Terrorism and International Humanitarian Law: Coping with the Challenge
December 19, 2012
The word “Terrorism” which was originally coined to describe state action, undertaken to consolidate power or quell dissident movements has evolved over the years. Though the term “state terrorism” still holds currency, today, especially after the September 11, 2001 attacks, the whole notion of terrorism has tilted to an extreme side of the axis. Today terrorism is seen as a phenomena and the violence committed, described as a ‘terrorist act’ is said to be generally perpetrated by loosely organized groups or individuals which at best share a common and fanatical religious ideology.
The common perceptions of terrorism could be described as follows:
1) Terrorism is a means to attain political goals which can not be achieved in a lawful or constitutional manner;
2) Terrorist acts are part of a strategy, used tactically by organized groups;
3) The main motivation is to create fear among ordinary citizens to further a cause.
Addressing terrorism in legal terms is a very complex and challenging task, where differences of opinions and competing concerns coupled with the emergence of new forms of terrorist activities have left many unresolved issues.
Presently, there is no universal treaty that defines exactly what terrorism means. The only attempt to formulate such a treaty, the Convention for the Prevention and Punishment of Terrorism drafted in 1937 by the League of Nations, never came into force. But the United Nations has clearly stated in its four Geneva Conventions and supplemented by the two additional protocols in 1977, that civilians are to be protected under any and all circumstances. Therefore, international humanitarian law does provide a framework, which can deal with acts of violence associated with terrorism.
Interpreting International Humanitarian Law
International humanitarian law (IHL) does not provide a concrete definition of terrorism, but it does prohibit most acts, which if committed during armed conflict, would be termed as terrorism if they are committed in peacetime. The rationale behind IHL is the ‘principle of distinction’, that the persons involved in armed conflict must at all times distinguish between civilians and combatants and between civilian objectives and military objectives.
Derived from international humanitarian law are many rules which specifically aim to protect civilians, like the prohibition of direct attacks, prohibition against the use of indiscriminate forces, hostage taking and the use of ‘human shields’.
The applicability of IHL cannot be extended to all the events included in the notion of a ”global war on terrorism” but only to specific events which are constituted as armed conflicts. The incidents of violence which are excluded are screened through the provisions of the domestic laws of a state. But Article 3 of the convention clearly states “each party to the conflict”, regardless of its status as an armed conflict or not is found by the provisions of the article. Restrictions are also imposed by Article 51 and Article 52 of Protocol 1 which cannot be bypassed by claiming the right to reprisal. Terrorist acts causing death or serious injury to civilians are breaches of the Geneva Conventions; these are termed as war crimes.
Similar restrictions on the use of force are applicable to states in their response to terrorist activities which are now commonly termed as “counter terrorism”. State forces are obliged to respect the Principle of Discrimination and Proportionality and are not expected to bypass it under the garb of ‘collateral damage’ or military necessity. The Beslan massacre in 2004 can be sited. Russian security forces entered the school premises with tanks, incendiary rockets and other heavy weaponry where some 1100 civilians were taken hostage including 770 children by a group of Chechen terrorists. The operation ended with the killing of all the terrorist but more than 350 civilian lives were lost. The terrorist groups certainly breached IHL by taking civilians as hostages but was the act committed by the security forces justified?
IHL permits members of the armed forces of a state to engage in hostilities during an armed conflict. They are termed as ‘lawful’ combatant and are privileged with the status of prisoners of war (POW) in cases of their capture. But if a civilian is involved in direct hostilities then he/she is termed an ‘unlawful’ combatant, and will not be accorded the POW status and will be prosecuted under domestic law.
Similarly ‘enemy combatants’ or militias and mercenaries who are captured are entitled to humane treatment and prosecution either according to IHL or domestic laws. But facilities like the Guantanamo Bay detention facility contradict the prescribed principles. The detainees are labeled ‘illegal’ or ‘unlawful enemy combatant’ and are neither accorded POW status nor are covered by the Geneva Convention. International humanitarian law is viewed as an ‘Obstacle to Justice’. Therefore, this not only violates the Nuremberg principles but also defies the spirit of the Geneva Convention.
Countries have passed new laws and adopted new provisions to fight terrorism. But these laws restrict the human rights of ordinary citizens in the name of terrorism. For example, in December 2001, the Belarusian Parliament approved the “Law of the Republic Belarus on Fighting Terrorism.” In a country which is already saddled with poor human rights record, this law opened the door for further limitations of free expression and provided impunity to governmental forces in their anti-terrorism campaign. Similarly, acts like UAPA and POTA in India and the USA Patriot Act, grant custody of ‘suspected’ terrorists without charge.
Certainly such provisions in domestic law can be misused but it should also be noted that under international law violent acts committed by terrorists organizations are not seen as intrusion on human rights. They are seen as sporadic incidents. Whereas, counter terrorism operations are usually viewed as being arbitrary in nature.
Although IHL does not specifically deal with evolving acts of violence related to terrorism in today’s world it clearly upholds its principle position of protecting civilian life under all circumstances. A lot of unanswered questions remain like how does IHL view the logic of terror as “alternative justice”.
In the end IHL advocates humane treatment of persons involved in terrorism but it doesn’t obstruct the criminal justice system in seeking justice for those who are guilty. By establishing the International Criminal Court the international community has made an important effort in prosecuting and punishing alleged terrorists and ultimately preventing acts of terrorism.