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Acts of terror, “terrorism” and international humanitarian law

Published online by Cambridge University Press:  19 April 2010

Hans-Peter Gasser
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Type
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International Review of the Red Cross , Volume 84 , Issue 847: Terrorisme/Terrorism , September 2002 , pp. 547 - 570
Copyright
Copyright © International Committee of the Red Cross 2002

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References

1 See Gasser, Hans-Peter, “Prohibition of terrorist acts in international humanitarian law”, Revue Internationale de la Croix-Rouge/International Review of the Red Cross, July/August 1986, No. 253, 1986, p. 200.Google Scholar

2 A lively debate among international lawyers has already produced abundant literature on the subject.

3 A comprehensive list of treaties on terrorism can be found at <http://untreaty.un.org/English/Terrorism.asp>.

4 UNGA Res. 51/210,17 December 1996. For information on the work of the Ad Hoc Committee established by Resolution 51/210 see its yearly reports. At the time of writing, the most recent source of information is: Measures to Eliminate international Terrorism, Report of the Working Group, A/C.6/56/L.9, 29 October 2001.

5 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949; Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949; Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949.190 States are party to these Conventions (at 30 June 2002).

6 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977 (160 and 153 States parties respectively as at 30 June 2002).

7 Report of the Working Group — see note 4.

8 As at 30 June 2002,160 States are party to Protocol I. The United States, Israel, Afghanistan and some other States, including Iran, Iraq and the Democratic People's Republic of Korea, are not bound by Protocol I, which prohibits attacks against civilians and the civilian infrastructure.

9 “‘Attacks’ means acts of violence against the adversary…”, Article 49 of Protocol I.

10 Protocol I, Articles 51, para. 6, and 52, para. 1.

11 Article 147.

12 Statute of the International Criminal Court (ICC), adopted in Rome on 17 July 1998, Article 7 (crimes against humanity) and Article 8 (war crimes), in particular para. 2 (a) and (b). — After ratification by more than 60 States the Rome Statute entered into force on 1 July 2002. The United States, Israel, Afghanistan and some other States, including Iran, Iraq and the Democratic People's Republic of Korea, are not party to the Court established to prosecute persons accused of serious war crimes, such as terrorist acts, “in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes” (Rome Statute, Article 8, para. 1).

13 Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954, Article 4. See also Protocol I, Article 53.

14 Protocol I, Article 56.

15 First Convention, Article 12, para. 2; Second Convention, Article 12, para. 2.

16 First Convention, Article 50; Second Convention, Article 51.

17 Third Convention, Article 13.

18 Third Convention, Article 17, para. 4.

19 Third Convention, Article 120.

20 Fourth Convention, Article 147.

21 Protocol I, Article 85, para. 3.

22 Protocol I, Article 1, para. 4, and Article 96, para. 3.

23 Protocol I. Article 51, para. 6. – Some States party to Protocol I have made a reservation to the rules prohibiting reprisals. The United States has expressed its rejection ofthat rule through other means.

24 Rome Statute, Articles 1 and 17.

25 For the full text of the updated Martens Clause see Protocol I, Article 1, para. 2.

26 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, The Prosecutors. Dusko Tadic, Case No. IT-94–1-AR 72, ICTY Appeals Chamber, 2 October 1996.

27 See also the International Law Committee's Draft Code of Crimes against Peace and Security of Mankind (1996) whose Art. 20(f)(iv) makes serious acts of terrorism committed in a non-international armed conflict a war crime.

28 Text of the Letter of Transmittal published in “AGORA: The U.S. decision not to ratify Protocol I to the Geneva Conventions on the Protection ofWar Victims”, American tournai of International Law, Vol. 81, No. 4, October 1987, p. 910. See also a comment by the author of the present paper: Hans-Peter Gasser, “An appeal for ratification by the United States”, ibid., p. 912.

29 Feith, Douglas J., “Law in the service of terror: The strange case of the Additional Protocol”, The National Interest, No. 1, Fall 1985.Google Scholar During the “war on terror” Feith was Under Secretary of Defense for Policy in the Bush Administration.

30 Sofaer, Abraham D., “Terrorism and the law”, Foreign Affairs, Summer 1986, p. 901.CrossRefGoogle Scholar

31 Article l common to the four 1949 Geneva Conventions recalls this basic truth with the following words: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances”.

32 Gasser, Hans-Peter, “Ensuring respect for the Geneva Conventions and Protocols: The role of third States and the United Nations”, Fox, Hazel and Meyer, Michael A. (eds), Effecting Compliance, The British Institute of International and Comparative Law, London, 1993, pp. 15–49Google Scholar, esp. P. 27 ff.

33 Roberts, Adam, “Counter-terrorism, armed force and the laws of war”, Survival, Vol. 44, Spring 2002, p. 13.CrossRefGoogle Scholar

34 United States Military Assistance Command, Vietnam, “Criteria for classification and disposition of detainees”, Annex A of Directive No. 381–46 (Dec. 27,1967), reprinted in American journal of International Law, Vol. 62,1968, p. 766. See also Gasser, , op. cit. (note 28), p. 921.Google Scholar

35 Article 5 of the Fourth Geneva Convention curtails the rights of a person who “is definitely suspected of or engaged in activities hostile to the security” of the State concerned. The right to be treated with humanity and to a fair trial as guaranteed by the Convention is not affected.

36 ICRC Press release of 9 February 2002.