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Terrorism and internationalhumanitarian lawFranois BugnionPublished online: 24 Sep 2008.
To cite this article: Franois Bugnion (2004) Terrorism and international humanitarianlaw, Whitehall Papers, 61:1, 47-55, DOI: 10.1080/02681300408523004
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Terrorism and International Humanitarian Law Franqois Bugnion
The terrorist attacks of 11 September 2001 against New York and Washington and the ensuing conflict in Afghanistan suddenly brought international humanitarian law into the limelight, but these tragic events have also raised fundamental questions about the relevance of internation- al humanitarian law to the challenges posed by international terrorism.
Does international humanitarian law apply to what was immediate- ly labelled as 'the global war against terror'? Does it adequately meet the need for humanitarian aid provoked by new conflicts? Some voices in the United States and elsewhere have questioned the relevance of humanitari- an rules to the environment created by this new form of war. Humanitarian law has been declared outdated, out of touch with the new situation, or even an obstacle to the fight again terror.
As you know, the law of armed conflict developed out of the con- frontation on the field of battle between sovereigns enjoying equal rights. Similarly, the first treaties regulating warfare and protecting victims of war - the Geneva Convention for the amelioration of the condition of the wounded in armies in the field of 22 August 1864, the St. Petersburg dec- laration on explosive bullets of 1868 and the Hague Conventions on land warfare of 1899 and 1907 - applied between the parties to those treaties, namely between states.
However, international humanitarian law also found a way to pro- tect the victims of non-international armed conflicts, initially through the classic mechanism of recognition of belligerency, mainly developed in British and American doctrine and practice, and then through the adoption of specific treaty provisions: both Article 3, common to all four Geneva
Dr Franl;ois Bugnion is Director of International Law at the International Committee of the Red Cross, which he joined in 1970. He has worked in Israel and the Occupied Territories, Bangladesh, Turkey, Cyprus, Chad, Vietnam and Cambodia and acted as Delegate General for Eastern Europe and Central Asia.
Conventions of 12 August 1949 and Protocol II of 8June 1977 additional to those Conventions protect the victims of non-international armed con- flicts, in other words civil wars. Because of the fundamental nature of the obligations they enshrine, these provisions are binding on any government confronted with a civil war and on the adversarial party as well.
The question therefore arises: does international humanitarian law apply to "the war against terror' , whatever this concept may cover?
First of all, I would like to point out that humanitarian law is based on the fundamental principle that the civilian population must enjoy immunity against the effects of hostilities and on the obligation to distin- guish at all times between combatants and civilians and between military objectives and civilian safeguards. In order to avoid endangering the civil- ian population, combatants are required to distinguish themselves f rom civilians while carrying out military operations.
Since terrorists usually direct their attacks against civilians, so as to spread maximum terror, and fail to distinguish themselves from the civil- ian population, so that it is impossible to identify where the threat comes from, terrorism clashes with international humanitarian law at a funda- mental level. Indeed, terrorism - whatever form it may take - may be considered as the utmost affront to humanitarian principles and rules. The two Protocols additional to the Geneva Conventions expressly prohibit "acts or threats of violence the primary purpose of which is to spread ter- ror within the civilian populat ion ' . Humani ta r ian law therefore unequivocally and unreservedly condemns any form of terrorism, from whatever quarter it may come, whatever its objectives and whatever cause the perpetrators claim to serve.
But still the question arises: does international humanitarian law apply to ' the war against terror'?
Actually, 'the war against terror" covers different types of action: police action, prosecution and trials, diplomatic action, financial initiatives to freeze or seize assets related to terrorism, etc. Primafacie, international humanitarian law does not apply to such activities; these are regulated by other branches of law. Nor does humanitarian law determine what is legit- imate use of armed force, or the fight to self-defence or response to aggression. These issues are regulated by the United Nations Charter.
On the other hand, whenever States resort to military force to fight terrorism - as was the case in Afghanistan as of 7 October 2001 - there is no doubt that such operations are covered by international humanitarian law. The decisive factor here is not the nature of the initial aggression but
War and Mora[ity
the response to it. This is the position which the International Commit tee of the Red Cross set out in a memorandum sent to the United States, the United Kingdom and Afghanistan on 5 October 2001, shortly before the opening of active hostilities, to remind them of the humanitarian princi- ples and rules applicable in the impending conflict. No challenge was made to the ICRC position. On the contrary, the White House confirmed in a statement on 7 February 2002 that the Geneva Conventions did indeed apply to the armed conflict in Afghanistan, even though serious differences of opinion emerged concerning the legal status of combatants captured in Afghanistan and transferred to Guantanamo Bay.
Does applying the Conventions mean that persons protected by international humanitarian law are immune from legal action and prosecu- tion? Certainly not. Prisoners of war and civilians protected by the Fourth Geneva Convention can be prosecuted for crimes committed, either dur- ing captivity, or prior to their capture. If grave breaches of the Geneva Conventions have been committed, the detaining power is not only autho- rized to prosecute the suspects under its jurisdiction, it is actually obliged to do so.
The criticism has been levelled that implementing the Geneva Conventions would afford suspects judicial guarantees of such magnitude that it would be impossible for the courts to convict the guilty, or that the accused would enjoy almost unlimited possibilities of appeal.
What the Third Geneva Convention stipulates, in fact, is that 'pris- oners of war can be validly sentenced only if the sentence has been pronounced by the same courts and according to the same procedure as in the case of members of the armed forces of the detaining power'. In other words, international humanitarian law is referring to domestic law - it requires the States to respect the same standards that they have set for members of their own armed forces.
It has also been alleged that humanitarian law does not apply between a State and a non-State actor with international connections, such as the A1-Qa'ida network.
It is obvious that the 1949 diplomatic conference that drafted the Geneva Conventions now in force, basically had two situations in mind: either an