Terrorism as a War Crime

© Koninklijke Brill NV, Leiden, 2007 DOI: 10.1163/156753607X181622

International Criminal Law Review 7 (2007) 77–115

InternationalCriminal LawReview

www.brill.nl/icla

Terrorism as a War Crime

Sébastien Jodoin*

Abstract. International humanitarian law (IHL) defines terrorism in a prima facie apoliti-cal manner as acts or threats of violence committed by either States or non-States againstcertain non-combatants with the primary purpose of terrorizing them. It thus leaves somespace for the use of violence by parties to a conflict, all the while holding them to respectcertain fundamental principles. This distinctive brand of moral pragmatism is ideally suitedto meeting the normative and moral challenge of terrorism and could prove useful to inter-national efforts geared toward the suppression of terrorism through its influence over dis-course and through direct prosecutions of the war crime of terrorism. To be effectivethough, certain limitations tied to the use of IHL must be overcome, relating notably to itsscope of application. As the primary purpose of IHL is the limitation of chaos and humansuffering, it has the potential to address the anarchy and anguish caused by terrorism.

Contents

Introduction 78

Part I: Terrorism in International Humanitarian Law 80

1.1. Definition of Terrorism in International Humanitarian Law 80

1.2. Scope of Application of Direct Prohibitions of Terrorism 86

1.3. Treatment of Terrorism under International Humanitarian Law 90

1.4. The Approach of International Humanitarian Law to Terrorism 96

Part II: The Offence of Terrorism 97

2.1. The Offence of Terrorism and Just War 97

2.2. The Offence of Terrorism and the Concept of Innocence 98

* Sébastien Jodoin, B.C.L., LL.B. (McGill), LL.M. (L.S.E.) is currently an Associate Legal Officerat the International Criminal tribunal for Rwanda and a Research Fellow at the Centre for InternationalSustainable Development Law. He previously worked as a legal researcher for the McGill UniversitySpecial Court for Sierra Leone Clinic. The author wishes to thank Prof. René Provost, McGill University,for his comments and support.

ICLA-7_1-03-JODOIN.qxd 5/24/07 3:05 PM Page 77

Part III: Terrorism as a War Crime 100

3.1. World War II Era Prosecutions 100

3.2. Modern International Case-law 102

3.3. Terrorism as a War Crime 106

Conclusion 108

Introduction

Terrorism is a multi-faceted phenomenon which manifests itself in a variety of

ways. Indeed, a multitude of actors–individuals, groups, and States alike–may

commit a variety of acts–murder, destruction of property, kidnapping, etc.–as

part of an intentional strategy of terror-violence in a host of contexts–domestic

and international–and for a slew of purposes–ideological, religious, etc.1 This has

led lawmakers at both the national and international levels to adopt an equally

diverse range of approaches to the problem of terrorism.

Among other approaches, States have conceived of terrorism as constituting an

international crime.2 To begin with, over the course of the twentieth century,

States have sought to establish terrorism as a specific crime under international

law. Ironically, due to their inability to arrive at a universally accepted definition

of terrorism, the attempt by States to treat it in a comprehensive manner has ulti-

mately led them to adopt a thematic, piecemeal approach.3 Instead of creating a

wide-ranging specific crime of terrorism, the international community has

crafted a long string of particular offences. This has been accomplished through

a series of specialized anti-terrorism conventions, each of which addresses specific

instances of terror violence such as offences against civil aviation, hostage taking,

attacks against internationally protected persons, terrorist bombings, the protec-

tion of nuclear materials, etc.4

78 Jodoin / International Criminal Law Review 7 (2007) 77–115

1) Jean-Marc Sorel, “Existe-t-il une definition universelle du terrorisme,” in Karinne Bannelier, ThéodoreChristakis, Olivier Corten, & Berbara Delcourt, ed., Le Droit international face au terrorisme, CahiersInternationaux, no. 17, (Paris : Éditions Pédone, 2002) 35 at 35–40 (tracing back the historical evolutionof terrorism); Kalliopi K. Koufa, Special Rapporteur, Commission on Human Rights, Terrorism and HumanRights, 42, U.N. Doc. E/CN.4/sub.2/2001/31 (June 27, 2001) (listing five types of terrorism: (1) individ-ual or group terrorism, (2) international state terrorism, (3) state regime or government terror, (4) state spon-sored or state supported terrorism, and (5) national liberation struggles for self-determination).

2) Antonio Cassese, International Criminal Law (Oxford: Oxford University Press, 2003) at 120–131;Yoram Dinstein, “Terrorism as an International Crime” (1989) 18 Israel Yearbook on Human Rights 55.

3) M. Cherif Bassiouni, “Legal Control of International Terrorism: A Policy-Oriented Assesment”(2002) 43 Harvard International Law Journal 83 at 91–92.

4) See, e.g., International Convention for the Suppression of Terrorist Bombings, GA Res. 52/164,15 December 1997, (1998) 37 ILM 249; Convention on the Prevention and Punishment of CrimesAgainst Internationally Protected Persons, including Diplomatic Agents, 14 December 1973, 28 1035U.N.T.S. 167; International Convention Against the Taking of Hostages, 17 December 1979, 1316U.N.T.S. 205; Montreal Convention for the Suppression of Unlawful Acts Against the Safety of CivilAviation, 23 September 1971, 974 U.N.T.S. 177; Montreal Protocol for the Suppression of Unlawful Acts


More recently, another way that States have attempted to internationally

criminalize terrorism has been to characterize it as a crime against humanity. For

example, attempts were made at the Rome Conference to expressly include terror-

ism in the list of crimes against humanity, but this proposal was ultimately

rejected.5 However, it seems that this characterization has more often been driven

by politics and the desire to strengthen the condemnation of acts of terrorism

rather than by reference to the specific meaning of crimes against humanity.6

Nonetheless, in certain circumstances, certain acts of terrorism could conceivably

amount to crimes against humanity should they encompass the required constitu-

tive elements of this crime.7

One body of international law which has not received much consideration as

a response to terrorism is international humanitarian law. On the contrary, it has

been perceived as a hindrance to military and law-enforcement operations con-

ducted as part of the US-led “war on terrorism.”8 This is all the more regrettable

since international humanitarian law constitutes an important component of the

international legal order, one which could significantly contribute to interna-

tional efforts directed to combating terrorism. Indeed, international humanitar-

ian law contains numerous fundamental principles as well as precise rules which

directly and indirectly prohibit certain acts of terrorism committed in the con-

text of an armed conflict.

This article provides an overview of the particular approach of international

humanitarian law to terrorism as well as its value and limitations as a response to

this problem. We will limit ourselves to a consideration of the rules and principles

which forbid terrorism in the law of armed conflict and will not address issues

relating to the legal status of terrorists or the legality of operations conducted as

part of the “war on terrorism.” In part I, we will examine the various direct and

Jodoin / International Criminal Law Review 7 (2007) 77–115 79

of Violence at Airports Serving Civil Aviation, 24 February 24 1988, 27 I.L.M. 627; Hague Conventionfor the Suppression of Unlawful Seizure of Aircrafts, 16 December 1970, 860 U.N.T.S. 105; TokyoConvention on Offences and Certain Other Acts Committed on Board Aircraft, 14 September 1963,704 U.N.T.S. 219.

5) Mahnoush H. Arsanjani, “The Rome Statute of the International Criminal Court” (1999)93 American Journal of International Law 22 at 31.

6) Yann Jurovics, “Les Controverses de la question de la qualification du terrorisme: crime de droitcommun, crime de guerre ou crime contre l’humanité?” in supra note 1, 95 at 100–101.

7) See Lucy Martinez, “Prosecuting Terrorists at the International Criminal Court: Possibilities andProblems” (2002) 34 Rutgers Law Journal 1 at 26–41; Roberta Arnold, The ICC as A New InstrumentFor Repressing Terrorism (Ardsley, NY: Transnational Publishers, 2004) at 202–272; Vincent-Joël Proulx,“Rethinking the Jurisdiction of the International Criminal Court in the Post-September 11th Era:Should Acts of Terrorism Qualify as Crimes Against Humanity” (2004) 19 American UniversityInternational Law Review 1009.

8) See, e.g, Gabor Rona, “Interesting Times for International Humanitarian Law: Challenges From theWar on Terror” (2003) 27 Fletcher Forum of World Affairs 55; Luigi Condorelli & Yasmin Navqui, “TheWar Against Terrorism and Jus in Bello: Are the Geneva Conventions Out of Date?” in Andrea Bianchi,ed., Enforcing International Law Norms Against Terrorism (Portland, Or.: Hart Publishing, 2004) 25.


indirect prohibitions of terrorism in international humanitarian law. In this part,

we will argue for the existence of a particular approach to and definition of terror-

ism under the law of armed conflict. In part II, we will discuss the ways in which

the conceptual underpinnings of terrorism and international humanitarian law

conflict. Part III sets out the theory and practice underlying the notion of terror-

ism as a war crime in international law. Finally, we will conclude by examining the

advantages and disadvantages of using the law of armed conflict to address the

problem of terrorism, as compared to other approaches under international law.

PART I: Terrorism in International Humanitarian Law

1.1. Definition of Terrorism in International Humanitarian Law

Neither the Geneva Conventions nor the Additional Protocols explicitly define the

concept of terrorism. It would thus appear that the definitional problem which

plagues the whole of international law also afflicts the law of armed conflict. Indeed,

in an ICRC publication prepared for a 1971 Conference, the notion of terrorism

was held to have “no legal acceptation.”9 Moreover, the American Representative at

the 1974–1977 Geneva Diplomatic conference, in an explanation of his delegation’s

vote on what was to become article 4(2)(d) declared the following: “‘Terrorism’ was

an excessively vague word of which no satisfactory definition existed.”10

That being said, the intentional use of terror violence for strategic purposes has

long been considered by many authors to be prohibited by the customary law of

war.11 In the relevant treaties of international humanitarian law, we find both

direct and indirect prohibitions on the commission of acts of terrorism in an

armed conflict. With respect to the former type of prohibition, depending on the

context, the underlying act which comprises a particular instance of terrorism may

constitute a violation of a general rule of international humanitarian law. To the

extent that acts of terrorism involve violence committed against non-combatants

and their property, they may, for instance, form one of the following six violations

of international humanitarian law:

• an attack on civilians and civilian objects (art. 51(2) and 52, Additional

Protocol I; and art. 13, Additional Protocol II);


9) Report submitted by the ICRC to the Conference of Government Experts on the Reaffirmationand Development of International Humanitarian Law Applicable in Armed Conflicts, Rules Applicablein Guerrilla Warfare held in Geneva from 24 May to 12 June 1971 (Geneva, International Committeeof the Red Cross, 1971) at 35.

10) Official records of the Diplomatic Conference on the Reaffirmation and Development ofInternational Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977), (Bern: FederalPolitical Dept., 1978), Vol. VIII, at 426 [Official Records of the Diplomatic Conference].

11) See Jordan Paust, “Terrorism and the International Law of War” (1974) 64 Military Law Review1 at 11 and sources cited therein.


• an indiscriminate attack (art. 51(4), Additional Protocol I);

• an attack on places of worship (art. 53, Additional Protocol I; and art. 16,

Additional Protocol II);

• an attack on works and installations containing dangerous forces (art. 56,

Additional Protocol I; and art. 15, Additional Protocol II);

• the taking of hostages (art. 75, Additional Protocol I; Common article 3

1(b); and art. 4(2)(b), Additional Protocol II);

• the murder of persons not or no longer taking part in hostilities (art. 75,

Additional Protocol I; Common article 3, 1(a); and art. 4(2)(a), Additional

Protocol II).

Therefore, to the extent that terrorist acts may cause harm to non-combatants or

their property, they will generally be prohibited under international humanitarian

law.12 It should also be noted that, unlike the direct prohibitions on terrorism

below, some of the above violations may comprise grave breaches of the Geneva

Conventions, which are serious violations of the laws of armed conflict entailing

the penal responsibility of individuals and the duty to prosecute or extradite.13

Acts of terrorism committed against combatants are also prohibited if they

involve the use of perfidy, as defined in article 37 of Additional Protocol I: “1. It

is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts invit-

ing the confidence of an adversary to lead him to believe that he is entitled to, or

is obliged to accord, protection under the rules of international law applicable in

armed conflict, with intent to betray that confidence, shall constitute perfidy.

The following acts are examples of perfidy: (a) the feigning of an intent to nego-

tiate under a flag of truce or of a surrender; (b) the feigning of an incapacitation

by wounds or sickness; (c) the feigning of civilian, non-combatant status; and (d)

the feigning of protected status by the use of signs, emblems or uniforms of the

United Nations or of neutral or other States not Parties to the conflict. 2. Ruses

of war are not prohibited. Such ruses are acts which are intended to mislead an

adversary or to induce him to act recklessly but which infringe no rule of inter-

national law applicable in armed conflict and which are not perfidious because

they do not invite the confidence of an adversary with respect to protection

under that law. The following are examples of such ruses: the use of camouflage,

decoys, mock operations and misinformation.”14


12) Hans-Peter Gasser, “Acts of terror, ‘terrorism’ and international humanitarian law” (2002) 847International Review of the Red Cross 547 at 556.

13) Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6U.S.T. 3516, 75 U.N.T.S. 287, art. 147 [hereinafter Fourth Geneva Convention]; Protocol Additionalto the Geneva Convention of 12 August 1949 and Relating to the Protection of Victims of InternalArmed Conflict, June 8, 1977, 1125 U.N.T.S. 3, art. 85 [hereinafter Protocol I].

14) Protocol I, article 37.


In reality, the scope of application of the prohibition on acts of perfidy is

rather limited. To begin with, a combatant is still allowed to use camouflage and

to “make himself virtually invisible against a natural or man-made background”

provided he does not feign civilian status and hide amongst a crowd.15 Further,

it is not at all clear to what extent an act of terrorism does not constitute a legit-

imate ruse of war in so much as it may not in fact “invite the confidence of an

adversary with respect to protection under [international humanitarian] law.”16

As well, the prohibition on perfidy only extends to acts which lead to the inten-

tional wounding, killing or capturing of the enemy and not simply to the

destruction of military objects.17 Finally, article 44 of Additional Protocol I

carves out an exception to this prohibition, as it provides that: “where, owing to

the nature of the hostilities an armed combatant cannot so distinguish himself,

he shall retain his status as a combatant, provided that, in such situations, he car-

ries his arms openly: (a) during each military engagement, and (b) during such

time as he is visible to the adversary while he is engaged in a military deployment

preceding the launching of an attack in which he is to participate.”

This provision was meant to apply mostly to situations of guerrilla warfare in

the context of a belligerent occupation or a war of national liberation.18 As a

result, to the extent that terrorists carry their arms openly during a particular mil-

itary engagement, they will not be held to commit perfidious acts. Again, there

is a fine line between legitimate tactics owing to the nature of hostilities and illicit

acts of terrorism. What is clear though is that international humanitarian law

does not specifically prohibit the commission of acts of terrorism against com-

batants. This is not surprising in the least since the inflection of terror for strate-

gic purposes against military objectives is perhaps the oldest tactic of warfare. In

so much as an act of terrorism seeks to instil fear in the enemy for the purposes

of securing victory in armed engagement, this may in fact cause less suffering than

the actual elimination of enemy forces.

Direct prohibitions on terrorism were included in a number of draft conven-

tions in the interwar period. The first instrument to specifically address the issue

was the Draft Rules of Aerial Warfare,19 prepared in The Hague in 1922, article

22 of which provides that: “Aerial bombardment for the purpose of terrorizing

the civilian population, of destroying or damaging private property not of


15) International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June1977 to the Geneva Conventions of 12 August 1949, Y. Sandoz, C. Swinarksi, B. Zimmerman, eds.,(Geneva: Martinus Nijhoff Publishers, 1987) at 438 [ICRC Commentary on the Additional Protocols].

16) Protocol I, article 37.17) Stefan Oeter, “Methods and Means of Combat” in Dieter Fleck, ed., The Handbook of

Humanitarian Law in Armed Conflicts (Oxford: Oxford University Press, 1999) 105 at 201.18) Knut Ipsen, “Combatants and Non-combatants” in Ibid, 65 at 76.19) “General Report of the Commission of Jurists at The Hague, 1923,” (1923) 17 A.J.I.L. Supp. 242.


military character, or of injuring non-combatants is prohibited”.20 This prohibi-

tion was then included in the 1938 Draft Convention for the Protection of Civilian

Populations against New Engines of War, which provides as follows: “Aerial

bombardment for the purpose of terrorising the civilian population is expressly

prohibited.”21 Neither convention ever entered into force.

In the aftermath the Second World War, many observers recognized the need for

the development of a norm proscribing the use terror-violence directed against civil-

ians as an intentional strategy.22 In 1945, at the London Conference, the British

Delegation proposed incorporating the “systematic atrocities against or systematic

terrorism or ill-treatment or murder of civilians” as a crime under Article 6 of the

IMT Charter.23 However, the final draft of article 6 of the IMT Charter did not

include “terrorism” in its non-exhaustive list of war crimes.24 Eventually, the Fourth

Geneva Convention and the Additional Protocols would include four provisions

which specifically prohibit the use of one form of terrorism in armed conflict.

The first is article 33 of the Fourth Geneva Convention, which states that:

“No protected person may be punished for an offence he or she has not personally

committed. Collective penalties and likewise all measures of intimidation or of

terrorism are prohibited. Reprisals against protected persons and their property are

prohibited.”25 Secondly, article 51(2) of Additional Protocol I proscribes acts of

terrorism in the following terms: “The civilian population as such, as well as indi-

vidual civilians, shall not be the object of attack. Acts or threats of violence the pri-

mary purpose of which is to spread terror among the civilians population are

prohibited.”26 Finally, Additional Protocol II27 contains two articles which forbid acts

of terrorism: article 4, which includes acts of terrorism in its list of prohibited acts,

and article 13(2) which is a verbatim reproduction of article 51(2) of Protocol I.

These last four provisions will remain the focus of our enquiry for the remain-

der of this article. Unlike the other provisions mentioned above, they were specif-

ically enacted to address terrorism and as such arguably illustrate the law of


20) Rules Relating to Aerial Warfare and Rules Concerning the Use of Radio in Time of War, in JamesMolony Spaight, Air power and war rights, 3rd ed., (New York, Longmans, Green, 1947), annex.

21) International Law Association, Amsterdam, Draft Convention for the Protection of CivilianPopulations Against New Engines of War (1938), in Dietrich Schindler & Jiri Toman, The laws of armedconflicts : a collection of conventions, resolutions and other documents (The Hague: Martinus NijhoffPublishers, 1988) 223.

22) Paust, supra note 11 at 14.23) Robert H. Jackson, Report of Robert H. Jackson, United States Representative to the International

Conference on Military Trials, London, 1945 (Washington D.C.: US Government Printing Office,1949) at 312.

24) Ibid., at 390.25) Fourth Geneva Convention, art. 33 [emphasis added].26) Protocol I, art. 51(2) [emphasis added].27) Protocol Additional to the Geneva Convention of 12 August 1949 and Relating to the Protection of

Victims of Non-International Armed Conflict, June 8, 1977, 1125 U.N.T.S. 609 [hereinafter Protocol II].


armed conflict’s particular approach to this phenomenon. It should be noted that

the prohibition on acts of terrorism were also included in two soft law instru-

ments in the post-war period: the 1956 New Delhi Draft Rules28 and the 1990

Turku Declaration of Minimum Humanitarian Standards.29

We would argue that article 51 of Additional Protocol I and article 13 of

Additional Protocol II implicitly propose a definition of terrorism, acts or threats

of violence the primary purpose of which is to spread terror among the civilian

population, and that this definition is not at odds with and may also be used to

interpret the two other provisions directly prohibiting the use of terrorism.

With respect to article 4(2)(d) of Additional Protocol II, we will first make use

of the approach prescribed by article 31 of the Vienna Convention on the Law

of Treaties.30 Under its ordinary meaning, terrorism is defined as “[t]he unlawful

use or threatened use of force or violence by a person or an organized group

against people or property with the intention of intimidating or coercing soci-

eties or governments, often for ideological or political reasons.”31 This accords

substantially with the definition advanced above.

Under the supplementary means described in article 32 of the Vienna

Convention,32 one may also conclude that the above definition applies in this

instance as well. Indeed, the initial draft of what was to become article 4(2)(d)

referred to “acts of terrorism in the form of acts of violence”; this was later short-

ened by an amendment proposed by the Netherlands and adopted by Working

Group B, 26 votes to 17, with 19 abstentions.33 The explanations of both Spain

and the United States concerning their positions on the matter respectively reveal


28) Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time ofWar, ICRC, 1956, online: http://www.icrc.org/ihl.nsf/FULL/420?OpenDocument, article 6: “Attacksdirected against the civilian population, as such, whether with the object of terrorizing it or for any otherreason, are prohibited.”

29) Declaration of Minimum Humanitarian Standards, reprinted in Report of the Sub-commissionon Prevention of Discrimination and Protection of Minorities on its Forty-sixth Session, Commissionon Human Rights, 51st Sess., Provisional Agenda Item 19, at 4, U.N. Doc. E/CN.4/1995/116 (1995),article 6: “Acts of threats of violence the primary purpose or foreseeable effect of which is to spread ter-ror among the population are prohibited.”

30) Article 31(1): “A treaty shall be interpreted in good faith in accordance with the ordinary mean-ing to be given to the terms of the treaty in their context and in the light of its object and purpose.”(Vienna Convention on the Law of Treaties, 22 May 1969, 1155 U.N.T.S. 331 [Vienna Convention].)

31) The American Heritage Dictionary of the English Language, 4th ed., (Boston: Houghton MifflinCompany, 2000).

32) Article 32: “Recourse may be had to supplementary means of interpretation, including thepreparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaningresulting from the application of article 31, or to determine the meaning when the interpretation accord-ing to article 31:

(a) leaves the meaning ambiguous or obscure; [. . .]” (Vienna Convention).33) Official Records of the Diplomatic Conference, supra note 10, Vol. VIII, at 412.


that acts of violence are implicit in the meaning of the term “acts of terrorism”34

and that the amendment proposed by the Netherlands was not trying to modify

the meaning of terrorism, but to simplify it.35 As such, the most direct indication

available on the meaning of acts of terrorism in article 4(2)(d) is that these con-

stitute acts of violence. What is more, although article 4(2)(d) is said to be based

on article 33 of the Fourth Geneva Convention,36 it would appear reasonable to

infer that it refers to the meaning of terrorism found in article 13(2). While arti-

cle 4(2)(d) prohibits “acts of terrorism” generally and with respect to non-com-

batants, article 13(2) relates to a specific form of terrorism. As stated by the

ICRC Commentary, “acts or threats of violence which are aimed at terrorizing the

civilian population constitute a special type of terrorism and are the object of a

specific prohibition in Article 13.”37 A contrario, it would seem that acts of ter-

rorism in article 4(2)(d) may be defined as acts of violence the primary purpose

of which is to spread terror among non-combatants. In addition, since article

4(2)(h) prohibits threats to commit any of the acts listed in article 4(2), threats

of violence which are aimed at terrorizing non-combatants are also be prohibited.

This definition of terrorism also arguably applies to article 33 of the Fourth

Geneva Convention, notwithstanding this article’s distinctive legislative context.

Indeed, under a Vienna Convention article 31 interpretation, the term “measures

of terrorism” employed alongside collective punishments and reprisals does not

lend itself to a very different meaning than the use of violence for the purposes

of spreading terror.

In conclusion, international humanitarian law would appear to include the

following definition of terrorism: acts or threats of violence committed against

certain persons and their property with the primary purpose of spreading terror

among these persons. Of course, this definition is extracted from its scope of

application as defined in section 1.2. In effect though, the above definition

arguably describes the core of what is understood as terrorism within the law of

armed conflict.

This definition is rather non-technical and accords with one of the ordinary

meanings of terrorism. It is therefore quite flexible and rather wide in scope–the

term is employed here in its broadest sense, acts of violence intended to terrorize

others. Unlike most definitions advanced under international law, terrorism so

defined therefore applies to a variety of acts committed by both State and non-

state actors. Moreover, this definition is relatively apolitical and objective. In

keeping with one of the fundamental tenets of the law of armed conflict, this


34) Ibid. at 425.35) Ibid. at 426.36) ICRC Commentary on the Additional Protocols, supra note 15 at 1375.37) Ibid.


definition does not inquire into the motivations of the individual or organization

committing an act of terrorism. In this sense, this definition is neutral and descrip-

tive; it neither condemns nor condones acts of terrorism a priori. The definitional

focus here is the tactic involved, violence intended to spread terror, not the reasons

underlying this violence, nor the actors making use of this violence. For these rea-

sons, this definition may be said to be “tactical” unlike most of the definitions

advanced in international law which are usually of the “political status” variety.38

1.2. Scope of Application of Direct Prohibitions of Terrorism

It is necessary, at this point, to briefly discuss the general scope of application of

the four provisions mentioned above. We will exclude considerations relating to

the category of the victim, which varies according to each provision and will be

discussed in section 1.3.

In Prosecutor v. Galic, the ICTY Trial Chamber held that the prohibitions on

acts or threats of terror enshrined in article 51(2) of AP I and 13(2) of AP II con-

stitute “a specific prohibition within the general (customary) prohibition of

attack on civilians,” however it reserved judgment as to whether article 51(2) was

customary as it found it had jurisdiction over the offence for other reasons.39

In its judgment in the same case, the Appeals Chamber found that the

prohibition against acts of terror included in these two articles formed part of

customary international law from the moment of their adoption. It supported

this conclusion by referring to the circumstances of their inclusion within the

additional protocols,40 the way in which these articles affirm long-standing prin-

ciples of international humanitarian law, such as the principles of distinction and

protection and the prohibition of attacks against civilian populations,41 previous

prohibitions on terrorism in international law,42 and elements of state practice,

most notably official pronouncements and the prohibition of terrorism as a

method of warfare in military manuals.43 The Appeals Chamber further held,

Judge Schomburg dissenting,44 that a breach of these provisions gives rise to


38) C.A.J. Coady, “Terrorism and Innocence” (2004) 8 Journal of Ethics 37 at 40.39) Prosecutor v. Galic, Case No. IT-98-29-T, Trial Chamber, Judgment, 5 December 2003, at para. 97.40) The Appeals Chamber noted that article 51 of AP I was adopted with 77 votes in favour, one vote

against and 16 abstentions while Article 13 of AP II was adopted by consensus. The Appeals Chamberfurther remarked that the states which voted against or abstained did not “express any concern as to thecontent of the prohibition in article 51(2).” (Prosecutor v. Galic, Case No. IT-98-29-T, Appeals Chamber,Judgment, 30 November 2006, at para. 87).

41) Ibid.42) Ibid. at para. 88. These are discussed above in section 1.1.43) Ibid. at para. 89.44) Judge Schomburg concluded that there is not enough state practice or opinio juris to substanti-

ate the claim that these prohibitions were penalized under customary international law (Prosecutor v.Galic, Case No. IT-98-29-T, Appeals Chamber, Separate and partially dissenting opinion of JudgeSchomburg, 30 November 2006, at paras. 4–22).


individual criminal responsibility under customary international law. In support

of its holding, it referred to judicial precedents in international criminal law (dis-

cussed in part III) as well as the criminalisation of terror against the civilian pop-

ulation as a method of warfare in a number of domestic legal systems, most

notably in the former Yugoslavia.45 In a separate opinion, Judge Meron held that

criminalization also followed from the prohibition of declarations that no quar-

ter will be given found in the Fourth Hague Convention.46 A number of other

authorities also support the argument that these provisions have crystallized into

customary law.47 Whether one agrees with the reasoning adopted by the major-

ity in the Appeals Chamber judgment, the fact remains that the Galic case itself

constitutes an important element of practice to be considered in examining

whether acts of terror are penalized under customary international law.

If these provisions are part of customary international law, then this signifi-

cantly widens their potential application to many recent acts of terrorism, most

notably those which have been committed against the United States, Pakistan,

Israel and Iraq, none of whom are signatories to the First and Second Additional

Protocols.48 However, whether or not these prohibitions are customary in nature,

their application remains tied to their original conventional scope of application.

In this regard, we will consider two main conditions relating to the nature of the

armed conflict and the status of the parties involved, with respect to the Fourth

Geneva Convention and Additional Protocol I49 and then with respect to

Additional Protocol II.

In terms of the first condition, the Fourth Geneva Convention and Protocol

I apply in one of three situations. The first is an international armed conflict, the

definition of which is found in Common article 2 to the four Geneva Conventions:

“[. . .] the present Convention shall apply to all cases of declared war or of any other

armed conflict which may arise between two or more of the High Contracting

Parties, even if the state of war is not recognized by one of them. The Convention

shall also apply to all cases of partial or total occupation of the territory of a High


45) Galic, Appeals Chamber, supra note 40 at paras. 93–97.46) Prosecutor v. Galic, Case No. IT-98-29-T, Appeals Chamber, Separate and partially dissenting

opinion of Judge Meron, 30 November 2006, at para. 2 (referring to article 23 of the Fourth GenevaConvention).

47) See Jean-Marie Henckaerts & Louise Doswald-Beck, eds., Customary International HumanitarianLaw (Cambridge: Cambridge University Press, 2005), vol.1, part 1, chap. 1, rule 2 (arguing that Protocol I,article 51(2) and Protocol II, article 13(2) have achieved customary status); Ruling No. C-225/95,Constitional Court of Columbia, 1995 in Marco Sassòli & Antoine A. Bouvier, eds., How Does Law Protectin War? (Geneva: ICRC, 1999) 1357 at 1366 (ruling that article 13 of Protocol II has customary status).

48) ICRC, States party to the Main Treaties, online: ICRC, <http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/party_main_treaties/$File/IHL_and_other_related_Treaties.pdf>.

49) Article 1(3) provides that the Protocol has the same scope of application as the GenevaConventions.


Contracting Party, even if the said occupation meets with no armed resistance.”

A traditional international armed conflict is one in which two or more states are par-

ties to the conflict. The legal determination of the existence of such a conflict does

not depend on a formal declaration of war or upon its recognition as a war by the

parties to the conflict.50 The ICRC Commentary advances a broad notion of what

constitutes an armed conflict: “Any difference arising between two States and lead-

ing to the intervention of members of the armed forces.”51

These two treaties also apply to situations of partial or total occupation of

territory, which would involve a belligerent exercising “some measure of effective

control over a certain territory, rather than a mere proclamation of occupation

by the belligerent in regard to that territory.”52

Additional Protocol I extends its application as well as that of the Geneva

conventions to a third type of situation, a war of national liberation.53 This type

of conflict is defined in article 1(4) of Protocol I: “armed conflicts in which peo-

ples are fighting against colonial domination and alien occupation and against

racist régimes in the exercise of their right of self-determination.” The applica-

tion of this article remains controversial since the definition of a people and the

circumstances under which it may exercise its right to self-determination remain

far from settled in international law.54

In terms of the second condition, these two treaties will normally apply to the

armed forces belonging to States which have ratified them. Under Common

article 2, paragraph 3,55 a non-party may also be bound by and receive the benefits

of the Fourth Geneva Convention and Additional Protocol I provided that it

makes a declaration by which it accepts their application and abides by their

provisions.56 However, as Baxter points out, it is not clear “how much application

of the Conventions is sufficient to satisfy the requirements of article 2 or the extent

of deviation from their terms which will render the Conventions inapplicable.”57


50) Christopher Greenwood, “Scope of Application of Humanitarian Law” in Fleck, supra note 17, 39at 41.

51) Jean Pictet, Commentary of the First Geneva Convention for the Amelioration of the Conditionof the Wounded and Sick in Armed Forces in the Field (Geneva: International Committee of the RedCross, 1952) at 32.

52) Christa Meindersma, “Applicability of Humanitarian Law in International and Internal ArmedConflict” (1994) 7 Hague Yearbook of International Law 113 at 117.

53) Richard R. Baxter, “The Duties of Combatants and the Conduct of Hostilities” in InternationalDimensions of Humanitarian Law (Dordrecht: Martinus Nijhoff Publishers, 1988) 93 at 100.

54) Meindersma, supra note 52 at 122.55) “Although one of the Powers in conflict may not be a party to the present Convention, the Powers

who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be boundby the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.”

56) ICRC Commentary on the Additional Protocols, supra note 15 at 34–37.57) Baxter, supra note 53 at 101.


As a result, article 33 of the Fourth Geneva Convention and article 51(2) of

Protocol I are more likely to be applicable to acts of terrorism committed by the

armed forces of States than by non-state actors. For the actions of a non-state

terrorist group to fall within the ambit of the these two treaties, this group would

have to represent a peoples fighting, in the exercise of their right to self-determi-

nation, against colonial domination, alien occupation or a racist regime, accept

to be bound by these two treaties and abide by its provisions to some extent.

The first condition for the application of Protocol II is the existence of an

armed conflict not covered by Protocol I and taking place “in the territory of a

High Contracting Party between its armed forces and dissident armed forces or

other organized armed groups.”58 Article 1(2) further sets out another limit to

Protocol II’s scope of application: “This Protocol shall not apply to situations of

internal disturbances and tensions, such as riots, isolated and sporadic acts of vio-

lence and other acts of a similar nature, as not being armed conflicts.”

The second condition requires these dissident armed forces or organized

armed groups to have the following four characteristics: (1) to be under respon-

sible command and (2) to exercise control over a part of a territory of the oppos-

ing State so as to enable them to (3) carry out sustained and concerted military

operations and (4) to implement this Protocol.59 In other words, for a terrorist

group to qualify as an organized armed group, it would have to: (1) constitute

“an organization capable, on the one hand, of planning and carrying out sus-

tained and concerted military operations, and on the other, of imposing disci-

pline in the name of a de facto authority;”60 (2) claim somewhat stable control

of territory escaping the rule of government armed forces;61 (3) carry out mili-

tary operations in a continuous manner;62 and (4) have the minimum infrastruc-

ture required to be in a position to implement the provisions of the Protocol.63

Evidently, Protocol II is more likely to apply to the actions of non-state terror-

ist groups than the Geneva Conventions and Protocol I. In this regard, in light

of the organized nature of some of these groups, it would seem that the most sig-

nificant obstacle would be the requirement of stable control of territory.

In sum, the scope of application of these four provisions remains rather narrow.

While they will most assuredly apply to the use of terror by States in an armed

conflict, their application to non-state terrorist groups is very tenuous. In a way,

this state of affairs operates to establish another more general indirect prohibition

on terrorism in so much as it may deny a terrorist the status of combatant and its


58) Protocol II, article 1(1).59) Ibid.60) ICRC Commentary on the Additional Protocols, supra note 15 at 1352.61) Ibid. at 1353.62) Ibid.63) Ibid.


accompanying rights and privileges in the context of armed conflict. Indeed, only

those persons defined as combatants, have the right to participate directly in hos-

tilities.64 To the extent that terrorists do not belong to a people involved in a war

of national liberation within the meaning of Protocol I or do not form part of an

organized armed group under Protocol II, they will constitute unlawful combat-

ants. As such, they will face penal consequences under municipal law if they take

a direct part in the hostilities and will lose their claim to prisoner-of-war status,

although they will retain certain fundamental protections in case of capture.65

We will return to the issue of the field of application of the direct prohibitions

in our conclusion. For the remainder of part I, we will focus upon the particular

approach of international humanitarian law to the phenomenon of terrorism with-

out consideration of its general field of application.

1.3. Treatment of Terrorism under International Humanitarian Law

The context underlying the four direct prohibitions of terrorism provides much

insight into the treatment of this phenomenon in international humanitarian

law. In this regard, the prohibition on terrorism contained in the Fourth Geneva

Convention should be distinguished from the other three prohibitions. In the

former, “measures of terrorism” are prohibited alongside collective penalties and

reprisals as contrary to the laws of war in part III, which relates to the status and

treatment of protected persons. The ICRC Commentary explains the rationale

behind the inclusion of this prohibition in the Convention: “During past con-

flicts, the infliction of collective penalties has been intended to forestall breaches

of the law rather than to repress them; in resorting to intimidatory measures to

terrorize the population, the belligerents hoped to prevent hostile acts. (. . .)

They are opposed to all principles based on humanity and justice and it is for

that reason that the prohibition of collective penalties is followed formally by the

prohibition of all measures of intimidation or terrorism with regard to protected

persons, wherever they may be.”66

As such, the form of terrorism prohibited in article 33 is fairly narrow. It seeks

to shield protected persons from unlawful acts of violence, such as collective penal-

ties and terrorism, often times used to subdue the civilian population and to deter

it from committing acts of resistance. As Gasser points out, the impact of this pro-

vision is that “authorities or armed forces must adopt other measures, in conform-

ity with human dignity and the rule of law, to ensure public security.”67 It would


64) Ipsen, supra note 18 at 66–67.65) Ibid. at 68.66) International Committee of the Red Cross, Commentary on the Fourth Geneva Convention

Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, Jean Pictet, ed., (Geneva:Martinus Nijhoff Publishers, 1958) at 225–226 [ICRC Commentary on the Fourth Convention].

67) Hans-Peter Gasser, “Protection of the Civilian Population” in Fleck, supra note 17, 209 at 219.


seem therefore that article 33 is mainly concerned with the illicit use of terror in

the context of the maintenance of public order in an occupied territory, as con-

travening fundamental principles of justice. Indeed, Article 33 is derived from

Article 50 of the 1907 Hague Regulations,68 which provides that “[n]o general

penalty, pecuniary or otherwise, shall be inflicted upon the population on

account of the acts of individuals for which they can not be regarded as jointly

and severally responsible”.69 Moreover, as pointed out by Kalshoven, the provision

“derives its main importance from the effect it has on occupation law, in which

it resolutely removes all doubt as to the illegality of practices such as those

applied widely in occupied territories during World War II.”70

Conversely, the theoretical underpinnings and scope of application of the other

direct prohibitions are much more extensive. Additional Protocol I includes its

prohibition upon acts of terror in article 51, which relates to the protection of the

civilian population against the effects of hostilities. The treatment of terrorism in

the context of this article evinces its importance in the law of armed conflict since

article 51 is one of the most important articles in Protocol I.71 More importantly,

Additional Protocol I extends the scope of the prohibition of acts of terrorism in

two respects: first, acts of terrorism committed against civilian populations are

forbidden as such;72 second, terrorism involves not only acts of violence intended

to spread terror, but also threats of violence committed for the same purpose.73

The treatment of terrorism in this context is underpinned by a key concept of

international humanitarian law, to which we will return shortly, the principle of

distinction between military objectives and civilian objectives.74 In this instance,

terrorism is prohibited to the extent that it targets or affects the civilian population.

Moreover, by prohibiting only those acts “the primary purpose of which is to

spread terror among the civilian population”, Additional Protocol I does not for-

bid the incidental causation of terror among civilians. The ICRC Commentary

supports this view: “In the second sentence the Conference wished to indicate that

the prohibition covers acts intended to spread terror; there is no doubt that acts of


68) Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulationsconcerning the Laws and Customs of War on Land. The Hague, 18 October 1907 in James Brown Scott,ed., The Hague conventions and declarations of 1899 and 1907, accompanied by tables of signatures,ratifications and adhesions of the various powers, and texts of reservations (New York: Oxford UniversityPress American Branch, 1915).

69) ICRC Commentary on the Fourth Convention, supra note 57 at 225.70) Frits Kalshoven, “ ‘Guerrilla’ and ‘Terrorism’ in Internal Armed Conflict” (1983) 33 American

University Law Review 67 at 74.71) ICRC Commentary on the Additional Protocols, supra note 15 at 615.72) Protocol I, art. 51(2); Protocol II, art. 4 & 13(2).73) The ICRC Commentary highlights this fact: “It is interesting to note that threats of such acts are

also prohibited. This calls to mind some of the proclamations made in the past threatening the annihi-lation of civilian populations.” (ICRC Commentary on the Additional Protocols, supra note 15 at 618.)

74) Oeter, supra note 17 at 169.


violence related to a state of war almost always give rise to some degree of terror

among the population and sometimes also among the armed forces. It also

happens that attacks on armed forces are purposely conducted brutally in order

to intimidate the enemy soldiers and persuade them to surrender. This is not the

sort of terror envisaged here. This provision is intended to prohibit acts of violence

the primary purpose of which is to spread terror among the civilian population

without offering substantial military advantage.”75

Therefore, an act of violence committed against a legitimate military target which

incidentally causes terror among the civilian population is not prohibited under the

law of armed conflict. The legislative history of the provision clearly bears this out.

At the Diplomatic conference, during the first session, several delegations proposed

amendments to what would become article 51(2) that would effectively prohibit any

acts capable of spreading terror among the civilian population.76 However, by the

second session, a consensus had emerged that the provision should only be directed

towards the intentional spreading of terror. This is confirmed most clearly in the

comments issued by the French delegation (“In traditional wars attacks could not fail

to spread terror among the civilian population. What should be prohibited in para-

graph 1 is the intention to do so.”)77 as well as those made by Iran (“Although objec-

tions had been raised to the phrase methods ‘intended to spread terror’ in paragraph

1, methods of war undoubtedly did spread terror among the civilian population, and

those used exclusively or mainly for that purpose should be prohibited.”)78 As such,

the only change which occurred was that “intended to” was changed to “the primary

purpose of which.” The end-result was summed up by the Diplomatic Conference

draft committee in this way: “The prohibition of ‘acts or threats of violence which

have the primary object of spreading terror’ is directed to intentional conduct specif-

ically directed toward the spreading of terror and excludes terror which was not

intended by a belligerent and terror that is merely an incidental effect of acts of war-

fare which have another primary object and are in all other respects lawful.”79

Additional Protocol II further extends the scope of the prohibition so that it

applies to internal armed conflicts.80 What is more, through the proscription

included in article 4, it now bans acts of terrorism committed against non-

combatants, namely “persons who do not take a direct part or who have ceased

to take part in hostilities as well.”81 Additional Protocol II also evinces the


75) Ibid.76) Official records of the Diplomatic Conference, supra note 10, vol. III, at 205; Ibid., vol. XIV, at

53; Ibid., vol. XIV, at 54; Ibid., vol. XIV, at 55; Ibid, vol. XIV, at 73.77) Ibid., vol. XIV, at 65.78) Ibid., vol. XIV, at 64.79) Ibid., vol. XV, at 274.80) Protocol II, art. 1.81) Protocol II, art. 4.


importance of the ban on terrorism within international humanitarian law.

Similarly to Additional Protocol I, acts of terrorism are explicitly proscribed in

the context of the article relating to the protection of the civilian population,

article 13. Moreover, Additional Protocol II includes the prohibition on acts of

terrorism within its own version of Common article 3, article 4–a central provi-

sion which relates to fundamental guarantees which must be respected by all

parties to a conflict at all times in all places.

Another issue which requires consideration is the personal scope of application

of these provisions. First of all, article 33 of the Fourth Geneva Convention cov-

ers protected persons, namely individuals in the hands of a party to the conflict

of which they are not nationals.82

Second of all, on their face, article 51(2) of Protocol I and article 13(2) of

Protocol II protect the civilian population as such, made up of all those persons

who are not members of the armed forces.83 However, the targets of the acts of

violence referred to in article 51(2) of Protocol I and article 13(2) of Protocol II

are not specified in the provisions and require further interpretation. In this

regard, the fact that the prohibitions on acts of terrorism included in these two

articles follow the proscription of attacks against the civilian population leads us

to believe that the acts of terrorism in question encompass only those acts of vio-

lence which are committed against civilians. The ICRC Commentary supports

this view: with regard to the later article, it is said that “the Conference wished

to indicate that the prohibition [on attacks against the civilian population] cov-

ers acts intended to spread terror”;84 with regard to the former, it is indicated that

“[a]ttacks aimed at terrorizing are just one type of attack [committed against the

civilian population]”.85 This is also apparent from the statement of various dele-

gations during the Diplomatic conference, most notably those of Indonesia

(“attack on the civilian population and the spreading of terror should be given

almost the same emphasis”)86 and Ukraine: “Article 46 [now article 51] widens

the scope of protection for the civilian population and individual civilians, who

under no circumstances shall be the object of attack. In particular, paragraph 2

explicitly prohibits acts or threats of violence the primary purpose of which is to

spread terror among the civilian population; this is in line with the generally rec-

ognized rules of international law, which lay down that Parties to the conflict

shall not make the civilian population an object of attack.”87


82) Ibid., art. 4.83) Protocol I, art. 50.84) ICRC Commentary on the Additional Protocols, supra note 15 at 618.85) Ibid. at 1453.86) Official Records of the Diplomatic Conference, supra note 10, vol. XIV, at 55.87) Ibid., vol. VI, at 201.


This position also accords with the Diplomatic Conference draft committee’s

view that article 51(2) does not extend to “incidental effect of acts of warfare

which have another primary object and are in all other respects lawful.”88 At any

rate, it is unlikely that an otherwise lawful military attack could constitute an act

of terrorism. Indeed, according article 51 of Protocol I, a lawful act of warfare will

normally be an attack against a military objective, either combatants or “objects

which by their nature, location, purpose or use make an effective contribution to

military action and whose total or partial destruction, capture or neutralization,

in the circumstances ruling at the time, offers a definite military advantage,” pro-

vided that this attack does not incidentally result in loss of human life among the

civilian population, injuries to civilians, and damage to civilian objects which

would be excessive in relation to the expected direct and specific military advan-

tage. By definition, it would seem that a lawful attack would exclude an attack the

primary purpose of which is to spread terror among the civilian population

because such an attack would in effect not be undertaken in relation to a legiti-

mate military advantage. This is also the position taken by Kalshoven: “[. . .]

attacks [on military objectives] will normally be regarded as having served first and

foremost, if not exclusively the definite military purpose of gaining a distinct mil-

itary advantage. In this respect, they are the exact opposite of attacks on the civil-

ian population. While the latter may in fact have been conceived by their

perpetrators as serving a military purpose, they will normally be regarded as pri-

marily designed to spread terror among the civilian population.”89

On the other hand, the prohibition would likely apply to an unlawful attack

directed towards a military objective, i.e. an attack which indiscriminately, dispro-

portionably or intentionally harmed civilians, committed with the primary

purpose of spreading terror. In such a case, the terror inflicted on civilians would

therefore not be incidental in nature since it would, by implication, constitute the

primary purpose of the attack. Civilians could in fact be said to be the object of

such an attack, both in terms of its actual effects (civilian death and injury) as well

as its purpose (spreading terror in the civilian population). In Galic, for instance, a

protracted campaign of sniping and shelling undertaken indiscriminately was

implied to have been carried out with the primary purpose of spreading terror

among the civilian population. In reaching this conclusion, the ICTY Trial

Chamber relied mostly on the testimony of experts and observers who concluded

that the attacks launched into the city could not have been made in relation to

military objectives.90 The Appeals Chamber in Galic specifically held that the crime

of terror included “indiscriminate or disportionate attacks or threats thereof.”91


88) Ibid., vol. XV, at 274.89) Kalshoven, supra note 70 at 78–79.90) Galic, Trial Chamber, supra note 39 at paras. 564–577.91) Galic, Appeals Chamber, supra note 40 at para. 102.


For the foregoing reasons, a lawful attack on a legitimate military target would

not likely constitute an act of terrorism and therefore, under article 51(2) of

Protocol I and article 13(2) of Protocol II, unlawful acts of terrorism involve acts

or threats of violence directed against the civilian population. This is the position

taken by a variety of authorities,92 most notably the ICTY Trial Chamber in Galic.93

There is one apparent difficulty with this stance though: it essentially means that

the prohibition of terrorism covers acts which are already illegal under the law of

armed conflict, namely acts of violence directed against civilians. However, this is

not actually the case since the prohibition extends to threats of violence as well as

acts of violence. In any case, the purpose of spreading terror may be seen as a more

precise violation of the laws of war amounting to “a sort of aggravating circum-

stance”94 or constituting the mens rea of a “specific-intent crime.”95

Finally, as for article 4(2)(d) of Additional Protocol II, its scope of application

is more expansive. On its face, it protects non-combatants, namely “all persons

who do not take a direct part or who have ceased to take part in hostilities.”96

However, while the preliminary ICRC draft prohibited “acts of terrorism in the

form of acts of violence committed against those persons”, namely against non-

combatants, the term adopted, “acts of terrorism”, is broader and therefore

extends the scope of the prohibition. As a result, “the prohibition of acts of ter-

rorism, with no further detail, covers not only acts directed against people, but

also acts directed against installations which would cause victims terror as a side-

effect”.97 Therefore, under article 4(2)(d), “acts of terrorism” constitute acts of

violence committed against non-combatants and their property.

In conclusion, the prohibition of terrorism in international humanitarian law

therefore appears to form part of both “Hague Law” and “Geneva law” under

Gasser’s understanding of these terms. With respect to the former, articles 51 of

Protocol I and article 13 of Protocol II provide for the “protection of the civilian

population against the effects of military operations and individual acts of hostil-

ity.”98 With respect to the latter, article 33 of the Fourth Geneva Convention and

article 4(2)(d) of Protocol II relate to “the protection of the civilian population or

individual persons under the control of the adversary against violent or arbitrary

acts.”99 Under the more conventional distinction established between these two con-

cepts, the prohibition on acts of terrorism would be classified as relating mostly to

“Geneva law” since it focuses more on the protections afforded to non-combatants


92) Kalshoven, supra note 70 at 81; Oeter, supra note 17 at 169.93) Galic, Trial Chamber, supra note 39 at para. 135.94) Kalshoven, supra note 70 at 80.95) Galic, Trial Chamber, supra note 39 at para. at 136.96) Protocol II, art. 4(1).97) ICRC Commentary on the Additional Protocols, supra note 15 at 1375.98) Gasser, supra note 67 at 209.99) Ibid.


in the context of an armed conflict than on the licit or illicit use of terror-violence

as means or method of warfare.100 In any case, this distinction is not so clearly

established in the Additional Protocols–certainly article 51 of Protocol I and article

13 of Protocol II could be conceived as relating to both of these divisions of inter-

national humanitarian law.

1.4. The Approach of International Humanitarian Law to Terrorism

The law of armed conflict does not prohibit terrorism in all circumstances and

therefore as an illicit tactic as such, but only when committed against certain per-

sons. A comparison of the prohibitions on terrorism and the above extrapolated

definition reveals that the law of armed conflict leaves room for both lawful and

unlawful acts of terrorism. The first is composed of acts of terrorism committed

against combatants–while this form of terrorism may constitute a violation of

other rules of international humanitarian law, such as perfidy, it is not necessarily

illicit. The second is composed of acts of terrorism committed against civilians or

non-combatants: this form of terrorism is always illicit in the context of an armed

conflict and may be termed the offence of terrorism in the law of armed conflict.

This second form of terrorism goes against the very notion of limited warfare

at the heart of international humanitarian law–the use of force limited to what

is absolutely necessary in order to achieve military objectives–and as such runs

afoul of many of this body of law’s fundamental principles.101 First of all, acts of

terrorism targeting civilians contravene the principle of distinction between com-

batants and non-combatants. This is the impetus behind the various prohibitions

on acts of terrorism in international humanitarian law, which as seen above, do

not protect combatants from the intentional use of terror-violence.

Second of all, this form of terrorism often constitutes an indiscriminate attack,

in the sense that it does not “at all times distinguish between the civilian popu-

lation and combatants and civilian objects and military objectives.”102 Frequently,

an unlawful act of terrorism will in fact have no specific targets beyond the indi-

viduals who happen to find themselves in the hotel, airplane or street that is the

object of the attack. As a result, this form of terrorism habitually causes harm to

innocents in the most palpable sense of the word. This is especially recognized

by article 33 of the Fourth Geneva Convention, in which it is prohibited, along

with collective punishments and reprisals, as being “opposed to all principles

based on humanity and justice.”103


100) Hilaire McCoubrey, International Humanitarian Law: Modern Developments in the Limitationof Warfare, 2nd ed., (Brookfield, Vt.: Ashgate Press, 1998) at 2.

101) Oeter, supra note 17 at 401–406.102) Protocol I, Art. 48.103) ICRC Commentary on the Fourth Geneva Convention, supra note 57 at 226.


In the end, the distinction between these two forms of terrorism is what must

be held to distinguish the approach of the law of armed conflict to the problem

of terrorism. In light of the purposes of international humanitarian law, it is not

surprising to conclude that the focus here, in terms of defining the offence of

terrorism, is the category of the victim, not the actor or the motives underlying

his actions. To be sure, the framework set up by these provisions concerning the

use of terrorism illustrates a tension which animates the whole of international

humanitarian law. While international humanitarian law includes a rather

absolute prohibition on the intentional use of terror-tactics against civilians or

non-combatants, it does not proscribe its use against combatants, nor does it f-

orbid the incidental causation of terror among the civilian population. As a

result, the prohibitions on terrorism fall within the classical understanding of the

main purpose of international humanitarian law: the mitigation of the suffering

caused by the conduct of armed conflict without eliminating the abilities of the

parties to secure victory in this conflict.104

Part II: The Offence of Terrorism

In the preceding part, we demonstrated how the offence of terrorism contravenes

many fundamental principles of international humanitarian law. On a more

abstract level, this form of terrorism effectively brings into doubt two important

concepts which lie at the heart of international humanitarian law: the separation

of jus in bello and jus ad bellum and the principle of distinction between combat-

ants and non-combatants.

2.1. The Offence of Terrorism and Just War

The international laws of armed conflict are said to be divided into two distinct

bodies of law, the jus in bello, international humanitarian law, and the jus ad bel-

lum, the law which seeks to regulate the use of force in international relations.105

This distinction lies at the very heart of the philosophy underlying the law of

armed conflict: “Making no claim that it can put an end to the scourge of war,

humanitarian law aims to attenuate the unnecessary harshness of war.”106

International humanitarian law therefore does not inquire into the legality of the

use of force in an armed conflict; rather it is concerned with mitigating its conse-

quences. In theory, the rules and principles of international humanitarian law do


104) Formulated differently by Pictet as “Belligerents shall not inflict harm on their adversaries out ofproportion with the object of warfare, which is to destroy or weaken the military strength of the enemy”(Jean Pictet, Development and Principles of International Humanitarian Law (Dordrecht: MartinusNijhoff, 1985) at 62.)

105) McCoubrey, supra note 100 at 1.106) Pictet, supra note 104 at 61.


not address nor are meant to be influenced by the legitimacy of the use of force in

an armed conflict. McCoubrey illustrates the importance of this precept: “The jus

ad bellum and jus in bello are to be considered quite distinct prescriptions.

Certainly, the lawfulness or otherwise of a given party’s original involvement in a

conflict cannot negate the application of jus in bello norms: if that were the case, it

would represent a renaissance of the very worst features of medieval ‘just war’ the-

ory.”107

On a conceptual level, the offence of terrorism in effect represents an attempt

to return to just war theory and to do away with the distinction between the jus

in bello and the jus ad bellum. Indeed, terrorists and philosophers alike both have

tried to justify the commission of acts of terrorism against civilians on the basis

of the moral legitimacy underlying these acts.108

On one level, this is reflected first and foremost in the disagreement between

developed states and developing states concerning the characterization of certain

individuals as terrorists or freedom fighters. The implicit argument here is that the

offence of terrorism may be justified depending on whether it is committed for

the right reasons. On another level, terrorists themselves evidently present their

actions as legitimate. Their moral stand-point is that the killing of innocent civil-

ians is justified because their deaths serve a greater cause. As summed up by

Duggard, “the modern-day terrorist sees himself as being engaged in a just war in

which right and justice are exclusively on his side and he is absolved from the cus-

tomary restraints on the use of violence employed in his struggle.”109 In this way,

the offence of terrorism challenges the apolitical, humanitarian motives underly-

ing the law of armed conflict as it rejects out of hand the notion that there are

unequivocal limitations on the conduct of hostilities, such as those which seek to

protect civilians from the ravages of war. In sum, terrorism is particularly at odds

with the law of armed conflict in so much as it embodies a very different moral

conception of war, one which inexorably leads to a concept of total warfare.

2.2. The Offence of Terrorism and the Concept of Innocence

The argument advanced by terrorists to excuse their attacks on non-combatants

is a classic example of the “ends justifying the means.” The offence of terrorism

has also been justified on a more insidious basis: the rejection of the concept of

innocence or neutrality implicit in the law of armed conflict. The argument here


107) McCoubrey, supra note 100 at 2.108) See e.g., Virginia Held, “Terrorism and War” (2004) 8 Journal of Ethics 59; Coady, supra note 36.109) John Duggard, “International Terrorism and the Just War” in David C. Rapoport & Yonah

Alexander, ed., The Morality of Terrorism. Religious and Secular Justifications. (New York: PergamonPress, 1982) 77 at 77.


involves the very negation of the principle of distinction between combatants

and non-combatants.

In international humanitarian law, this elemental precept is founded on the

idea that the parties to a conflict “shall not inflict harm on their adversaries out of

proportion with the object of warfare, which is to destroy or weaken the military

strength of the enemy.”110 As a result, the lives of all those persons not taking a

direct part in the hostilities should be spared as much as is possible for their deaths

do not contribute to the weakening of the military strength of the enemy. This

implies that non-combatants are not parties to the conflict and makes a claim to

their consequent neutrality or innocence. For Rousseau, the moment a soldier lays

down his weapons and surrenders, he is no longer an enemy and becomes simply

a man upon whose life the opposing party has no rights.111 Similarly, according to

de Vitoria, “the foundation of the just war is the injury inflicted upon one by the

enemy [. . .]; but an innocent person has done you no wrong.”112

Those terrorists whom target non-combatants generally contend that these

persons are not in any way innocent, but rather that they are guilty in that they

share responsibility for the actions of the groups to which they belong. Theorists

have also questioned whether beyond children, any of us could truly be held not

to be responsible for the actions or policies of our governments so as to count as

fully innocent.113 The replacement of traditional innocence by a notion of collec-

tive responsibility underlies Usama Bin Laden’s most recent video message, in

which he told the American public that the impetus behind the attacks of

September 11th was American support for Israel and that consequently, “[y]our

security is in your own hands.”114

This repudiation of the notion of innocence does not simply challenge the

underlying assumptions of international humanitarian law; it also brings into

doubt the fundamental principle of individual autonomy as well the very struc-

ture of the international legal system. By construing all citizens as co-agents of the

State, equally responsible for its actions and policies, terrorists not only blame

individuals for actions for which they are only indirectly, if at all, responsible, they

also obliterate any distinction between the State and its nationals on the interna-

tional stage. As such, it leads us to question the role of the armed forces as the sole

representative of the State on the battlefield. Again, this is in effect a return to the


110) Pictet, supra note 104 at 62.111) Jean-Jacques Rousseau, Du Contrat Social, Book 1 (Paris: Garnier-Flammarion, 1966) at 48.112) Francisco De Vitoria, Political Writings, Anthony Pagdan & Jeremy Lawrance, eds., (Cambridge:

Cambridge University Press, 1991) at 314–315.113) See, e.g., Virginia Held, supra note 98.114) CNN, “Your security is in your own hands,” online: http://edition.cnn.com/2004/

WORLD/meast/10/29/bin.laden.transcript.


notion of total warfare for the opposing party is rendered as an enemy in all its

constituent parts, each of which then becomes a legitimate military target.

Part III: Terrorism as a War Crime

We will begin by examining the record of past prosecution and judicial consider-

ation of violations of the prohibitions on terrorism in international humanitarian

law.115 We will then briefly speak to the prospects of future prosecutions of such

violations.

3.1. World War II Era Prosecutions

Although terrorism was not prosecuted as such in the wake of the First World War,

two bodies reporting on the conduct of warfare did make certain findings regarding

its use by the parties to the conflict. In its report on German control of Belgium, the

Bryce Committee concluded to the existence of a deliberate “system of general ter-

rorization” of the population as a means of securing control of a region, which it

held to be contrary to the rules of civilized warfare.116 The report found evidence of

mass killings, looting, house-burning and wanton destruction of property, the pur-

pose of which “was to strike terror into the civil population and dishearten the

Belgian troops, so as to crush down resistance and extinguish the very spirit of self-

defense”.117 As well, in March 1919, the Commission on Responsibilities, a body

created by the Preliminary Peace Conference of Paris to inquire into breaches of the

laws and customs of war committed by Germany and its allies, included in its list of

war crimes, the crime of “systematic terrorism” of civilians.118 The Commission con-

cluded that German forces had carefully planned and executed a system of terror

and reported that: “Not even prisoners, or wounded, or women, or children have

been respected by belligerents who deliberately sought to strike terror into every

heart for the purpose of repressing all resistance.”119 However, the few trials held in

1921–1922 in Leipzig pursuant to the Treaty of Versailles did little to advance the

concept of systematic terrorism created by the Commission.120

While its Charter did not include the war crime of terrorism as such, the

International Military Tribunal did consider evidence of terror violence within the


115) This section is partially based on a memorandum produced by the author for the Trial Chamberof the Special Court for Sierra Leone in August 2004 as part of his work at the McGill University SpecialCourt for Sierra Leone Clinic.

116) Report of the Bryce Committee, 1914, in Ellery Stowell & Henry Munro, International Cases(Boston: Houghton Mifflin Company, 1916) 172 at 173.

117) Ibid. at 176.118) UN War Crimes Commission, History of the United Nations War Crimes Commission and the

Development of the Laws of War (London: HMSO, 1948) at 34–5.119) Cited in ibid., at 33–4.120) Ibid. at 48–51.


context of article 6(b) war crimes in relation to the murder and mistreatment of

the civilian population. In this regard, the Tribunal found that the defendants had

implemented a “systematic rule of violence, brutality and terror” in the territories

occupied by the German army. An integral part of this rule of terror was the

Night and Fog decree of December 7th, 1941, which provided that persons who

committed offences against the Reich in occupied territories were to be secretly

transferred to Germany to await punishment, where they were not allowed any

contact with their relatives.121 The Tribunal referred to a letter written by one of

the defendants to illustrate the purpose of this decree: “Efficient and enduring

intimidation can only be achieved either by capital punishment or by measures

by which the relatives of the criminal and the population do not know the fate

of the criminal. This aim is achieved when the criminal is transferred to

Germany”.122 Another aspect of this policy of terror involved the establishment

of concentration camps, in which were imprisoned, without trial, and then sys-

tematically abused and murdered all those opposed to the Reich. In the occupied

territories in particular, the concentration camps served to eliminate all opposi-

tion groups.123 An order issued by one of the defendants confirmed the terrorist

aims of this policy: “in view of the vast size of the occupied areas in the East the

forces available for establishing security in these areas will be sufficient only if all

resistance is punished, not by legal prosecution of the guilty, but by the spread-

ing of such terror by the armed forces as is alone appropriate to eradicate every

inclination to resist among the population . . . Commanders must find the means

of keeping order by applying suitable draconian measures.”124

On the other hand, some World War II military tribunals did incorporate the

crime of terrorism within their statutes. To begin with, Australia’s War Crimes

Act of 1945 made reference to the work of the Commission on Responsibilities

and included “systematic terrorism” in its inventory of war crimes.125 Also, the

Supreme National Tribunal of Poland introduced the crime of “systematic terror-

ism” within its statute and in July 1948, convicted Joseph Buhler and sentenced

him to death for this crime as well as for other war crimes.126


121) Trial of the Major War Criminals before the International Military Tribunal, Nuremberg,November 14th, 1945 to October 1st, 1947 (Nuremberg: The Tribunal, 1947), Judgment, vol. I, at 232.

122) Ibid. at 233.123) Ibid. at 234.124) Ibid. at 235–236.125) United Nations War Crimes Commission, Law Reports of Trials of War Criminals (London:

H.M.S.O., 1947–1948), vol.5, at 94–97 [hereinafter Law R. Trials War Crim.].126) Trial of Joseph Buhler, 14 Law R. Trials War Crim. 35 at 38.127) Decree No. 44 (1946), in Staatsblad van Nederlandsch-Indië, article 1(2).128) Trial of Shigeki Motomura, 13 Law R. Trials War Crim. 138.


Finally, the decree instituting a court-martial in Makassar in the Netherlands

East-Indies also included the crime of “systematic terror.” 127 The court-martial

had the opportunity to try a case involving this crime in Motomura et al.128 in

July 1947. The accused, members of the Tokkei-tai (the Japanese Naval police),

were charged in the indictment of exercising “systematic terrorism against per-

sons suspected by the Japanese of punishable acts [. . .] this systematic terrorism

taking the form of repeated, regular and lengthy torture and/or ill-treatment, the

seizing of men and women on the grounds of wild rumors, repeatedly striking

them [. . .] the aforesaid acts having led or at least contributed to the death,

severe physical and mental suffering of many.”129 The Motomura court-martial

convicted 13 of the 15 accused of “systematic terrorism practiced against civil-

ians” for acts including unlawful mass arrests.130 The court concluded that these

mass arrests formed part of a system of terror as “nobody, even the most inno-

cent, was any longer certain of his liberty, and a person once arrested, even if

absolutely innocent, could no longer be sure of health and life.”131 The associated

torture and ill-treatment of interned civilians was also found to be part of a strat-

egy of systematic terror.132 Seven of those convicted were sentenced to death and

the rest to prison sentences ranging from 1 to 20 years.133

3.2. Modern International Case-law

Not much modern international case-law exists on the commission of the war

crime of terrorism. While Article 4(2) of the ICTR Statute, relating to breaches

of Common Article 3, expressly includes “acts of terrorism” as prohibited war

crimes occurring during a non-international armed conflict,134 limited use has

been made of this provision in the course of proceedings so far.135 That being

said, a number of cases relating to the Yugoslav conflict have a bearing on our

understanding of terrorism within the law of armed conflict.

To begin with, two recent cases have involved convictions for the act of

terrorizing a civilian population. In the first case, brought before the ICTY,


129) Ibid. at 138–9.130) Ibid. at 140.131) Ibid. at 143.132) Ibid. at 144.133) Ibid. at 140.134) Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for

Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territoryof Rwanda and Other Such Violations Committed in the Territory of Neighboring States, S.C. Res. 955,U.N. SCOR, 49th Sess., 3453d mtg., Annex, U.N. Doc. S/955 (1994), art. 4(2).

135) To date, no accused has been indicted for acts of terrorism by ICTR prosecutors. In fact, onlyone case involves allegations of terror violence, Prosecutor v. Jean-Baptiste Gatete, Case No. ICTR-2000-61-I, for which no trial has yet to be set. The accused is alleged to have led a campaign of terror againstTutsi civilians resulting in thousands of deaths in Byumba and Kibungo prefectures. He has beenindicted for genocide, murder and various common article 3 violations, but not for “acts of terrorism”.


Galic, the Trial Chamber specifically addressed the issue of the criminal liability of

a Bosnian Serb major-general for unlawfully inflicting terror upon civilians. Galic

deals with events which took place between September 1992 and August 1994 in

and around Sarajevo. Shortly after Bosnia and Herzegovina was internationally

recognized as an independent state on April 6th, 1992, armed hostilities broke out

in Sarajevo which opposed the Army of Bosnia-Herzegovina (ABiH) and the

Army of Republika Srpska (VRS) over the establishment of the Republika Srpska

within the territory of the newly established country. From September 1992 to

August 1994, under the command of General Galic, the Sarajevo Romanija Corps

(SRK), a unit of the VRS, virtually encircled Sarajevo, the capital of Bosnia

Herzegovina, the major part of which was held by the ABiH, and instituted a

blockade as well as subjected it to relentless bombardment and sniper attacks.136

The Court began by defining the crime of terror within the meaning of

article 51(2) of Additional Protocol I, violations of which were alleged to have

been committed in the context of this case: “1. Acts of violence directed against

the civilian population or individual civilians not taking direct part in hostilities

causing death or serious injury to body or health within the civilian population.

2. The offender willfully made the civilian population or individual civilians not

taking direct part in hostilities the object of those acts of violence. 3. The above

offence was committed with the primary purpose of spreading terror among the

civilian population.”137

The present definition of the offence is in many respects similar to what is con-

templated in the Commentary on the Additional Protocols and our discussion in

part II of this article. Indeed, the Trial Chamber rejected the Parties’ submissions

that actual infliction of terror formed part of the crime of terror and concluded that

it was not necessary to prove a causal connection between the unlawful acts of vio-

lence and the production of terror.138 Moreover, it held that the general mens rea

element, the commission of acts of violence, must always be accompanied by a spe-

cial mens rea, the intent to bring about terror among civilians.139 As a result, it

excluded recklessness from the intentional mental state specific to the crime of ter-

ror: “Thus the Prosecution is required to prove not only that the Accused accepted

the likelihood that terror would result from the illegal acts–or, in other words, that

he was aware of the possibility that terror would result–but that that was the result

which he specifically intended. The crime of terror is a specific-intent crime.”140

The Appeals Chamber upheld the Trial Chamber’s reasoning in both respects,


136) Galic, Trial Chamber, supra note 39 at paras. 192–205.137) Ibid. at para. 133.138) Ibid. at para. 134.139) Ibid.140) Ibid.141) Galic, Appeals Chamber, supra note 40 at paras. 103–104.


adding that the intent to spread terror need not be the only purpose of an attack

or a threat of an attack, but only the principal purpose of such a threat or attack.141

One final holding bears mentioning with regard to the definition of the offence: the

majority accepted the prosecution’s rendering of “terror” as “extreme fear”, relying on

the word’s ordinary meaning as well as expert testimony142 and noting that the

travaux préparatoires of the Diplomatic Conference did not suggest a different mean-

ing.143 The usefulness of the Galic precedent is however limited in so much as it did

not involve “threats” (except in the narrow sense of implicit threats) nor did it involve

allegations of harm other than the causing of death or serious injury to civilians.144

The Trial Chamber then moved on to a consideration of the evidence. It first

concluded that during the period of the indictment, the SRK, under the com-

mand of General Galic had conducted a protracted campaign of shelling and snip-

ing upon civilian areas of Sarajevo thereby inflicting terror and mental suffering

upon its civilian population. In support of this conclusion, the Trial Chamber

referred to general evidence that the city of Sarajevo and adjacent areas had come

under extensive gunfire and shelling as well as more specific evidence concerning

particular shelling and sniping incidents.145 The evidence presented at trial further

disclosed that these attacks deliberately targeted civilians. The Trial Chamber then

reached the conclusion that these attacks had been carried out with the primary

purpose of spreading terror among that population. In this regard, the Trial

Chamber relied mostly on the testimony of experts and observers who concluded

that the attacks launched into the city could not have been made in relation to

military objectives.146 It also drew this conclusion in light of the nature of the civil-

ian activities targeted, the manner in which the attacks on civilians were carried

out and the timing and duration of the attacks on civilians.147 In relation to

General Galic’s individual criminal responsibility for this campaign of terror, the

Trial Chamber relied on statements by Galic and some of his senior subordinates

to establish that they had acted in furtherance of a plan to terrorize Sarajevo’s civil-

ian population, most notably its Muslim inhabitants.148

Thus, the Trial Chamber, Judge Nieto-Navia dissenting,149 found Galic guilty on

several counts, including violations of Article 51 of Additional Protocol I for


142) Ibid., at para. 75.143) Ibid. at para. 137.144) Ibid. at para. 132.145) Ibid at paras. 210–563.146) Ibid at paras. 564–577.147) Ibid at paras. 582–594.148) Ibid at paras. 725–729.149) On the count related to acts of terrorism, the majority and the dissent disagreed with respect to

whether or not the Tribunal had jurisdiction over the crime of terror under article 3 of its Statute.150) Galic, Trial Chamber, supra note 39 at paras. 769–770.151) Galic, Appeals Chamber, supra note 40 at para. 455.


unlawfully inflicting terror upon civilians. As a result, the Trial Chamber sentenced

Galic to a sentence of twenty years imprisonment.150 The Appeals Chamber upheld

the Trial Chamber judgment and increased, Judge Pocar partially dissenting and

Judge Meron dissenting, Galic’s sentence to life imprisonment.151

The second case is Prosecutor v. R. Radulovic et al.,152 which was decided in

May 1997 by a municipal court in Croatia, the Split County Court. The Court

found that Rajko Radulovic and other members of the army of “Republika Srpska”

were criminally liable for violations of article 33 of Geneva Convention IV, article

51 of Additional Protocol I, and article 13 of Additional Protocol II. The Court

concluded that the accused had prepared “a plan of terrorizing and mistreating the

civilians” which involved opening fire on civilians and their property in areas which

had no enemy military presence, placing citizens under house arrest, and demolish-

ing and looting private property belonging to civilians.153 In particular, the accused

were found to have threatened as well as actually attempted to demolish a dam with

the aim of drowning the approximately 30,000 civilians living downstream.154

Even when there is no specific conviction for acts of terrorism, evidence of

terrorizing of civilians generally plays a role in convictions on other charges in the

proceedings of the ICTY. In Mucic et al., acts of intimidation which generated an

“atmosphere of terror” in prison camps were punished as grave breaches of the

Geneva Conventions relating to torture or inhuman treatment as well as violations

of common article 3 relating to torture or cruel treatment.155 In Blaskic, the Trial

Chamber gave consideration to “the atmosphere of terror reigning in the detention

facilities” when it found the accused to be guilty for the crimes of inhuman treat-

ment and cruel treatment.156 Moreover, the accused’s additional conviction for the

charge of “unlawful attack” on civilians was based in part upon the finding that his

soldiers had “terrorised the civilians by intensive shelling, murders and sheer

violence”.157 In Krstic, the accused was charged with the crime of persecution for his

alleged participation in “the terrorising of Bosnian Muslim civilians”.158 The Trial

Chamber concluded to the existence of a “terror campaign” relying on the testimony

of witnesses who “gave evidence that, during Operation Krivaja 95, the VRS

shelled the Srebrenica enclave intensively with the apparent intent to terrify the


152) Split County Court, Republic of Croatia, Case No. K-15/95, Verdict of 26 May 1997; in Sassòli& Bouvier, supra note 38 at 1263–8.

153) Ibid. at 1265–1266.154) Ibid. at 1267.155) Prosecutor v. Mucic et al., Case No. IT-96-21, Trial Judgement, 16 November 1998, at paras. 976,

1056, 1086–91 and 1119.156) Prosecutor v. Blaskic, Case No. IT-95-14, Trial Judgement, 3 March 2000, at paras. 695, 700 and

732–3.157) Ibid. at para. 630; see also paras 505, 511.158) Prosecutor v. Krstic, Case No.IT-98-33, Trial Judgement, 2 August 2001, at para. 533.159) Ibid. at para. 122.


populace”.159 Moreover, the Trial Chamber made reference to events of July 1995

where “upon the arrival of Serb forces in Potocari, the Bosnian Muslim refugees tak-

ing shelter in and around the compound were subjected to a terror campaign com-

prised of threats, insults, looting and burning of nearby houses, beatings, rapes, and

murders”.160 The Trial Chamber in Krstic characterized “the crimes of terror”, and

the forcible transfer of the women, children, and elderly at Potocari as constituting

persecution and inhumane acts.161 In its rule 61 decision in Prosecutor v. Martic,162

the Chamber confirmed the indictment against the accused who had allegedly

ordered a rocket attack on the civilian population of Zagreb.163 Indeed, the

Chamber found that “[i]n respect of its accuracy and striking force, the use of the

Orkan rocket in this case was not designed to hit military targets but to terrorize the

civilian population of Zagreb.”164 In another Rule 61 decision, Prosecutor v. Ivica

Rajic,165 the Chamber concluded that there were reasonable grounds to indict the

accused who had allegedly ordered an attack against the village of Stupni Do, in the

Republic of Bosnia and Herzegovina. The Chamber described the attack in these

words: “It appears that HVO soldiers went from house to house, searching for vil-

lage residents. On finding the villagers, the evidence indicated, the HVO forced

them out of the shelters and terrorised them. Witness testimony indicate that the

HVO forcibly took money and possessions from the villagers and that they stabbed,

shot, raped, and threatened to kill the unarmed civilians they encountered. The

HVO soldiers apparently had no regard for the defencelessness of the villagers.”166

Finally, in its sentencing judgement in Nikolic, the Trial Chamber took into

account the fact that the accused had terrorized the refugee Muslim population

from Srebrenica. This took the form of intimidation and abuse, the primary pur-

pose of which was to drive the Muslim population out of the area.167

3.3. Terrorism as a War Crime

The above constitutes a significant record of past prosecution as well as judicial

consideration of the crime of terrorism in wartime dating back to the First World

War. On the basis of Galic, one can contemplate that the violations of the four

provisions which are the focus of this essay could be prosecuted as war crimes in

the future given the right set of circumstances.


160) Ibid. at para. 150.161) Ibid. at para. 607; see also paras. 1, 41, 44, 46, 147, 153, 292, 364, 517, 527, 537, 653, 668,

671, 677.162) Case No. IT-95-11, Rule 61 decision, 8 March 1996.163) Ibid. at para. 23–31.164) Ibid. at para. 31.165) Case No. IT-95-12, Rule 61 decision, 13 September 1996.166) Ibid. at para. 52.167) Prosecutor v. Nikolic, Case No. IT-02-60, Sentencing Judgement, 2 December 2003, at para. 38.


War crimes are serious violations of customary or conventional rules which

form part of the corpus of the law of armed conflict. In Tadic, the ICTY Appeals

Chamber set out the conditions under which such a violation may constitute a war

crime: (1) the violation must amount to the infringement of a rule of international

humanitarian law; (2) this rule must form part of customary law or applicable

treaty law; (3) the violation must be “serious”, in other words, it must constitute

a breach of a rule protecting important values, and the breach must involve grave

consequences for the victim; (4) the violation of the rule must entail, under

customary or conventional law, the individual criminal responsibility of the per-

son breaching the rule.168

Whether a violation of one of the four direct prohibitions on terrorism

amounts to a war crime will depend on an application of this four-part test to a

given situation. In Galic, these four conditions were held to have been met with

respect to the allegations laid in that case relating to article 51(2) of Protocol I.

Interestingly enough, the Appeals Chamber went further than the Trial Chamber

in respect of the fourth condition, by holding that a breach of these provisions

was penalised under customary international law.169 Following the Appeals

Chamber decision in Galic, one can say with some confidence that acts of terror

constitute a war crime under international law. There are three other conditions

which must be satisfied for the conduct to constitute a war crime and which are in

fact the material and personal scope of application of the prohibitions: the exis-

tence of an armed conflict, the nexus between the acts of terrorism and the armed

conflict and the targeting of non-combatants.170

While much uncertainty remains, as seen in part I of this essay and in Galic,

we may conclude that the constitutive elements of the war crime of terrorism in

international humanitarian law are fairly settled. The prosecution of acts of ter-

rorism committed in the context of an armed conflict is therefore a real possibil-

ity. And although the process of bringing terrorists to justice as war criminals

remains complex and problematic,171 the fact is that the law of armed conflict has

succeeded where the law relating to terrorism as a specific international crime has

failed: it has come up with a legal definition of the offence of terrorism and has

in fact prosecuted individuals for this offence in an international context.


168) Prosecutor v. Tadic, Case no. IT-94-1, Appeals Chamber, Decision on the Defence Motion forInterlocutory Appeal on Jurisdiction, 2 October 1995, at para. 94. See also Cassese, supra note 2 at 47.

169) Galic, Appeals Chamber, supra note 40 at paras. 93–97.170) See Arnold, supra note 7 at 193–196.171) Ibid.; Martinez, supra note 7 at 41–60; See also part III of Bianchi, supra note 8.


Conclusion

The aim of this article is to demonstrate that international humanitarian law should

be seen as furthering rather than hindering international efforts geared towards

the suppression of terrorism. In particular, the law of armed conflict should be

seen as forming a vital component of the treaty framework which makes up the

international legal regime regarding international terrorism.172 Certain acts of terror-

ism constitute serious violations of international humanitarian law in certain cir-

cumstances and have been prosecuted as such in international criminal law. Efforts

directed towards utilizing the law of armed conflict in this way should be multiplied.

In this regard, we look forward to on-going developments in the Special Court for

Sierra Leone, which has indicted several defendants for acts of terrorism.173

More generally, international humanitarian law could be used to influence the

general approach of the international community to terrorism. Most notably, it

could serve as a model for future international attempts geared towards defining

the phenomenon of terrorism and criminalizing certain of its undesirable mani-

festations.174 The approach of the law of armed conflict to the problem of terror-

ism improves on the one present in the international legal system in two main

ways. First of all, in international humanitarian law, the question of terrorism does

not remain tied to the issue of the legitimate use of force in international relations,

which is at the heart of the disagreement between developed and developing States

concerning the characterization of certain acts as licit or illicit in international law.


172) See Andrea Bianchi, “Enforcing International Law Norms Against Terrorism: Achievements andProspects” in Bianchi, supra note 8 at 491.

173) Prosecutor v. Norman et al., SCSL-2004-14-PT, Consolidated Indictment, 5 February 2004;Prosecutor v. Sesay et al., SCSL-2004-15-PT, Consolidated Indictment, 13 May 2004; Prosecutor v. Brima,SCSL-2004-16-PT, Consolidated Indictment, 13 May 2004; Prosecutor v. Taylor, SCSC-03-01-I-001,Indictment, 7 Mars 2003; Prosecutor v. Koroma, SCSC-03-I, Indictment, 7 March 2003.

174) However, in his separate opinion in Galic, Judge Shahabuddeen points out that it is his understand-ing that the Appeals Chamber decision does not suggest that a comprehensive definition of terrorismexists under international law, but rather refers to the core concept of terror and only in the context ofinternational criminal law. (Prosecutor v. Galic, Case No. IT-98-29-T, Appeals Chamber, SeparateOpinion of Judge Shahabuddeen, 30 November 2006 para. 3–5).

175) See Bassiouni, “Legal Control of International Terrorism”, supra note 3; Bianchi, supra note 8;W. Michael Reisman, “International Legal Responses to Terrorism” (1999) 22 Houston Journal ofInternational Law 3; Susan Tiefenbrun, “A Semiotic Approach to a Legal Definition of Terrorism” (2003)9 ILSA Journal of International & Comparative Law 357; Richard Baxter, “A Skeptical Look at theConcept of Terrorism” (1974) 7 Akron Law Review 380; Kevin J. Greene, “Terrorism as ImpermissiblePolitical Violence: An International law Framework” (1992) 16 Vermont Law Review 461; KrzysztofSkubiszewski, “Definition of Terrorism” (1989) 19 Israel Yearbook of International Law 39.

176) See Jan Klabbers, “Rebels with a Cause? Terrorists and Humanitarian Law” (2003) 14 EuropeanJournal of International Law 299 (on the ambivalence of the international community in decidingwhether terrorism is criminal or political in nature).


Indeed, since the debate in the latter focuses on whether State terrorism should be

included and wars of national liberation excluded, this approach focuses on the

actor committing the offence as well as on the motives underlying its commission

rather than on the offence itself.175 Second of all, international humanitarian law

defines terrorism in a prima facie apolitical manner, while the approach to terror-

ism in international law remains essentially subjective and political in nature.176

Indeed, the latter’s apparent subjectivity is illustrated by the oft-repeated cliché

“what is terrorism to some is heroism to others.”177

At a political level, adopting the particular discourse of international humanitar-

ian law as the rhetoric of counterterrorism may indeed help bolster the effective-

ness of the fight against terrorism.178 In recent times, much of the Western world

has used a “rhetoric of evil” to address the phenomenon of terrorism.179 Western

States have generally defined terrorism in a subjective manner as an inherently ille-

gitimate form of violence pursued by private individuals against innocent civilians.

Legally, they have attempted to use the concept of terrorism to criminalize certain

actions perceived as illegitimate; rhetorically, they have vilified terrorism as a nec-

essarily evil phenomenon. Indeed, the terms “terrorist” and “terrorism” are gener-

ally used in a discriminatory fashion as they “are used selectively by governments

and media to describe those who resort to force in opposing government poli-

cies.”180 Meanwhile, Western States have sought to situate their policies at the

opposite side of the spectrum of terrorist malevolence and have characterized their

counterterrorist efforts as a war of good against evil.181 This rhetoric of good and

evil is therefore used to deligitimize certain groups and their causes: “Because of its


177) M. Cherif Bassiouni, “International Terrorism” in M. Cherif Bassiouni, ed., International CriminalLaw, 2nd ed., vol. 1, (Ardsley, New York: Transnational Publishers, 1999) 765 at 776.

178) The formulation of an effective response to terrorism requires the construction of an effectiverhetoric of counterterrorism (see Richard W. Leeman, The Rhetoric of Terrorism and Counterrorism(New York: Greenwood Press, 1991; Andrew Tan, “The New Terrorism : Implications and Strategies” inAndrew Tan & Kumar Ramakrishna, ed., The New Terrorism: Anatomy, Trends and Counter-Strategies(Singapore: Eastern Universities Press, 2002) 233 at 240.)

179) Robert L. Ivie, “Evil Enemy Versus Agonistic Other: Rhetorical Constructions of Terrorism”(2003) 25 Review of Education, Pedagogy, and Cultural Studies 181 at 183.

180) Tomis Kapitan & Erich Schulte, “The rhetoric of ‘terrorism’ and its consequences” (2002) 30:1Journal of Political and Military Sociology 172 at 178.

181) See Raimond Gaita, “A ‘War of Good Against Evil’ ” in Tony Coady & Michael O’Keefe, ed.,Terrorism and Justice. Moral Arguments in a Threatened World (Carlton, Australia: MelbourneUniversity Press, 2003) 113.

182) Kapitan & Shulte, supra note 180 at 178.183) Ibid. at 179. See also Angelica Nuzzo, “Reasons for Conflict: Political Implications of a Definition

of Terrorism” (2004) 35:3 Metaphilosophy 330 at 336 (“As the target of this new type of war, terrorismmust be defined as ‘absolute evil,’ must be located beyond and without all legal jurisdiction, all internationalorder, indeed, without any order as such. Terrorism must be construed as the radical opposite of, and theradical threat to, Western democracy and its values of freedom. For it is only under this condition that ter-rorism gains the effective power to terrorize without needing any further proof, explanation, or evidence.”)


negative connotation, the ‘terrorist’ label automatically discredits any individuals or

groups to which it is affixed; it dehumanizes them, places them outside the norms

of acceptable social and political behaviour, and portrays them as people who can-

not be reasoned with.”182 In effect, this allows for only one response to terrorism:

“the ‘terrorist’ rhetoric effectively shuts down all meaningful debate on policy or

tactics, and leaves only the path of violence to solve differences.”183

What is most remarkable about the typical counterterrorist rhetoric is how

closely it resembles that of terrorism itself: “One side’s devil is the other side’s sav-

ing grace in these duelling discourses of good and evil.”184 Indeed, as Leeman

demonstrates, the rhetoric of counterterrorism ultimately mirrors that of terror-

ism: “Legitimacy is established by constructing a bipolar world view, in which the

reflective counterterrorist opposes an inhuman, barbaric terrorist. Invective plays

a significant role in this bipolar discourse. No neutral ground exists in this zero

sum game.”185 This would certainly appear to be an apt description of the dis-

courses prevailing in the current US-led “war on terrorism.” On the one hand,

Usama Bin Laden derides the imperialist, wicked aims of the United States and

its allies and qualifies his war as a holy one in which there are no innocents.186 On

the other hand, U.S. President George Bush asserts that “you’re either with us or

against us in the fight against terror” and refers to Bin Laden as an “evil man.”187

In the end, this type of rhetoric impedes the construction of an effectual

response to terrorism. Because it is unequivocal in nature, the current rhetorical

construction of terrorism has a limited capacity to reach out to the “other” as well

as positively influence world public opinion. Most importantly, the politics

involved in the characterization of certain acts as terrorism lead many to distrust

those governments who wrap themselves in the cloak of good and who condemn

others as evil.

While the discourse of the law of armed conflict is not capable of setting up a

debate which might be lead to consideration of the root causes of terrorism, it

nonetheless constitutes a more effective rhetorical response than the one described

above. As seen in part I of this essay, international humanitarian law does not con-

ceive as terrorism as necessarily evil. Rather, it prohibits certain forms of terrorism,

acts targeting non-combatants, while allowing for the commission of other forms

of terrorism, acts targeting combatants. By leaving some space for lawful acts of

terrorism, the law of armed conflict does not a priori deligitimize terrorists or


184) Ivie, supra note 165 at 83.185) Leeman, supra note 164 at 72.186) CNN, “Transcript of Osama bin Laden videotape,” online: http://archives.cnn.com/

2001/US/12/13/tape.transcript.187) CNN, “You are either with us or against us,” online: http://archives.cnn.com/2001/US/

11/06/gen.attack.on.terror.


their causes. Meanwhile, the reason for this relative prohibition is apolitical: the

protection of civilian life. Within the framework of the law of armed conflict, this

prohibition applies equally to all combatants, both States and non-State actors.

There is therefore no simplistic characterization of the parties to the conflict as

good and evil, instead either side may be considered to resort to an unlawful

form of violence if this violence targets non-combatants.

As a result, the law of armed conflict deligimitizes only the offence of terrorism.

Meanwhile, the deep-seated conceptual conflicts which oppose the latter to the for-

mer seen in part II do not necessarily limit the capacity of the law of armed conflict

to serve as en effective counterterrorist rhetoric. In this limited context, the law of

armed conflict and its underlying humanitarian foundations form an appealing

moral substitute which has both pragmatic and absolutist elements. In this regard,

international humanitarian law has a long history of strenuously resisting arguments

based on just war theory, which in the past have been used to subjectively justify the

most horrendous of cruelties and has as such hampered the development of human-

itarianism.188 Indeed, throughout its history, international humanitarian law has

attempted to rebuff such claims, which inexorably lead to “total warfare,” and to

propose an alternative moral position according to which the most elementary prin-

ciples of humanity should be upheld no matter the circumstances, the place or the

time.189 The flexible logic of international humanitarian law is therefore to allow for

the parties to an armed conflict to use violence against one another, but maintains

that their right to do so is not absolute. In a Sixth Committee debate on interna-

tional terrorism held in 1972, the Jordanian delegate employed this line of reason-

ing to reconcile his country’s support for both national liberation movements and

humanitarian law: “[Jordan] believed in the legitimacy and dignity of national resist-

ance against alien domination and oppression and also believed that the ethical rules

of national resistance should be strict and humane; in this way, it would be possible

to distinguish the national struggle and resistance from the spirit of hate and vio-

lence which was the motivating force in all colonial and oppressive enterprises. It

was imperative, in the interests of all movements of national liberation, to draw up

and abide by a humanitarian code of ethics dissociated from any form of indiscrim-

inate violence against innocent civilians or third parties.”190

In our opinion, this approach has a better chance of engaging potential terrorists

and bringing them into a normative framework, such as that of the law of armed

conflict, than the rhetoric of the “war on terrorism.” To be sure, the discourse of

international humanitarian law, premised as it is on a common respect for the


188) Pictet, supra note 104 at 13–15.189) Ibid. at 61–63.190) UN GAOR, 27th Sess., 6th Comm., Nov. 21, 1972, UN Doc. A/C.6/SR. 1368, at 54.191) Ivie, supra note 179 at 191–194.


limitation of the unnecessary suffering of innocents and benefiting from signifi-

cant international legitimacy, holds much sway in the court of world opinion.

Consequently, the approach of international humanitarian law to terrorism consti-

tutes a flexible discourse in another sense, one which allows for the non-political

identification of common interests while avoiding the manufacture of an unhelpful

conflict between good and evil.191 This is in fact one of the subsidiary goals of the

law of armed conflict: limiting the chaos prevailing in an armed conflict so as to

ensure a prompt return to normal relations between parties at the end of this

conflict.192

How should the discourse of international humanitarian law regarding terrorism

be employed in the current conflict in Iraq? Legally, it is vital that all those who

have committed acts of terrorism be held legally accountable for their breaches of

the laws of war. Politically, it means making a clear distinction between attacks

against coalition soldiers as attacks led by insurgents and attacks against civilians or

their property designed to spread terror as attacks led by terrorists.

Using international humanitarian law as a response to terrorism is not without

its difficulties. The most important limitation on the usefulness of international

humanitarian law in the fight against terrorism remains its limited field of applica-

tion, briefly outlined in section 1.2. Indeed, international humanitarian law only

applies to acts of terrorism having a nexus to certain types of armed conflict. Of

course, broadly speaking, as Gasser points out, “acts of terrorism are usually part of

or indirectly linked in some way to an armed conflict, i.e. a situation in which

peaceful ways of settling disputes among contending groups have failed to end the

conflict.”193 However, legally speaking, notwithstanding common article 3, inter-

national humanitarian law is mostly aimed at regulating conventional armed

intercourse involving States. Meanwhile, although acts of terrorism committed by

individuals often constitute a destabilizing factor, and play a minor, but significant

factor in the emergence of wars, mostly civil wars,194 they generally form part of

what are termed low-intensity conflicts,195 over which international humanitarian

law has limited reach.196 Much more problematic however is the fact that the law

of armed conflict selectively applies to certain combatants and not to others.

Indeed, the status of combatant is reserved to States as well as non-State actors

when they meet certain criteria. As such, individual terrorists are effectively barred


192) McCoubrey, supra note 100 at 5.193) Gasser, supra note 12 at 548.194) See J. Bowyer Bell, “Terrorism and the Eruption of Wars” in Ariel Merari, ed., On Terrorism and

Combating Terrorism (Frederick, Maryland: University Publications of America, 1985) 41. 195) See Bruce Hoffman, “Current research on terrorism and low-intensity conflict” (1992) 15:1

Studies in Conflict and Terrorism 25.196) See L.C. Green, “Low-Intensity Conflict and the Law,” (1997) 3 ILSA Journal of International &

Comparative Law 493.


from lawfully engaging in armed combat unless they have a certain organizational

structure and stable control over a parcel of territory as part of a Protocol II inter-

nal armed conflict or are exercising their right to self-determination as part of a

Protocol I war of national liberation.

As a result of both of these factors, the law of armed conflict ultimately remains

politicized and its approach to terrorism, when considered alongside its restricted

scope of application, is not as objective as it seems. Indeed, the law of armed

conflict appears to be as discriminatory as the whole of international law in

effectively denying to private individuals the right to the use of force internation-

ally. What is more, similarly to the debate concerning terrorism generally, the

right of private individuals to use force has also been the source of much acrimony

between developed and developing States in the context of negotiations surround-

ing the Additional Protocols.197 This State-centered subjectivity undercuts two

main advantages of using international humanitarian law to fight terrorism. First

of all, this weakens its claim to universality and undermines its legitimacy in many

parts of the world. Second of all, it limits its appeal to potential private individu-

als who, rather than be afforded a limited right to use violence to advance their

cause, are in fact prohibited from using violence altogether.

This effectively removes these individuals from the normative framework of inter-

national humanitarian law and thus prevents the latter from exerting its compliance-

pull. If private terrorists are completely barred from using force, this eliminates any

advantage that they might have from complying with some of the rules of the law

of armed conflict, namely the attribution of combatant status and its accompanying

privileges. Moreover, such discrimination saps the energy out of the retort of inter-

national humanitarian law to the arguments of those terrorists whom target civilians

on the basis of just war theory. It seemingly weakens the principle that the applica-

tion of the jus in bello should not be influenced by the jus ad bellum and it main-

tains an unrealistic distinction between combatants and non-combatants.

Seen in this light, the approach of international humanitarian law to terrorism

does not appear to be very dissimilar from that of the international legal system

as a whole. That is because both are founded on the same fundamental precept:

the primacy of the State as an actor in international affairs. This paradigm how-

ever does not reflect the reality of armed conflicts and is uneasily applied to new

emerging combatants, most notably private terrorists: “That paradigm is

premised on the assumption that most actors who are responsible for its imple-

mentation are military personnel representing states, and that the rest are insur-

gents bound to these rules by virtue of their citizenship in states that are parties


197) Gasser, supra note 12 at 562–564.198) Michael H. Hoffman, “Emerging Combatants, war crimes and the future of international humanitar-

ian law” (2000) 34 Crime, Law & Social Change 99 at 99.


to IHL treaties. This quite extensive body of law was not developed to take

account of private armies, roving armed bands unattached to either a state or an

insurgency, or military organizations operating in a twilight zone between state

sponsorship and outright autonomy.”198

As touched upon in Part II, transnational private terrorism indeed rejects the

very foundations of the international legal order: the State as sole international

actor representing its nationals. This brings into doubt the whole law relating

to the use of force, the notion of individual responsibility, and the traditional

distinction between combatants and non-combatants which “reflects the basic

relation between the state (as a subject of international law), its armed forces (as

its organ), and the members of the armed forces (as combatants).”199 In this way,

private terrorism is another manifestation of the emergence of the individual on

the international stage. Rather than act through the state, private terrorists take

action directly at the international level. And rather than attack a State, they

directly target its nationals which they conceive as ultimately accountable for

governmental decision-making.

International humanitarian law does not exist in a vacuum; it is unsurprising

that it has incorporated some of the axiomatic elements of the legal system of

which it forms part. That being said, its underlying purpose remains the mitiga-

tion of human suffering, not the regulation of the lawful international use of

force or the maintenance of existing power structures in international rela-

tions.200 The logic of international humanitarian law should therefore apply to all

instances analogous to situations of armed conflict and its application should be

extended to cover all those persons forming part of minimally organized groups

implicated in this conflict. Indeed, as pointed out by Larschan, “[m]odern

transnational terrorism is a form of international armed conflict which rightfully

occupies a position on the international legal continuum measuring the use of

force.”201 As such, similar to the development which occurred regarding guerrilla

warfare and insurgency groups through the Additional Protocols, there is a need

to ensure that the law of armed conflict applies to the new emerging forms of

conflict which involve private organized transnational terrorist groups. Max

Huber’s discussion of the role of the ICRC is illustrative of the humanitarian

purpose underlying the law of armed conflict according to which it seeks to have

the widest scope of application possible in order to protect humans from the

effects of warfare as much as is achievable: “La Croix-Rouge a pour objet essen-

tial l’être humain qui souffre, la victime de guerre et non les États ni leurs intérêts


199) Ipsen, supra note 18 at 66.200) Klabbers, supra note 176 at 310–312.201) Bradley Larschan, “Legal Aspects of the Control of Transnational Terrorism: An Overview” (1986)

13 Ohio Northern University Law Review 117 at 147.


particuliers. Le sort des êtres humains est indépendant du caractère juridique que

les belligérants entendent donner à leur lutte. La Croix-Rouge et, en première

ligne, le Comité international, doit toujours s’efforcer d’étendre les principes

posés par les traités pour la protection des victimes de la guerre à toutes les cir-

constances analogues à la guerre. Sa qualité d’institution non-étatique permet

précisément au Comité d’intervenir comme intermédiaire entre des groupes de

belligérants qui ne se reconnaissent pas comme tels et de tenter au moins

d’obtenir que les règles essentielles du droit conventionnel soient appliquées en

pratique.”202

Ultimately, this is what international humanitarian law can contribute to the

fight against terrorism. It cannot be asked to do what it was not meant to do:

alone, it cannot deter the commission of acts of terrorism, it cannot address the

root causes of violent behaviour and it can only apply to situations rising to a cer-

tain level of gravity. Within these boundaries though, international humanitar-

ian law has an important role to play with respect to the phenomenon of

terrorism. If the primary purpose of the law of armed conflict is the limitation of

chaos and human suffering prevalent in armed conflicts, then its potential to

address the anarchy and anguish caused by terrorism is significant.


202) Cited in Michel Veuthey, Guérilla et Droit Humanitaire (Geneva: ICRC, 1983) at V.



Terrorism as a War Crime

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