(FORTHCOMING IN 2004 BRITISH YEARBOOK OF INTERNATIONAL LAW)

Terrorist Acts and Groups: A Role for International Law?

Jelena Pejic*

Introduction

Is the present framework of international law is adequate to confront current phenomena of “terrorism”? This study offers an affirmative reply, but one that is qualified by a number of considerations.

First, this study focuses principally on the adequacy of international humanitarian and human rights law in dealing with terrorism. Second, the affirmative response offered is of a general character and does not imply an affirmative response to every possible situation that may arise. The study aims to provide an overview of key structures and notions and is not a case study of particular factual situations. No legal regime, international or domestic, is ever adequate in the sense that it has complete or ready-made solutions to all the specific problems that reality may throw up. The affirmative response is therefore based on the assumption that while the current international law paradigm is sound in general terms, elaboration and development may be necessary to facilitate the application of certain principle and rules. Finally, it must be remembered that the efficacy of any legal system depends on the extent to which it is implemented in practice. This is an area in which international law remains deficient because of the inherently political interpretations given by states, especially when the pertinent rules, for whatever reason, do not suit them. Nonetheless this difficulty does not itself entail that the relevant aspects of international law are inadequate, especially given the considerable development of institutional procedures to interpret and apply them.

Definitional Problems

An examination of the adequacy of current international law to confront “terrorism”1

obviously raises the question of defining the subject studied.2 Definitions abound both in domestic legislation and at the international level,3 but, as is well known, there is currently no

1* Jelena Pejic is a Legal Adviser at the Legal Division of the International Committee of the Red Cross (ICRC) in Geneva and Head of the ICRC's Project on the Reaffirmation and Development of IHL established in 2002. This study was written in a personal capacity and does not necessarily reflect the views of the ICRC.? See Gilbert Guillaume, “Terrorism and International Law”, International and Comparative Law Quarterly, July 2004.2 For an excellent overview of existing definitions see Report on the Possible “Added Value” of a Comprehensive Convention on Terrorism, prepared by Professor Christian Tomuschat, for the Second Meeting of the Council of Europe Committee of Experts on Terrorism (CODEXTER), Strasbourg, 29 March – 1 April, 2004, CODEXTER (2004) 05, Restricted, (on file with the author). (Hereinafter “Tomuschat Report”.)3 There are currently twelve so-called sectoral UN conventions defining specific acts of terrorism. (Convention on Offences and Certain Other Acts Committed on Board Aircraft, signed at Tokyo on 14 September 1963; Convention for the Suppression of Unlawful Seizure of Aircraft, signed at the Hague on 16 December 1970; Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on 23 September 1971; Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on 14 December 1973; International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December 1979; Convention on the Physical Protection of Nuclear Material, signed at Vienna on

comprehensive international legal definition of “terrorism”. The UN draft Comprehensive Convention on International Terrorism4 has been stalled for several years, mainly over the issue of whether national liberation movements and acts committed in armed conflict should be excluded from its scope.

Not surprisingly, regional bodies have been more successful in defining terrorism. An example is the 2002 Framework Decision of the Council of the European Union on Combating Terrorism.5 It lists a series of acts which, when committed intentionally with the aim of seriously intimidating a population or of unduly compelling a government or international organisation to perform or abstain from performing any act or with the aim of seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or international organisation, are deemed to be terrorist offences. Among them are attacks upon a person's life or physical integrity, kidnapping or hostage taking, causing extensive destruction to a government or public facility, etc. Based on the European Framework Decision and on a review of other regional and international definitions, it has been concluded that a “minimum consensus exists” as to the “three main features of terrorism”.6 An act of terrorism constitutes “a serious criminal offence, it is directed against human life, physical integrity or personal freedom or against certain objects which count among the material foundations of a human community” and “is carried out by a specific political intent, namely either to intimidate a population or to compel a government or other public authority to do something or to abstain from doing something”.7

Regardless of the lack of a comprehensive definition at the international level, terrorist acts are crimes under domestic law, under the existing international and regional conventions on terrorism, and may, provided the requisite criteria are met, qualify as war crimes or as crimes

3 March 1980; Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on 24 February 1988; Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome on 10 March 1988; Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, done at Rome on 10 March 1988; International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997; International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on 9 December 1999; Convention on the Marking of Plastic Explosives for the Purpose of Detection, signed at Montreal on 1 March 1991.) There are also nine regional treaties dealing with terrorism, some of which provide “comprehensive” definitions. (OAS Convention to Prevent and Punish Acts of Terrorism Taking the Form of Crimes against Persons and Related Extortion that are of International Significance, concluded at Washington, D.C. on 2 February 1971; European Convention on the Suppression of Terrorism, concluded at Strasbourg on 27 January 1977; SAARC Regional Convention on Suppression of Terrorism, signed at Kathmandu on 4 November 1987; Arab Convention on the Suppression of Terrorism, signed at a meeting held at the General Secretariat of the League of Arab States in Cairo on 22 April 1998; Convention of the Organization of the Islamic Conference on Combating International Terrorism, adopted at Ouagadougou on 1 July 1999; OAU Convention on the Prevention and Combating of Terrorism, adopted at Algiers on 14 July 1999; Treaty on Cooperation among States Members of the Commonwealth of Independent States in Combating Terrorism, done at Minsk on 4 June 1999; Protocol amending the European Convention on the Suppression of Terrorism, concluded at Strasburg, 15 May 2003; OAS Inter-American Convention Against Terrorism, agreed to at Bridgetown, Barbados on 3 June 2002.) See International Instruments related to the Prevention and Suppression of International Terrorism, Codification Division of the Office of Legal Affairs of the United Nations, (2001).. See also Tomuschat Report, note 3 above. 4 See General Assembly resolution 57/27. For the text of the draft Convention, see UN Doc. A/AC.252/2002/CRP.1. 5 Framework Decision of the Council of the European Union on Combating Terrorism of 13 June 2002, Official Journal of the European Communities, L 164, 22 June 2002. 6 Tomuschat Report, para 35. 7 Ibid.

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against humanity. Thus even without a global consensus on issues of definition, terrorism has not gone unregulated.

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.8 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”,9 as well as other rules on the conduct of hostilities aimed at sparing civilians from their effects.10 International humanitarian law also prohibits hostage taking, whether against civilians or persons no longer taking part in hostilities.11

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.

International humanitarian law also specifically prohibits “measures of terrorism” and “acts of terrorism”. The context in which these prohibitions are referred to suggests 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.

8 Additional Protocol I (‘AP I’), article 48. 9 See AP I, article 51. 10 See AP I, article 57.11 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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“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”,12

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.13

The explicit prohibitions of acts of terrorism against persons in the power of the adversary,14

as well as the prohibitions of such acts committed in the course of hostilities 15 just mentioned above – alongside other rules prohibiting acts that would commonly be called “terrorist” outside armed conflict16 – demonstrate that international humanitarian law protects civilians and civilian objects17 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.

12 Additional Protocol I, article 51 (2) and Additional Protocol II, article 13 (2).13 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”.)14 GC IV, article 33; AP II, article 4 (2) (d). 15 AP I, article 51 (2); AP II, article 13 (2). 16 Hostage taking, for example. See GC IV, article 147, AP I, article 75 (2) (c) and common article 3 (1) (b). 17 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”.

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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”18 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. As is well known, the fair trial rights provided for in common article 3 to the Geneva Conventions19 and in Additional Protocol II20 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.

The “War on Terrorism” and International Humanitarian Law

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.21 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 law governing inter-state armed conflict became applicable.22 The latter include rules on the conduct of hostilities,23 which are based upon well-established principles.

18 AP II, article 6 (5). 19 Common article 3 (1) (d). 20 AP II, article 6. 21 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 was also international in character. 22 Neither the US nor Afghanistan is a party to the Additional Protocols of 1977. 23 The rules on the conduct of hostilities provided for in Additional Protocol I are generally considered to reflect customary international humanitarian law.

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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.24 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.25 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 objects26 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.27 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 anticipated28 (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 attack29 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.30

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 command responsible to a party to such a conflict.31 The main feature of this status is that it gives combatants the right to directly participate in hostilities32 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.33 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.34 It is often not

24 AP I, article 35 (1). 25 Id, article 48. 26 Id, article 52 (2). 27 Id, article 51 (4).28 Id, article 51 (5) (b). 29 Id, article 57. 30 Id, article 58. 31 AP I, article 43. 32 AP I, article 43 (2). 33 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. 34 GC III, article 102.

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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.35 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.36 Whatever the case may be, “competent tribunals”, which are usually established in proximity to the battle zone,37 should not be composed of a single individual.38 It is important to note that an article 5 tribunal is therefore not necessarily a 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.39 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”. 40 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”.41

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.42 The middle ground is represented by those who believe that “unprivileged belligerents” are covered only

35 GC III, article 5; AP I, article 45 (1). . 36 See ICRC Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, para 1750. 37 Id., para 1751. 38 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”. 39 GC III, articles 118 and 119. 40 AP I, article 51 (3). 41 See Richard Baxter, “So-called `Unprivileged Belligerency`: Spies, Guerrillas and Saboteurs”, British Yearbook of International Law, No. 323, 1951. 42 See Ingrid Detter, The Law of War, Cambridge University Press (2000), at p. 141.

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by article 3 common to the Geneva Conventions and article 75 of Additional Protocol I (either as treaty or customary law).43

At the other end of the spectrum44 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 country45 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 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.46

43 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. 44 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 45 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. 46 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

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Civilians can be interned by the adversary if the security of the detaining power makes it absolutely necessary.47 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.48 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 downgrading current standards would be the result, if not necessarily the aim, of some proposals.49

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,50 unless they are subject to criminal proceedings or have been convicted of a criminal offence.51 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

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.47 GC IV, articles 41 and 78. 48 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.49 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. 50 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). 51 GC IV, articles 132 and 133.

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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.52 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 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.53

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.54

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.55 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.56 This is not to say that law

52 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”.) 53 This is confirmed by the ICRC’s Study on customary rules of international humanitarian law (in press).54 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/D75203C5C3CFB78CC1256DA30042781355 Additional Protocol II does provide some basic conduct of hostilities rules: see articles 13 -16.

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enforcement rules57 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.58 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.59

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”.60 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 Rights61 on the right to liberty and security of person in times of armed conflict.62 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.63 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

56 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 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.”)57 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”.58 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.htm59 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. 60 See AP II, article 5 (1) and (2) and article 6 (5). 61 Hereinafter “ICCPR” or “Covenant”. 62 ICCPR, article 4.

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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.64

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.65

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.66 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.67 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.68 The right to counsel is particularly important in circumstances that may be said to amount to prolonged or incommunicado detention.

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”. 69

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. 70 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

63 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. 64 CCPR/C/79/ Add. 8, para. 27 (1997). 65 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. 66 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”. 67 Id. 68 Inter alia – Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, principle 11 (1). 69 AP II, article 6 (5).70 Id.

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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.71 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.72

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 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.73 The question then is, are we dealing with a global armed conflict within the meaning of common article 3 to the Geneva Conventions?74 While 71 AP II, article 6. 72 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. 73 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.”74 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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there are no universally accepted legal criteria on which to make such 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.75 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-international armed conflict that can be attributed to one and the same party? 76 Or are states faced with a series of criminal acts perpetrated by groups or individuals sharing at best a common ideology?77 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.78

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.79

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”.) 75 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. 30-52.76 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”.) 77 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”. 78 While all the terrorist acts that have occurred since September 11th 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. 79See 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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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.

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 instruments80 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”,81 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 civilian objects, or a combination thereof, would be excessive in relation to the concrete and direct military advantage anticipated. 82

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.83 In such a scenario, it is said, the authorities would have to take into account

80 Principles on the Use of Force and Code of Conduct, at note 57 above. 81 Code of Conduct, article 3, Commentary. 82 AP I, article 51 (5) (b). 83 See Watkin, note 59 above, at page 22.

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“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”.84

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,”85 may use force and firearms only if “other means remain ineffective or without any promise of achieving the intended result”:86 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”.87 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”.88

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 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,89 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.90

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” policy91

84 Id. 85 Code of Conduct, article 1. 86 Principle 4 of the Principles on the Use of Force.87 Id, Principle 9. 88 Id, Principle 10. 89 Id, Principle 22.90 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”.)91 Even in war belligerents may lawfully target only combatants and other persons directly participating in hostilities, and no one else.

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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 2002.92

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”.93

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 94 as they take a direct part in hostilities”.95 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 life96 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.97 However, the suspects' mere “membership” in al-Qaeda (whatever that may mean) would clearly have not

92 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.html93 Quoted in Howard Witt, “U.S.: Killing of Al Qaeda Suspects Was Lawful”, Chicago Tribune, November 24, 2002.94 Emphasis added. 95 AP I, article 51 (3). This rule is considered to reflect customary international law. 96 Principle 9 of the Principles on the Use of Force.97 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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have been a sufficient reason to kill them. 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.98

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.

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.99 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 established, 100 the fight against terrorism has led to a broader application of the practice of administrative detention for security reasons.

98 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. 99 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.

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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).101 Apart from the existence of a public emergency, which must be officially proclaimed,102 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.103 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.

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.104 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.105 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.106 Detainees are likewise entitled to the assistance of legal counsel107 and, subject to reasonable conditions and restrictions, have the right to communicate with their families.108

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.

100 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.htm101 ICCPR, article 4 (1). 102 The public emergency must be such that it “threatens the life of the nation”. See ICCPR, article 4 (1). 103 Id. 104 ICCPR, article 9 (2).105 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. 106 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. 16.107 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, principles 17, 18 and 32. 108 Id, principle 19.

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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”109 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.

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.110 While the individual capture of some ten persons held incommunicado is a matter of public record,111

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 issues112 deserve the attention of human rights groups and others committed to maintaining existing standards of protection of individual rights.113

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

109 The main exception is the right to challenge the lawfulness of one's detention, ICCPR, article 9 (4). 110 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”.). 111 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.112 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. 113 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 are the standards that must govern administrative detention. 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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where death or injury has been caused. 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.

Accountability for Acts of Terrorism

There is near unanimity that terrorist acts are crimes under both domestic and international law.114 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.115 As

114 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. 115 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

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already mentioned, there are also eight regional instruments on terrorism, albeit with different approaches as to how broadly terrorist acts are defined.116

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. 117

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 Court118) 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.

Terrorism and the jus ad bellum

The attacks of 11 September 2001 and the United States' response thereto which commenced on 7 October 2001 with the start of the war in Afghanistan, raised a host of legal issues related

above. 116 See Tomuschat Report, note 3 above. 117 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 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”.) 118 The ICC Statute article 7 definition of crimes against humanity, it must be noted, was established for jurisdictional purposes.

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to the current state of the law on the use of force and, in particular on the right to self-defence in response to terrorist acts.

The UN Charter traditionally regulates relations between states and does not, on the face of it, provide for the possibility that a state may be the victim of an “armed attack” 119 by a non-state actor; nor does it regulate the response to such an attack. The wealth of differing interpretations expressed after 11 September of the right to self-defence, the notion of “armed attack” giving rise to the right to self-defence and the question of whether non-state actors may be the perpetrators of such attacks, would seem to indicate the need to attempt to consolidate this area of international law.120 The same may be said of questions related to limits on the right to use force in self-defence, such as immediacy, necessity and proportionality. The controversies generated by the notions of “anticipatory” and “pre-emptive” self-defence are a case in point.121

The aftermath of 11 September 2001 has also revived debate on the notion of “extraterritorial law enforcement” or “extraterritorial self-help operations”122 in response to terrorist acts. While these concepts have no accepted legal definition, such an operation would be one in which a state intervenes in the territory of another, for example, to kill “terrorist” suspects by the use of means which are usually considered military means. If the operation is carried out with the territorial state’s consent, jus ad bellum rules would not be violated.123 The situation is unclear where the state in whose territory the self-help operation took place did not give its consent, either because it was not asked, because it was asked but refused or because it was unable to respond (in the case of a fragmented state where the territory involved is outside its control). The traditional response would be that any intervention in the territory of another state by military means without its consent – especially if causing injury or death – would be a violation of its territorial integrity. Some, however, believe that the scenario at hand would not violate ius ad bellum rules because the purpose of the operation would not be to impinge on the territorial integrity of the affected state but to deal with “terrorist” suspects. Given that these types of operations are likely to occur in practice, it is desirable to clarify how such operations should be legally characterized in order to be able to determine the further legal consequences (state responsibility, application of an international humanitarian law or human

119 UN Charter, article 51. 120 For one view, see Christopher Greenwood, “War, Terrorism and International Law”, in Current Legal Problems 2003, Volume 56, Michael Freeman (ed.), at pp. 515 – 523. See also Terry D. Gill, “The Eleventh of September and the Right of Self-Defense”, in Terrorism and the Military, International Legal Implications, Wybo P.Heere (ed.), TMC Asser Press, 2003, pp. 23 – 37 and Michael N. Schmitt, “Deconstructing October 7th: A Case Study in the Lawfulness of Counterterrorist Military Operations”, 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 pp. 39-49. For another view see A. Randelzhofer, “Article 51”, in The Charter of the United Nations: A Commentary, Bruno Simma (ed.), Second Edition, Oxford, 2002, at p. 802. 121 See Abraham Sofaer, “On the Necessity of Pre-emption” and Michael Bothe, “Terrorism and the Legality of Pre-emptive Force”, in European Journal of International Law, Volume 14 (2003), No. 2 at pp. 209 – 226 and pp. 227 – 240, respectively. 122 See Yoram Dinstein, “Ius Ad Bellum Aspects of the `War on Terrorism`”, in Terrorism and the Military, International Legal Implications, Wybo P. Heere (ed.), TMC Asser Press, 2003, at p. 20. See also ICRC Summary Report on “International Humanitarian Law and Other Legal Regimes: Interplay in Situations of Violence”, of the 27th Round Table on Current Problems of International Humanitarian Law, organized by the ICRC and the International Institute of Humanitarian Law in San Remo, Italy, in September 2003, at http://www.gva.icrc.org/Web/Eng/siteeng0.nsf/iwpList575/ACF03C9E9B96AB23C1256DFF00332E15.123 That seems to have been the case in the already mentioned November 2002 Predator drone incident that took place in Yemeni territory. See note 92 above.

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rights framework with respect to the persons targeted and others who might have been affected, etc.)124

Along with a re-examination of the established tenets of jus ad bellum, the 11 September 2001 attacks appear to also have produced a questioning of the principle that whenever an armed conflict does occur, it is governed by international humanitarian law (the jus in bello). Invocation of the justness of the resort to armed force, particularly in the “war against terrorism”, seems to have served as a partial justification for denying the applicability of the full range of international humanitarian law norms in situations where that body of law was undoubtedly applicable.

In the author’s view, any changes in the application of the jus in bello rules based on the justness of the cause for war must be rejected. International humanitarian law is the body of rules triggered by armed conflict, whatever the underlying reasons for the conflict may be. Any modification to that approach would undermine the main purpose of humanitarian law, which is to protect persons and objects by attempting to limit the effects of armed violence.125

The attacks of 11 September 2001 have given rise to a broad debate on the current state of the international law governing the use of force and self-defence in response to terrorist acts, which has shown that, in terms of adequacy, it is probably this body of law that sits most uncomfortably with reality. Bearing in mind that rules on the use of force go to the very heart of states' exercise of power beyond their borders, it is very unlikely that greater uniformity of states’ positions and interpretations of the law can be achieved or should be attempted at this time. One point, however, that deserves constant reiteration is that whatever the jus ad bellum rules might be, they must not in any way be allowed to affect the operation of the existing jus in bello regime.

Conclusions

Is the international legal framework adequate to confront terrorism? The qualifiedly affirmative answer provided above nonetheless requires a few final clarificatory comments.

That answer is based, first, on the conclusion that the "current phenomena of terrorism” do not require a shift in legal paradigms. 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

124 According to one commentator, international humanitarian law would not be the applicable legal framework absent hostilities between the armed forces of the states involved. In his view, it would be better to “posit a lacuna” in the law governing such operations. See Michael N. Schmitt, “Rethinking the Geneva Conventions”, Crimes of War Project, January 30, 2003, at http://www.crimesofwar.org/expert/genevaConventions/gc-schmitt.html. Also, see Yoram Dinstein, note 127 above, at pp. 20-22. 125 The distinction between ius ad bellum and ius in bello is, inter alia, emphasized in the preamble to Additional Protocol I, under which the provisions of the Geneva Conventions and of the Protocol must be applied in all circumstances “without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict”. See AP I, preambular para. 5.

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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.126 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.

126 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)1.

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