Photo credit: Heather Paul, “Thurgood Marshall U.S. Courthouse,” Flickr, CC BY-ND 2.0.
To foreground the discussions of medical care in IHL and states’ responses to terrorism, this section outlines key concepts in IHL and counterterrorism frameworks.[1] We first briefly note the definitions of terrorist and terrorism we use in this report. We then describe and discuss challenges concerning the classification of armed conflicts involving terrorists under IHL. Finally, we outline the potential status of terrorists under IHL.
Definitions and Incidence of Terrorism
As discussed in more detail in section 5, there are no generally agreed-upon definitions of terrorism, terrorist, or terrorist act in international law. However, states have developed, at the multilateral and regional levels, numerous anti-terrorism treaties. Examples include those aiming to prevent and punish certain terrorist acts—such as hijacking airplanes or hostage taking—and to suppress terrorism financing.[2] The U.N. Security Council has considered terrorism a threat to international peace and security and has sanctioned individuals and groups associated with al-Qaeda.[3] And at the domestic level, states have promulgated wide-ranging anti-terrorism legislations.[4]
Due to the lack of definitional consensus between states, for the purposes of this report we defer to definitions of (acts of) terrorism, terrorist, and terrorist act found in any of the relevant jurisdictions where such terroristic conduct may be committed, especially—due to our focus here—those with a sufficient nexus to an armed conflict. Thus, the term terrorist is used here to denote persons, entities, or conduct meeting a relevant legal definition of terrorist. Similarly, the terms terrorist act and (acts of) terrorism are used here to denote those acts meeting a relevant legal definition of terroristic conduct.[5] The relevant legal definition of terrorist, terrorist act, or (acts of) terrorism must be found in domestic law or international law.[6] Our use of these terms is not meant to weigh in on the validity of any of those definitions. Nor do we mean to characterize the actual legal status of any particular individual or entity.
The lack of definitional consensus among states makes it difficult to quantify terrorist attacks. Some commonly used statistics, however, suggest that terrorist attacks are on the rise. In 2014, according to statistics used by the U.S. State Department, 13,463 terrorist attacks resulted in 32,727 fatalities, in 34,791 injuries, and in 9,428 people taken hostage or kidnapped.[7] Compared to 2013, these figures reflect a 35% increase in attacks and 81% increase in fatalities. Terrorist attacks took place in 95 states in 2014. More than 60% of those attacks occurred in five countries (Iraq, Pakistan, Afghanistan, India, and Nigeria). And 78% of all fatalities due to terrorist attacks that year took place in five countries (Iraq, Nigeria, Afghanistan, Pakistan, and Syria).
Definition and Classification of Armed Conflicts under IHL
Nearly a decade and a half after the attacks of 9/11, state officials, scholars, and civil society actors continue to disagree about an array of legal, policy, and strategic issues at the intersection of armed conflict and terrorism. One of the primary questions is the definition of armed conflict—its geographic, temporal, material, and personal scope—under international law. A related question is whether certain acts of terrorism may give rise to or form part of a situation of armed conflict.
IHL applies only in relation to situations of armed conflict. There are two main sources of IHL: treaties and customary law.[8] Treaties are international agreements between two or more states.[9] In the recent formulation of Special Rapporteur Michael Wood, customary international law “means those rules of international law that derive from and reflect a general practice accepted as law.”[10]
IHL generally recognizes two categories of armed conflict: international armed conflict (IAC) and non-international armed conflict (NIAC).[11] Terrorist acts and other forms of involvement by terrorists in armed conflict may arise in relation to either category. (Some anti-terrorism treaties, however, exclude from their scope of application the conduct of forces in an armed conflict.[12]) The applicability of IHL to an armed conflict is not predicated on the (un)lawfulness of the resort to force, which is governed by a different field of public international law: the jus ad bellum.[13] IHL applies to all parties to armed conflict: states and, where relevant, dissident armed forces or organized armed groups. It also applies, where relevant, to neutral states and to individuals.
Of course, terrorist acts may also be conducted outside of the context of an armed conflict. Those acts of terrorism are subject to domestic law-enforcement regimes and IHRL.[14] We do not treat those cases here; we focus only on terrorism that has a sufficient nexus to an armed conflict to implicate IHL.[15]
The application of IHL to a specific situation of armed conflict turns on an assessment of the facts. It does not require a declaration of war.[16] The majority of contemporary armed conflicts involving terrorists appear to be non-international in character. Below, we therefore elaborate in more detail the NIAC classification considerations than the IAC considerations.[17]
Application challenges
It can be difficult to determine whether a particular situation of violence or political enmity amounts to an armed conflict under international law—and, if so, whether that conflict is an IAC or a NIAC. The practical application of IHL may be made more difficult by the behavior of the state responding to a terrorist threat.
Some states try to avoid the application of IHL altogether by arguing that their counterterrorism activities are undertaken outside of a situation of armed conflict. States may invoke the rhetoric of war but not consider themselves bound by certain IHL treaties or particular customary IHL rules. States may also—out of a sense of legal obligation or as a policy preference—apply IHL alongside other legal frameworks to an armed conflict involving terrorists.
In sum, whether an IHL treaty provision or a customary IHL rule applies turns on such factors as:
- Whether the state is a party to the relevant treaty;
- Whether the rule reflects customary IHL;
- Whether the terrorist acts and the states’ response to them have a sufficient nexus to the armed conflict; and
- Whether that armed conflict is international or non-international in character.[18]
A case-by-case assessment of the facts in light of the legal criteria is often required to discern if terrorist acts give rise to or form part of an armed conflict under IHL.
International armed conflict
The four Geneva Conventions of 1949 (GCs I–IV) are:
- The Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GC I),[19]
- The Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GC II),[20]
- The Convention Relative to the Treatment of Prisoners of War (GC III),[21] and
- The Convention Relative to the Protection of Civilian Persons in Time of War (GC IV).[22]
These treaties apply not only to all cases of declared war but also to “any other armed conflict which may arise between two or more” state parties, “even if the state of war is not recognized by one of them.”[23] GCs I–IV “shall also apply to all cases of partial or total occupation of the territory” of a state party, even if the “occupation meets with no armed resistance.”[24] An IAC may also exist where a state deploys irregular forces against another state so long as those forces “belong” (in IHL terms) to the state and the state exercises sufficient control over them.[25] For its part, the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (AP I) applies, in addition to the same situations as GCs I–IV, to “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination […].”[26]
The degree and kind of military force necessary to trigger the application of IHL to an IAC is a matter of dispute in jurisprudence and scholarship. The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) has held that an IAC “exists whenever there is a resort to armed force between States […].”[27] The ICRC’s Commentaries on GC I–IV state that “[a]ny difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of article 2 [GCs I–IV], even if one of the Parties denies the existence of a state of war.”[28] The alternative view is that an IAC comes into effect only when the use of force between states reaches a minimal level of intensity.[29]
Finally, where a state uses force directed at an organized armed group in the territory of a host state without that host state’s consent, a double classification cannot be excluded.[30] That is, both an IAC between the two states and a NIAC between the attacking state and the OAG may arise.
Non-international armed conflict
On its terms, article 3 GCs I–IV (Common Article 3) applies “[i]n the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties [...].”[31] And for its part, the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts (AP II) applies expressly
to all armed conflicts which are not covered by Article 1 of [AP I] and which take place in the territory of a [state 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 [AP II].[32]
Commentators generally consider AP II to impose a higher threshold of application than Common Article 3.[33] AP II expressly does “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.”[34] According to the ICTY Appeals Chamber, a NIAC “exists whenever there is […] protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.”[35] International jurisprudence and examinations of state practice in legal literature reveal three cumulative criteria for classifying a situation of violence as a NIAC: the existence of sufficiently organized parties, protracted violence, and the intensity of the fighting.[36]
To activate the application of AP II in the territory of a contracting state, the terrorist OAG would need to be “under responsible command” and to “exercise such control over a part of [the state party’s] territory as to enable [the group] to carry out sustained and concerted military operations and to implement” AP II.[37] Examples of organized armed groups designated as terrorists that have controlled territory during protracted hostilities arising to the level of NIACs include the FARC in Colombia[38] and the Liberation Tigers of Tamil Eelam (LTTE) in Sri Lanka.
The AP II threshold, however, is generally less likely to be met by many designated terrorist groups. As a matter of international law, NIACs that do not fall under AP II are nonetheless still governed by Common Article 3 and customary IHL rules applicable to NIACs. And, where applicable, the Rome Statute of the International Criminal Court may impose (additional) medical-care legal obligations in situations meeting that instrument’s threshold of application for NIACs.[39]
Jelena Pejic, a leading IHL scholar and practitioner, has identified seven types of Common Article 3 conflicts under IHL, some only “arguably” so.[40] All of those potential types of Common Article 3 conflicts may in principle involve terrorism. Some of the variation is based on the extraterritorial nature of the relevant conflict, which may affect the scope and applicability of certain medical-care obligations.
Nexus to Armed Conflict
The only terrorist acts that IHL applies to are those that have a sufficient connection to an armed conflict. In other words, “not all acts of terrorism in a territory affected by armed conflict will comprise part of that conflict.”[41] Instead, “[i]t remains necessary to distinguish ordinary criminal acts of terrorism committed by other individuals or organisations from violence committed by the parties to the conflict or which has a ‘nexus’ to the conflict.”[42] The response to the former—an “ordinary” criminal act of terrorism—is not governed by IHL. Rather, it is subject to the application of domestic law-enforcement measures compatible with other relevant fields of international law, such as IHRL.[43]
So long as they are conducted with a sufficient nexus to an armed conflict, many terrorist acts—such as attacks directed against civilians[44]—would also constitute a violation of IHL.[45] Yet a number of the acts that may be penalized in domestic law as terrorism offenses are not prohibited under IHL. (Nor, however, are those acts necessarily authorized under IHL.[46]) For instance, unlike domestic anti-terrorism-financing measures, IHL does not expressly prohibit the provision of financial resources to terrorist OAGs. Moreover, so long as they comport with law-of-armed-conflict rules governing the conduct of hostilities, attacks carried out by OAGs against government armed forces are not prohibited in IHL. (Nor does IHL directly authorize them.[47]) Meanwhile, domestic legislations may penalize those attacks as violent crimes, treason, support for terrorism, and the like.[48]
Potential Status of Terrorists under IHL
IHL does not expressly recognize the status of terrorist as such: “[t]here is neither any special legal status for ‘terrorists’, nor any lacuna excluding them, in IHL.”[49] In this subsection, we identify some examples of how allegations of terrorist violence may arise in IAC or in NIAC and what the corresponding status under IHL of those engaging in such conduct may be. That status—which can be highly fact-dependent—is important here because the scope of protections for a terrorist may turn on her status or function under IHL.[50]
Two prefatory notes are in order. First, an individual may have a dual legal status: one under a source of counterterrorism law and another under IHL. For example, someone may be considered a terrorist under domestic legislation but also a member of the state armed forces or of an organized armed group under IHL. The two statuses are not mutually exclusive.[51]
Second, in situations of armed conflict, civilians enjoy significant protections under IHL. Most importantly, they are generally immune from direct attack. That immunity lasts, under AP I and AP II, unless and for such time as they take a direct part in hostilities.[52] Thus, while IHL does not prohibit civilians from conducting hostilities (so long as they do so in accordance with the laws of war), under IHL civilians forfeit their immunity against direct attack while directly participating in hostilities. One of the most pressing and disputed questions in contemporary IHL practice and scholarship concerns the exact definitional contours of such direct participation in hostilities.[53]
International armed conflict
Under IHL, in IAC “a person is generally either a combatant or a civilian,”[54] and “[g]enerally speaking, members of the armed forces (other than medical personnel and chaplains) are combatants.”[55] (The so-called “special” status of medical personnel who are authorized by a party to a conflict is highlighted in section 4.) The distinction matters chiefly because combatants “cannot be prosecuted for lawful acts of war in the course of military operations even if their behaviour would constitute a serious crime in peacetime. […] Once captured, combatants are entitled to prisoner-of-war status and to benefit from the protection of” GC III.[56]
A state may also deploy “irregular” forces in an IAC,[57] and those forces may be accused of terrorist conduct. The key questions as to the status of those persons are whether the terrorists serving as such irregular forces “belong” in IHL terms to the relevant state party to the conflict and whether they comply with the four minimum conditions of combatancy.[58] International law scholar Ben Saul explains that “[w]hile autonomous terrorist groups (such as Al-Qaeda) do not ‘belong’ to any state, it is conceivable for a terrorist group to be sufficiently connected to and commanded by state authorities in a given situation.”[59]
Also in IAC, the conduct of “guerilla” forces who fall under article 44(3) AP I (by carrying their arms openly preceding and during a hostile act[60])— and thus who also qualify as combatants under that regime—may give rise to terrorism allegations.[61]
In addition to combatants and irregular forces, a number of other actors’ conduct may elicit allegations of terrorist violence during an IAC. For example, accusations of terrorist violence may arise “where civilians spontaneously resist the invading forces of a foreign state (a levée en masse).”[62]
Terrorism allegations may also arise “where a state occupies another state’s territory without initially meeting armed resistance, whether from the military or irregular forces of the occupied state or a levée en masse.”[63] In that case, according to Saul, “[s]ubsequent ‘terrorist’ violence by civilian resistance forces of occupied territory may still be classified as part of the international conflict brought about by occupation.”[64] In a similar vein, terrorist violence may form part of an IAC “involving civilian resistance forces which succeed any national armed forces that resisted an invading military but dissolved upon the establishment of the occupation.”[65] Finally, terrorist violence may form part of an IAC where a so-called national liberation movement is recognized pursuant to AP I.[66]
Non-international armed conflict
Terrorist violence may also form part of a NIAC.[67] Such violence may, for instance, be committed by:
- A member of the state armed forces;
- A member of the dissident armed forces;
- A member of an organized armed group; or
- A civilian directly participating in hostilities.
(AP II also contemplates the “special” status of medical personnel in NIAC. Among the conditions to obtain that status is that those assigned personnel do not commit acts, outside their humanitarian function, harmful to the enemy.[68])
States have not agreed in NIAC treaties to extend the “combatant’s privilege”—and, upon capture, the corresponding status of prisoner of war—to members of organized armed groups or to civilians directly participating in hostilities.[69] Parties to a NIAC may, however, extend POW status to captured fighters as a policy matter.[70]
Footnotes
[1] There is no shortage of scholarly attention to various aspects of the relationship between IHL and terrorism. See generally, e.g., Andrea Bianchi and Yasmin Naqvi, International Humanitarian Law and Terrorism (2011).
[2] See infra Section 5: “Conventional and Customary Definitions of Terrorism.”
[3] See infra Section 5: “Security Council Anti-Terrorism Frameworks.”
[4] See infra Section 5: “Domestic Proceedings against Medical Caregivers.”
[5] Unless stated otherwise, each preceding and subsequent reference in this report to terrorist, terrorist act, and act(s) of terrorism conforms to these meanings.
[6] The Terrorism Prevention Branch of the United Nations Office of Drugs and Crime maintains electronic databases of certain international provisions and domestic terrorism legislations, available at http://www.unodc.org/tldb/ [http://perma.cc/3NHH-QP3H]. Acts of terrorism are proscribed in certain IHL treaties; see, e.g., infra Section 2: “Definition and Classification of Armed Conflicts under IHL.”
[7] The dataset used a definition of terrorist acts that included violent acts carried out by non-state actors meeting three cumulative criteria:
1. The violent act was aimed at attaining a political, economic, religious, or social goal; 2. [t]he violent act included evidence of an intention to coerce, intimidate, or convey some other message to a larger audience (or audiences) other than the immediate victims; and [t]he violent act was outside the precepts of International Humanitarian Law insofar as it targeted non-combatants.
National Consortium for the Study of Terrorism and Responses to Terrorism, Country Reports on Terrorism 2014: Annex of Statistical Information, June 2015, available at http://www.state.gov/j/ct/rls/crt/2014/239416.htm [http://perma.cc/UMM3-2X2E]. All of the statistics used in this paragraph are from this Annex.
[8] On the construct of strata, rather than sources, of international law, see Yoram Dinstein, “The Interaction between Customary International Law and Treaties,” 322 RCADI 243 (2006) 260–1.
[9] See, e.g., article 2(1)(a) Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 133; Restatement (Third) of the Foreign Relations Law of the United States § 301(1) (1987).
[10] Michael Wood, Special Rapporteur, “Second report on identification of customary international law,” International Law Commission, 66th Session, U.N. doc. A/CN.4/672, May 22, 2014, p. 7, para. 20; see generally id. at pp. 7–14, paras. 21–30 (discussing state practice, decisions of international courts and tribunals, and literature in arguing in favor of this “two-element” approach). Under the so-called “traditional” view, customary international law crystallizes when there exists a general and consistent practice of states followed from a sense of legal obligation (or opinio juris sive necessitatis). James P. Benoit, “Mistreatment of the Wounded, Sick and Shipwrecked by the ICRC Study on Customary International Humanitarian Law,” 11 YIHL (2008) 179 (citing to the Restatement (Third) of Foreign Relations Law of the United States § 102, cmts. b, c (1987); ICJ, North Sea Continental Shelf (West Germany v. Denmark and the Netherlands) (Merits) [1969] ICJ Rep. p. 3, pp. 42–46).
[11] At its inception, IHL generally regulated interstate conflicts involving two or more sovereigns, with few exceptions. On the “recognition of belligerency” and the “recognition of insurgency,” see, e.g., Yoram Dinstein, Non-International Armed Conflicts in International Law 108–14 (2014) [hereinafter, Dinstein, NIACs in International Law]; Sandesh Sivakumaran, The Law of Non-International Armed Conflict 9–20 (2012).
[12] E.g., article 19(2) International Convention for the Suppression of Terrorist Bombings, 2149 U.N.T.S. 256 (“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, and 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.”); article 26(5) Convention on the Prevention of Terrorism, Council of Europe, Treaty Series No. 196, 2005.
[13] Hans-Peter Gasser and Daniel Thürer, “Humanitarian Law, International” Max Planck Encyclopedia of Public International Law, Online version, para. 2, last updated: March 2011.
[14] Those acts may (also) fall within the scope of an international anti-terrorism convention. See, e.g., infra Section 5: “Conventional and Customary Definitions of Terrorism.”
[15] See infra Section 2: “Nexus to Armed Conflict.”
[16] See Common Article 2(1) GCs I–IV. See generally Jelena Pejic, “Extraterritorial targeting by means of armed drones: Some legal implications,” IRRC early online version (2015) 12, available at https://www.icrc.org/en/document/jelena-pejic-extraterritorial-targeting-means-armed-drones-some-legal-implications [hereinafter Pejic, “Extraterritorial targeting”].
[17] Nonetheless, as explained below, impartial medical care to terrorists may arise in relation either to an IAC or to a NIAC.
[18] Scholars disagree on whether, for example, the use of force by a foreign state directed against a non-state armed group on the territory of another state without that territorial state’s consent should be characterized as a non-international or an international armed conflict. See, e.g., the discussion in Dapo Akande, “Classification of Armed Conflicts: Relevant Legal Concepts,” in International Law and the Classification of Conflicts 70–79 (ed. Wilmshurst, 2012) [hereinafter Akande, “Classification of Armed Conflicts”].
[19] Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949, 75 U.N.T.S. 31 (GC I).
[20] Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949, 75 U.N.T.S. 85 (GC II).
[21] Convention (III) Relative to the Treatment of Prisoners of War, August 12, 1949, 75 U.N.T.S. 135 (GC III).
[22] Convention (IV) Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 75 U.N.T.S. 287 (GC IV).
[23] Common Article 2(1) GCs I–IV. States parties to GCs I–IV “undertake to respect and to ensure respect for the [relevant] Convention in all circumstances,” including, where applicable, in peacetime. Common Article 1 GCs I–IV. Certain provisions of GCs I–IV shall be implemented in peacetime as well. Common Article 2(3) GCs I–IV contained a so-called si omnes clause: “Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.” Id. In light of the universal ratification of GCs I–IV, this clause bears no practical legal weight concerning the application of the conventions today.
[24] Common Article 2(2) GCs I–IV. Pursuant to Article 42 Regulations Respecting the Laws and Customs of War on Land, Annex to Convention (IV) Respecting the Laws and Customs of War on Land, October 18, 1907, 36 Stat. 2295, “territory is considered occupied when it is actually placed under the authority of the hostile army.” See ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), ICJ Rep 2005, 168, paras. 172–73. Questions have arisen as to whether “occupation” and “occupied territory” in GC IV mean the same thing as “belligerent occupation” under customary international law and under article 42 Hague IV 1907 Annex. See, e.g., Akande, “Classification of Armed Conflicts,” supra note 18, at pp. 45–46.
[25] Article 4(A)(2) GC III. This standard is “overall control” in the view of the Appeals Chamber of the ICTY. ICTY, Prosecutor v. Tadić, Appeals Chamber, Judgment, Case No IT-94-1-A, July 15, 1999, paras. 122 and 131. See also ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ Rep 43, 2007, p. 210, paras. 404–405.
[26] As enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. Article 1(4) AP I. Article 3 AP I governs the temporal scope of application.
[27] ICTY, Prosecutor v. Tadić, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1-AR72, Oct. 2, 1995, para. 70 [hereinafter, Tadić, Interlocutory Appeal].
[28] ICRC, Commentary on GC I, p. 32; accord ICRC, Commentary on GC II, p. 28; ICRC, Commentary on GC III, p. 23; ICRC, Commentary on GC IV, p. 20.
[29] International Law Association, “Final Report of the Meaning of Armed Conflict in International Law,” 2010, p. 32, available at http://www.ila-hq.org/en/committees/index.cfm/cid/1022. This approach has been criticized on the grounds (among others) that “[t]o import an intensity requirement into the definition of international armed conflicts is effectively to assert that no law governs the conduct of military operations below that level of intensity, including the opening phase of hostilities.” Akande, “Classification of Armed Conflicts,” supra note 18, at p. 41; see also Pejic, “Extraterritorial targeting,” supra note 16, at p. 11.
[30] See Akande, “Classification of Armed Conflicts,” supra note 18, at p. 75; Pejic, “Extraterritorial targeting,” supra note 16, at pp. 11–12.
[31] Even prior to the advent of Common Article 3, international law provided for the recognition of belligerency to a civil war between a state and a rebel group. The laws of war were brought into effect between the parties where the belligerent government recognized the belligerent insurgent group. Akande, “Classification of Armed Conflicts,” supra note 18, at pp. 49–50.
[32] Article 1(1) Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609 (AP II).
[33] See Akande, “Classification of Armed Conflicts,” supra note 18, at pp. 54–56.
[34] Article 1(2) AP II. See also article 8(2)(c), (d), (e), and (f) ICC RS.
[35] Tadić, Interlocutory Appeal, supra note 27, at para. 70.
[36] See, e.g., Dinstein, NIACs in International Law, supra note 11, at pp. 20–21, 28–36.
[37] Article 1(1) AP II.
[38] See generally Felicity Szesnat and Annie R. Bird, “Colombia,” in International Law and the Classification of Conflicts 214–228 (ed. Wilmshurst, 2012).
[39] Articles 8(2)(c)–(f) Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90 (ICC RS). In principle, in a NIAC involving a state party that is not a contracting party to AP II but that is subject to the jurisdiction of the Rome Statute, the state would be bound—with respect to medical-care protections—not only by Common Article 3 and customary rules applicable in NIAC but also by relevant provisions of the Rome Statute (such as articles 8(2)(e)(ii) and (iv) ICC RS).
[40] Jelena Pejic, “The protective scope of Common Article 3: more than meets the eye,” 93 IRRC No. 881 (2011) 5–9; see also Pejic, “Extraterritorial targeting,” supra note 16, at pp. 14–18.
[41] Ben Saul, “Terrorism and international humanitarian law,” in Research Handbook on International Law and Terrorism 214 (ed. Saul, 2014) [hereinafter Saul, “Terrorism and international humanitarian law”].
[42] Id.
[43] Id.
[44] Id. at pp. 225–226.
[45] For example, pursuant to article 51(2) AP I, “[a]cts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited” and according to article 4(2)(d) AP II,
[w]ithout prejudice to the generality of the foregoing, the following acts against [all persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted] are and shall remain prohibited at any time and in any place whatsoever: […] acts of terrorism.
They may also constitute a violation of international criminal law and domestic law; see, e.g., ICTY, Prosecutor v. Galić, Appeals Chamber, Judgment, Case No IT-98–29-A, November 30, 2006, pp. 39–44, paras. 87–90 (finding that “the prohibition of terror against the civilian population as enshrined in Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II clearly belonged to customary international law from at least the time of its inclusion in those treaties”). See, e.g., Hans Gasser, “Acts of terror, ‘terrorism’ and international humanitarian law,” 84 IRRC No. 847 (2002) 554–62; Dinstein, NIACs in International Law, supra note 11, at p. 34.
[46] For instance, pursuant to article 3(1) AP II, states parties agreed that “[n]othing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State.” Italics added.
[47] Dinstein subdivides violence during NIAC into three categories: hostilities, ordinary crimes, and war crimes. Dinstein, NIACs in International Law, supra note 11, at pp. 11–17.
[48] See, e.g., R v. Mohammed Gul [2012] EWCA Crim 280 [60] (concluding that “[t]hose who attacked the military forces of a government or the Coalition forces in Afghanistan or Iraq with the requisite intention set out in the Act are terrorists. There is nothing in international law which either compels or persuades us to read down the clear terms of the 2000 Act to exempt such persons from the definition in the Act.”); U.S. Department of Defense, Law of War Manual § 17.4 (2015).
[49] Id. at p. 222.
[50] With respect to the IHL considerations concerning who may be targeted, see, e.g., Pejic, “Extraterritorial targeting,” supra note 16, at pp. 20–23.
[51] Saul, “Terrorism and international humanitarian law,” supra note 41, at p. 213. As noted above, however, certain anti-terrorism conventions exclude from their scope of application armed forces in situations of armed conflict. See supra Section 2: “Definition and Classification of Armed Conflicts under IHL.”
[52] Articles 51(3) AP I and 13(3) AP II. Pursuant to Common Article 3(1), in NIAC “[p]ersons taking no active part in the hostilities” shall be treated in accordance with the protections laid down therein. Italics added. The United States does not seem to accept the qualifying phrase “for such time.” See U.S. Department of Defense, Law of War Manual §§ 2.9.1.2 and 2.9.4 (2015). Nor apparently does Israel; see Yoram Dinstein, “The ICRC Customary International Humanitarian Law Study,” 82 ILS (2006) 107 [citations omitted] (originally published in 36 IYHR 2006).
[53] See, e.g., 42 NYUJILP 3 (2010); Michael N. Schmitt, “The Interpretive Guidance on the Notion of Direct Participation in Hostilities: A Critical Analysis,” 1 HNSJ (2010) 5.
[54] Id. See article 4(A) GC III; article 43 AP I.
[55] Knut Dörmann, “The legal situation of ‘unlawful/unprivileged combatants,’” 85 IRRC No. 849 (2003) 45–46. Note the distinct legal position of members of a levée en masse, who, pursuant to article 4(A)(6) GC III, are not combatants but are entitled to prisoner-of-war status upon falling into the hands of the enemy. Under IHL, religious personnel have a particular protected status; we do not discuss or address that status in this report. Where an IHL provision includes protections for both medical and religious personnel, we focus only on those pertaining to the former and elide those pertaining to the latter.
[56] Id. at p. 45. Combatants “can be prosecuted only for violations of international humanitarian law, in particular for war crimes.” Id. See also article 43(2) AP I.
[57] As defined in article 4(A)(2) GC III.
[58] Article 4(A)(2) GC III.
[59] Saul, “Terrorism and international humanitarian law,” supra note 41, at p. 210.
[60] More specifically, pursuant to article 44(3) AP I, an armed combatant
shall retain his status as a combatant, provided that, in [situations of armed conflicts where, owing to the nature of the hostilities, he cannot distinguish himself from the civilian population while he is engaged in an attack or in a military operation preparatory to an attack], he carries his arms openly: (a) during each military engagement, and (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.
[61] Article 44(3) is one of the grounds on which the U.S. has elected not to become a party to AP I. Detailed Analysis of Provisions, Attachment 1 to George P. Shultz, Letter of Submittal, December 13, 1986, Message from the President Transmitting AP II, p. IX (stating that “Article 44(3), in a single subordinate clause, sweeps away years of law by ‘recognizing’ that an armed irregular ‘cannot’ always distinguish himself from non-combatants; it would grant combatant status to such an irregular anyway. As the essence of terrorist criminality is the obliteration of the distinction between combatants and noncombatants, it would be hard to square ratification of this Protocol with the United States’ announced policy of combatting terrorism.”)
[62] Saul, “Terrorism and international humanitarian law,” supra note 41, at p. 211. Article 4(A)(6) GC III defines a levée en masse as “[i]nhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.” Members of a levée en masse, despite not technically belonging to or forming part the armed forces of a party to the IAC, are entitled to prisoner-of-war status if they fall into the hands of the enemy. Article 4(A)(6) GC III.
[63] Saul, “Terrorism and international humanitarian law,” supra note 41, at p. 211. See also Akande, “Classification of Armed Conflicts,” supra note 18, at p. 47 (arguing that “it is the law of occupation and other rules of international armed conflict (including the law of targeting) that conditions how the occupier may respond to an uprising in the foreign territory of which it has temporary occupation.”). But see Marko Milanovic, “Lessons for human rights and humanitarian law in the war on terror: comparing Hamdan and the Israeli Targeted Killings case,” 89 IRRC No. 866 (2007) 381–385.
[64] Saul, “Terrorism and international humanitarian law,” supra note 41, at p. 211.
[65] Id. Saul identifies “Israel’s conflict against Palestinian terrorist organisations” as one such IAC, “albeit with sui generis characteristics.” Id. [citation omitted]. In relation to that form of IAC, according to Saul, “a distinction should be drawn between non-state groups comprised of inhabitants of occupied territory and foreign terrorist groups which fight an occupying power; only the latter may be characterised as part of an international conflict, while the former may form part of a separate non-international conflict.” Id.
[66] Article 1(4) AP I. Saul, “Terrorism and international humanitarian law,” supra note 41, at p. 211. Saul argues that that states not party to AP I
(relevantly including Israel, occupying Palestine, and Morocco, occupying Western Sahara) remain free to treat liberation fighters as domestic rebels, including to criminalise them as ‘terrorists’ under domestic law (for attacks on the state’s own territory) or the military law applicable in occupied territory (to the extent that the prior domestic law of the occupied territory has been displaced for security reasons).
Id. at p. 212.
[67] In a 1997 judgment, the Trial Chamber of the ICTY added the precondition of the intensity of violence to help distinguish armed conflicts from “banditry, unorganized and short-lived insurrections, or terrorist activities.” ICTY, Prosecutor v. Tadić, Trial Chamber, Opinion and Judgment, Case No IT-94-1-T, May 7, 1997, para. 562 [citations omitted; italics added]. However, according to Dinstein, that reference to terrorist activities should “be taken as relating not to the nature of the acts but to their sporadic incidence. It is only when terrorist activities do not meet the required preconditions of a NIAC that they would move into another legal arena [i.e., one other than IHL].” Dinstein, NIACs in International Law, supra note 11, at p. 34.
[68] See infra Section 4: “Corollary Protections for Medical Caregivers, Transports, Units, and Supplies — Respect and protection of medical personnel, units, and transports: prohibition on knowingly attacking, firing upon, or unnecessarily preventing them from discharging their proper functions” and id. at “Prohibition on illegitimate compulsion.”
[69] See Dinstein, NIACs in International Law, supra note 11, at pp. 58–63. The IHL criteria for membership in an organized armed group are a matter of dispute. See, e.g., Kenneth Watkin, “Opportunity Lost: Organized Armed Groups and the ICRC ‘Direct Participation in Hostilities’ Interpretive Guidance,” 42 NYUJILP 641 (2010).
[70] Pursuant to Common Article 3(2), “[t]he Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.”; pursuant to article 6(5) AP II, “[a]t the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.”
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