Terror and Terrorism in International Humanitarian Law
Terror:
Terror refers to action taken by the State that consists of political and military terror, which may take place both in times of war and peace for the purpose of social control or military action.
In the cases of armed conflict, acts of terror may apply to methods of warfare and acts or threats of violence—the primary purpose of which is to spread terror among the civilian population. Such acts include indiscriminate bombardment, attacks against the civilian population or civilian objects, persecutions, acts of violence designed to spread terror among the population, acts of terrorism, pillage, rape, arbitrary arrests and extrajudicial executions, hostage taking and enforced disappearances, and ethnic cleansing that forcibly displaces the civilian population. Reprisals against civilians and their property are prohibited (Geneva Conv. IV, Art. 33; API Art. 51; Ad. Protocol II, Art. 4, 13).
State Terror may happen outside the context of armed conflict. State response to protests, riots, demonstrations, disturbance of public order, and internal strife, may qualify as Terror. International Humanitarian Law applies in that it limits the power of governments to use coercive measures as well as police and armed forces to defend or reestablish public order. These rules can be found in fundamental guarantees such as the one provided for by non-derogable international human rights provisions and the principles of Common Article 3 to the four Geneva Conventions.
Terrorism:
Unlike acts of Terror that State may unleash during conflict and peace times, the definition of terrorism is less established in International Humanitarian Law. The difficulty of defining terrorism stems from the fact that all acts of resistance by non-state actors to occupation, colonization, rebellion can be criminalized by the State. However, International Law allows for resistance to occupation, and resistance to occupation often resort to use of violence—hence to often quoted saying, “One man’s terrorist is another man’s freedom fighter”. It is very likely that every revolution and every self-determination struggle employed acts that are described by the opposing side as acts of terror. As the term indicate, it is reasonable to believe that the level of violence adopted by resistance forces is directly proportional to the level of violence deployed by controlling or occupying power. To maintain a dynamic equilibrium, as is the case in nature, in society too, for every action (violence), there is an equal and opposite reaction. These assumptions and facts explain the difficulty of defining terrorism by the world community, hence the absence of a universal consensus that can be adopted into treaties and conventions.
Despite many attempts at the United Nations, States have not agreed upon a definition of terrorism. But the proposed definitions by UN organs or by regional blocs of nation-states like the EU, may help understand the direction of qualifying terrorism that might be proscribed by International humanitarian Law.
For example, the International Convention for the Suppression of the Financing of Terrorism, signed on 9 December 1999, defines terrorism in its Article 2.1.b as 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.”
In October of 2004, the United Nations Security Council, issued a resolution (1566) in which it provided some guidance that could be incorporated into a definition of terrorism. The UNSC’s resolution included the following statement:
“Criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act… [are] under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature.”
This clarification was supported by the UN General Assembly (UNGA) in January 2006 in Resolution 60/43, wherein terrorism was described as “criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes.”
From these definitions, it becomes clear that rules covering terrorism are nearly the same as the rules covering “Terror”, which are part of International Humanitarian Law, which covers such acts during both times of conflict and peace. IHL, in this sense, prohibits terror as a method of warfare, such as attacks against the civilian population, civilian objects, and property. But IHL also prohibits any acts or threats the primary purpose of which is to spread terror among the civilian population. This applies to both international and internal armed conflicts. Additionally, there is a universal jurisprudential maxims that establishes that no protected person may be punished for an offense he or she has not personally committed. Collective penalties and all measures of intimidation or of acts of terror are prohibited (Geneva Convention IV, Art. 33).
In war, being a “terrorist” is not a specific legal category under IHL. Geneva Conventions and Additional Protocols only allow for a distinction between civilians and combatants—or between those who take part in hostilities and those who do not or who have since laid down arms. Additionally, IHL prohibits methods that are designed to spread terror among the civilian population. Persons who are not members of an established armed force and who employ such methods would commit a crime, but remain members of the civilian population under the State power and authority, including the authority to charge such persons in accordance with applicable law.