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Humanitarian law and terrorism
Throughout the world today terrorist acts continue to claim its quota of sorrow, shed blood and generate misery.As such, at this crucial juncture, those involved in the continued codification and revision of humanitarian law, should sharpen their focus on the connotations pertaining to terrorism. Interpretation of situations on the basis of political advantages and needs should be avoided.Encouragement should be given to the drawing up of legal principles and more comprehensive provisions on the basis of universal acceptance.
Over the last three decades terrorist acts, commonly also referred to as terrorism have exercised the minds of international legal experts and jurists. Atrocities, taking of hostages, torture and other cruel, inhuman or degrading treatment or punishment, organized creation of fear among the civilian population have been the source of debate and serious consideration.
One must however remember at the outset that internal situations which do not bear the essential characteristics of armed conflict, although marked by collective violence are not considered to be within the ambit of international humanitarian law. This includes, in particular, situations of internal strife, riots and violent repression. In short, only terrorist acts committed in situations of armed conflict fall within the scope of application of international humanitarian law.
Although there is general consensus among jurists as to the application of international humanitarian law, there appears to be disagreement in the meaning, and consequence of the term 'terrorism.' It has been found to be a social phenomenon with far too many variables to permit a simple and practical definition.
The Convention for the Prevention and Punishment of Terrorism was attempted in 1937 to explain the act. It pointed out that the act of terrorism was criminal in nature, directed against a State, or intended to create a state of terror in the minds of particular persons or the general public. In our times however, to restrict the definition of terrorism to offences against a State would mean over-looking the realities of contemporary life. Since then, different Conventions have been adopted, but they have mostly been limited to some specific aspect of terrorism and therefore of little help in agreeing on a comprehensive definition. In 1963, 1970 and 1971 came Conventions related to offences that pertained to aircraft and safety related to civil aviation (including hijacking). In 1973 we adopted the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents. In 1979 we agreed on a Convention against the Taking of Hostages.
However, despite several efforts since then, both within the United Nations and outside, no universally acceptable definition appears to have been arrived at regarding what constitutes a terrorist act in terms of scope and meaning. Nevertheless, it is generally agreed that terrorism denotes the following:
- it is without exception, a crime;
- terrorism is the use or threatened use of violence, usually against human life;
- terrorism is a means to attain political goals, which in the view of those resorting to it, could not be attained by ordinary (lawful) means;
- terrorism is a strategy: it is usually brought to bear over a period of time by organized groups according to a set programme;
- terrorist attacks are often directed against outsiders who have no direct influence on or connection with what the terrorist seeks to achieve;
- terrorists often hit indiscriminately at their victims;
- terrorism is used to create the fear factor, that enables the terrorist to attain his goal; and
- terrorism is total war, the end justifying the means.
The explanation of the aspects as enumerated above are comprehensive, but it is not necessary that all these elements need to be present at the same time. In occasional instances, one or the other element may be lacking -- there may be no political goal or the crime may be perpetrated by an individual acting on his own.
Generally however, terrorist acts are prohibited without exception by internal legislation of all States and are subject to prosecution and punishment as dictated under national criminal law. In the international context also contrary to previous practice, the trend today is to exclude terrorist acts from the derogation that earlier allowed offenders immunity from extradition. Since the events of September, 2001, quite correctly, most countries today have taken the approach of not granting any quarter to a terrorist.
Prohibition of terrorist acts in non-international armed conflicts
International humanitarian law applicable to internal armed conflicts is less detailed than those applicable in international conflicts.
Any discussion of this aspect needs to proceed from Article 3, which is common to all the four Geneva Conventions of 1949. It is clearly stated there that in internal armed conflicts too, terrorist acts of any kind against persons not taking part in the hostilities are absolutely prohibited. The second para of Article 3, prohibits inter alia 'violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture' and in the 'taking of hostages.' It therefore leaves no scope for terrorist acts against persons in the power of the adverse party to the conflict. Article 4 of Protocol II also reaffirms the aforementioned prohibitions. However, within Protocol II, this is in a sense extended and improved upon. Provisions are introduced designed to protect civilians by influencing the very conduct of hostilities. Paragraph 2 of Article 13 stipulates that 'acts or threats of violence, the primary purpose of which is to spread terror among the civilian population are prohibited.' In this context, it appears to be almost identical to the principles enunciated in article 51, para 2 of Protocol I.
Going further, one has to also take note that under the above provisions, the law applicable in non-international armed conflicts makes no distinction between various categories of persons (combatants, civilian population etc.).
It would be pertinent to also refer here again to Article 13 which expressly prohibits terrorist acts against the civilian population. This prohibition, according to jurists, should in my view however apply to both sides -- that is, the governmental as well as the dissident elements.
Jurists are also in consensus that terrorist acts are subject to criminal prosecution by the competent state authorities in accordance with national law. However, it is also generally agreed that the authorities should avoid prosecuting and convicting dissidents for terrorism merely on superficial and subjective grounds.
Discussion on this issue would however remain incomplete without the realisation that in non-international conflict, the approach in humanitarian law is different, since one party to the conflict most often does not qualify as a State. Nevertheless, one is reminded here of Article 3, and Protocol II which put a legal obligation on dissidents too: all members of armed groups must heed the ban on terrorism. It must be also remembered by the dissidents, that they can also be liable as a group. They must therefore also take all measures to prosecute and punish terrorist acts. Stretching this aspect, some have noted that even during a civil war, as is happening presently in Colombia, Peru and in various countries in Africa, the dissident party too is conclusively bound by the ban on terrorism. This aspect assumes a vital and important role, particularly, as civil wars or wars of national liberation are prone to brute terrorist acts and are sometimes catalysts for outbreaks of violence.
Therefore, it is important for us to understand that persons committing a terrorist act against civilians also have to face criminal proceeding. It should also not be forgotten that wanton killing of innocent civilians under any pretect is not sanctioned by any religion or philosophy. It would also be wise to remember at this point that Article 44 of Protocol I, which lays down conditions for combatant status in international armed conflicts does not condone disregard for traditional obligations under humanitarian law. As such it cannot be construed as granting immunity against the consequences of committing acts of terrorism. It would be worthwhile to express satisfaction in this regard in the manner that the International Trial is continuing in the Hague with regard to the crimes committed in the Balkans in the last decade.
Conclusion
It would be clear from the above that some grey areas still remain with regard to response of the State machine towards terrorist acts. It is also true that in the name of dissidence, fundamental legal obligation towards the civilian population is quite often forgotten.
Throughout the world today terrorist acts continue to claim its quota of sorrow, shed blood and generate misery.
As such, at this crucial juncture, those involved in the continued codification and revision of humanitarian law, should sharpen their focus on the connotations pertaining to terrorism. Interpretation of situations on the basis of political advantages and needs should be avoided.
Encouragement should be given to the drawing up of legal principles and more comprehensive provisions on the basis of universal acceptance.
Muhammad Zamir is a former Secretary and Ambassador.
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