings, if resistance to occupation does
not rise to the level of an armed conflict.

However, the use of explosives during an occupation by the armed forces of a state,
including an occupying power, would be excluded under the second exclusionary clause,
which applies to acts undertaken by state forces in their official capacity, even those that
violate humanitarian law.

The correct interpretation of the exclusionary clauses would seem to be that this treaty (as
well as the Convention against nuclear terrorism, which contains an identical clause in Article
4(2)) is not applicable to acts of terrorism committed during an armed conflict by an armed
group that is organized and under responsible command, and that exercises sufficient control
over territory to be able to mount sustained military operations and apply humanitarian law –
provided, of course, that the act of terrorism committed also violates international
humanitarian law. It would be applicable to acts of terrorism committed by individuals who
do not form part of an armed group, or by armed groups that are not organized or are not
under responsible command, or by armed groups that do not control sufficient territory to be
able to mount sustained military operations and apply humanitarian law.

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 The 1999 Convention against the financing of terrorism takes a different approach. It
does not contain an exclusionary clause, but the provision concerning support for acts not
criminalized by earlier treaties applies to ‘‘Any other act intended to cause death or serious
bodily injury to a civilian, or to any other person not taking an active part in the hostilities in
a situation of armed conflict’’.44 The absence of an express reference to humanitarian law
means that the identity of the perpetrator and his or her status with respect to an armed
conflict is immaterial. Consequently, collecting or donating funds knowing that they will be
used to finance attacks on military forces participating in an armed conflict, with the requisite
intent (e.g. forcing a government to withdraw its troops from a conflict) would not be
terrorism, regardless of the means used to kill the combatants and regardless of the status of
the perpetrator vis-a `-vis the conflict.

Such acts would be considered terrorism, however, if the persons killed or injured are
civilians or, in the event of an armed conflict, other persons not taking an active part in
hostilities. The terms ‘‘civilian’’ and ‘‘armed conflict’’ and the concept of ‘‘direct
participation’’ obviously allude to humanitarian law, and should be interpreted in the light of
such law. The term ‘‘civilian’’ means ‘‘any person who does not belong’’ to the armed
forces. The term ‘‘other persons who do not participate directly in hostilities’’ therefore must
be understood as referring to members of an armed force. Under international humanitarian
law there are two categories of members of the armed forces who do not participate directly
in hostilities: noncombatants, that is, medical and religious personnel, and combatants who
have laid down their arms or are unable to fight due to injury, illness or capture.

‘‘Direct participation’’ is a term of art; members of the armed forces who belong to logistical
or administrative services have no right to special protection. The mercenary is a special case,
neither civilian nor a member of the armed forces.

However, since a mercenary by definition participates directly in hostilities, financing

acts aimed at killing or injuring mercenaries (with the specific intent required by this treaty)
would not be considered acts of terrorism under Article 2.1 of this Convention. Article 2(1)
(b) of the Convention against the financing of terrorism therefore means that the killing of
non-combatant members of the armed forces or combatants hors de combat can be considered
an act of terrorism, provided that it is done with the requisite intent, even if the act occurs
during an armed conflict. The killing of military personal outside the context of an armed
44
Article 2(1)(b). (This provision also requires intent to ‘‘intimidate a population, or to compel a government or
an international organization to do or to abstain from doing any act.’’)

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conflict also could be considered a terrorist act under this provision, if done with the requisite
intent, regardless of the means employed. This Convention thus criminalizes the financing of
such acts, but not the financing of attacks against combatants during an armed conflict.

Acts committed by armed forces in the absence of an armed conflict

The second exclusionary clause of the Convention against terrorist bombings provides that
‘‘the activities undertaken by military forces of a State in the exercise of their official duties,
inasmuch as they are governed by other rules of international law, are not governed by this
Convention’’.45 There are various ways in which explosive or chemical devices may be used
by military forces in the absence of an armed conflict.

Mines are sometimes used to limit access to restricted facilities; explosives are used to
obtain entrance to a fortified room or building, and certain gases to control riots, to
incapacitate dangerous individuals or to force someone to surrender. Armed forces sometimes
participate in activities falling short of armed conflict in which such devices could be used.
The armed forces of repressive regimes have been known to use explosives to destroy the
offices of opposition groups or the media, to assassinate political leaders and to punish
communities suspected of support for opposition movements. If explosives are used against
persons in exile, or if those responsible for such acts travel abroad or eventually go into exile
themselves, the Convention against terrorist bombings could be applicable.

States also sometimes use explosives against targets in foreign countries in isolated acts not
forming part of an armed conflict. The bombing by members of the French armed forces that
sank the Rainbow Warrior in 1985 is one example; the destruction of a factory in Sudan by
the United States in 1998 is another. The second exclusionary clause would prevent the
application of the Convention to such acts, provided only that the perpetrators act in an
official capacity.

In contrast to the 1979 Convention against hostage-taking, which excludes acts of

hostage-taking only if states have an obligation to prosecute the perpetrator or hand him over
to a state that intends to do so, the exclusionary clauses of the Convention against terrorist
bombings apply to acts ‘‘governed by’’ international humanitarian law or other international
law. The Convention therefore is inapplicable to such acts, whether they are permitted or
45
Article 19(2).

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prohibited under the applicable international standards. When armed forces detonate
explosives in the territory of another state, rules of international law such as the prohibition of
aggression apply. International human rights law also would be applicable in most cases,
whether the perpetrators act within their own country, in an occupied territory or elsewhere.
Hence, human rights violations that would otherwise be considered acts of terrorism – such
as war crimes or crimes of aggression that meet the definition of acts of terrorism – cannot be
dealt with under this Convention.

The exclusionary clauses are preceded by a provision to the effect that ‘‘Nothing in
this Convention shall affect other rights, obligations and responsibilities of States and
individuals under international law, in particular the purposes and principles of the Charter of
the United Nations and international humanitarian law.’’ However, while the exclusionary
clauses do not affect the legality of acts of terrorism, they make some acts of terrorism
exempt from the system of international co-operation developed through these treaties as the
central element of the international struggle to eliminate terrorism.

Both international human rights law and international law concerning aggression and
violations of territorial integrity focus on state responsibility, not the criminal responsibility
of the individual. Only one international human rights treaty, the Convention against Torture,
contains provisions on universal jurisdiction similar to those contained in the treaties against
terrorism.46

Consequently, while states that have jurisdiction over acts of terrorism committed with
explosives may have an obligation under international human rights law to investigate,
identify the perpetrators and prosecute them, other states may not have any legal obligation to
extradite the perpetrators to a state having jurisdiction or to co-operate in the investigation of
the acts of terrorism.

The draft comprehensive convention against international terrorism

Although some regional treaties contain a generic definition of terrorism, the UN bodies that
have taken on this task have thus far failed to reach agreement on such a definition. The
International Law Commission, which spent years preparing the draft Code on Crimes
against Peace and the Security of Humanity, was obliged to abandon the effort to include the
46
Articles 5–9.

39 | P a g e
crime of terrorism because it could not agree on a definition.47 In 1996 the UN General
Assembly established an Ad Hoc Committee to support the efforts of the Sixth Committee to
draft new treaties against terrorism. Since 2000 the Ad Hoc Committee has focused on the
drafting of a treaty against nuclear terrorism and a comprehensive convention against
terrorism, and since 2005 it has focused exclusively on the latter. Agreement on a universally
acceptable definition of the term, however, remains problematic.

The difficulties that have been encountered in seeking agreement on a generic,

universally valid definition of terrorism can be appreciated by comparing the definitions of
terrorist acts contained in existing treaties. Some definitions require these crimes to cause
death or injury to persons, but others require only damage to certain types of property. Of the
crimes involving damage to or destruction of property that may constitute acts of terrorism,
most are required to cause damage to or destruction of public property or property used by
the public. Some acts, including most crimes against civil aviation and crimes involving the
use of bombs and other lethal devices, are defined as terrorist crimes per se, irrespective of
the intent with which they are committed; other acts, including the taking of hostages,
constitute terrorist crimes only if committed with a specific intent.

Where specific intent is an element of the crime, the intent required is usually that of
terrorizing the public or obliging a state or international organization to take a certain course
of action.

The Convention on the Physical Protection of Nuclear Material contains definitions that
depart even further from these parameters: it criminalizes any use or disposal of nuclear
materials that causes serious damage to property of any kind, defines theft per se as a crime
and, in a provision that requires specific intent, recognizes as sufficient the intent to oblige a
private entity to adopt a certain course of action. While many acts are classified as terrorist
crimes only if they affect civilian facilities or installations, others are classified as terrorism if
they affect military personnel or facilities in peacetime or if they take place during an armed
conflict but are not covered by humanitarian law.

The working definition of terrorism under consideration by the Ad Hoc Committee of

the General Assembly is the following:

47
Report of the Special Rapporteur on Terrorism and Human Rights, E/CN.4/Sub.2/2003/WP.1, para. 53.

40 | P a g e
 1. Any person commits an offence within the meaning of the present Convention if
that person, by any means, unlawfully and intentionally, causes:

(a) Death or serious bodily injury to any person; or

(b) Serious damage to public or private property, including a place of public

use, a State or government facility, a public transportation system, an
infrastructure facility or the environment; or

(c) Damage to property, places, facilities, or systems referred to in paragraph

1(b) of the present article resulting or likely to result in major economic loss,
when the purpose of the conduct, by its nature or context, is to intimidate a
population, or to compel a Government or an international organization to do
or abstain from doing any act.

2. Any person also commits an offence if that person makes a credible and serious
threat to commit an offence as set forth in paragraph 1 of the present article.48

The draft treaty is intended to supplement existing standards, not replace them. The material
element of the draft definition does not encompass certain acts outlawed by existing treaties
against terrorism, such as the taking of hostages, hijacking or the theft of nuclear materials.

The draft definition does not represent a radical departure from existing international
standards. The inclusion of a requirement of specific intent recognizes that acts that by their
very nature constitute such a grave danger to public security that they deserve to be
considered as terrorist acts per se are exceptional. Expanding the material element to include
serious damage to private property of any kind is a significant departure from existing
definitions, since the main thrust of existing international standards against terrorism is to
safeguard the public interest.

The impact of this provision would be limited, however, by the requirement of the
specific intent to terrorize the public or influence the behaviour of governments and
international organizations. This version of the intent requirement, used in most of the
existing treaties that have an intent requirement, avoids inflating the concept of terrorism by
extending it to actions intended to influence private players. Recognition of serious damage

48
‘‘Report of the coordinator on the results of the informal consultations on a draft comprehensive convention
on international terrorism held from 25 to 29 July 2005’’ (hereinafter ‘‘Report of the coordinator’’), A/59/894,
Appendix II. (The third and fourth paragraphs of this draft article cover attempts, abetting and conspiracy.)

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to the environment as a material element of the definition may be the most significant
innovation contained in the present draft.

Article 3 of the draft reflects the principle that treaties against terrorism apply mainly
to acts having an international dimension. The general rule contained in draft Article 3 is that
‘‘This Convention shall not apply where the offence is committed within a single State, the
alleged offender and the victims are nationals of that State [and] the alleged offender is found
in the territory of that State’’. A number of exceptions are recognized, as for example when
the act affects an embassy, a consulate or a ship or aircraft registered in a third country, or
when the intent is to coerce a third country.

Like the earlier conventions drafted by the Ad Hoc Committee, the draft convention
would establish two legal regimes: a comprehensive one that includes the obligation to
criminalize terrorism and the ‘‘prosecute or extradite’’ rule, and a more limited set of
obligations that include the duty to prevent acts of terrorism, especially preparations for
terrorist acts to be carried out in a third country, the duty to co-operate in the investigation of
terrorism (referred to as ‘‘reciprocal judicial assistance’’), the duty to respect the right to due
process and humane treatment of persons detained or subject to extradition proceedings
related to terrorism, the duty not to extradite persons to a state where they would be exposed
to persecution and the duty not to deliver a person without his or her consent to a third state
for purposes of interrogation or to obtain testimony against a person accused of terrorism. 49
Recent reports of the Ad Hoc Committee mention two differences of opinion concerning the
definition of terrorism. Some states insist that acts of terrorism should be distinguished from
the legitimate struggle of peoples for self-determination and against foreign occupation, and
that the definition of terrorism should include state terrorism. Although these concerns are
described as concerning the definition of terrorism, in practical terms they concern the draft
exclusionary clauses more than the draft definition as such. Some states consider that the first
concern could be satisfied by a preambular paragraph on the right to self-determination of the
kind contained in many other treaties and UN resolutions concerning terrorism. Others
maintain that it requires the adoption of an exclusionary clause proposed by the member
states of the Organization of the Islamic Conference (OIC) that refers to acts committed
during an occupation (see below).

49
Articles 8 and 12–16.

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 The concern of some states regarding the way in which the term ‘‘terrorist’’ is
sometimes applied indiscriminately to any organization that engages in or supports armed
struggle, as if terrorism was an end in itself and not a tactic employed to defend objectives
that may or may not be legitimate under international law, is a valid one. However, if it is
wrong to label an organization ‘‘terrorist’’ simply because it uses or advocates armed
struggle, it is no less wrong to employ methods of armed struggle that are illegal under
humanitarian law and international penal law, no matter how legitimate the cause may be.
This principle is universally recognized. A resolution adopted by the UN Security Council in
2004 declares that acts of terrorism ‘‘are under no circumstances justifiable by considerations
of a political, philosophical, ideological, racial, ethnic, religious or other similar nature’’.
Basically, it should not be difficult to reconcile this principle with the right of peoples to self-
determination.

Whether it will be possible to reach a compromise on the reference to occupation in

the draft exclusionary clause proposed by states belonging to the OIC is a more difficult
question. The term ‘‘state terrorism’’ has two meanings. One refers to the adoption by a state
of a policy of systematic use of violence and intimidation, including practices such as torture,
extrajudicial execution and enforced disappearances, in order to eradicate a political or other
opposition movement. The other, broader meaning includes any deliberate resort by a state to
acts that a priori satisfy the legal definition of terrorism, such as the taking of hostages or the
use of explosives in ways described by the relevant international treaties. Ironically, such acts
are often undertaken with the avowed aim of combating terrorism.

The Convention against terrorist bombings tacitly accepts certain forms of state terrorism by
excluding acts committed by the military forces of a state. Whether or not a similar clause
will be included in the future comprehensive convention against terrorism, or whether acts
committed by states will be excluded from the scope of the convention only if they are
compatible with international law, is the most important unresolved issue concerning the
draft treaty. The main issue preventing adoption of the draft convention thus concerns two
paragraphs of draft Article 20 on the relationship between the future convention and
international law, in particular international humanitarian law. Two versions of this article are
under consideration: a working draft prepared by a group of ‘‘Friends of the Chairman’’ and
an alternative proposed by states belonging to the OIC. Each contains four paragraphs, of
which the first and last are identical. The paragraphs on which there is agreement are as
follows:

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 1. Nothing in this Convention shall affect other rights, obligations and responsibilities
of States, peoples and individuals under international law, in particular the purposes
and principles of the Charter of the United Nations, and international humanitarian
law.

2. Nothing in this article condones or makes lawful otherwise unlawful acts, nor
precludes prosecution under other laws.

The other two paragraphs exclude the application of the future Convention to acts governed
by international humanitarian law and other acts committed by military forces, similar to the
exclusionary clauses contained in the Convention against terrorist bombings and the
Convention against nuclear terrorism. The version of these two paragraphs prepared by the
Friends of the Chairman on the basis of the deliberations of the Working Group is as follows:

The activities of armed forces during an armed conflict, as those terms are understood
under international humanitarian law, which are governed by that law, are not governed by
this Convention. 3. The activities undertaken by the military forces of a State in the exercise
of their official duties, inasmuch as they are governed by other rules of international law, are
not governed by this Convention.

The alternative proposed by the states belonging to the OIC is as follows:

1. The activities of the parties during an armed conflict, including in situations of

foreign occupation, as those terms are understood under international humanitarian
law, which are governed by that law, are not governed by this Convention.

2. The activities undertaken by the military forces of a State in the exercise of their
official duties, inasmuch as they are in conformity with international law, are not
governed by this Convention.50

The version of paragraph 2 proposed by the Islamic states is broader in two respects. The first
and most obvious difference is that it appears to be designed to exclude from the scope of the
future Convention acts that occur during foreign occupation in the absence of armed conflict.
Interpreted literally, the language simply indicates that acts are excluded if they take place in
any armed conflict, including those that occur during an occupation.

50
Report of the Ad Hoc Committee, A/58/37, Annex IV, 11 February 2002.

44 | P a g e
 However, if one assumes that any clause included in a treaty is intended to have some
specific meaning, the intent would seem to be to assimilate occupation to armed conflict so
that the same consequence flows from both. The concern expressed by these states to
distinguish the struggle for self-determination from terrorism supports this interpretation. In
reality, since the actions taken by military forces of a state during an occupation would be
excluded by draft paragraph 3, this provision would in effect tend to put non-state armed
forces on a more even footing with state forces, insofar as situations of occupation are
concerned. However, the scope of acts excluded under draft paragraph 2 is not limited to
those that are in conformity with international law, but extends to all acts ‘‘governed by’’
international humanitarian law, whether legal or illegal.

The advantage of this formula is that, by exempting both state and non-state forces, it
gives the latter an incentive to accept and abide by international standards; the disadvantage
is that it excludes acts that violate international humanitarian law as well as those that comply
with it. Paragraph 2 of the ‘‘Friends of the Chairman’’ version shares this disadvantage, but
only with respect to acts committed during armed conflict, not acts occurring during an
occupation. The second difference is that, while the unofficial draft would exclude acts
committed by armed forces, the alternative supported by the Islamic states would exclude the
activities of a party to a conflict or an occupation.

This would exclude from the scope of the Convention the acts of agents of a party other than
its armed forces. Whilst regulation of the activities of armed forces is clearly one of the main
objectives of humanitarian law, other agents also can violate humanitarian law, especially
during an occupation. This provision appears designed to circumvent the application of the
definition of armed forces recognized by humanitarian law – that is, to ensure that the
activities of any irregular force that participates in hostilities or struggles against an
occupying power would be excluded, even if they do not meet the accepted definition of an
‘‘armed force’’.

One certain consequence of this proposed draft would be that if a party to a conflict
employs groups that do not form part of its armed forces to commit acts that violate
humanitarian law – to torture prisoners or to assassinate civilians, for example – international
humanitarian law would be applicable and those acts would be excluded from the scope of
the future Convention. The question that is less clear has to do with the requirements for

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being recognized as a party to a conflict. Under humanitarian law, an armed force that does
not belong to a state can be a party to a conflict.

The question that arises from the types of conflict that have occurred recently is
whether an armed group or movement that is not under the control of a state can be
considered a party to a conflict, even if it does not meet the definition of an armed force. 51 If
it can, then the language proposed by the OIC member states would open a significant gap in
the scope of application of the future Convention against terrorism. The other exclusionary
clause that continues to be an obstacle to approval of the draft convention concerns acts
committed by the military forces of a state in the absence of an armed conflict or occupation.
The draft prepared by the Friends of the Chairman would exclude such acts ‘‘inasmuch as
they are governed by other rules of international law’’, whereas the draft proposed by the
member states of the OIC would exclude them ‘‘inasmuch as they are in conformity with
international law’’. Two of the most relevant parts of international law, as indicated above,
are international human rights law and international law prohibiting aggression and the
violation of sovereignty. By excluding acts committed by state military forces merely
because they are governed by international human rights standards or basic principles of
international law recognized by the UN Charter, the informal draft would create an
unacceptably broad limitation on the scope of the future Convention.

Acts of terrorism committed by the military forces of a state during peacetime in the exercise
of their official duties should be treated with the entire rigour that the conventions on
terrorism require, and should not be excluded simply because they also could be considered
human rights violations or violations of the UN Charter.

It is unfortunate that the exclusionary clauses contained in two earlier treaties exclude
terrorist acts committed with certain types of weapons, such as explosives, from the scope of
international law against terrorism for reasons of this kind. This precedent is no reason to
widen the loophole and exclude other acts of terrorism from the scope of international law
against terrorism. The version of draft Article 20(3) proposed by the OIC member states,
which would preclude the application of the future Convention only to acts committed by
military forces in peacetime that do not violate international human rights law or other basic
principles of international law, is a more appropriate way of ensuring the complementarity of
these branches of international law.

51
For example, because it does not control territory or is not under responsible command.

46 | P a g e
 It is, indeed, more in harmony with the rule of law, because it comes closer to
applying the same rules to all acts of terror, regardless of the identity of the perpetrator. If the
struggle against terrorism is to be seen as the defence of universal values and not the defence
of narrower interests, every effort must be apply the same law to all terrorists, regardless of
the uniform they wear or the cause they defend.

CHAPTER-3

NATIONAL ASPECTS OF TERRORISM IN INDIA

Being located in South Asia, the present epicentre of terrorism, India has fallen in the gravity
of terrorism since independence. It has claimed more lives in India than anywhere else in the
world. More than one hundred thousand persons have fallen as the victims of terrorism in
various parts of the country. The Indian version of terrorism is as old as the1940s and started
just after the independence. Even the pre-independence era was not totally free from terrorist
activities. Terrorism, in some extent practiced as a weapon in the freedom movement
especially in Bengal, though the overall picture was nonviolence. Since its existence,
terrorism by its nature has modulated by different compulsions in different regions in India.

47 | P a g e
In some areas terrorism is fabricated on ideological motives, whereas religion became the
source in other cases and even some areas terrorism has launched on the bases of ethnicity.

In other parts of India, the militants employ terrorism as a technique in the insurgence
phase of conflict, to further their political cause. Even the ethnic conflicts are also seemed as
a part and partial of Indian societies. For an example in a vast country like India, with a
pluralistic society, there is no dearth of ethnic and political groups which are dissatisfied with
their present status. Not all of them have secessionist demands, but many provide ready
material for ambitious political leaders and external forces inimical to India, to manipulate
and exploit for their own designs. This produces a wider degree of distance between the
government and the community and later this developed to terrorism. The trends of separatist
terrorism in the land of peace for first time rooted from its North Eastern region. Just after the
independence the Nagas demanding independence approached the means of insurgency and
terrorism. In Later years the trends spread to other parts of North East as well as to other parts
of India. Unlike Nagaland and other north eastern states, Khalistani Movement and Kashmiri
insurgency rooted in late 1980s. Unlike Nagas these terrorist groups also started for
independence. In 1990s the left-wing Naxalism also emerged as a major insurgent movement
for laborer and workers’ rights.

Although India has been facing this problem in veering degrees of intensity since
independence, in recent times the tendency has increased into several folds.

The country is today facing a proxy war, as well as both secessionist and ideological
terrorism. Mainly the trend of terrorism in India is divided to five broad categories. These are
Khalistani terrorism, Kashmiri terrorism, Insurgency in North-East, the Naxalism and the
International terrorism. Here is a close look to all this trends of Terrorism.

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Khalistani Terrorism in Punjab

A study of early history of terrorism in India shows that these are quite a few communities
and groups in India who have a long history of taking to terrorism to gain their political
objective. A few of these are Bengalis, Marathas, and Sikhs. Just after Independence, some
tribes in the North-Eastern region of India raised the banner of revolt and resorted to violence
to achieve their revanchist goals. It was followed by wave of terrorism in Jammu and
Kashmir aimed at tearing the state from India and making it a separate state and the
nationalist terrorism in the state of Punjab known as Khalistan terrorism. Terrorism in Punjab
started was a product of Sikh Separatist Movements to establish an independent Sikh state,
Kahlistan. This insurgency shock India throughout 1980s and into the early 1090s. More than
20,000 people including civilians, terrorists, and police have been killed.

Ethnic Separatist Terrorism in North East

Among the terrorist movements existing today, anti-state, separatist, ethnic, and sub-
nationalist movement in northeastern parts of India is the oldest as well as most complex one.
The multiple demands by the multiple ethnic groups pushed the movement into the zone of
complexity. Though the demands of all seven states are more or less common and objected to
greater autonomy or independence, still are contradictory in nature. To match this tempted
goals various separatist organizations approached the means of violent armed struggle against
India. Again attached to various national boundaries and their secrete involvement constantly
escalating the movement. As the terrorist campaign spread to all the state except Arunanchal
Pradesh and Meghalaya, resulted heavy violence within and outside the state and took scores
lives. These trends are still continuing and seemed more lethal presently.

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Jammu and Kashmir Terrorism

Starting from independence, terrorism has been the part and partial of Indian society and the
Kashmir Diaspora contributes significantly to this figure. Subsequently Kashmir conflict and
the age long terrorism contributed other insurgent movements in India. Not only that, this age
long issue has been the battleground for all major Indo-Pak war. During the 22 years of
terrorist struggle in the valley, 43,000 people have been killed in Kashmir including more
than 14,000 civilians and over 850,000 persons have displaced from their homes. Again the
Pakistan involvement and growing Jihadi movements contributed a significant development
to this conflict.

The highly lethal struggle has started after the call of Jammu Kashmir Liberation Front
(JKLF) for armed struggle against India in order to secure independence for Jammu and
Kashmir (J&K). Since then, it has witnessed many terrorist strikes like those of the
parliament attack, attack on Kashmir Vidhan Sabha, Mumbai serial blast, Kandahar
Hijacking, 26/11 and others.

Cross Border Terrorism in J & K

The growing trends of terrorism have been poses a greater threat to internal as well as
external security of India. But the foreign involvement to terrorist movement in J&K further
wider its security challenges. The statistics shows that the foreign mercenaries are now 60 to
70 percent compare to 40 percent in 1994 and 15 percent in 1990 . Reportedly, foreign
mercenaries are more ruthless and being religiously motivated, tend to be more
indiscriminate.

This new dimensions to the proxy war were resulted the use of modern and
unconventional weapons including IDXs, grenades, RDX, and state of art weapons supplied
through Pakistan’s ISI which subsequently increased the fatality and destructions ratio. This
decade long movements of terrorism has resulted the deaths of more than 42,000 persons
including 15,000 civilians since 1988; not to mention the internal migration and displacement
of the Kashmiri pundits and Buddhists communities from the valley.

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Emergence of Naxalite Movements

The history of Naxalite movement goes back to 1960s when the communist movement was
on full swing. In 1964, during Chinese aggression to India, the party split into two,
Communist Party of India (CPI) and the Communist Party of India (Marxist) (CPI [m]). The
main reason for split was the ideological differences, while CPI approaches the peaceful
means to root out capitalism; the CPI (M) adopted the traditional path. While the communist
movement was almost peaceful and attached with main stream politics, an incident in remote
area of West Bengal transformed the history of left-wing extremism in India.

In a remote village named Naxalbari, A tribal youth named Bimal Kissan went to
plough his snatched land, after obtaining a judicial order. But the landlord attacked the youth
with his followers. React to this the tribal people of the area retaliated and started plough
their land forcefully. Therefore a rebellion struggle emerged which left one police sub
inspector and nine tribal’s dead. In a short span this movement’s attracted greater attention of
public and tremendous support cross section of the communist revolutionaries. Though the
revolution suppressed in 72 days, the kind of revolution erupted in the Naxalbari gave birth to
the terms Naxalbari movements, Naxal movements and Naxalites which gained popular
currency in Indian political lingo. With the formation of Communist party of India (Marxist-
Leninist) and Maoist Communist Centre (MCC) and under the leadership of Charu Majumdar

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the movement expanded to other states such as Bihar, Jharkhand, Orissa, Chhattisgarh and
Andhra Pradesh. Now it is seen throughout 13 states and 156 Districts.

The communist movement in India has traversed through several stages, now seems
like concentrated on guerilla war and armed struggle against land lords and exploiters and of
curse against the police personnel and paramilitary forces who restricting them. In recent
scenario, the movement seems more aggressive against the armed forces than others. The
movement, however, continues to have a large support base because of the intellectual appeal
of its ideology. It has survived more than a quarter century of onslaught by the security forces
-- without any external support, unlike the Punjab terrorism and the Kashmir militancy. The
movement has developed an inherent strength. The present statistics shows that there are
more fatality occurred due to the Naxalite strikes than the terrorist strikes in Kashmir.

According to the data given by the South Asia Terrorist Protocol (SATP), the fatality because
of Naxalites is three times high than the Kashmiri insurgents till August of the year. The
statistics also states that while the fatality rate of Kashmiri insurgents is decreasing year by
year, the fatality rate is maintaining because of the Naxalite activities. This constant
increment of Naxalite activities now a day seems like the most gregarious threat to the
international security of the nation.

International Terrorism in India

While there was no sign of decreasing of terrorist activities in India, continues increment of
international linked terrorist incidents has added more worries of Indian policy makers and
law enforcement authorities. As the Khalistan terrorism had well-handled and brought to the
main steam and North Eastern terrorism seems like lost its rhythm and on the path to
negotiation; Kashmir terrorism and related international terrorism such as cross-border and
suicide blasts possess top most challenge to present Indian security structure. There is no
doubt that Pakistan has been the Main source of international terrorism in India. Pakistan has
been the safe haven of international terrorism, encouraged and allowed to grow several anti-
Indian terrorist organizations in its border. Not only that, they also provided with commando
training and weapons to launch the war against India. Apart from that there is also some

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avoidance that Bangladesh and Myanmar also playing the extensive game of proxy war and
providing shelter to anti-Indian terrorists. The main forms of international terrorism are
seeing in the form of cross border terrorism in Jammu and Kashmir and Jihadi strikes on
major cities of India. These two types of cases have briefly discussed here.

Cross Border Terrorism in Jammu and Kashmir

India has been the worst victim of cross border terrorism since 1980s. Being the extensive
product of Kashmiri militancy it was ramped throughout the valley then gradually extended
to other parts of the country. Pakistan's role in spreading terrorist activities in Punjab and
Jammu & Kashmir are well known. Proper coordination in interception and the commitment
of the state and its police in countering such activity lay at the root of the control of terrorism
in Punjab. But in the case of Kashmir, terrorism still persists because Pakistan has taken
recourse to the concept of jihad to fulfill its long time policy of securing the independence of
Kashmir from India. Actually Pakistan's inclination of using force to annex Kashmir has been
apparent from the very beginning. The blueprint of aggression against Kashmir which was
drawn in Pakistan in 1947-484 continues to be followed as policy even today. Attacks by
infiltration in 1965, which led to the second Indo-Pakistan war, Pakistan's proxy war since
1988, and the Kargil offensive of 1999, confirm that Pakistan prefers to follow a policy of
confrontation in Kashmir.

The separatist movement in Kashmir began to metamorphose into militancy in April

1988 due to the resurgence in the activities of the JKLF. Gradually, the movement was taken
over by Pakistansponsored radical Islamist groups, making terrorism, insurgency and ethnic
cleansing its main weapons. The involvement of Pakistan's intelligence agencies like ISI
transformed the movement into a campaign of terror. By 1989, the situation underwent a sea-
change with the use of sophisticated firearms and extensive use of explosives, which were
smuggled in from Pakistan. Infiltration of Pakistantrained Kashmiri youth also went up. It
was estimated by the task force that a total of about 20,000 Kashmiris were trained and armed
by/in Pakistan.

"Logistical support, primarily weapons and ammunition, is brought from Pakistan.

Training, organization, propaganda and indoctrination are carried out in the safety of
Pakistani sanctuaries." Yossef Bodansky, analyst with the Freeman Centre for Strategic

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Studies, aptly said: These militant groups were used for terrorizing the people of Kashmir,
forcing them to accept rigid Wahabi codes of conduct, whip up anti- India feelings among
them and to undertake various subversive missions to destabilize the state. They also acted as
Pakistan's recruiting and motivating agents, whose job included sending disgruntled Kashmiri
youth to Pakistan for undergoing arms training. During the most violent phase of terrorism in
1990- 91, terrorist groups virtually ruled the congested urban areas of the major towns of the
Valley. Over the years, there was a considerable increase in Pakistani backed military
organizations in the Valley.

At one time there were about 120 militant groups in the Valley. With the passage of
time some of the militant groups disintegrated due to security forces operations, while others
merged with some of the major militant outfits. By September 30, 1999, there were about
nine major militant outfits operating in the Valley.

These militant outfits are carrying out their subversive activities in the Valley in pursuance of
their jihad against India. And ISI of Pakistan is the main body facilitating movement of
weapons across the borders to Kashmiri militants. It has set up training camps in Pak-
occupied Kashmir and plays a crucial role in sustaining these camps. Everyone agrees that
jihad cannot be carried on without the support of the ISI. Extending the notorious Jihadi
movements, the foreign militants have been targeting the important places of India. In this
case also, ISI is playing a vital role including training and necessity weapons to militants. To
weaken the India’s growth and terrorizing the people, terrorists has been targeting the
crowded places, religious places, and major establishments. Examples includes the 26/11
blasts on Mumbai.

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 CHAPTER-4

THE “WAR ON TERRORISM” AND IHL

The adequacy of the current international legal framework to confront terrorism became an
issue mainly after the 11 September 2001 attacks on the United States and the launching of
the “global war on terrorism”. The question whether this “war” is an armed conflict in the
legal sense and, if so, what type of armed conflict is involved, must therefore be addressed in
order to determine the adequacy of the law of armed conflicts in dealing with “terrorism”.

The “war on terrorism” as an international armed conflict

There is no controversy that the war in Afghanistan, which is generally considered to mark
the start of the “global war on terrorism”, was an international armed conflict. 52 It began on 7
October 2001 and ended on 19 June of the following year with the convening of the Loya
Jirga and the establishment of the new and internationally recognized government of
Afghanistan. The international character of the conflict in Afghanistan meant that the four
Geneva Conventions, as well as the relevant rules of customary international humanitarian

52
The war in Iraq which commenced in March 2003 was not waged primarily as part of the “global war on
terrorism”, but rather as a war to eliminate weapons of mass destruction. It is also international in character.

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law governing inter-state armed conflict became applicable.53 The latter include rules on the
conduct of hostilities,54 which are based upon well-established principles.
The basic principle on which the law of armed conflict rests is that the right of the
parties to the conflict to choose means and methods of warfare is not unlimited. 55 Among the
specific rules derived from this principle is that of distinction under which, as already
mentioned, belligerents must at all times distinguish between the civilian population and
combatants and between civilian objects and military objectives, and direct their operations
only against military objectives.56

The basic rules on targeting include the definition of what constitutes a military objective,
which is decisive for the determination of the lawfulness of an attack. Military objectives
include not only objects57 but also combatants, in particular members of the armed forces, as
well as other persons taking a direct part in hostilities.
Apart from prohibiting direct attacks against civilians, the civilian population and
civilian objects, international humanitarian law gives effect to the principle of distinction by
prohibiting indiscriminate attacks.58 Among them are attacks which may be expected to cause
incidental loss of civilian life, injury to civilians, damage to civilian objects or a combination
thereof, which would be excessive in relation to the concrete and direct military advantage
anticipated59 (this is the principle of proportionality in attack). Under both treaty and
customary international humanitarian law, the parties to an armed conflict also have a duty to
take a series of precautions in attack 60 with a view to avoiding, and in event, to minimizing
incidental loss of civilian life, injury to civilians and damage to civilian objects. They must
also take precautions to protect civilians and civilian objects against the dangers resulting
from military operations.61
It is only in international armed conflict that international humanitarian law provides
combatant status to members of the armed forces and to other persons who are under a

53
Neither the US nor Afghanistan is a party to the Additional Protocols of 1977.
54
The rules on the conduct of hostilities provided for in Additional Protocol I are generally considered to reflect
customary international humanitarian law.
55
AP I, article 35 (1).
56
Id, article 48.
57
Id, article 52 (2).
58
Id, article 51 (4).
59
Id, article 51 (5) (b).
60
Id, article 57.
61
Id, article 58.

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command responsible to a party to such a conflict. 62 The main feature of this status is that it
gives combatants the right to directly participate in hostilities 63 and immunity from criminal
prosecution for acts carried out in accordance with international humanitarian law, such as
lawful attacks against military objectives. In case of capture, combatants become prisoners of
war who cannot be tried and convicted for the simple fact of having participated in hostilities.
The corollary is that captured combatants can be interned, without any form of process, until
the end of active hostilities. Captured combatants may, however, be criminally prosecuted for
war crimes or other criminal acts committed before or during internment. 64 In case of criminal
prosecution, the Third Geneva Convention provides that POWs can be validly sentenced only
if the sentence has been pronounced by the same courts, according to the same procedure, as
in the case of members of the armed forces of the Detaining Power.65 It is often not
understood that POWs acquitted in criminal proceedings may, moreover, be held by the
Detaining Power until the end of active hostilities if the acquittal precedes the cessation of the
hostilities.
In case of doubt about the status of a captured belligerent, such status must be
determined by a competent tribunal.66 There is little guidance for determining what is meant
by a “competent tribunal” under the relevant treaty rules, but it may be inferred that the
tribunal is to be established by domestic law and that the procedure must enable an individual
status determination. The tribunal need not be a military one, but may be civilian or may even
be an administrative authority.67 Whatever the case may be, “competent tribunals”, which are
usually established in proximity to the battle zone,68 should not be composed of a single
individual.69 It is important to note that an article 5 tribunal is therefore not necessarily a

62
AP I, article 43.
63
AP I, article 43 (2).
64
Contrary to some views, the Third Geneva Convention (article 17) does not bar the interrogation of POWs,
only the use of various forms of coercion in case of a refusal to answer. Given that any form of coercion,
especially that which would involve torture or ill-treatment, is prohibited against all persons in any form of
custody, it is difficult to see why this aspect of POW status should be thought of as an obstacle to justice. The
Convention merely underlines, with respect to POWs, a standard of treatment that no authority professing to
adhere to the rule of law should depart from regardless of the reason that may underlie a deprivation of liberty.
65
GC III, article 102.
66
GC III, article 5; AP I, article 45 (1). .
67
See ICRC Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August
1949, para 1750.
68
Id., para 1751.
69
See ICRC Commentary on the III Geneva Convention Relative to the Treatment of Prisoners of War, p. 77:
“This amendment was based on the view that decisions which might have the gravest consequences should not
be left to a single person, who might often be of subordinate rank”.

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judicial body bound to comply with fair trial guarantees, as its role is to determine status and
not to pronounce on individual criminal responsibility.
As already mentioned, POWs must be released after the end of active hostilities in the
armed conflict in relation to which they were captured, unless they are subject to criminal
proceedings or have been convicted on a criminal offence. 70 What this means is that, after the
end of hostilities in the international armed conflict, the Third Geneva Convention can no
longer be considered a valid legal framework for the detention of persons who have not been
released or imprisoned as a result of a criminal process. In cases in which imperative security
reasons warrant their continued detention, such persons have to be placed within another
legal framework that would justify and govern it, namely human rights and domestic law.

Under humanitarian law applicable in international armed conflicts, civilians enjoy immunity
from attack “unless and for such time as they take a direct part in hostilities”. 71 It is
undisputed that in addition to the loss of their immunity from attack during the time in which
they directly participate in hostilities, civilians as opposed to combatants may also be
criminally prosecuted under domestic law for the mere fact of having taken part in hostilities.
In other words, they do not enjoy the combatant's “privilege” of not being liable to
prosecution for taking up arms, and they are thus sometimes referred to as “unprivileged
belligerents” or “unlawful combatants”.72
One issue that has given rise to considerable controversy since the launching of the
“global war on terrorism” is the status and treatment of civilians who have directly
participated in hostilities and have fallen into enemy hands. At one end are those – a minority
– who claim that such persons are outside any international humanitarian law protection. 73
The middle ground is represented by those who believe that “unprivileged belligerents” are
covered only by article 3 common to the Geneva Conventions and article 75 of Additional
Protocol I (either as treaty or customary law).74

70
GC III, articles 118 and 119.
71
AP I, article 51 (3).
72
See Richard Baxter, “So-called `Unprivileged Belligerency`: Spies, Guerrillas and Saboteurs”, British
Yearbook of International Law, No. 323, 1951.
73
See Ingrid Detter, The Law of War, Cambridge University Press (2000), at p. 141.
74
See Adam Roberts, “The Laws of War in the War on Terror”, in Terrorism and the Military, International
Legal Implications, Wybo P.Heere (ed.), TMC Asser Press, 2003, pp. 65 – 92.

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 At the other end of the spectrum 75 are those who consider, it is submitted correctly,
that civilians who have taken a direct part in hostilities and who fulfil the nationality criteria
provided for in the Fourth Geneva Convention remain protected persons under that
Convention. The nationality criteria are set out in Article 4 of the Fourth Geneva Convention,
which stipulates that:

“(1) Persons protected by the Convention are those who, at a given moment and in
any manner whatsoever, find themselves, in case of a conflict or occupation, in the
hands of a Party to the conflict or Occupying Power of which they are not nationals.
(2) Nationals of a State which is not bound by the Convention are not protected by it.
Nationals of a neutral State who find themselves in the territory of a belligerent State,
and nationals of a co-belligerent State, shall not be regarded as protected persons
while the State of which they are nationals has normal diplomatic representation in
the State in whose hands they are”

Those who do not fulfil the nationality criteria are at a minimum protected by the provisions
of article 3 common to the Geneva Conventions and of article 75 of Additional Protocol I
(either as treaty or customary law).
Therefore, there is no category of persons affected by or involved in international
armed conflict who are outside any international humanitarian law protection, nor is there a
“gap” between the Third and Fourth Geneva Conventions in the coverage of international
humanitarian law, i.e. an intermediate status into which civilians (“unprivileged belligerents”)
fulfilling the nationality criteria would fall. International humanitarian law does not prohibit
civilians from fighting for their country76 as evidenced by the fact that direct participation in
hostilities by civilians is not a war crime under international humanitarian law. But, as
already mentioned above, lack of prisoner of war status implies that such persons are, among
other things, not protected from prosecution under the applicable domestic laws upon capture.
While international humanitarian law thus does not recognize an “intermediate” status
between combatants and civilians in international armed conflict, the questions what
75
See European Commission on Democracy Through Law (Venice Commission), Opinion “On the Possible
Need for Further Development of the Geneva Conventions”, Opinion No. 245/2003, Doc. CDL-AD(2003) 18, ,
at www.venice.coe.int/docs/2003/CDL-AD(2003)018-e.pdf
76
In one instance – the levée en masse situation – provided for in article 4 (A) (6) of the Third Geneva
Convention, the inhabitants of a non-occupied territory who spontaneously take up arms to resist the invading
forces are, under certain conditions, considered combatants and are recognized as prisoners of war when they
fall into the power of the enemy.

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constitutes “direct” participation in hostilities and how the temporal aspect of participation
should be defined (“for such time as they take a direct part in hostilities”) remain open. Given
the consequences of direct participation and the importance of having an applicable definition
that would uphold the principle of distinction, the notion of direct participation is a legal issue
that merits clarification. This is all the more important as civilian participation in hostilities
occurs in both international and non-international armed conflicts.77

Civilians can be interned by the adversary if the security of the detaining power makes it
absolutely necessary.78 It seems obvious that persons who have taken a direct part in
hostilities without being authorized to do so would fall into that group. According to the
Fourth Geneva Convention, a protected person who has been interned is entitled to have the
decision on internment reconsidered without delay and to have it automatically reviewed
every six months.79 While interned, a person can be considered as having forfeited certain
rights and privileges provided for in the Fourth Geneva Convention, the exercise of which
would be prejudicial to the security of the state, as is provided in article 5 of that Convention
and customary international law.
To conclude, it is difficult to see what other measures apart from: a) loss of immunity
from attack, b) internment if warranted by security reasons, c) possible forfeiture of certain
rights and privileges in internment and d) criminal charges, could be applied to civilians who
have directly participated in hostilities, that would not run the risk of leading to serious
violations of life, physical integrity and dignity prohibited by international humanitarian and
human rights law. Advocates of changes to international humanitarian law in order to enable
it to deal more efficiently with “terrorism” have the onus of explaining how they would
reconcile such changes with existing standards of individual protection. It is clear that
77
With a view to generating debate on this topic, in 2003 the ICRC organized a one-day expert seminar in The
Hague on the “Notion of Direct Participation in Hostilities under IHL” in cooperation with the TMC Asser
Institute. Seminar participants agreed that an effort to clarify the notion of “direct participation in hostilities”
was warranted. The view was also expressed that a general legal definition of “direct participation”,
accompanied by a non-exhaustive list of examples, would be the desirable outcome. The question of what final
form future work should result in was left for a later date. The ICRC intends to follow up on the process
initiated and, with the assistance of legal experts, propose substantive and procedural ways of moving forward.
A summary report of the June 2003 seminar topics and proceedings may be found on the ICRC's website at:
http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList575/73BA3908D5B7E2F7C1256E6D0034B5CE.
78
GC IV, articles 41 and 78.
79
Id, articles 43 and 78. The procedural guarantees of the Fourth Convention are considered a minimum and it
will be an advantage if better safeguards, such as examination of cases at more frequent intervals or the setting
up of a higher appeals court, are provided for by the Detaining Power. Another safeguard not mentioned in the
Convention would be the provision of legal counsel to persons appealing the decision on internment or at
periodic review.

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downgrading current standards would be the result, if not necessarily the aim, of some
proposals.80
Persons interned under the Fourth Geneva Convention must be released as soon as
possible after the close of hostilities in the armed conflict in relation to which they were
captured, if not sooner,81 unless they are subject to criminal proceedings or have been
convicted of a criminal offence.82 This means that, after the end of hostilities in the
international armed conflict, the Fourth Geneva Convention can no longer be considered a
valid legal framework for the detention of persons who have not been released or subject to
criminal process. If imperative security reasons warrant it the continued detention of such
civilians, like POWs, must be placed within the framework of human rights law and domestic
law.
Apart from the war in Afghanistan, the acts of terrorism and the responses thereto that
have been taking place after 11 September cannot be qualified as an ‘international armed
conflict’ within the meaning of the Geneva Conventions. Not only is the violence not inter-
state, it is also clear that states would never “legitimize” the non-state “adversary” by
granting groups perpetrating terrorist acts the status and rights in combat and upon capture
that have been outlined above. The lack of ratification of Additional Protocol I by some key
countries, due, inter alia, to their unwillingness to expand the scope of application of the
rules governing international armed conflicts to national liberation movements (non-state
actors), is proof of this.
It has been suggested that the “war on terrorism” – apart from Afghanistan – is an
armed conflict governed, not by international humanitarian law treaties, but only by
customary international humanitarian law.83 This analysis must be rejected. The Geneva
Conventions, which have been ratified by 191 states, are themselves considered to reflect
customary international law. Even if, for the sake of argument, one tried to envisage the

80
For a particularly troubling view on how the laws of war should be changed see Alan Dershowitz, “The Laws
of War Weren't Written For This War”, Wall Street Journal, February 12, 2004.
81
The general principle governing the internment of civilians for security reasons is that they should be released
as soon as the circumstances necessitating the internment no longer exist. See GC IV, article 132 and AP I,
article 75 (3).
82
GC IV, articles 132 and 133.
83
See William K. Lietzau, “Combating Terrorism: Law Enforcement or War?” in Terrorism and International
Law, Challenges and Responses, Michael N. Schmitt and Gian Luca Beruto (eds.), International Institute of
Humanitarian Law and George C. Marshall European Center for Security Studies, 2003, at p. 80. (“In making
these and related decisions about the treatment accorded our terrorist enemies, we are reminded daily that the
current international law templates do not provide guidance clearly applicable to present circumstance. Simply
put, we are operating in areas not addressed by applicable treaties and thus are participating in the development
of customary international law”.)

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customary rules that would govern a “non-treaty” international war, they would not be very
different to the regime outlined above. The principle of distinction and other provisions on
the conduct of hostilities would have to be respected, as would many international
humanitarian law treaty standards on the treatment of persons no longer participating in
hostilities.84
There simply can be no armed conflicts in which the basic equality of the parties
under international humanitarian law is circumvented, i.e. in which one side has all the rights
and the other has few, or none. Advocates of the establishment of a legal framework that
would govern such a “new” type of international armed conflict should think twice, as they
risk creating a monster that will come back to haunt them.

The “war on terrorism” as a non-international armed conflict

It is believed that the hostilities that have been taking place in Afghanistan since the
establishment of the new internationally recognized Afghan government on 19 June 2002
constitute a non-international armed conflict under international humanitarian law. Given that
Afghanistan is not a party to Additional Protocol II, these hostilities – which are a
continuation of the armed conflict that started in response to the 11 September terrorist
attacks – are governed by article 3 common to the Geneva Conventions and customary rules
of international humanitarian law. This conflict is also governed by international human
rights law, which is a distinct but complementary body of law to international humanitarian
law.85
While there is no ‘combatant’ or ‘POW’ status in non-international armed conflicts,
the rules on the conduct of hostilities that have been outlined above are considered to reflect
customary law and are therefore applicable to the ongoing fighting in Afghanistan. 86 They
need to be kept in mind as this group of norms is the lex specialis that in times of armed
conflict modifies human rights rules on the arbitrary deprivation of life.87 This is not to say
84
This is confirmed by the ICRC’s Study on customary rules of international humanitarian law (in press).
85
The comprehensive protection of persons affected by armed conflict – especially those who find themselves
in enemy hands in non-international armed conflicts – can only be ensured by the complementary application of
international humanitarian and human rights law. For an ICRC view on this issue see Statement of the ICRC
President at the September 2003 San Remo Round Table on Current Problems of International Humanitarian
Law, at http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList575/D75203C5C3CFB78CC1256DA300427813
86
Additional Protocol II does provide some basic conduct of hostilities rules: see articles 13 -16.
87
See Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ, 8 July 1996, at para. 25.
(“In principle the right not to be arbitrarily deprived of one's life applies also in hostilities. The test of what is an
arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law

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that law enforcement rules88 are replaced by international humanitarian law provisions on the
conduct of hostilities, but simply that the determination of which legal regime is applicable
needs to be made on a case-by-case basis.89
The quelling of riots or the arrest of criminal suspects will be subject to a different body of
rules than the military operations being conducted against remnants of the Taliban and al-
Qaeda in eastern Afghanistan.90
It is in the area of the protection of persons in enemy hands, particularly as regards
deprivation of liberty in non-international armed conflicts, that international humanitarian
law rules – given their paucity – need to be supplemented by international human rights law.
International humanitarian law applicable in non-international armed conflicts does
not specify the difference between persons whose liberty has been restricted by means of
“internment” as opposed to “detention”.91 Given that internment is a form of deprivation of
liberty associated only with armed conflict, it may be interpreted to mean the deprivation of
liberty for security reasons related to the armed conflict, without the person involved being
subject to criminal charges (i.e., equivalent to administrative detention in peacetime).
Detention, on the other hand, may be interpreted to also include the deprivation of liberty of
persons subject to criminal charge (pre-trial detention).
The main problem concerning internment in internal armed conflict is the lack of
precise rules regulating the deprivation of liberty of persons not subject to criminal charges,
particularly as there is also not much undisputed “hard” human rights law in this area.
Moreover, states may derogate from certain human rights treaty obligations including those
provided for in article 9 of the International Covenant on Civil and Political Rights 92 on the

applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus, whether a particular
loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life
contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict
and not deduced from the terms of the Covenant itself.”)
88
These rules are outlined in the Basic Principles on the Use of Force and Firearms by Law Enforcement
Officials and in the Code of Conduct for Law Enforcement Officials, in Human Rights, a Compilation of
International Instruments, Volume I (First Part), ST/HR/1/Rev. 5/ (Vol. I, Part 1), at p. 318 and 312,
respectively. Hereinafter “Principles on the Use of Force” and “Code of Conduct”.
89
See Advisory Opinion on the Legal Consequences of the Construction of a Wall
in the Occupied Palestinian Territory, ICJ, 9 July 2004, paras 105-106, at: http://www.icj-
cij.org/icjwww/idocket/imwp/imwpframe.htm
90
For an interesting review of the interplay between international humanitarian law and human rights law see
Kenneth Watkin, “Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed
Conflict”, AJIL, Vol. 98, No. 1, January 2004, pp. 1 – 34.
91
See AP II, article 5 (1) and (2) and article 6 (5).
92
Hereinafter “ICCPR” or “Covenant”.

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right to liberty and security of person in times of armed conflict. 93 What therefore need to be
determined are the customary international human rights law rules that govern the deprivation
of liberty of persons not subject to a criminal charge.
Despite the lack of precise international humanitarian law rules governing internment
or detention in non-international armed conflicts in any detail, there is no doubt that both
customary international humanitarian law and international human rights law prohibit the
unlawful and/or arbitrary deprivation of liberty.94

Whether a deprivation of liberty is lawful or not must be judged on the basis of the grounds
for the detention and on the procedure to be followed. The need for a valid reason for the
deprivation of liberty concerns both the initial reason for such deprivation as well as the
reason for its continuation.95

In situations where a person is interned or detained in relation to a non-international

armed conflict, it can be said that, as a minimum, he or she must be informed promptly, in a
language which he or she understands, of the reasons for which this measure has been taken. 96
In addition, internment or detention must be subject to the effective control of an independent
and impartial judicial body before which internees or detainees may, in particular, challenge
the lawfulness of their internment or detention and obtain release if such measures are found
to be unlawful.97 The right to challenge the lawfulness of one's detention (habeas corpus) is
recognized in most, if not all, domestic legal systems and is considered to be non-derogable
as a matter of human rights jurisprudence. Moreover, the right to legal assistance in any
proceedings involving the lawfulness of deprivation of liberty is provided for in international
human rights instruments and jurisprudence.98 The right to counsel is particularly important in
circumstances that may be said to amount to prolonged or incommunicado detention.
93
ICCPR, article 4.
94
Thus, unlawful confinement of civilians is a grave breach of the Fourth Geneva Convention (article 147). The
Elements of Crimes for the International Criminal Court state that unlawful confinement may be in relation to
any person protected under one of the Geneva Conventions and not only in relation to civilians (Elements of
Crime of article 8(2)(a)(vii)-2). The right to liberty and security of person is a fundamental right provided for in
article 9 of the ICCPR, and is also guaranteed by the regional human rights treaties. In order for internment to be
lawful, a state party to the International Covenant on Civil and Political Rights should derogate from its
obligations pursuant to article 4 of the Covenant.
95
CCPR/C/79/ Add. 8, para. 27 (1997).
96
Inter alia – ICCPR, article 9 (2); Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment, principles 10 and 14.
97
Inter alia – ICCPR, article 9(4); Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment, principle 32. Also, UN Human Rights Committee, General Comment No. 29, States
of Emergency (Article 4), CCPR/C/21/Rev.1/Add.11, 31 August 2001, para. 16. Hereinafter “General Comment
29”.

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 While the duration of internment in non-international armed conflict is not specified
in international humanitarian law treaties, some inferences based on the provisions outlined
above may be drawn. Given that internment is a measure taken for security reasons in relation
to a non-international armed conflict, states should release persons held for security reasons
without criminal charges once hostilities have ceased.

Such an expectation is expressed in Additional Protocol II, pursuant to which the authorities
in power “shall endeavour to grant the broadest possible amnesty” at the end of hostilities to
persons who have participated in the armed conflict “whether they are interned or detained”.99

In cases where criminal proceedings are pending against persons who are in pre-trial
detention for having participated in the hostilities, there is an expectation that they too will be
amnestied at the end of hostilities. As already mentioned, an amnesty may not include persons
suspected of having committed war crimes or other crimes under international law. Persons
subject to criminal charges must, in any event, be released at the expiration of any sentence
that may be imposed on them.

With respect to the detention of persons subject to criminal charges, non-derogable

rules of international humanitarian law regulate in some detail the applicable fair trial rights
for offences related to a non-international armed conflict. The basic principles are provided
for in article 3 common to the Geneva Conventions and are elaborated in the fair trial
guarantees of Additional Protocol II, which are considered to reflect customary international
law.100 To the extent that these provisions might not be sufficiently detailed to provide
guidance on all aspects of the right to a fair trial, they must be supplemented with the
applicable provisions of international human rights law.101
A key question that needs to be answered in examining the adequacy of the current
international legal framework to confront terrorism is whether, apart from the current fighting

98
Inter alia – Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment, principle 11 (1).
99
AP II, article 6 (5).
100
AP II, article 6.
101
In addition to the procedural rights enjoyed by persons detained without criminal charge outlined above,
persons detained subject to criminal charge must, inter alia, be brought promptly before a judge or other officer
authorized by law to exercise judicial power. They are also entitled to trial within a reasonable time or release
(ICCPR, article 9 (3).) At trial, they are guaranteed a range of rights provided for under article 14 of the ICCPR.
Under the applicable human rights treaties, anyone who has been the victim of unlawful arrest or detention shall
also have an enforceable right to compensation. (ICCPR, article 9 (5). Also, General Comment 29, para.14.

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in Afghanistan, terrorist acts being perpetrated in various parts of the world and the responses
thereto can be qualified as a global non-international armed conflict. While the designation
“non-international” may sound counter-intuitive given the transnational nature of some of the
acts involved, it is this body of international humanitarian law rules that governs armed
conflict between states and non-state actors or between non-state actors.

Non-international armed conflict rules are, in fact, well suited to governing this type of
conflict because they are not based upon a concept of ‘combatant’ status and of the legal
consequences that arise from it in international armed conflicts. Captured “terrorists” would
thus not enjoy immunity from criminal prosecution for participation in the armed conflict or
other lawful acts of war and would not have to be released at the end of the armed conflict.
Both “sides” would, however, have to abide by the rules on the conduct of hostilities aimed
primarily at sparing civilians and civilian objects. The problem, however, lies in determining
whether a non-international armed conflict exists.

It hardly needs to be pointed out that it is always difficult to establish when acts of
violence are deemed to have reached the threshold of a non-international armed conflict.
While Additional Protocol II contains certain criteria, they are clearly not applicable to the
situation at hand because “organized armed groups” in the “global war on terrorism” do not
exercise the control over any territory that would enable them to carry out sustained and
concerted military operations, as the criteria require.102 The question then is, are we dealing
with a global armed conflict within the meaning of common article 3 to the Geneva
Conventions?103 While there are no universally accepted legal criteria on which to make such
102
AP II, article 1: “1. This Protocol, which develops and supplements Article 3 common to the Geneva
Conventions of 12 August 1949 without modifying its existing conditions of application, shall apply to all
armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12
August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which
take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or
other organized armed groups which, under responsible command, exercise such control over a part of its
territory as to enable them to carry out sustained and concerted military operations and to implement this
Protocol. 2. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots,
isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.”
103
While article 3 common to the Geneva Conventions regulates non-international armed conflict “occurring in
the territory of one of the High Contracting Parties”, at least in internal ICRC legal interpretation it is
acknowledged that the geographic limitation is not controlling. Moreover, the International Court of Justice
recognized common article 3 as a standard of behaviour applicable regardless of the qualification of the armed
conflict involved. See Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua
v. United States of America), ICJ, 27 June 1986, para. 218. (“ Article 3 which is common to all four Geneva
Conventions of 12 August 1949 defines certain rules to be applied in the armed conflicts of a non-international

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a determination, practice and the doctrine usually identify – inter alia – the intensity of the
violence involved, its duration and the means used as required elements. 104 In addition, the
existence of “parties” to the conflict is required.

To qualify as the ‘non-state party’ to a non-international armed conflict it is usually

understood that a group or organization must dispose of a military-like formation with a
certain level of internal organization and a command structure that enables it, among other
things, to enforce discipline and thereby ensure respect for international humanitarian law. As
already mentioned, both parties to an armed conflict enjoy basic equality of rights and
obligations under international humanitarian law, which enables both sides to know the rules
within which they are allowed to operate and to rely on similar conduct by the other side.
Given these basic features of a “non-state party”, can it be said that the totality of terrorist
acts that have been perpetrated since 11 September 2001 – in Bali, Moscow, Peshawar,
Casablanca, Riyadh, Madrid, Istanbul, Beslan and elsewhere – constitute a global non-
105
international armed conflict that can be attributed to one and the same party? Or are states
faced with a series of criminal acts perpetrated by groups or individuals sharing at best a
common ideology?106 In the author’s opinion, absent further factual evidence on the common
internal organization and command structure of the perpetrators, it cannot be concluded that
the “terrorist” violence involved constitutes a world-wide non-international armed conflict in
the legal sense.107

character. There is no doubt that, in the event of international armed conflicts, these rules also constitute a
minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and
they are rules which, in the Court's opinion, reflect what the Court in 1949 called “elementary considerations of
humanity” (Corfu Channel, Merits, I.C.J. Reports 1949, p. 22; paragraph 215 above”.)
104
See Marco Sassoli, “The Status of Persons Held in Guantanamo under International Humanitarian Law”, in
Journal of International Criminal Justice 2 (2004), at p. 100. See also Lindsay Moir, The Law of Internal Armed
Conflict, Cambridge University Press, 2002, at pp. 30-52.
105
This is the view enunciated by US President George W. Bush, who also sees the current hostilities in Iraq as
part of the “global war on terror”. See “Bush presents the case for a U.S. `mission` to stay the course in Iraq”,
International Herald Tribune, April 15, 2004, page 4. (“He talked about the battle in Iraq not simply in terms of
bringing order to the streets, but as part of his mission to win a much broader war on terror in which Iraq is an
integral part. He ticked off one atrocity after another, from the deadly bombings in Bali to bus bombing in
Jerusalem, and from the attacks on the navy destroyer Cole to the embassy bombings in Africa”.)
106
Assertions that the situation in Chechnya – which has given rise to terrorist attacks in Moscow, Beslan and
elsewhere – is part of the “global war on terrorism” beg credibility. The Chechen conflict is primarily generated
by a desire for Chechen autonomy or independence. This is a “classic” non-international armed conflict in
which deliberate attacks against civilians may be qualified as war crimes. Equally unjustifiably, the situation in
the Middle East is now also included in the “global war on terrorism”.
107
While all the terrorist acts that have occurred since September 11 th have been labelled as being in some way
“linked” to al-Qaeda, very little about the exact nature of such a “link” is ever provided, except that the suspects
are usually Muslim men.

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 Terrorist acts must be dealt with using the specific tools designed for addressing
criminal activity, which are domestic and international law enforcement.

In practice, affected states have used precisely such measures to prevent acts of terrorism, or
to arrest and bring the perpetrators to justice when they have been able to do so. No country
not already experiencing some degree of non-international armed conflict has resorted to
international humanitarian law rules on targeting – which would inevitably include
calculations of “collateral” civilian casualties – in order to root out potential “terrorists” in
their midst. They have, instead, employed law enforcement means and methods. The Spanish
authorities' handling of the aftermath of the Madrid terrorist acts is a case in point.108

For these and other reasons, and leaving to one side the ongoing hostilities in
Afghanistan, the acts of terrorism and the responses thereto that have been taking place since
11 September 2001 cannot be qualified as a global non-international armed conflict within
the meaning of common article 3 to the Geneva Conventions. At present, there is insufficient
factual evidence that would allow the violence that is taking place to be imputed to a specific
non-state “party” to the conflict. It is also evident that most of the activities being undertaken
to prevent or suppress terrorist acts do not amount to an armed conflict. The counter-terrorist
effort is being carried out by a variety of means, including law enforcement, intelligence
gathering, police and judicial cooperation, extradition, financial investigations, the freezing of
assets, diplomatic demarches and criminal sanctions. “Terrorism” is a phenomenon. Both
practically and as a matter of law, war cannot be waged against a phenomenon.

108
See BBC News “Madrid Suspects Killed in Blast” http://news.bbc.co.uk/1/hi/world/europe/3597443.stm. Is
there a more permanent source?

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 CHAPTER-5

TERRORISM AND INTERNATIONAL HUMAN RIGHTS

LAW

It follows from this analysis that, in the author’s view, the terrorist acts being perpetrated in
various parts of the world (outside situations of armed conflict) are as a matter of law
properly characterized as criminal acts that should, inter alia, be dealt with by the application
of domestic and international human rights law, as well as international criminal law. That is
indeed the framework that is being primarily relied on in practice.

Law enforcement
The first component of the human rights framework is the body of international standards on
law enforcement, the goal of which is strictly to control the use of force, including lethal
force, and thereby also to limit the unintended consequences of the use of force. The relevant
instruments109 emphasize that the use of force should be an exceptional measure, resorted to
only when strictly necessary and only to the extent required for the performance of the task at
hand.
One of the main differences between the rules on the use of force under human rights
law and the rules of international humanitarian law is the way in which the principle of
proportionality is interpreted and applied. While law enforcement standards provide that the
use of force must be proportional to the “legitimate objective to be achieved”, 110 international
humanitarian law permits direct attacks against military objectives, including combatants and
other persons taking a direct part in hostilities, which are not governed by proportionality.
Proportionality under international humanitarian law is the balancing test that must be
employed, once a military objective has been identified, to determine whether an attack
which may be expected to cause incidental loss of civilian life, injury to civilians, damage to

109
Principles on the Use of Force and Code of Conduct, at note 57 above.
110
Code of Conduct, article 3, Commentary.

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civilian objects, or a combination thereof, would be excessive in relation to the concrete and
direct military advantage anticipated. 111
It is often argued that the stricter proportionality principle that applies to law enforcement is
one reason why states have to resort to the laws of war in dealing with terrorist acts. An
example would be a situation in which a state has to contemplate shooting down a hijacked
civilian airplane.112 In such a scenario, it is said, the authorities would have to take into
account
“the damage the plane might inflict on its intended target. Such an analysis would
also have to weigh the relative importance of both objects (either state or private
property) and people (military or civilian). Finally, a proportionality assessment
would have to be made regarding the number of innocent civilians who would be
killed if the plane were shot down. State authorities would probably be under
pressure to reach a decision with little time for reflection and limited information
about the intentions and motivations of the hijackers”.113
In other words, it is argued, an international humanitarian law targeting analysis is required.
In the author's view, however, an eventual decision to shoot down the civilian aircraft – as
horrifying as that may be – would not be prohibited by law enforcement standards. Under the
relevant instruments, law enforcement officials, whose main function is to “protect all
persons against illegal acts,”114 may use force and firearms only if “other means remain
ineffective or without any promise of achieving the intended result”:115 but they may certainly
use force and firearms if those conditions are met. Moreover, firearms may be used “to
prevent the perpetration of a particularly serious crime involving grave threat to life”. 116
While law enforcement officials must identify themselves and give a clear warning of their
intent to use firearms, allowing sufficient time for the warning to be observed, they are freed
of even these obligations if doing so “would be clearly inappropriate or pointless in the
circumstances of the incident”.117
In practical terms, extreme law enforcement situations do not necessarily leave the
authorities more time for “reflection” or allow them to gauge the “intentions and

111
AP I, article 51 (5) (b).
112
See Watkin, note 59 above, at page 22.
113
Id.
114
Code of Conduct, article 1.
115
Principle 4 of the Principles on the Use of Force.
116
Id, Principle 9.
117
Id, Principle 10.

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motivations” of criminal suspects under any less pressure than is the case in situations of
armed conflict governed by international humanitarian law.
While it is true that law enforcement instruments demand higher standards of reporting and
provide for detailed review procedures where injury or death is caused by the use of force or
firearms,118 most states would feel compelled to conduct an investigation if they shot down a
civilian aircraft over their territory, especially if this were done outside an armed conflict
scenario. There is no reason to suggest that the persons responsible for making such a
difficult decision would be subject to criminal sanctions if their actions were deemed lawful.
Thus law enforcement standards do not necessarily prevent states from dealing with
the gravest terrorist acts, and recourse to international humanitarian law rules on the conduct
of hostilities in fighting “terrorism” is neither inevitable nor necessarily advantageous. What
is true is that law enforcement standards demand that, before force or firearms are used, other
measures, including attempts to apprehend criminal suspects, be employed if possible.119
In a situation in which the “fact” of someone being a “terrorist” is primarily based on
secret intelligence sources, adopting a ‘conduct of hostilities’ rather than a ‘law enforcement’
framework would be tantamount to allowing state agents to adopt a “shoot-to-kill” policy 120
regardless of whether a person involved in criminal activity could have been stopped in some
other way. That could prove to be a very slippery slope, especially where one would have to
rely on the good faith of governments with a poor human rights record. The idea (and ideal)
that each individual, and society as a whole, has an interest in judicial determination of guilt
and punishment would thus be severely jeopardized.
A real-life example that brought these issues to the fore was the US Predator drone
missile strike that killed six alleged al-Qaeda members in the Yemeni desert in November
2002.121 While that incident was largely met with silence on the part of many governments,
the late Swedish Foreign Minister Anna Lindh publicly – and controversially – called it a
“summary execution”.122

118
Id, Principle 22.
119
Code of Conduct, article 3, Commentary. (“In general firearms should not be used except when a suspected
offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not
sufficient to restrain or apprehend the suspected offender”.)
120
Even in war belligerents may lawfully target only combatants and other persons directly participating in
hostilities, and no one else.
121
See Brian Whitaker and Duncan Campbell, “CIA Missile Kills Al-Qaida Suspects”, The Guardian, August 5,
2004, at http://www.guardian.co.uk/print/0,3858,4539624-111026,00.html
122
Quoted in Howard Witt, “U.S.: Killing of Al Qaeda Suspects Was Lawful”, Chicago Tribune, November 24,
2002.

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 For the United States, which appears to consider that the “war on terrorism” is a
global international armed conflict, the persons involved were “enemy combatants” who
could be targeted under international humanitarian law rules on the conduct of hostilities.
As explained above, combatant status exists only in international armed conflicts, which the
“war on terrorism”, apart from the initial inter-state conflict that took place in Afghanistan, is
not. In non-international armed conflicts, civilians and other persons taking a direct part in
hostilities cannot be lawfully targeted “unless and for such time 123 as they take a direct part in
hostilities”.124 In the author’s view, terrorist acts taking place in various parts of the world
cannot be attributed to one and the same “party” to a global non-international conflict. But
even if one accepted, for the sake of argument, the hypothesis that they could all be attributed
to a single “party”, it would still need to be established that the persons killed in Yemen were
in fact taking a “direct part in hostilities” while they were driving through the desert. No
explanation beyond the allegation that one of the men involved was a senior al-Qaeda
operative, was provided.
Similar to the case of the hypothetical example of the shooting down of a civil aircraft
given above, there is nothing to suggest that the Predator drone strike could not be examined
satisfactorily within a law enforcement framework. In that case, the Yemeni government had
unsuccessfully attempted, several weeks before the incident, to capture “terrorists” hiding in
the tribal areas of that country, at United States' request. If the United States' authorities had
specific proof that the persons involved were indeed about to commit a particularly serious
crime involving a grave threat to life125 and there was no other way to prevent them from
carrying it out, and if they were acting with the consent of the Government of Yemen, it
could be argued that the use of lethal force against the suspects was legally justified.
The United States' authorities would obviously have had to institute an investigation
into the incident and apply the review procedures provided for under the rules on law
enforcement.126 However, the suspects' mere “membership” in al-Qaeda (whatever that may
mean) would clearly have not have been a sufficient reason to kill them.

123
Emphasis added.
124
AP I, article 51 (3). This rule is considered to reflect customary international law.
125
Principle 9 of the Principles on the Use of Force.
126
Under the Principles on the Use of Force, governments and law enforcement agencies are inter alia required
to establish “effective reporting and review procedures” for “all incidents” where injury or death is caused by
the use of force or firearms. They must also ensure that “independent administrative or prosecutorial authorities
are in a position to exercise jurisdiction in appropriate circumstances. In cases of death and serious injury or
other grave consequences, a detailed report shall be sent promptly to the competent authorities responsible for
administrative review and judicial control”. See principles 22 and 6.

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In that sense, Anna Lindh's characterization of the incident as a “summary execution” might
have been correct. On the other hand, it might have not. More factual information would be
necessary for a clearer legal assessment.127
Based on the examples provided, it is submitted that states neither need, nor should be
allowed, to “pick and choose” different legal frameworks concerning the conduct of
hostilities or law enforcement, depending on which gives them more room to manoeuvre,
because this would ultimately lead to a blurring of legal regimes that have developed
separately and for good reason.
If states claim that they are engaged in a “war” against “terrorism”, they must
acknowledge that under international humanitarian law attacks against their own military
objectives and the proportional collateral damage that might be caused to civilians are also
lawful. In war, the relationship of the parties may be said to be “horizontal”. By contrast, in
law enforcement, the relationship is “vertical” because states are authorized to prevent and
suppress criminal acts, the perpetrators of which, under domestic and international criminal
law, have no right to use violence. States advocating the use of conduct of hostilities rules in
dealing with “terrorism” appear to believe that they can circumvent the inherent logic of the
laws of war to benefit only themselves. By doing so, they put the safety of their populations
at risk.

127
A related and controversial issue is the extent to which human rights norms apply extra-territorially. It is
submitted that there is a clear trend in the jurisprudence towards a positive answer. See Dominic McGoldrick,
“Extraterritorial Application of the International Covenant on Civil and Political Rights” and Christina M.
Cerna, “Extraterritorial Application of the Human Rights Instruments of the Inter-American System” in
Extraterritorial Application of Human Rights Treaties, Fons Coomans and Menno T. Kamminga (eds.),
Intersentia, 2004, at pp. 41-71 and at pp. 141-174, respectively. The Human Rights Committee in its General
Comment on article 2 of the ICCPR confirmed this view. See General Comment No. 31 (80) on The Nature of
the General Legal Obligation Imposed on States Parties to the Covenant: 26/05/2004. CCPR/C/21/Rev.1/Add.
13, para 10 at: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/c92ce711179ccab1c1256c480038394a?
Opendocument
(“States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons
who may be within their territory and to all persons subject to their jurisdiction. This means that a State party
must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of
that State Party, even if not situated within the territory of the State Party. As indicated in General Comment 15
adopted at the twenty-seventh session (1986), the enjoyment of Covenant rights is not limited to citizens of
States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as
asylum seekers, refugees, migrant workers and other persons, who may find themselves under the territory or
subject to the jurisdiction of the State Party. This principle also applies to those within the power or effective
control of the forces of a State party acting outside its territory, regardless of the circumstances in which such
power or effective control was obtained, such as forces constituting a national contingent of a State party
assigned to an international peace-keeping or peace-enforcement operation”.) In the case at hand, if the killing
was indeed an extra-judicial execution, it would have been unlawful as a matter of customary law.

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Deprivation of liberty
The second component of the international human rights framework relevant to fighting
“terrorism” is the body of rules governing the deprivation of liberty of persons suspected of
terrorist acts.128 This area of the law, or rather the way it is being applied in the context of the
global “war against terrorism”, has probably generated the most international reaction and
scrutiny. While the basic precepts of what constitutes a fair trial are reasonably well
129
established, the fight against terrorism has led to a broader application of the practice of
administrative detention for security reasons.
Detention without criminal charge is not explicitly prohibited under international
human rights law but it is subject to basic safeguards. To be lawful, such detention can only
be instituted in the exceptional circumstances in which states are allowed to derogate from
their human rights treaty obligations (e.g., under the ICCPR).130 Apart from the existence of a
public emergency, which must be officially proclaimed, 131 any measures of derogation taken
must conform to the principle of proportionality, must not be inconsistent with the state's
other international obligations (including its obligations under international humanitarian
law), and must not involve discrimination solely on the ground of race, colour, sex, language,
religion or social origin.

The ICCPR prohibits derogations from certain human rights obligations in all
circumstances. Non-derogable obligations include those safeguarding the right to life and to
freedom from torture and other cruel, inhuman or degrading treatment or punishment, as well
as the principle of non-retroactivity of criminal law. The procedural requirement provided for
in the Covenant, according to which the state involved must notify other States Parties,
through the intermediary of the UN Secretary-General, of the provisions from which it has
derogated and the reasons for doing so, must be respected.

128
As is well-known, states' responses to “terrorism” have had a detrimental impact on the enjoyment of a wide
range of human rights. This issue must be mentioned, but will not be dealt with – except as regards
administrative detention briefly discussed below – because it is not the subject of this study.
129
Human rights law provisions on the pre-trial detention of persons suspected of criminal offences are fairly
detailed in both treaty and non-treaty instruments and have generated a large body of jurisprudence, including
from regional human rights courts and other human rights monitoring bodies. The wealth of international
standards and jurisprudence is simply too exhaustive to repeat here. For a good overview see, Office of the UN
High Commissioner for Human Rights, Human Rights in the Administration of Justice: A Manual on Human
Rights for Judges, Prosecutors and Lawyers, No. 9 in the Professional Training Series, Geneva, 2003, at
http://www.ohchr.org/english/about/publications/training.htm
130
ICCPR, article 4 (1).
131
The public emergency must be such that it “threatens the life of the nation”. See ICCPR, article 4 (1).

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Non-treaty human rights standards and jurisprudence – both international and regional – have
considerably expanded the scope of the category of rights considered non-derogable in all
circumstances. Thus it is well accepted that administrative detention may only be ordered for
reasons and in accordance with a procedure provided for by law. 132 The person involved must
be informed promptly, in a language which he or she understands, of the reasons for which
this measure has been taken.133 In addition, detention must be subject to the effective control
of an independent and impartial judicial body before which the lawfulness of detention may
be initially and then periodically challenged and release obtained if the detention is found to
be unlawful.134 Detainees are likewise entitled to the assistance of legal counsel135 and, subject
to reasonable conditions and restrictions, have the right to communicate with their families.136

A strong case can be made that administrative detention without the application of all
those necessary safeguards, especially if detention is prolonged, would amount to arbitrary
detention prohibited by human rights law. While basic standards governing administrative
detention are therefore not lacking as such, there are reasons for serious concern about the
current level of protection provided to persons subject to this form of deprivation of liberty.

First, a significant number of states have not ratified the ICCPR and are therefore not
obliged, as matter of treaty law, to observe the strict conditions provided in the ICCPR if they
derogate from their human rights obligations. Second, the right to liberty of the person is
derogable; and while the standards on administrative detention outlined above are supported
by non-treaty instruments and jurisprudence, there is little “hard law” 137 on the rights
available. Third, even some of the minimum non-treaty standards mentioned above are
phrased in a way that leaves states considerable room for movement. Finally, state practice in
the area of administrative detention is still insufficiently uniform to provide guidance on the
standards that could be said to constitute customary human rights law.

132
ICCPR, article 9 (2).
133
Inter alia – ICCPR, article 9(2); Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment, principles 10 and 14.
134
Inter alia – ICCPR, article 9(4). See Al-Nashif v. Bulgaria, European Court of Human Rights, 20 June 2002,
No. 50963/99. Also, UN Human Rights Committee, General Comment No. 29, States of Emergency (Article 4),
CCPR/C/21/Rev.1/Add.11, 31 August 2001, para. 16.
135
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,
principles 17, 18 and 32.
136
Id, principle 19.
137
The main exception is the right to challenge the lawfulness of one's detention, ICCPR, article 9 (4).

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Despite the obvious curtailment of the right to liberty that is involved, it seems that
administrative detention will be increasingly employed to deal with “terrorist” suspects in
cases where the evidence is inadmissible or insufficient to charge them with criminal
offences. A related issue that has inexplicably escaped broader attention is the fate of persons
apprehended in the “war on terrorism” who are being held at undisclosed locations. 138 While
the individual capture of some ten persons held incommunicado is a matter of public
record,139 it is assumed that the number of similar cases is probably higher. Since their
capture, nothing has been said or is known about whether the individuals involved are dead or
alive, what their conditions of detention are or whether they will ever be subject to any form
of legal process. These issues140 deserve the attention of human rights groups and others
committed to maintaining existing standards of protection of individual rights.141
To sum up, human rights standards on law enforcement are one of the main tools that
could be applied to operations in the continuing endeavour to prevent or suppress acts of
terrorism. They do not prevent the use of lethal force in response to criminal acts, but they
provide for higher standards on conduct before, during and after the use of force or firearms,
especially where death or injury has been caused.

138
The ICRC has publicly expressed concern about the fate of persons being held in undisclosed locations. See
United States: ICRC President Urges Progress on Detention-Related Issues, Press Release 04/03 of January 16,
2004 at http://www.icrc.org/Web/eng/siteeng0.nsf/iwpList74/774F1B35A7E20CC9C1256E1D007741C1.
(“Beyond Guantanamo, the ICRC is increasingly concerned about the fate of an unknown number of people
captured as part of the so-called global war on terror and held in undisclosed locations. Mr. Kellenberger echoed
previous official requests from the ICRC for information on these detainees and for eventual access to them, as
an important humanitarian priority and as a logical continuation of the organization's current work in
Guantanamo and Afghanistan”.).
139
For example, Khalid Shaikh Mohammed, captured in Pakistan. “The United States commends Pakistani and
US authorities on the completion of a successful joint operation which resulted in the detention of several Al
Qaida operatives, including Khalid Shaikh Mohammed”, Statement by the Press Secretary, released by the
White House, Office of the Press Secretary on 1.03.03, at
http://www.whitehouse.gov/news/releases/2003/03/20030301-1.html.
140
Another cause for concern is states' disregard for the prohibition of return or extradition of persons to
countries where they may be at risk of serious human rights violations, including extra-legal, arbitrary and
summary execution, torture, or enforced disappearance. Having in mind the scenarios unfolding today, the list of
prohibited grounds seems insufficient.
141
There are several possible responses as regards administrative detention: one would be to maintain that
detention for security reasons outside of an armed conflict situation is unacceptable and to insist that states must
either release “terrorist” suspects or bring them to trial. While preferable, it is unlikely that this course of action
will be fruitful. Another, equally unfruitful option given the current political climate would be to attempt to
generate new treaty law that would elaborate legally binding standards governing administrative detention. A
further possibility would be for human rights groups to draft a text specifying what in their view the standards
that must govern administrative detention are. Even if not made public, such a text would at least allow groups
to harmonize their advocacy vis a vis governments detaining “terrorist” suspects without charge for security
reasons. The author of this study is perfectly aware of the controversial nature of the last suggestion, but offers it
as food for thought.

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The stricter standards of law enforcement are necessary if governments are to be held
accountable for the taking of human life in situations where the reasons for employing force
or firearms are based on intelligence information and where there is insufficient evidence as
to whether a person is actually involved in criminal activity. When terrorist acts are
committed outside an armed conflict, there is no justification for reliance on the more flexible
targeting rules of international humanitarian law.
Similarly, human rights standards on deprivation of liberty do not prevent states from
preventing or punishing terrorist acts. Administrative detention without criminal charge is not
prohibited by human rights law; but its application must be subject to procedural safeguards
if the concept of the rule of law is to have any meaning. Judicially unsupervised indefinite
detention for security reasons, which would result if human rights safeguards were not
observed, should not be countenanced. The challenge lies not in the absence of legal
standards governing security detention, but rather in ensuring their implementation in
practice.
While fair trial standards have not been dealt with in this study, they present no
obstacle to the fight against terrorism: it remains the case that persons accused of terrorist
acts must be guaranteed the range of fair trial rights provided for by human rights law. If the
right to a fair trial is non-derogable in war, there is even less reason to justify departure from
the norms when dealing with criminal suspects outside of armed conflict. This is not to say
that states should not be able to take appropriate measures to preserve intelligence sources or
the safety of victims and witnesses, as well as of their judicial staff. There are many practical
examples of how this may be done without impinging on the rights of defendants at both the
domestic and international level.

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 CHAPTER-6

IMPACT OF COUNTER-TERRORISM MEASURES ON

HUMANITARIAN ACTION

Why are counter-terrorism measures relevant to humanitarian action?

The framework for humanitarian action is provided by International Humanitarian Law

(IHL), which calls for parties to the conflict to allow and facilitate rapid and unimpeded
passage of humanitarian relief for civilians in need. This framework is based on humanitarian
principles: humanity and impartiality, asserting human dignity and the obligation to relieve
human suffering wherever it is found. Neutrality, between parties to a conflict, as well as
independence from political agendas, are said to be principles that enable these humanitarian
principles to be translated into action, but also tools to seek acceptance from parties to the
conflict or to access greater proximity to affected populations.

These principles require humanitarian players to treat State and non-State parties to an
armed conflict on a virtually equal basis and to respond to affected people in proportion to
their needs. Such an approach may run afoul of CT laws and measures. Indeed, these may
prevent engagement with non-State entities designated as terrorist groups or prohibit access
to populations under their control. Conversely, compliance with CT measures may lead to
compromising humanitarian principles.

Nevertheless, it is equally important to note that there are points of convergence

between CT and humanitarian objectives. Both seek to protect civilians from harm. IHL is
underpinned by the principle of distinction, which calls for parties to an armed conflict to
differentiate civilians from combatants. IHL also prohibits most acts which could be
considered terrorist if committed in peace time (i.e. deliberate attacks against civilians, or
threats of violence intended to spread terror among the civilian population). Neutrality and
impartiality require humanitarian assistance and protection to relieve suffering while not
supporting the efforts of any party to an armed conflict. Such a stance can be seen as
compatible with efforts undertaken to prevent designated terrorist groups from benefiting
from humanitarian operations.

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One can broadly distinguish three types of interactions that could potentially be regulated
under CT law: (i) engagement with designated terrorist groups and their members (e.g.
negotiating access, IHL trainings); (ii) incidental transactions necessary for the provision of
assistance and protection (e.g. payments at checkpoints); (iii) provision of humanitarian
assistance and protection to an individual member of a designated terrorist group in need (e.g.
medical care).

The type of interaction and frequency will vary according to the organisation. While
engagement is generally not criminalised, policies exist which might restrict it. For instance,
in certain contexts the presence of a designated terrorist group is likely to be so pervasive and
deeply ingrained in daily life that aid workers and humanitarian organisations working there
will have to have some degree of interface with the terrorist group. In some cases, knowledge
or reasonable grounds to suspect that the group is listed as terrorist may be sufficient to make
giving assistance to the group illegal. Perhaps most troubling for organisations like the ICRC
or Médecins sans frontières is the provision of assistance to a designated individual or
member of a designated terrorist group. There are usually exemptions but, for instance, the
prohibition of material support in United States (US) law allows for the provision of medicine
and religious material, but a literal interpretation would prohibit medical care.

What are the impacts of CT measures on humanitarian action?

When one discusses the impact of CT measures on humanitarian action, it also implies their
impact on a humanitarian crisis (and how populations are affected). Assessing the impact of
CT measures does not negate the main causes or the dynamics of a conflict. In any context
the political, economic and social forces play a greater role in the ability of people to survive
and be protected than humanitarian action. That being said, we have to assume that impacts
on the work of humanitarian organisations do have consequences for populations.
Documented negative impact on humanitarian operations may translate into decreased
quantity or quality of assistance and protection, and is therefore important to consider.

One can broadly distinguish three types of impacts: structural, affecting the
framework of action itself; operational, affecting programmatic decisions; internal, affecting
functioning and coordination.

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The latter refers not just to the additional time and resources spent on compliance – though
one can make the argument that any resources diverted away from operations translates into
less assistance – but also to the reluctance to share information between organisations, which
undermines collaboration in the humanitarian sector. The structural impact is difficult to
measure, but it is clear that any measures such as vetting that enlist humanitarian
organisations into a system with security objectives compromise humanitarian organisations’
neutrality. The operational impact encompasses the suspension of programmes or the
acceptance of programmes based on constraints (what we are allowed to do) rather than on
needs. The following examples illustrate the structural and operational impacts:

• In 2009-2011, Somalia was in the midst of a severe food security crisis and large
parts of southern Somalia were de facto controlled by Al Shabaab, an entity subject to
sanctions by the UN and listed as a terrorist organisation by a number of Member
States. Over that period assistance from the US had decreased considerably – from
$237m in 2009 to $29m in 2011 – when humanitarian needs were in fact growing. At
least three non govermental organisations (NGOs) stopped operating in southern
Somalia, due to lack of funding. US conditions meant that the humanitarian branch of
the US government could not fund activities in Al Shabaab- controlled areas. While
there was a relatively acrimonious debate as to who and what was to blame, a cable
from the US Embassy in Nairobi to the US Secretary of State stated that a ‘lack of
resolution within the USG[government] regarding funding to Somalia due to US
Department of Treasury Office of Foreign Asset Control (OFAC) licensing
restrictions, threatens the ability of USAID partners to continue to implement life-
saving programs (…) The continued delay of humanitarian assistance will have a
devastating impact on the 3.2 million Somalis in need of life-saving assistance’. The
US government was privately acknowledging that their own policies were preventing
humanitarian assistance from reaching people in need.

• In 2016 in Iraq certain CT provisions directly written into NGO grant agreements
clearly prevented humanitarian organisations from implementing any programmes in
areas controlled by designated terrorist groups (ISIS was at the time in control of large
parts of the country). Though there were provisions to apply for waivers, NGOs
reported a ‘chilling effect’ which discouraged agencies working in these areas.

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 As a consequence, NGOs were over-represented in areas where they were allowed to
work by donors, which called into question not only their independence but also their
impartiality (because the response was not dictated by needs).

• The impact of CT measures on humanitarian action extends to resettlement. Despite

safeguards in international law excluding perpetrators of violence from refugee status
and resettlement, the US introduced legislation which expanded the grounds for
excluding certain individuals from enjoying refugee protection or resettlement.
Terrorism Related Inadmissibility Grounds (TRIG) provisions deny entry to a person
who is affiliated with a designated terrorist group or persons who harbour or provide
support to terrorists. TRIG has been described as highly problematic in its
interpretation and implementation because it has in effect denied resettlement to some
who should have been eligible. It should be said that NGOs report limited progress
through waivers that allow immigration and refugee adjudicators to take into account
the circumstances of each case.

The impact of CT measures also differs across the humanitarian sector. The UN, and to a
certain extent the ICRC, benefit from immunities or negotiated agreements that are not
available to NGOs. It would be inappropriate for the UN to screen individual members or
groups against a list developed by one Member State, for obvious reasons. Civil society
doesn’t have that leverage in negotiations. Somewhat disconcertingly, UN agencies
themselves are known to insert more draconian clauses in implementing partners’ contracts
than their own donors require. Importantly, the application of national laws depends on where
an organisation is based, and the nationality of its staff and donors. Islamic NGOs appear to
face greater scrutiny (not just from donors but also from financial institutions) and there still
exists a general climate of suspicion towards Muslim charities.

What is being done?

Inevitably, over the past few years, many large international NGOs have become more risk-
averse. In Iraq, as was illustrated, the ‘safe option’ was not to operate in proscribed zones.
However it should be emphasised that over the past few years NGOs have developed robust
risk management policies, procedures and systems covering security, human resources,
finance and administration.

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The NRC – which should be commended for their advocacy in this area – has developed a
Risk Management Toolkit in relation to counter-terrorism measures that helpfully provides
examples of practical steps that humanitarian organisations can take to strengthen risk
management through an approach underpinned by humanitarian principles. This toolkit
includes clarifying partnership agreement language, as well as ensuring that codes of conduct,
human resources policies and anti-diversion policies are established and implemented.

When discussing the impact on humanitarian action, the objective is not to

incriminate States, or States as donors or those that are affected by humanitarian crises.
Dialogue is meant to prevent opposing humanitarianism and counter-terrorism, and a growing
body of work is helpful in that regard. In the opening statement of this Colloquium, it was
said that ‘the safeguards protecting human life and dignity must be upheld without negating
the legitimate measures to ensure security’. The positive examples of reconciling (not
aligning) security and humanitarian demands abound – and those stem from frank exchanges
of views and negotiations.

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 CHAPTER-7

JUDICIAL TRENDS TO TACKLE TERRORISM

INDIAN INITIATIVES

To deal with the problems of terrorism India has taken several initiatives at various levels.

A. At the International Level

India has been supportive of all efforts, particularly in the UN to combat terrorism and has
played a leading role in shaping international opinion and urging the international community
to prioritize the fight against terror. Its consistent and basic stand before the international
community has been that-

•There could be no justification for terrorism on any grounds: religious, political,

ideological or any other.

• The fight against terrorism must be given the highest priority

• To be effective, the fight against terrorism has to be long term, comprehensive and
sustained.

• Strengthening of international cooperation is vital to ensure that action is not

restricted simply to the perpetrators but also encompassed states, which sponsor,
support, or provide safe haven to terrorists.

• Ad hoc and selective actions have limited chances of success and

compartmentalization of actions in terms of regions, religions or organizations is
bound to be counterproductive.

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B. Multi-Lateral Arrangements and Agreements

• It welcomed UN Security Council Resolution 1373 and is fully committed to

implement it. It has submitted its national report on measures taken to implement UN
Security Council Resolution 1373 in December 2001 and also submitted a
supplementary report on specific queries by the Counter Terrorism Committee under
the Security Council.

• It is signatory to all the thirteen UN Sectoral Conventions on Terrorism. It has been

supportive of all measures within the UN General Assembly, the sixth Committee and
the UN Security Council. It has supported UN Security Council Resolution 1269 and
1368, which clearly identify terrorism as a threat to international peace and security.
In addition, India has supported and fully implemented Resolutions 1267, 1333 and
1363 relating to terrorism by the Taliban Regime in Afghanistan.

• It has piloted the comprehensive Convention on International Terrorism (CCIT) in

the UN with the objective of providing a comprehensive legal framework to combat
terrorism.

C. Regional Arrangements

• At the regional level, India is a party to the SAARC Regional Convention on

Suppression of Terrorism 1987 and has enacted the enabling legislation in the form of
the SAARC Conventions (Suppression of Terrorism Act) 1993.

• The ASEAN Regional Forum (ARF) was set up in 1994 as a regional security
dialogue platform with ten ASEAN countries of which India is also a member.

D. Bilateral Arrangements

India has entered into three types of bilateral treaties to combat international terrorism

• Agreements to combat terrorism and organized crimes, drug related offences, etc.
such agreements are essentially framework agreements to facilitate the exchange of

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 operational information and development of joint programmes to counter organized
crimes and terrorism

• Extradition Treaties to facilitate transfer of fugitive offenders and suspected

terrorists. Such treaties have been signed with seventeen countries, signed but not
exchanged with eight countries in addition to extradition arrangements with eleven
countries.

• Bilateral Treaties on Mutual Legal Assistance (MLATs) in criminal matters to

facilitate investigation, collection of evidence, transport of witnesses, location and
action against proceeds of crime, etc. Such MLATs have been signed with ten
countries in addition to those signed but not exchanged with nine countries.

E. Mechanism of Interpol

• In addition to the above, cooperation on matters relating to terrorism is also effected

through the mechanism of Interpol, of which India has been a member since 1946;
there is an Indian member on secondment to Interpol. The nodal point for
coordination with Interpol at the central level is the CBI.

LEGAL REGIME

In keeping with the requirement of dealing with the menace of terrorism, India has put in
place a comprehensive legal infrastructure. There are several pieces of legislation, of which
some of them are listed below

(i) The Unlawful Activities (Prevention) Act, 1967

(ii) The Armed Forces (Special) Powers Act, 1967

(iii) The National Security Act, 1980

(iv) The Arms Act, 1959

(v) The Explosives Act, 1884

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 (vi) The Explosives Substance Act, 1908

(vii) The Indian Penal Code, 1860

(viii) The Code of Criminal Procedures, 1973

(ix) The Anti-Hijacking Act, 1982

(x) The Prevention of Money Laundering Act, 2002

It would be relevant to highlight some of the penal provisions of one or two pieces of
legislation dealing with the acts of terrorism.

A. The Unlawful Activities (Prevention) Act, 1967

This Act was enunciated by the Indian Parliament in 1967 to make powers available to the
law enforcement agencies for dealing with unlawful activities directed against the integrity
and sovereignty of India. It provides for effective prevention of certain unlawful activities of
individuals and associations including terrorist organizations. It extends to the whole of India.

1. Sec. 3 - Power of the Government of India to declare an association as unlawful. (The

list of the terrorist organizations banned under this Act is given under Appendix B)
2. Sec. 16 - Punishment for terrorist acts – death or imprisonment for life as the case
may be and liable to a fine.
3. Sec. 17 - Punishment for raising funds for terrorist acts – imprisonment for life and
also liable to a fine.
4. Sec. 18 - Punishment for conspiracy – imprisonment from five years to imprisonment
for life and liable to a fine.
5. Sec. 19 - Punishment for harbouring, etc. – imprisonment from 3 years to
imprisonment for life and liable to a fine.
6. Sec. 33 - Forfeiture of property of certain persons during trial and conviction.
7. Sec. 40 - Offence of rising funds for a terrorist organization - imprisonment up to
fourteen years or with a fine or both.

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B. The National Security Act, 1980

The Act came into force in 1980 with a view to providing power to the Central Government
and State Governments to make orders to detain certain persons including foreigners whose
action may be prejudicial to the defence of India, security of India, prejudicial to the
maintenance of public order and maintenance of supplies and services essential to the
community.

1. Sec. 3 –(3) Detention period – in the first instance exceed three months but the State
Government may, if satisfied as aforesaid that it is necessary so to do, amend such
order to extend such period from time to time by any period not exceeding three
months at any one time.
2. Sec. 9 - Constitution of Advisory Boards.
3. Sec. 11 - Procedure of Advisory Boards.
4. Sec. 13 - Maximum period of detention: 12 months.

C. Prevention of Money Laundering Act, 2002

1. Sec. 2 - Whosoever directly or indirectly attempts to indulge or knowingly assists or

knowingly is a party or is actually involved in any process or activity connected with
the proceeds of crime and projecting it as untainted property shall he guilty of the
offence of money laundering.
2. Sec. 4 - Punishment for money laundering.
3. Sec.5&8 - Deals with provisional attachment and confiscation.
4. Sec. 19 - Power of arrest.
5. Sec. 24 - Puts the burden of proof on the accused.
6. Sec. 45 - Offences cognizable, non-bailable and limitation on granting bail.
7. Sec. 72 - Provides for continuance of proceedings in the event of death or insolvency

D. Armed Forces (Special) Powers Act, 1967

(Salient features – without replicating the wording in the Act)

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 1.-Sec. 3 –

The whole or any part of the country/state can be declared as a disturbed area
by the central government or the governor of the state

2.-Sec 4 –

* Special powers can be utilized by any commissioned officers, non-

commissioned officers, warrant officers or any other person of the equivalent
rank

* Authorizes use of force, even causing death against any person who is acting
in contravention of law or carrying weapons

*Authorizes the destruction of any arms dumps, prepared or fortified positions

from which armed attacks are made or likely to be made

* Authorizes arrest without warrant of any person who is suspected to have

committed or likely to commit any cognizable offence. May even use such
force as necessary to effect the arrest

* Enter and search without warrant any premises suspected to be used for any
illegal purposes as defined under the Act

* Arrested person to be handed over to the officer in charge of the nearest

police station with the least possible delay.

The above provisions confer sweeping powers on the members of the armed forces and since
they are likely to be misused the Supreme Court of India has issued eleven commandments
regulating the exercise of powers under this Act.

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 CHAPTER-8

CONCLUSION

Is the international legal framework adequate to confront terrorism? The qualifiedly

affirmative answer provided above nonetheless requires a few final clarificatory comments.
International treaty law concerning terrorism, which initially covered only acts affecting
civilians, has gradually expanded to cover some acts of terrorism against military personnel
and installations. The taking of military personnel hostage is, in principle, covered by the
Convention against hostage-taking, if the act in question is not covered by the Geneva
Conventions or their Additional Protocol I or II, for example, because it does not occur
during an armed conflict or occupation.
The use of explosives or certain other lethal devices in a public place or against a state
facility to cause death, serious injury or serious economic loss is, in principle, covered by the
Convention against terrorist bombings, even if the target is a military one, when the act does
not take place during an armed conflict, or when it does take place during an armed conflict
but the perpetrator is not part of an armed force. Using nuclear material or a nuclear device
with the intent to cause death, serious injury or substantial damage to property, or damaging a
nuclear facility or device in a way that entails a risk of releasing radioactive material, is, in
principle, covered by the Convention against nuclear terrorism whether the target is civilian
or military, provided that act is not committed by an armed force during an armed conflict.
Financing activities intended to kill or injure members of an armed force during peacetime, or
to kill non-combatants during an armed conflict is, in principle, covered by the Convention
against financing terrorism.
Expanding the concept of terrorism to include attacks against military targets – like
expanding it to cover attacks against property as well as attacks against the person – weakens
somewhat the moral opprobrium attached to it. Crimes against civilians are generally more
widely and passionately condemned than those against military personnel. The consequences
of this trend are limited, to the extent that new international instruments expand the concept
to include attacks against military personnel and facilities committed during times of peace.
They are more far-reaching when these instruments apply to attacks committed against
military forces, during an armed conflict or occupation, by irregular forces that may not meet
the criteria for application of international humanitarian law.

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The use of the term ‘‘terrorist’’ as a propaganda tool has a long history, and expanding the
legal definition of terrorism so that it applies to certain attacks that may be used by irregular
forces against enemies who enjoy an overwhelming technological advantage facilitates such
abuse. If the aim is to treat all parties to an unequal conflict equally, exclusionary clauses that
may allow the treaties against terrorism to apply to some parties, but not to others, because of
their status rather than their actions, should be interpreted and applied narrowly. The newer
treaties against terrorism also provide members of armed forces with a degree of immunity
for certain acts.
The Convention against terrorist bombings is not applicable to any member of an
armed force who commits an act of terrorism using an explosive device when his or her act is
governed by international humanitarian law, even if they violate such law. Members of the
armed forces of a state enjoy even broader protection: the Convention against terrorist
bombings is not applicable to them, provided only that they have committed an act of
terrorism in the exercise of their official duties, even if that act is not covered by international
humanitarian law.
This means that the Convention is inapplicable to them even for acts of terrorism
committed with explosive devices during peacetime. The former exemption is at least even-
handed, and its practical consequences are mitigated to some extent by universal jurisdiction
over war crimes. The latter is even more objectionable, because it applies only to the armed
forces of states, and there is no comparable basis to exercise extraterritorial jurisdiction.
Exemption from the important regime of ‘‘mutual legal assistance’’ for investigating and
prosecuting terrorist crimes, which has no equivalent in international humanitarian law, also
is regrettable.
If the possibility that the Convention against terrorist bombings may be applied to
irregular groups participating in armed conflict, but not to regular forces who commit similar
acts, is unfortunate, the exemption for acts of terrorism committed by the armed forces of
states even when international humanitarian law is inapplicable is an affront to the rule of
law. It can only be hoped that the draft general convention against terrorism will not be
adopted, unless the scope of the exemption clauses is limited to acts that are compatible with
international law, including international humanitarian law.
That answer is based, first, on the conclusion that the "current phenomena of
terrorism” do not require a shift in legal paradigms.

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Terrorism is not a new phenomenon. While some aspects of recent terrorist acts, including
their transnational aspects, seem to have produced a quest for new law, this quest is not
generated only, or even primarily, by the alleged deficiencies of existing rules. Moreover,
international law remains an essentially state-based structure in the sense that no external
state action, especially one involving the use of force, happens in a territorial, legal, or
political vacuum. Disrupting the current state-based structure and blurring the rules that
govern certain facets of international relations in the hope of more expediently eliminating
one's enemies, is not feasible unless one is prepared to return to a Hobbesian view where war
is the primary and unregulated way of imposing one's will on others.
Radically rethinking existing legal structures would also run the risk of calling into
question hard-won advances in the protection of persons from violence, arbitrariness and
abuse, both in war and in peacetime. The approach advocated above is thus also based on the
observation that in the current political climate it has become increasingly difficult to
maintain even existing international humanitarian law and human rights standards. The
seriousness of the situation in this regard is evidenced, for example, by a renewal of debates
on the circumstances in which torture might be justified or in which a person could be
“indefinitely detained.142 Those debates, it must be pointed out, have been generated from
within the so-called “free world”. The affirmation of the adequacy of the existing legal
framework to deal with terrorism is based on the belief that any proposals for changes in the
framework must be assessed having in mind their impact on the current protection of persons.
Finally, this view does not mean that the clarification and development of certain
aspects of the international legal framework are unnecessary. What is argued is that good
faith attempts to apply the current legal framework must be made, and that deficiencies in
practice must be demonstrated before new law is made to replace the old. It is also by no
means certain that new legal rules would garner broad acceptance or that they would
necessarily be better implemented than existing ones. That, however, deserves to be the
subject of another study.

142
See Alan M. Dershowitz, “Stop Winking at Torture and Codify It”, Los Angeles Times, June 13, 2004, p. M
5; Alan Travis, “Blunkett Faces Revolt on Internment”, The Guardian, August 5, 2004, at
http://politics.guardian.co.uk/homeaffairs/story/0,11026,1276325,00.html. See also English Court of Appeal
Decision refusing to rule inadmissible evidence obtained by torture outside the UK: A and others v Secretary of
State for the Home Department, Court of Appeal (Civil Division) [2004] EWCA CIV 1123, [2004] All ER (D).

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