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The obligation of States to abide by the rules of international law in the fight against terrorism

02-03-2007 Statement

Statement of the International Committee of the Red Cross, Inter-American Committee Against Terrorism (CICTE), Seventh Regular Session, Panama City, 28 February – 2 March 2007

The International Committee of the Red Cross hereby expresses its gratitude to the Government of the Republic of Panama for the invitation to attend the VII Regular Session of the Inter-American Committee Against Terrorism (CICTE) being held in Panama City, 28 February to 2 March of 2007. The ICRC and Panama have enjoyed a productive cooperation in matters concerning promotion of and respect for international humanitarian law. The ICRC would like to take this opportunity to welcome the advances made by Panama's Permanent National Commission for the Application of International Humanitarian Law during 2006. Such advances include promoting legislation in relation to the repression of war crimes and the landmines ban treaty, and holding a forum celebrating one hundred years of relentless efforts to uphold international humanitarian treaties. Panama's national commission joins similar bodies worldwide seeking in peacetime to ensure that their domestic laws conform to the existing body of law regulating the protection of persons and the conduct of hostilities during armed conflict. To foster dialogue and the exchange of experiences amongst these national commissions, the next universal conference under ICRC auspices will be held in Geneva in March 2007.

The ICRC welcomes the occasion of this session to reaffirm its unequivocal position regarding the obligation of States to abide by the rules of international law in the fight against terrorism. In our view, the effort to prevent and put a stop to acts of terrorism is a multifaceted endeavor that may involve the application of several legal regimes, including, but only when armed conflict takes place, international humanitarian law. 

International humanitar ian law is the body of rules applicable when armed violence reaches the level of an armed conflict, whether international or non-international. The humanitarian law treaties most commonly referred to are 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 and customary law as well. While international humanitarian law does not provide a definition of terrorism, it explicitly prohibits most acts committed against civilians and civilian objects 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. 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”, as well as other rules on the conduct of hostilities aimed at sparing civilians and civilian objects from their effects. International humanitarian law also prohibits hostage taking, whether against civilians or persons no longer taking part in hostilities.

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” against persons in the power of a party to the conflict. The explicit prohibitions of acts of terrorism against persons in the hands of the adversary, as well as the prohibitions of such acts committed in the course of hostilities just mentioned above, demonstrate that international humanitarian law protects civilians and civilian objects against these types of assaults when committed in armed conflict.

An issue that often arises in discussions on terrorism is the application of humanitarian law to the so-called " global war on terrorism " . In our view, international humanitarian law does not and cannot be expected to regulate the totality of what is colloquially referred to as the " global war on terrorism " . Domestic and international efforts to prevent and put a stop to terrorist activities involve a range of measures that only at the far end might involve armed conflict in the legal sense (for example, the war in Afghanistan). We thus apply a case-by-case approach in determining whether a particular situation of violence amounts to an armed conflict in the legal meaning of that term in order precisely to ensure that persons affected can rely on the most protective international legal framework applicable. The legal status and rights of persons deprived of liberty should be established based on the facts, which may lead to the application of different legal regimes. This means that terrorist acts committed outside of armed conflict should be addressed by means of domestic or international law enforcement, and not by application of the laws of war. In fact, most of the measures taken by States, and promoted by CICTE in the hemisphere, to prevent or suppress terrorist acts, including intelligence gathering, police and judicial cooperation, extradition, criminal sanctions, financial investigations, the freezing of assets or diplomatic and economic pressure on states accused of aiding suspected terrorists, are not commonly considered acts of war.

Indeed, States have the obligation and right to defend their infrastructure and to protect their citizenry against terrorist attacks, and CICTE plays an important role in supporting the rights and obligations of States in the Americas in their fight against terrorism. The anti-terrorist efforts of States may well result in the arrest and detention of persons suspected of terrorist crimes. In such instances, States must conduct arrest and detention according to a clearly defined national and/or international legal framework.

Similar to CICTE, the ICRC has also called for increased efforts to ensure universal adherence to the Biological Weapons Convention and the Chemical Weapons Convention, and the adoption of effective national implementing legislation, where it does not yet exist. The ICRC believes that it is crucial for States to engage the public health sector, life scientists, industry, law enforcement agencies and the defense and security community as indispensable partners in fostering a " culture of responsibility " to ensure that humanity is ultimately protected and benefits from new scientific advances. The ICRC has suggested that universities offering curricula in life sciences and in chemistry include at least one mandatory session on the risks, the pertinent rules of national and international law, and the responsibility to prevent the hostile use of scientific research and its applications.

True to its commitment to the protection of civilians in armed conflicts, and as promoter and guardian of international humanitarian law, the ICRC hereby offers its Legal Advisory Services to States in the Americas to assist in the ratification of international humanitarian treaties and the development of appropriate domestic legislation.

The ICRC also welcomes CICTE's approach to work with international org anizations in the realization of CICTE's mandate. Provisions in a 1996 agreement and a 2003 memorandum of understanding with the Organization of American States allow the ICRC to extend its cooperation to CICTE and other inter-American agencies.

Last but not least, the ICRC wishes CICTE success in the proceedings and outcome of this regular session, and looks forward to strengthening its cooperation with CICTE in the near future.

Thank you for your attention.