- Terrorism and other aspects of international law
- Terrorism and international humanitarian law
International humanitarian law contains a set of rules on the protection of persons in “armed conflict”, as that term is understood in the relevant treaties, as well as on the conduct of hostilities. These rules are reflected in a number of treaties, including the four Geneva Conventions and their two Additional Protocols, as well as a number of other international instruments aimed at reducing human suffering in armed conflict. Many of their provisions are now also recognized as customary international law.15
There is no explicit definition of “terrorism” as such in international humanitarian law. However, international humanitarian law prohibits many acts committed in armed conflict which would be considered terrorist acts if they were committed in times of peace.16
For example, deliberate acts of violence against civilians and civilian objects constitute war crimes under international law, for which individuals may be prosecuted. This rule derives from the fundamental principle of international humanitarian law related to the protection of civilians in armed conflict, namely the principle of distinction. According to this principle, all parties to a conflict must at all times distinguish between civilians and combatants. In essence, this means that attacks may be directed only at military objectives, i.e., those 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 applicable at the time, offers a definite military advantage. Civilians lose their protection as civilians for such time as they participate directly in the hostilities.
Furthermore, indiscriminate attacks are strictly prohibited according to international humanitarian law. This includes attacks that are not directed at a specific military objective, employ a method or means of combat which cannot be directed at a specific military objective, or employ a method or means of combat the effects of which cannot be limited as required by international humanitarian law, and consequently are of a nature to strike military objectives and civilians or civilian objects without distinction. Indiscriminate attacks include disproportionate attacks, which are also prohibited.
International humanitarian law also specifically prohibits “measures of terrorism” or “acts of terrorism.” These prohibitions aim to highlight individual criminal accountability and protect against collective punishment and “all measures of intimidation or of terrorism.”17 Furthermore, “acts or threats of violence the primary purpose of which is to spread terror among the civilian population” are also strictly prohibited under international humanitarian law.18 According to the International Committee of the Red Cross, while even a lawful attack on a military objective may spread fear among civilians, these provisions, related to the conduct of hostilities, seek to prohibit “attacks that specifically aim to terrorize civilians, for example campaigns of shelling or sniping of civilians in urban areas.”19
It is important to note that, in addition to international humanitarian law, international human rights law continues to apply during armed conflict, subject only to certain permissible limitations in accordance with strict requirements contained in international human rights treaties. In essence, the difference between the two bodies of law is that, whilst human rights law protects the individual at all times, international humanitarian law applies only in situations of armed conflict. In this regard, the Human Rights Committee has stated, in its general comment N° 31, that:
[The International Covenant on Civil and Political Rights] applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be
specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive.
The International Court of Justice has also affirmed the applicability of the Covenant during armed conflicts, stating that “the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict.”20 In its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the Court further posited the applicability of human rights law in times of armed conflict, stating “the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in article 4 of the [International Covenant on Civil and Political Rights].”21 Most recently, the Court applied both human rights law and international humanitarian law to the armed conflict between the Democratic Republic of the Congo and Uganda.22
Acts of terrorism which are committed outside of armed conflict generally constitute crimes under domestic and, depending on the circumstances, international criminal law and thus should be regulated through the enforcement of domestic and international criminal law.
- Terrorism and international criminal law
Over the course of four decades, the international community, under the auspices of the United Nations, has developed 13 conventions relating to the prevention and suppression of terrorism. These so-called sectoral instruments, which address issues ranging from the unlawful seizure of aircraft and the taking of hostages to the suppression of terrorist bombings, contribute to the global legal regime against terrorism and provide a framework for international cooperation. They require States to take specific measures to prevent the commission of terrorist acts and prohibit terrorist-related offences, including by obliging States parties to criminalize specific conduct, establish certain jurisdictional criteria (including the well-known principle of aut dedere aut judicare or “extradite or prosecute”), and provide a legal basis for cooperation on extradition and legal assistance.
Most of these treaties relating to specific aspects of terrorism define specified acts as offences and require States to criminalize them. They cover offences linked to the financing of terrorism, offences based on the victim’s status (such as hostage-taking and crimes against internationally protected persons), offences linked to civil aviation, offences linked to ships and fixed platforms, and offences linked to dangerous materials.23 According to the International Convention for the Suppression of the Financing of Terrorism, for example, terrorism includes any “act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.” It requires the penalization of specific offences related to the financing of terrorism thus defined.
The Security Council has recognized the ratification and effective implementation of the universal anti-terrorism instruments as a top priority. On 28 September 2001, acting under Chapter VII of the Charter of the United Nations, it adopted resolution 1373 (2001), stating explicitly that every act of terrorism constitutes a “threat to international peace and security” and that the “acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations.” The resolution also requires all States to criminalize terrorist acts; to penalize acts of support for or in preparation of terrorist offences; to criminalize the financing of terrorism; to depoliticize terrorist offences; to freeze funds of persons who commit or attempt to commit terrorist acts; and to strengthen international cooperation in criminal matters.
Depending on the context in which terrorist acts occur, they may also constitute crimes under international law. During the drawing-up of the Rome Statute of the International Criminal Court, several delegations argued for the inclusion of terrorism in the jurisdiction of the Court as a separate crime. The majority of States disagreed, however, precisely because of the issue of the definition. The Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of the International Criminal Court, adopted in Rome on 17 July 1998, recommended that a Review Conference of the Rome Statute, which may take place seven years following the entry into force of the Statute, namely in 2009, should consider several crimes, including terrorism, with a view to arriving at an acceptable definition and their inclusion in the list of crimes within the jurisdiction of the Court.
Although the Rome Statute does not include “terrorism” as a separate crime, it does contain various offences which may include terrorist conduct, depending on the particular facts and circumstances of each case. A terrorist act might constitute a crime against humanity, an offence defined under article 7 of the Rome Statute to include certain acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.24 Moreover, acts such as deliberate or indiscriminate attacks against civilians or hostagetaking might fall under war crimes, as defined under article 8 of the Rome Statute.
The international criminal law provisions against terrorism have also been addressed in practice by international tribunals. In 2003, the International Criminal Tribunal for the former Yugoslavia convicted, for the first time, an individual for his responsibility for the war crime of terror against the civilian population in Sarajevo, under article 3 of its statute. The Court concluded that the crime of terror against the civilian population was constituted of elements common to other war crimes, in addition to further elements that it drew from the International Convention for the Suppression of the Financing of Terrorism.25
- Terrorism and international refugee law
Alongside the general obligations of human rights law, international refugee law is the body of law which provides a specific legal framework for the protection of refugees by defining the term refugee, setting out States’ obligations to them and establishing standards for their treatment. Aspects of international refugee law also relate to persons seeking asylum. The 1951 Convention relating to the Status of Refugees and its 1967 Protocol relating to the Status of Refugees are the two universal instruments in international refugee law.
With regard to terrorism and measures taken to counter it, both incorporate a system of checks and balances that takes full account of the security interests of States and host communities while protecting the rights of persons who, unlike other categories of foreigners, no longer enjoy the protection of their country of origin.
As mentioned above, Security Council resolution 1373 (2001) obliges Member States to take a number of measures to prevent terrorist activities and to criminalize various forms of terrorist actions, as well as measures that assist and promote cooperation among countries including signing up to international counter-terrorism instruments. The resolution also touches on issues related to immigration and refugee status. For example, States are required to prevent the movement of terrorists by implementing effective border controls and to secure the integrity of identity papers and travel documents (para. 2 (g)). States are also called upon to ensure that asylum-seekers that have planned, facilitated or participated in the commission of terrorist acts are not granted refugee status (para. 3 (/)), and that refugee status is not abused by perpetrators, organizers or facilitators of terrorist acts (para. 3 (g)).
It should be noted that, with regard to refugee status and asylum, the resolution did not introduce new obligations into international refugee law. The 1951 Convention already has provisions to ensure that international refugee protection is not extended to those who have induced, facilitated or perpetrated terrorist acts.
The position of the Office of the United Nations High Commissioner for Refugees (UNHCR) is that those responsible for committing terrorist acts must not be permitted to manipulate refugee mechanisms in order to find a safe haven or achieve impunity.26 The framework of international refugee law contains provisions aimed at guarding against abuse and is thus able to respond to possible exploitation of refugee mechanisms by those responsible for terrorist acts.
Firstly, refugee status may be granted only to those who fulfil the criteria of the refugee definition contained in article 1A of the 1951 Convention, i.e., those who have a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.” In many cases, persons responsible for terrorist acts may not fear persecution for a reason set out in the 1951 Convention, but may rather be fleeing legitimate prosecution for criminal acts they have committed.
Secondly, according to article 1F of the 1951 Convention, persons who would otherwise meet the refugee criteria of article 1A shall be excluded from international refugee protection if there are serious reasons for considering that they have committed a war crime, a crime against humanity, a serious non-political crime outside the country of refuge prior to admission to that country as a refugee, or have been guilty of acts contrary to the purposes and principles of the United Nations. Particularly relevant is article 1F (b), which relates to the commission of a serious non-political crime by an asylum-seeker prior to the person’s admission to the country of refuge. Acts which bear the characteristics of terrorism will almost invariably amount to serious non-political crimes. UNHCR has issued guidelines27 on the application of exclusion clauses under the 1951 Convention, noting, in particular, their exceptional nature and the need for their scrupulous application.
While indications of an asylum-seeker’s alleged involvement in acts of terrorism would make it necessary to examine the applicability of article 1F of the 1951 Convention, international refugee law requires an assessment of the context and circumstances of the individual case in a fair and efficient procedure before a decision is taken. Any summary rejection of asylum-seekers, including at borders or points of entry, may amount to refoulement, which is prohibited by international refugee and human rights law. According to the Universal Declaration of Human Rights, all persons have the right to seek asylum.
Thirdly, persons who have been recognized as refugees, as well as asylum- seekers who are awaiting a determination of their claims, are bound to conform to the laws and regulations of their host country, as specified in article 2 of the 1951 Convention. If they do not do so, they may be prosecuted to the full extent of the law.
In addition, exceptions to the principle of non-refoulement exist under article 33 (2) of the 1951 Convention. Denial of protection from refoulement and return to the country of origin are foreseen if there are reasonable grounds for regarding a refugee as a danger to the security of the country in which he or she is or if, having been convicted of a particularly serious crime, that person constitutes a danger to the community of the host State. Finally, the 1951 Convention provides for the possibility of expulsion to a third country on national security grounds under article 32. Implementation of either of these articles may be carried out only following a decision taken by a competent authority in accordance with due process of law, including the right to be heard and the right of appeal. It is crucial to emphasize, however, that the application of either limitation contained in articles 32 or 33 (2) of the 1951 Convention is subject to the other human rights obligations of the State, specifically article 3 of the Convention against Torture and article 7 of the International Covenant on Civil and Political Rights, whose protection is absolute.
If a person has already been granted refugee status under the 1951 Convention, such status may be cancelled if there are grounds for considering that the person should not have been recognized as a refugee in the first place. This is the case where there are indications that, at the time of the initial decision, the applicant did not meet the inclusion criteria of the 1951 Convention, or that an exclusion clause of that Convention should have been applied to him or her.28 This might include evidence that the person committed terrorist acts. Cancellation of refugee status is in keeping with the object and purpose of the 1951 Convention, if it is established, in proper procedures, that the person did not fall within the refugee definition at the time of recognition.
Counter-terrorism and national security measures undertaken by States have also had, in some case, an adverse impact on refugee protection. These include unduly restrictive legislative and administrative measures, lack of access to asylum procedures, and the “criminalization” of refugees and asylum-seekers, which has negatively affected public perception.