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When is a war not a war? - The proper role of the law of armed conflict in the "global war on terror"

16-03-2004 Statement

"International Action to Prevent and Combat Terrorism" - Workshop on the Protection of Human Rights While Countering Terrorism, Copenhagen, 15-16 March 2004 - Presentation given by Gabor Rona, legal adviser at the ICRC’s Legal Division.

What is the proper role of international humanitarian law (the law of armed conflict) in the " war on terror " ? Humanitarian law applies in and to armed conflict. Thus, terrorism, and by necessary implication, counter-terrorism, are subject to humanitarian law when, and only when, those activities rise to the level of armed conflict. Otherwise, the standard bodies of domestic and international criminal and human rights laws will apply. 

It is for this reason that the OSCE Charter on Preventing and Combating Terrorism reflects a commitment to conduct counter-terrorism measures in accordance with the rule of law, including international human rights and " where applicable, " international humanitarian law. 

There is good reason for this division of legal labor between humanitarian law and other legal regimes. While the purposes of humanitarian law are humanitarian, it is also true that killing, detention without judicial review and trials with reduced menus of rights are permitted, albeit within defined limits, in times and situations of armed conflict. Thus, the determination that a particular situation is subject to the law of armed conflict can have decidedly unhumanitarian consequences. This is especially the case when parties assert the rights of belligerency, but decline to accept the humanitarian obligations imposed by the laws of armed conflict.

Humanitarian law has been accused of being passé, or at least stale and in need of revision—inadequate to deal with the demands of modern day terrorism and the efforts to combat it. This is a red herring. The phrase " war on terror " is a rhetorical device having no legal signifi cance. There is no more logic to automatic application of the laws of armed conflict to the " war on terror " than there is to the " war on drugs, " " war on poverty " or " war on cancer " . Thus, blanket criticism of the law of armed conflict for its failure to cover terrorism, per se, is akin to assailing the specialized law of corporations for its failure to address all business disputes.

Humanitarian law recognizes two categories of armed conflict - international and non-international. Generally, when a State resorts to force against another State (for example, when the " war on terror " involves such use of force, as in the recent U.S. and allied invasion of Afghanistan) the international law of international armed conflict applies. When the " war on terror " amounts to the use of armed force within a State, between that State and a rebel group, or between rebel groups within the State, the situation may amount to non-international armed conflict a) if hostilities rise to a certain level and/or are protracted beyond what is known as mere internal disturbances or sporadic riots, b) if parties can be defined and identified, c) if the territorial bounds of the conflict can be identified and defined, and d) if the beginning and end of the conflict can be defined and identified. Absent these defining characteristics of either international or non-international armed conflict, humanitarian law is not applicable. 

Humanitarian law strikes a balance between state security and individual rights in times of armed conflict. It is a bulwark of human security in such times, if respected where invoked, and if invoked only where it properly belongs. The power of humanitarian law to protect and assist victims lies in the limitation of its application to true conditions of armed conflict. Below tha t threshold, other legal regimes applicable in times of peace should, and do, apply. To apply the laws of armed conflict and thereby displace domestic and international criminal and human rights law below that threshold would be to do violence to human rights and civil liberties that protect us all. We owe it to ourselves and our children not to take such radical measures, which parenthetically would comport with the game plan of terrorists, unless and until the legal mechanisms otherwise applicable in times of peace should prove inapplicable to the task.

 (The workshop was sponsored by the Office for Democratic Institutions and Human Rights within the Organisation for Security and Cooperation Europe (OSCE/ODIHR), with the support of the Royal Danish Ministry of Foreign Affairs and the Canadian Department of Foreign Affairs and International Trade.)