Understanding Terrorism: International Laws and Conventions

1. Lecture 13 Armed conflicts and the “war against terror”

2. Overview • Definition of terrorism • Terrorism and the UN (and EU) • To what extent are the laws of war applicable to terrorism • Terrorism and jus ad bellum • Self defence • The “war on terror” • Terrorism and jus in bello • Rules concerning terrorist acts in IHL • Rules on rights of perpetrators of terrorist acts • Acts of terror under International Criminal Law 4. Status of persons engaging in acts of terror

3. 1. Definition of terrorism • No agreed international definition of : • Terrorist • Terrorist Group • Act of Terror

4. Elements in act of terror • Violence or threats of violence • Against persons and/or things (buildings, power plants, bridges, airplanes, etc.) • The individual victims are random • The aim is to spread fear (or pressuring national authorities to act in a certain way) • Must have political or ideological aim?

5. Section 147 a in the Norwegian Penal Code • First element of “act of terror”: Commission or preparation of certain acts : • To cause fire, explosion, flooding, rail or aircraft accident which may result in loss of life or extensive damage to property • Hijacking of ship, aircraft • To cause damage to power plants, electronic communication systems or other means of communication that can cause extensive disruption of government • Poisoning of drinking water and spreading of contagious disease • To cause serious violence to persons’ life and health

6. Section 147 a in the Norwegian Penal Code • Second element of “act of terror”: Acts must have been carried out with the intention of: • A) Causing serious disruption of basic functions in society, or • B) Generating serious fear in a population, or • C) Forcing (illegally) national public authorities or an international organisation to do, endure or omit something that could be of essential value to that authority or organisation, or to another country or another organisation

7. International instruments • Security Council Resolutions (For example SCR 1373, 28 Sept. 2001) • Several UN Conventions (On hijacking, taking of hostages, financing of terrorist acts etc.) • Regional instruments (for example OAU Convention on terror, EU regulations, etc.)

8. Convention on Offences and Certain other Acts Committed On Board Aircraft (1963) Convention for the Suppression of Unlawful Seizure of Aircraft (1970) Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (1971) International Convention Against the Taking of Hostages (1979) Convention on the Physical Protection of Nuclear Material (1979) Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (1988) Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf (1988) Convention on the Marking of Plastic Explosives for the Purpose of Detection (1991) International Convention for the Suppression of Terrorist Bombings (1997) International Convention for the Suppression of the Financing of Terrorism (1999)International Convention for the Suppression of Acts of Nuclear Terrorism (2005)

9. Definition of Terrorist act in the UN Convention on Terrorist bombings: • Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility: • With the intent to cause death or serious bodily injury; or • With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.

10. OAU Convention on the Prevention and Combating of Terrorism (1999) “Terrorist act” means: (a) any act which is a violation of the criminal laws of a State Party and which may endanger the life, physical integrity or freedom of, or cause serious injury or death to, any person, any number or group of persons or causes or may cause damage to public or private property, natural resources, environmental or cultural heritage and is calculated or intended to: (i) intimidate, put in fear, force, coerce or induce any government, body, institution, the general public or any segment thereof, to do or abstain from doing any act, or to adopt or abandon a particular standpoint, or to act according to certain principles; • or (ii) disrupt any public service, the delivery of any essential service to the public or to create a public emergency; or (iii) create general insurrection in a State.

11. UN Convention on Financing of Terrorism (2000) • Article 2 • 1. Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in theknowledge that they are to be used, in full or 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; or • (b) 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, 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.

12. National vs. international terrorism • International terror acts: • 11 Sept. 2001, Madrid 2004, London 2005, etc…(Acts of violence involving groups and governments from more than one state) • National terror acts: • The Oklahoma bombing, ETA-attacks, etc. (Acts of violence involving groups and governments from the same state)

13. International instruments are only applicable to international acts of terror: • Article 3 of the Convention on Financing of terrorist acts: • This Convention shall not apply where the offence is committed within a single State, the alleged offender is a national of that State and is present in the territory of that State and no other State has a basis under article 7, paragraph 1 or 2, to exercise jurisdiction, …...

14. SCR 1373 (28 September 2001) on financing of terrorist acts • The Security Council… • Acting under Chapter VII of the Charter… • Decides that all states shall.. • A) Prevent and suppress financing of terrorist acts • B) Criminalise provision or collection of means that could be used to carry out terrorist acts • C) Freeze funds which may be used to commit terrorist acts • D) Prohibit any support to such financing • etc….

15. The Counter Terrorism Committee (CTC) • Legal basis: SCR 1373 (para 6) • Mandate: • Receive reports from States on their implementing measures under SCR 1373/2001 • Give advice and assistance on national implementation measures • Counter Terrorism Executive Directorate (CTED) to provide the CTC with expert advice on all areas covered by SCR1373 • Receive reports on the implementation of SCR 1624/2005 on incitement to commit terrorist acts

16. Terrorist lists • International lists • The UN (Only list of groups or persons related to Al-Qaida and Taliban, SCR 1267/1999) • 350 individuals and 123 groups • The European Union, EU Regulation 881/2002 • The same list as the UN SCR 1267 regime, plus • General list: 45 individuals and 48 groups • National lists (UK, US, ….)

17. 2. To what extent are the laws of war applicable to acts of terrorism? • Rules on when terrorist acts justifies armed attack on another State (Jus ad bellum) • Rules on how terrorist acts are defined within the context of armed conflict (jus in bello)

18. Terrorism and jus ad bellum • Article 51: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, ….

19. SCR 1368, 12 September 2001 • The Security Council… • Recognizes the inherent right of individual and collective self-defence in accordance with the Charter, • 1. Unequivocally condemns in the strongest terms the horrifying terrorist attacks which took place on 11 September 2001 in New York, Washington DC and Pennsylvania and regards such acts, like any acts of international terrorism, as a threat to international peace and security..

20. Possible response to terrorist acts: • Criminal law enforcement (typical for national terrorist acts, but also international law enforcement cooperation) • Armed military force(Counter terrorist military operations) If the terrorist act constituted an armed attack, the right of self defence could be invoked (Article 51 of the UN Charter)

21. The “war on terror” • This is not a legal classification but a rhetoric expression • 9/11 did not alter the international legal order • Using this term does not justify deviations from applicable international humanitarian or human rights law

22. “The war on terror” can be conducted within the framework of: • international armed conflict • non-international armed conflict • enforcement of criminal jurisdiction (which can take place domestically or internationally)

23. Terrorism and jus in bello • Acts of terror conducted in the context of an international armed conflict or a non-international armed conflict • (Acts of terror conducted outside the scope of application of IHL is regulated by national criminal law and national and international human rights law)

24. Acts of terror in situations covered by IHL (IAC): • The principle of distinction (Art.48, 51(4) and (5) of AP I • Prohibition against collective punishment, intimidation or terrorism and reprisals against protected persons (Art.33, GC IV) • Prohibition against spreading terror among the civilian population (Art.51 (2), AP I) • Prohibition against the feigning of civilian, non-combatant status (Art.37 AP I)

25. Acts of terror in situations covered by IHL (NIAC): • Protection of persons not taking direct part in hostilities against (a) violence … (b) collective punishments; (c) taking of hostages; (d) acts of terrorism (Art. 4, APII) • Prohibition against spreading terror among the civilian population (Art.13, AP II) • Protection of persons not taking part in hostilities against violence to life, torture, outrages on personal dignity, executions without judgement…(Common Article 3 GC)

26. Asymmetrical warfare: Certain acts of asymmetrical warfare tends to equal certain acts of terrorism • Not all acts of asymmetrical warfare are acts of terrorism: The use civilians as shields, mix with the civilian population, posing as civilians, disregard other IHL rules on perfidy etc.

27. Acts of terror in armed conflict may amount to grave breaches • Arts 50/51/130/147 of the GCs define conduct amounting to grave breaches, including: • Wilful killing of protected persons • Wilfully causing great suffering or serious injury • Taking of hostages • Extensive destruction of property, not justified by military necessity and carried out unlawfully and wantonly

28. Acts of terror in armed conflict may amount to grave breaches • Art. 85 (AP I): expands the list of grave breaches to include: • (a) making the civilian population or individual civilians the object of attack;(b) launching an indiscriminate attack affecting the civilian population or civilian objects • (c) launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, (d) making e.g. demilitarized zones object of attack • (e) making a person the object of attack in the knowledge that he is ' hors de combat’ • (f) the perfidious use, in violation of Article 37, of the distinctive emblem of the red cross, red crescent or red lion and sun or of other protective signs recognized by the Conventions or this Protocol.

29. Acts of terror under international criminal law • Acts of terror may (if the requirements otherwise are fulfilled) amount to war crimes or genocide or crimes against humanity: • When committed in international and non-international armed conflicts: Art.8 of the ICC Statute • When committed in peace: Art. 6 (genocide) and 7 (crimes against humanity) of the ICC Statute • But terrorism as such was deliberately left out of the ICC statute because of the lack of an agreed definition

30. IHLprohibits acts of terror committed in both international and non-international armed conflicts • ICL provides for prosecution and punishment of individuals for having committed acts of terror, in both international and non-international armed conflicts and in peace • National criminal law also prohibits and provides for prosecution and punishment of individuals for having committed acts of terror, in both international and non-international armed conflicts and in peace

31. Rules on the rights of perpetrators of terrorist acts • Under IHL: • Perpetrators of terrorist acts in armed conflicts: • Depends on their status: • Regular forces are POWs (protected under the regime of GC III) but can be prosecuted for war crimes • Members of non-state groups are normally non-combatants if they have committed terrorist acts (Art.4 (2)(d))

32. Art.4 A (2), GC III: Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict … provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:(a) that of being commanded by a person responsible for his subordinates;(b) that of having a fixed distinctive sign recognizable at a distance;(c) that of carrying arms openly;(d) that of conducting their operations in accordance with the laws and customs of war.

33. Rules on the rights of perpetrators of terrorist acts in armed conflict: • Art. 45 (3), AP I: • Any person who has taken part in hostilities, who is not entitled to prisoner-of-war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this Protocol. In occupied territory, any such person, unless he is held as a spy, shall also be entitled, notwithstanding Article 5 of the Fourth Convention, to his rights of communication under that Convention.

34. Article 75 -- Fundamental guarantees • ..persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances… . • 2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents: • (a) violence to the life, health, or physical or mental well-being of persons, in particular: • (i) murder; • (ii) torture of all kinds, whether physical or mental; • (iii) corporal punishment; and (iv) mutilation; • (b) outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault; (c) the taking of hostages; (d) collective punishments; and (e) threats to commit any of the foregoing acts…..

35. Protection and immunities

36. Questions to ask with regard to the “war on terror”: • What kind of situation is it? • Does IHL or HRL apply? • What level of force can be applied? • How to treat captured persons?

37. Common misconceptions about terror and IHL • The fight against terror is new • Existing IHL does not cover acts of terror or counter terrorism • Existing ICL does not cover acts of terror • Any situation in which acts of terror are carried out ought to be covered by IHL

38. Important and legitimate for States to fight terrorist acts • International law provides for a number of tools to fight terrorism • But: The fight against terror must not be used as a pretext to undermine humanitarian standards and human rights standards