The applicability of IHL to terrorism and counterterrorism
Recent years have again seen the rise of non-State armed groups resorting to acts of terrorism, and the subsequent rallying of a number of other non-State armed groups around them. States and the United Nations – have reacted to these developments by tightening existing counterterrorism measures and/or legislation and by introducing new ones. There is no doubt that it is legitimate to take responsive action to ensure State security. However, in doing so, it is indispensable to maintain the safeguards protecting human life and dignity laid down in IHL and IHRL
Extract from the report "International humanitarian law and the challenges of contemporary armed conflicts", document prepared by the ICRC for the 32nd International Conference of the Red Cross and Red Crescent (Geneva, Switzerland, 8-10 December 2015)
Counterterrorism responses, combined with a robust counterterrorism discourse in both domestic and international fora, have significantly contributed to a blurring of the lines between armed conflict and terrorism, with potentially adverse effects on IHL. There appears to be a growing tendency among States to consider any act of violence carried out by a non-State armed group in armed conflict as being "terrorist" by definition, even when such acts are in fact lawful under IHL. This is in parallel to the longstanding concern of some States that recognizing the existence of an armed conflict in their territory would "legitimize" the non-State armed groups involved. The overall result is a denial that such groups, designated as "terrorist," may be a party to a NIAC within the meaning of IHL. The above-mentioned developments have put the issue of the relationship between the legal frameworks governing IHL and terrorism back into the spotlight.
The continued need to distinguish between the legal frameworks governing IHL and terrorism
The ICRC outlined its position on this issue in the preceding report on IHL and the challenges of contemporary armed conflicts submitted to the 31st International Conference. Given the current trends in counterterrorism, some aspects are worth recalling. This section aims to provide a brief reminder of the reasons for which, in the ICRC's view, the normative regimes governing armed conflict and terrorism should not be confused.
While the legal frameworks governing terrorism and IHL may have some common ground – IHL expressly prohibits most acts that are criminalized as "terrorist" in domestic legislation and international conventions dealing with terrorism – these two legal regimes remain fundamentally different. They have distinct rationales, objectives and structures.
A crucial difference is that, in legal terms, armed conflict is a situation in which certain acts of violence are considered lawful and others are unlawful, while any act of violence designated as "terrorist" is always unlawful. The ultimate aim of an armed conflict is to prevail over the enemy's armed forces. For this reason, the parties to a conflict are permitted, or at least are not prohibited from, attacking each other's military objectives or individuals not entitled to protection against direct attacks. Violence directed at those targets is not prohibited as a matter of IHL, regardless of whether it is inflicted by a State or a non-State party. Acts of violence directed against civilians and civilian objects are, by contrast, unlawful, as one of the main purposes of IHL is to spare them from the effects of hostilities. IHL thus regulates both lawful and unlawful acts of violence.
There is no such dichotomy in the norms governing acts of terrorism. The defining feature of any act that is legally classified as "terrorist," whether under domestic or international law, is that it is always penalized as criminal. Thus, no act of violence legally designated as "terrorist" is, or can be, exempt from prosecution.
Another main difference between these legal frameworks is the principle of equality of belligerents, pursuant to which the parties to an armed conflict have the same rights and obligations under IHL (even if this is not the case under domestic law). This principle reflects the fact that IHL does not aim to determine the legitimacy of the cause pursued by the belligerents. Its goal, instead, is to ensure the equal protection of persons and objects affected by an armed conflict, irrespective of the lawfulness of the first resort to force. The legal
framework governing acts of terrorism obviously does not contain a similar principle. In this context it is important to recall that, while IHL does foresee equal rights and obligations of belligerents in the conduct of hostilities and in the treatment of persons in their power, it does not confer legitimacy on non-State armed groups that are a party to a NIAC. Common Article 3 explicitly states that when parties to the conflict apply its provisions this "shall not affect the legal status of the Parties to the conflict." Additional Protocol II contains a similar provision guaranteeing the sovereignty of States and their responsibility to maintain law and order, national unity and territorial integrity by all legitimate means (Article 3 of Additional Protocol II).
The above does not mean that some overlap cannot be created between the legal regimes governing IHL and terrorism. IHL prohibits both specific acts of terrorism committed in armed conflict and, as war crimes, a range of other acts of violence when committed against civilians or civilian objects. If States choose to additionally designate such acts as "terrorist" under international or domestic law, this will in effect duplicate their criminalization.
However, acts that are not prohibited by IHL – such as attacks against military objectives or against individuals not entitled to protection against direct attacks – should not be labelled "terrorist" at the international or domestic levels (although they remain subject to ordinary domestic criminalization where a NIAC is involved). Attacks against lawful targets constitute the very essence of an armed conflict and should not be legally defined as "terrorist" under another regime of law. To do so would imply that such acts must be subject to criminalization under that legal framework, therefore creating conflicting obligations of States at the international level. This would be contrary to the reality of armed conflicts and the rationale of IHL, which does not prohibit attacks against lawful targets.
Adding another layer of incrimination by designating acts that are not unlawful under IHL as "terrorist" may also discourage IHL compliance by non-State armed groups party to a NIAC. Any motivation they may have to fight in accordance with IHL would likely erode if, irrespective of the efforts they may undertake to comply with it, all of their actions are deemed unlawful. Furthermore, labelling acts that are lawful under IHL as "terrorist" is likely to render the implementation of Article 6(5) of Additional Protocol II – whose objective is to grant the broadest possible amnesty to persons having participated in the hostilities without having committed serious violations of IHL – more difficult. For obvious reasons, the prospect of an amnesty is diminished where even lawful acts of war have been qualified as acts of terrorism. This can ultimately prove to be an obstacle to peace negotiations and reconciliation efforts.
IHL, the so-called "war against terrorism" and the geographic scope of armed conflicts
As repeatedly asserted, the ICRC considers that, from a legal perspective, there is no such thing as a "war against terrorism." With respect to the various armed conflicts and the numerous counterterrorism measures at the domestic and international levels, the ICRC adopts a case-by-case approach in order to analyse and legally classify the various situations of violence. In this sense, the fight against terrorism involves, apart from the use of force in certain instances, the use of other measures, such as intelligence gathering, financial sanctions and judicial cooperation.
When armed force is used, only the facts on the ground are relevant for determining the legal classification of a situation of violence. Some situations may be classified as an IAC, others as a NIAC, while various acts of violence may fall outside any armed conflict due to a lack of the requisite nexus.
With respect to the phenomenon of armed groups that are perceived as having a global reach, such as al-Qaeda or the Islamic State group, the ICRC does not share the view that an armed conflict of global dimensions is, or has been, taking place. This would require, in the first place, the existence of a "unitary" non-State party opposing one or more States. Based on available
facts, there are not sufficient elements to consider the al-Qaeda "core" and its associated groups in other parts of the world as one and the same party within the meaning of IHL. The same reasoning also applies, for the time being, to the Islamic State group and affiliated groups.
In addition, as stated previousl , the ICRC does not share the view that the applicability of IHL spreads beyond the territory of the parties to the conflict in a way that would allow the targeting of individuals associated with armed groups around the world. The ICRC's position is that NIACs are confined to the territory of each party to an armed conflict. While such NIACs can spill over into neighbouring countries because of the continuity of hostilities, they cannot spread to third countries. The ICRC is of the view that the IHL criteria of intensity and organization required to constitute a NIAC would need to be fulfilled in the territory of each individual third State for the applicability of IHL to be triggered.
IHL and "foreign fighters"
The phenomenon of the so-called "foreign fighters" – nationals of one country who travel abroad to fight alongside a non-State armed group in the territory of another State – has increased exponentially over the past few years. In order to quell the threats emanating from foreign fighters, States – in particular within the framework of the UN Security Council – have taken a variety of measures, including the use of force, detention (on terrorism charges, among others), and travel bans.
While most of the measures taken to prevent individuals from joining non-State armed groups or to mitigate the threat they may pose upon return are of a law enforcement nature, the applicability of IHL, where appropriate, should not be overlooked. It may be observed that little attention has been paid to how IHL deals with the phenomenon of foreign fighters.
The concept of "foreign fighter" is not a term of art of IHL. The applicability of IHL to a situation of violence in which such fighters may be engaged depends on the facts on the ground and on the fulfilment of certain legal conditions stemming from the relevant norms of IHL, in particular common Articles 2 and 3. In other words, IHL will govern the actions of foreign fighters, as well as any measures taken in relation to them, when they have a nexus to an ongoing armed conflict.
Relevant IHL norms on the conduct of hostilities will govern the behaviour of foreign fighters, regardless of their nationality, in both IAC and NIAC. Foreign fighters are thus subject to the same IHL principles and rules that are binding on any other belligerent.
As far as detention is concerned, nationality will have an impact on the status of "protected persons" in IAC but not in NIAC. Under the Third Geneva Convention, nationality is irrelevant for determining whether a person qualifies as a combatant in an IAC, but may be important for determining whether a State will grant prisoner of war (POW) status to its own nationals captured fighting for a foreign army (State practice on this issue differs).
Nationality is a decisive criterion for determining whether a detained person will benefit from "protected person" status under the Fourth Geneva Convention. This treaty, by its express terms (Article 4), does not apply to persons of the nationality of the detaining State or to the nationals of neutral or co-belligerent States, except where there is no "normal" diplomatic representation between such States and the detaining State. In a situation of occupation, the nationals of neutral States, as well as the nationals of co-belligerent States, must be granted protected-person status, unless there is normal diplomatic representation between the co- belligerent State and the occupying power. In any case, if a foreign fighter is not granted POW or protected-person status under the Third or Fourth Geneva Convention, namely for reasons of nationality, he or she will still enjoy the "safety net" protections provided by Article 75 of Additional Protocol I, as a matter of treaty and/or customary law.
Nationality has no bearing on the status of foreign fighters in NIAC (as there is no POW or protected-person status as such in this type of armed conflict) or on the legal protections they will be owed upon capture. Hors de combat foreign fighters will thus be entitled to the guarantees of common Article 3 and of Additional Protocol II, when applicable, as well as to the safeguards of customary law norms.
Finally, foreign fighters are often assimilated to mercenaries. Under IHL, the notion of "mercenary" only exists in IAC and its only consequence is the loss of POW status . This being said, foreign fighters may fulfil "mercenary" definitions contained in national legislations prohibiting mercenarism.
The ICRC's role in relation to foreign fighters is similar to that played with respect to any other persons captured and detained in relation to an armed conflict. If foreign fighters are detained in an IAC and fulfil the conditions for POW or protected-person status under the Third or Fourth Geneva Conventions, the ICRC must be granted access to them. If foreign fighters are detained within the framework of a NIAC, the ICRC can offer its humanitarian services to the detaining party and visit them upon the agreement of the relevant authorities.
Potential criminalization of humanitarian action
The potential criminalization of humanitarian action, as already described in further detail in the 2011 challenges report, remains an issue of concern for the ICRC and is therefore briefly reiterated here. The designation of a non-State armed group party to a NIAC as "terrorist" means that it is likely to be included in lists of proscribed terrorist organizations maintained by the UN, regional organizations and States. This may, in practice, have a chilling effect on the activities of humanitarian and other organizations carrying out assistance, protection and other activities in war zones. It has the potential to criminalize a range of humanitarian actors and their personnel, and may create obstacles to the funding of humanitarian activities. The prohibition of unqualified acts of "material support," "services" and "assistance to" or "association with" terrorist organizations found in certain criminal laws could, in practice, result in the criminalization of the core activities of humanitarian organizations and their personnel that are endeavouring to meet the needs of victims of armed conflicts or situations of violence below the threshold of armed conflict. These activities could include: visits and material assistance to detainees suspected of, or condemned for, being members of a terrorist organization; facilitation of family visits to such detainees; first aid training; war surgery seminars; IHL dissemination to members of armed opposition groups included in terrorist lists; aid to meet the basic needs of the civilian population in areas controlled by armed groups associated with terrorism; and large-scale assistance activities for IDPs, where individuals associated with terrorism may be among the beneficiaries.
The potential criminalization of humanitarian engagement with non-State armed groups designated as "terrorist organizations" may be said to reflect a non-acceptance of the notion of neutral, independent and impartial humanitarian action, an approach which the ICRC strives to promote in its operational work in the field. The ICRC is permitted, and must in practice be free, to offer its services for the benefit of civilians and other persons affected by an armed conflict who find themselves in the power of, or in the area of control of, a non-State party.
In its 2011 report, the ICRC expressed the need for greater awareness by States of the need to harmonize policies and legal obligations in the humanitarian and counterterrorism realms in order to properly achieve the desired aim of both these realms. Its recommendations in this regard remain pertinent today. It therefore reiterates the following points:
- Measures adopted by governments, whether internationally or nationally, aimed at criminally repressing acts of terrorism should be crafted so as to not impede humanitarian action. In particular, legislation creating criminal offences of "material support," "services" and "assistance" to or "association" with persons or entities involved in terrorism should exclude from the ambit of such offences activities that are exclusively humanitarian and impartial in character, and are conducted without adverse distinction.
- In respect of the ICRC in particular, it should be recognized that humanitarian engagement with non-State armed groups party to a NIAC is a task foreseen and expected from the ICRC under common Article 3, which allows the ICRC to offer its services to the parties to NIACs. Criminalization of humanitarian action would thus run counter to the letter and spirit of the 1949 Geneva Conventions. In other words, broad language prohibiting "services" or "support" to terrorism could make it impossible for the ICRC to fulfil its treaty-based (and statutory) mandate in contexts where non-State armed groups party to a NIAC are designated "terrorist organizations."
2. In this context, it should be recalled that the criteria that must be fulfilled for a person to be deemed a mercenary under Additional Protocol I (Article 47) have rarely been proven to be met in practice. It should also be recalled that the scope of application, the definition and the obligations enunciated in the International Convention against the Recruitment, Use, Financing and Training of Mercenaries (adopted 4 December 1989, entered into force 20 October 2001), 2163 UNTS 75, and the Convention on the Elimination of Mercenarism in Africa (adopted 3 July 1977, entered into force 22 April 1985), OAU Doc. CM/433/Rev. L. Annex 1 (1972), are wider for States parties thereto.