Title: The Applicability of IHL for Control and Protection in Terrorism: A Jurisdictional Conflict

Abstract: It is all known that the current IHL regime providing control and protection mechanism is only
applicable during the armed conflict whether international or non-international. It is not intended to
regulate terrorist acts committed by individual terrorists or terrorist organizations as the act of terrorism
does not cover the definition of the armed conflict of both characters as established so far by the
relevant international instruments and decisions of international tribunals. But there are controversies
with regard to applicability of IHL at the event the anti-terrorist acts are conducted by the states in the
form of a war. With reference to so called ‘ global war on terror’ launched after 9/11 some argue that it
was an international armed conflict requiring the applicability of IHL and some argue that it was a non-
international armed conflict. The point is, where violence reaches the threshold of armed conflict,
whether international non-international through the participation of the states. This paper intends to
explain from the perspective IHL core principles whether the definition of the armed conflict comes true
at situations of combating terrorism requiring the application of IHL for the regulation of the conflict
and the protection of the victims thereof. However, the concept of terror in war as developed by the
Protocol 1 Additional to Geneva Conventions remains beyond the discussion here. The paper finally
concludes with the author’s view that IHL in current form finds jurisdictional difficulty to be applicable in
armed struggle against terrorism as it in no way covers the definition of armed conflict whether
international or non-international. It proposes the application of general principles of international law
as well as national laws of relevant states for combating terrorism and the application of human rights
principles for their protection.’

Key words: Terrorism, Terrorist organizations, international armed conflict, non-international armed
conflict

Introduction:

Terrorism as a crime

Definition of Armed conflict

Jurisdiction of IHL as an international law

Combating Terrorism and the application of International Humanitarian Law

a. War on terrorism and international armed conflict

b. Protection of terrorism in international armed conflict
c. Protection of terrorist as detainees
d. Protection of terrorists in prosecution
e. Targeted killings as a measure of counter-terrorism

War against terrorist and non-international armed conflict

Fundamental protection in non-international armed conflict and terrorist as a non-state entity

Introduction

International Humanitarian Law, as a lex specialie only applies to the situations during armed conflict
whether international or non-international. The purpose is to provide principles for the regulation of
conducts of hostilities of the conflicting parties as well as for the protection of the victims of the
conflicts. The ultimate goal is to minimize the devastating nature of the armed conflict and similarly to
alleviate sufferings of the victims thereof. The entire IHL regime established so far by international
treaties is clearly evident on this, nothing beyond. Therefore the act of terrorism does not fall within the
purview of the jurisdiction of IHL as the crime of terrorism does not satisfy criteria of an armed conflict
in general.

However in recent times, the intensity of violence created by the acts of terrorism either by individual
terrorist or organized terrorist groups reaches the situations comparable with armed conflict,
particularly when terrorist acts are responded by any state concerned though military operations as it is
evident after 9/11 by the declaration of ‘war on terror’ by the US against Al-Qaueda, a recognized
terrorist group. The US administration views. Likewise, some scholars also view that military
intervention by the US in Afghanistan as a stronghold of Al-Qaeda can be characterized by an
international armed conflict regulated by Geneva Conventions and Additional Protocol 1. 1Some argue
that ‘war on terror’ in fact declared against Al-Qaeda, which is non-state party and therefore it is better
to be said a non-international conflict regulated by the Common Article 3 and Additional Protocol II.
2
Some of the scholars are of the view that the combating terrorism through military operation, although
creates war-like situations, is not deemed to be fit for the application of IHL.3

Given the differences of opinion as regards the determination of the status of situations concerning acts
of terrorism and its combating situations that paves the way for the application of IHL thereto it
becomes imperative to further look into the matter to arrive at a concrete solution of the issue in
question. Because, considering Anti-terrorist military operation as an international or non-international
armed conflict for the application of IHL is not end, but it creates many other associated legal
implications for controlling the situations and protection of the victims of the situations from both the
parties. Therefore, this paper is an attempt to find out the answer of the question ‘whether the terrorist
acts and any situation of the combating terrorism through military operation may amount to an armed
conflict of whatever character and thus requiring the applicability of control and protection mechanism
of current IHL regime. However, it is not intended to focus on the concept of terror in war as prohibited
matter established by Article 51 of the Additional Protocol 1. In order to attain the objective of this
paper relies on the analysis of all relevant existing IHL principles and thus setting the tests for the
determination of the applicability of IHL. The argues here finally that the existing IHL regime in real
sense finds it difficult to be applied for the situations arising out of act of terrorism and combating
terrorism owing to its jurisdictional deficiency, inadequacy and short-coming.

1
2
3
Terrorism as a crime

Terrorism as an international crime encounters definitional problems as there is no all agreed

comprehensive definition so far set at international plane. It is commonly understood to denote the acts of
violence committed against the civilians in the pursuit of political or ideological aims and goals. Although
there is absence of a comprehensive legal definition of ‘terrorism’, effort has been made during last two
decades through declarations, resolutions and universal sectoral treaties to define certain types of acts as
terrorism. Currently there are 13 major international treaties putting more emphasis on combating
terrorism. 4 According to the General Assembly’s Declaration on the Measures to Eliminate International
Terrorism, set out in its resolution 49/50 ( 1994), ‘terrorism’ includes “ 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” and that such acts “are in any circumstances unjustifiable, whatever the considerations
of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked. A
subsequent definition of the Security Council in its resolution 1566(2004) adds more elements to
constitute terrorism as it refers to ‘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 organization to do or abstain from doing any act.” The proposed UN Convention on
International Terrorism which has been stalled for several years due to differences over the definition of
terrorism5 has made effort to broaden the scope of terrorism by including serious damage to public or
private property and damage to property, places, facilities, or systems under the view of its purview of its
definition.

Aside from UN organizations, regional bodies have made some successful attempts in defining terrorism.
The 2002 Framework Decision of the Council of the European Union on Combating Terrorism is a
glaring example thereof. It lists a series of acts if committed with an intention to seriously intimidate a
population or to unduly compel a government or international organization to perform or abstain from
performing any act or to seriously destabilize or destroy the fundamental political, constitutional,
economic or social structure of a country or international organization, are deemed to be terrorists

They include : Convention on Offences and Certain Other Acts Committed on Board Aircraft 1963, Convention
4

for the Suppression of Unlawful Seizure of Aircraft 1970, Convention for the Suppression of Unlawful Acts Against
the safety of Civil Aviation 1971, Convention on the Prevention and Punishment of Crimes against internationally
protected persons,1973 International Convention against the Taking of Hostages 1979, Convention on the Physical
Protection of Nuclear Material 1980, Convention for the Suppression of Unlawful Acts against the Safety of Fixed
Platforms Located on the Continental Shelf 1988, Convention on the Marking of Plastic Explosives for the Purpose
of Identification 1991, International Convention for the Suppression of Terrorist Bombings 1998, International
Convention for the Suppression of Financing Terrorism 2000, and International Convention for the Suppression of
Acts of Nuclear Terrorism 2005.
5
offences. Attacks upon an individual’s life or physical integrity, kidnapping or hostage taking, causing
extensive destruction to private and public property or facility are also considered to be terrorist acts.
Relied on the European framework Decision and on a review of other definitions of global or regional
forums so far developed with regard to terrorism, although it is of constantly evolutionary nature, it can
be drawn that terrorism no doubt a serious criminal offence committed by individuals or organized groups
usually in peace time and their attack is not necessarily an armed attack and even their armed attack does
not appear to be similar to an armed attack of belligerents as generally understood by the laws of armed
conflict. However, Hoffman defines terrorism as non-state actors’ activities which in time of peace
would qualify as armed interstate hostilities if the same were attributed to a state. Terrorism may
sometimes be a factor for or trigger an armed conflict, but in itself not armed. The definitions of terrorism
as developed by the national legislation beside international regime regard it as a crime regulated by
national penal laws, not as an armed conflict which is necessary subject of international regulation.

Definition of an armed conflict as subject-matter of IHL

Although the terminology ‘armed conflict’ is used by the Geneva Conventions and their Additional
Protocols instead of war6 which is an age-old and all known connotation of violence between states and
between armed groups, nowhere in the conventions the terminology of armed conflict is defined, even in
the other IHL documents and in the resolutions of United Nations that follow . The relevant wording in
the conventions commonly used is indicative of its classification or categories on the basis of which IHL
Conventions provide rules for application. The classification of the armed conflict as inferred from the
wording of the conventions is international and non-international armed conflict. As it is articulated in the
common Article of Geneva Conventions “the present Convention shall apply in all cases of declared war
between two or more High Contracting Parties, even if the state of war is not recognized by one of them.
On the other hand common Article 3 of all Geneva Conventions and Additional Protocol II apply to an
armed conflict which is not of international character.

Despite the absence of authoritative definitions, the scholars or academics for instance Gabor Rona, a
former Legal Advisor of the International Committee of Red Cross has set factors which are conditions
sine qua non for the existence of an armed conflict. In this regard Hans has looked at the state practice
according to which any use of armed force by one state against territory of another is an armed conflict
and differences between character of international and non-international is based on the state border.
Armed conflicts between two or more states are considered to be international and armed clashes
occurring on the territory of single state are non-international. A good definition has been offered by
ICTY in Prosecutor v. Dusco Tadic that clarifies ‘armed conflict of both characters’ as used in Geneva
Conventions and Protocols.7According to this case, ‘an armed conflict exists whenever there is a resort to
armed forces between states or protracted armed violence between governmental authorities and
organized armed groups or between such groups. The first part of this description comes true for the
‘notion of international armed conflict’ where ‘resort to armed force must be made by the state parties’. It
does not extend to a situation where one party is not a state except in the case of war of national liberation

Prosecutor V Dusco Tadic, Decision of the Defence Motion on Interlocutory Appeal on Jurisdiction, Appeals
7

Chamber, 2 October 1995, at http:/www.un.org/icty/tadic/appeal/decision-e/51002.htm.

as it is recognized as an international armed conflict by the Additional Protocol 1.8 The second part
connotes ‘ the non-international armed conflict’ that involves governmental forces of a state and
organized armed groups or takes place between armed groups only in the ambit of a single state.9 The
conflict here is characterized by protracted armed violence that otherwise confirms the principle as laid
down by the Additional Protocol II that internal disturbance or tensions caused by riots, isolated acts of
violence or other acts of similar nature are not regarded as armed conflict of non-international nature. The
armed operations between the conflicting groups in a single territory must keep going or are kept up
continuously.

There is another type of armed conflict which is called internationalized armed conflict. It appears to be a
by-product of non-international category as it refers to an armed conflict waged in a state between
government forces and rebel factions or between armed groups with the intervention of one or more third
states supporting the government, the rebel factions or armed.10 The expression of ‘internationalized
armed conflict’ is not used in the IHL Conventions and Protocols. The situations of internationalized
armed conflict clearly show the problematic nature of dichotomy between non-international and
international armed conflicts. In order for a situation to be considered as internationalized armed conflict
for legitimate application IHL, two qualifying tests have been used by international tribunal and those
relate to the degree of involvement of the third state in the internal conflict and the extent of applicability
of IHL to all parties to the conflict11.

To sum up briefly it can be said that to qualify an international conflict, an armed conflict must take place
at least between two state parties, in a broader meaning, the belligerent groups must represent their
respective states. The intense of violence is not a requirement. To qualify non-international requires the
armed conflict between the armed forces of a states and an organized rebel group or between two
organized armed groups. The intensity and continuity of the armed violence is material here.

Jurisdiction of IHL as an international law

Jurisdiction here means the range and extent of the applicability of IHL as a special branch of
international law. The treaties and conventions establishing IHL regime have specified the range of the
application of IHL in its entirety. Its application is time and subject specific. Accordingly it applies only
to situations during armed conflict either international or non-international. The legal regime prominently
created by all four Geneva Conventions, 1949 and Additional Protocol 1, is intended for dealing with the
situations and concerns that arise during international armed conflict as defined in the immediate above
section. The common Article 3 of all four Geneva Conventions and additional Protocol II are dedicated to

See Article 1, paragraph, Additional Protocol 1, 1977. It states international armed conflict situation covers the
8

armed conflict in which peoples are fighting against colonial domination and alien occupation and against racist
regimes in the exercise of their right of self-determination.
9
Lehto, M. , “ War on Terror-Armed Conflict with Al-Qaida?”, 78(2010) Nordic Journal of International Law,
pp.499-512, at p.507.
10
Verhoeven, Sten, International and Non-International Armed Conflicts ( Working Paper, No.107, March 2007)
pp.3-22, at 7
11
See the Decision of ICJ in Nicaragua Case (Military and Paramilitary Activities in and Against Nicaragua)
between Nicaragua and United States,27 June 1986, ICJ Rep. 1986, p.242. See also ICTY Decision in Prosecutor v
Dusco Tadic Case No.IT-94-A, Appeal Chamber, 15 July 1999,p.124.
dealing with situations of non-international armed conflict. The only thing required for IHL to become
applicable is the circumstance of an armed conflict. In cases of international armed conflict, the only
qualifying test is the involvement of at least two state parties in the armed. The declaration of war or
recognition of each other party is immaterial. A state entity which has acceded to Geneva Conventions or
Additional Protocol 1 and is involved in an international armed conflict, should be considered as a party
in the sense of Geneva Conventions and Additional Protocol 1, if it has existed de facto for a certain time
as a separate entity even if not recognized by all or majority of the states.12 In application of the situations
of international armed conflict, the severity, intensity of violence and duration of conflict is not relevant
for application. In non-international cases, IHL becomes applicable on the basis of satisfying required
criteria for this as mentioned in the preceding cases. In contrast with international armed conflict, the
severity of violence and the duration is vital for the applicability of IHL.

If we look into the ambit and object of IHL application in both cases, we find the IHL principles as
provided by relevant conventions mainly focus on two types of issues that become vital concerns to be
dealt with during armed conflict, one is protecting or safeguarding the victims of the causalities of
conflict and another is controlling the severity of the violence created out of the conflict. The controlling
issues do not relate to declaring the war legal or illegal, only relates to the adoption of war strategies or
use of weaponries.

Now the question is when the application of IHL begins, and how long it continues, where it applies and
to whom. The answer of this question better illustrated in the observation of ICTY in Prosecutor v. Dusco
case. The Court states that:

“International Humanitarian Law applies from the initiation of such armed conflicts (both
international and non-international) and extends beyond the cessation of hostilities until a
general conclusion is reached; or in the case of internal conflicts, a peaceful settlement is
achieved. Until that moment, international humanitarian law continues to apply in the whole
territory of warring states or in the case of internal conflicts, the whole territory under the
control of a party, whether or not actual combat take place there”.13

This observation of the ICTY has covered answer of the first three questions. There is an agreement
of all as regards the beginning of the application in given situation of international armed conflict.
As regards protection issues, as soon as the armed forces of one state find themselves with wounded
or surrendering members of the armed forces or civilian of another state on their hand and vice
versa, they must comply with the relevant convention to the date there is no pending issues to be
resolved even beyond the cessation of hostilities . The similar explanation is given as regards the
end of the application of IHL in the Commentaries of the Geneva Conventions.14The obligation does

12
A fine example is the Israeli-Arab War, in which many Arab States did not recognize the state of Israel, but which
had no effect on the application of Geneva Conventions : Legal Consequences of the Construction of a wall in
Occupied Palestinian Territories, Advisory Opinion of 9 July 2004, in which the Court discuses the application of
Fourth Geneva Conventions without taking into account the condition of recognition of Israel by Jordan.
Above note 7, at p.
13
14
In the commentaries of the four Geneva Conventions, 1949 it is stated in the explanation of common article 2 that
the individual convention ceases to be applicable once there are no pending issues relating to its subject-matter and
all the humanitarian problems it encompasses have been resolved. See
not depend upon the number of wounded or prisoners or the size of the territory occupied. 15 This As
regards controlling measures; the application starts from the day one and lasts until the conflict is
over.

In case of non-international armed conflicts there is occasional disagreement on the applicability of

IHL. The only criteria here should be the intensity of the violence and the need for the protection of
its victims. The governments are frequently unwilling to concede the intensity of the situation that
requires the applicability of relevant IHL, saying the disturbances are internal affairs of the state.

As regards the last question, that is to whom IHL is applicable. In other way it can be said that who
the subjects of IHL are. Subject-hood in any legal system means the persons or entities upon which
the legal system confers rights and obligations. In that sense the states parties to the conflict and the
individuals are the subject of IHL. So the IHL principles create obligations for the states and
individual to comply with as well confer rights upon to enjoy or enforce against each other involved
in conflict.

To sum up, it is again said the existence armed conflict is threshold requirement for the applicability
of IHL.

Combating Terrorism and the application of International Humanitarian Law

It is evident from the above discussion that International Humanitarian is applied only in the situations of
the armed conflict either international or non-international to govern the conducts of conflicting state
parties and their armed forces. The necessity of the application never arises unless the situation of armed
violence can be construed as an armed conflict in lined with IHL Conventions and Protocols. This reality
is confronted with confusion at the event an armed struggle as a measure of counter-terrorism is carried
out by a state against terrorist organizations sometimes unilaterally and often jointly with others. This
new type armed conflict has come to the scene prominently after US declaration ‘global war on terror’.
The academic and scholars have difference of opinion in determining character of this war requiring the
application of IHL. If it is conceded as an armed conflict in either form, the applicability of IHL
encounters juridical difficulty. Therefore with reference this so called war in particular a general legal
analysis will made in the following sections.

1 Armed struggle against terrorism and international armed conflict

Some scholars have attributed the character of international armed conflict to the ‘global war on
terrorism’. A noteworthy is D. Jinks who suggests that the hostilities arising out of waging war against
terrorists might constitute an ‘international armed conflict’ triggering the application of rules governing
conflicts between ‘High Contracting Parties’. He also suggests for the possibility of this type of conflict to
be within the meaning of non-international armed conflict as established by the Common Article 3 of the
Geneva Conventions.16 As regards the international character of this war, he argues that although the
Alqaed against which the war is launched is not directly a party to a state, they fought alongside Taliban

Gasser, Hans-Peter, International Humanitarian Law: An Introduction

15

Jinks, D., “ The Applicability of Geneva Conventions to the

16
who were affiliated with Afghanistan. The logic behind its being characterized as non-international is
very simple as the fight of US was against Al-Qaeda, a non state organized entity.17 The position of Jinks
as regards character of ‘global war on terror’ appears to be self-contradictory.

Jelena Pejic, a legal advisor of ICRC considers only ‘global war on terrorism’ launched in Afghanistan as
an international armed conflict requiring the application of four Geneva Conventions as well as the
relevant rules of customary international humanitarian law governing inter-state armed conflict.18 The
argument of the ICRC representative relies on the fact that other party here is Afghanistan in deed, as
Taliban and Al-Qaeda were affiliate with Afghanistan. According to him other than US-led-Coalition‘s
war in Afghanistan the acts of terrorism and the responses thereto that have been taking place after 11
September cannot be qualified as an international armed conflict within the meaning of Geneva
Conventions.19

According to Bianchi and Naqbi, the military intervention by the United States and Against Afghanistan
in 2001, in response to 9/11 attacks can be characterized as a recent example of international armed
conflict regulated by the Geneva Conventions.20

Given the view that the ‘global war on terror’ was against Afghanistan in deed, although the objective of
the war manifests differently’21 and hence it is considered to be an international armed conflict, there is no
scope of attributing this character in general to all of this kind of armed struggles against terrorist groups.
If the armed attack is directed to the terrorist organizations, not belonging to a state party to the conflict,
such armed conflict will not qualify for international armed conflict calling for the application relevant
IHL principles for the regulation of hostilities of the conflicting groups and protection captured detainees
from both sides.

2. Armed struggle against terrorism and non-international armed conflict

It is also argued that the ‘the global war on terror’ that took place over the years in Afghanistan better
constitutes a non-international armed conflict under international humanitarian law principle articulated in
Common Article 3 as Afghanistan then was not a party to Additional Protocol II. The argument is based
on the fact that the war was between states and Al-Qaeda. In this context, Lubell argues that ‘international
armed conflict must be between two or more states, and since Al-Qaeda is not a state, we do not have an
international armed conflict.22 He draws a conclusion that according to Article 2 of the Hague Regulations
of 1907 and Common Article 2 of the Geneva Conventions, these convention which are meant for
international armed conflict only apply to armed conflicts between contracting parties.23 Al-Qaeda as a
non-state actor cannot be a party to these treaties.24 Moreover, people like Al-Qaeda, irrespective of their
level of organization and commitment for certain ideology, because of their recognition as a terrorist

17

Pejic, Jelina, Terrorist Acts and Groups

18
19

Bianchi, A. and Naqvi, Y., International Humanitarian Law and Terrorism, Oxford,2011 at p.1
20
21

Lubell, N., “ The War (?) against Al-Qaeda” , in Wilmshurst, E., (ed.), International Law and Classification of
22

Conflicts, Oxford, 2012, at p.431.

Ibid
23

Ibid
24
group can never be that kind of persons who are fighting for self-determination and hence fighting with
them by any state party will not amount to an international armed conflict. Webber argues, terrorist
attacks may in some specialized circumstance be considered non-international armed conflict-where only
Common Article 3 and also Additional Protocol II apply.

However it is always difficult to establish when acts of violence are deemed to have reached the threshold
of non-international armed conflict. The criteria set by Additional Protocol II are not clearly applicable to
the situation. The ‘organized armed groups’ in the ‘global war on terrorism’ do not exercise the control
over any territory that would enable them to carry out sustained and concerted military operations as it is
a required criteria.25

In addition, to qualify as the ‘non-state party’ to a non-international armed conflict it is usually

understood that a group or organization must dispose of being in a military like form with a certain level
of internal organization and command structure that enables it, among other things, to enforce discipline
and thereby ensure respect for international humanitarian law. It is noteworthy that in armed conflict
either national or international where IHL is applicable both the conflicting groups are entitled to enjoy
basic equality of rights and obligations under it, which enables each sides to know the rules within which
they are allowed to operate and to rely on similar conduct by other side. Given these basic features of a
‘non-state party’ can it be said that the totality of terrorist acts that have been perpetrated since 11
September 2001-in Bali, Moscow, Peshawar, Casablanca, Riyadh, Madrid, Istanbul, Beslan and
elsewhere – constitute a global non-international armed conflict that can be attributed to one or same
party ? Or are states faced with a series of criminal acts perpetrated by groups or individuals sharing at a
best common ideology? Jelana Pejic views that absence of factual evidence on the common internal
organization and command structure of the perpetrators, it cannot be concluded that ‘terrorist’ violence
involved constitute a world-wide non-international armed conflict in legal sense.

Another point of qualification as per Additional protocol II is that the conflict must take place in the
territory of a single state between the armed forces of government part and dissident armed forces or any
organized armed groups. This qualification signifies that anti-terrorist armed measure by a state
government can be said to be a non-international armed conflict when it is held in its own territory.
Therefore any kind of anti-terrorist armed measure should not be easily termed as non-international armed
conflict. In this sense, ‘Global War on Terrorism’ does not amount to non-international armed conflict.
However the supporters of such a view based upon the application of Common Article 3 of the Geneva
Conventions, as the US was party to the Geneva Conventions, not the Additional Protocol II. The
applicability of Common Article 3 was confirmed by the decision of the US Supreme Court in Hamadan
v Ramsfeld26 changing the US policy as regards the application of Common Article 3 as Bush
administration stated in a memorandum that ‘ Common Article 3 does not apply to either Al-Qaeada or

Additional Protocol II, Article 1(1) states “ This Protocol which develops and supplements Art.3 common to the
25

Geneva Conventions of 12 August 1949 without modifying its existing conditions of application, shall apply to all
armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12
August 1949, and relating to the protection of Victims of International Armed Conflicts (Protocol) and which take
place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other
organized armed groups which, under responsible command, exercise such control over a part of its territory as to
enable them to carry out sustained and concerted military operations and to implement this protocol.
Hamadan v Ramsfeld, Secretary of Defence,et al, 548 US 557 ( 2006), at pp.628-29.
26
Taliban Detainees.27 In author’s view Common Article 3 also requires the occurrence of the conflict of
non-international character in a territory of a High Contracting Party and implies the involvement of that
party in conflict if we recourse to both ordinary and circumstantial meaning under Articles 31 and 32 of
the Vienna Convention on the Law of Treaties of the phrase ‘ in the case of non-international character in
the territory of a one of the High Contracting Parties’.

Status of Terrorists in IHL

Terrorists are not generally subjects of IHL. But when terrorists are treated as a party to a conflict
satisfying either the character of international or non-international armed conflict question arises about
their status under the existing IHL regime. Determining the status of terrorists under IHL is a complex
matter in order to provide them with the benefit of protection under IHL in different capacities such as
combatants, civilians and detainees. In every case IHL in its existing form finds juridical difficulty to be
applicable to the terrorists. Therefore an attempt will be made in the following discussion to focus on their
position in IHL

Terrorists: Combatant or Civilian: Protected or Non-protected?

In order to ensure the entitlement of protection basically in international armed conflict IHL has
established a principle of distinction between combatant or non-combatant, which does not exist in non-
international armed conflict. According to the fundamental principle of distinction, the parties to the
conflict must distinguish between combatant and civilians, and between military and non-military targets.
The legal implication of this distinction is while combatants enjoy the privilege to fight and the
legitimacy of his killing during the conflict and prisoner of war status if captured, may be subject of
attack by others, civilians are protected, may not subject of attack, and they are permitted to participate in
conflict and they may be tried and punished if they so, if they are captured will not have status of
prisoners of war (PoW).

In the ‘global war on terrorism’ a vital question arose as to whether the terrorists are combatant or
civilians – protected or non-protected persons. Assuming this war or any war against terrorists an
international armed conflict if we want to answer this in right way we have to look into the definition of
combatant as articulated in Article 43(2) of the Additional Protocol 1. According to this Article,
combatants are members of the armed forces of a Party to a conflict (other than medical personnel and
chaplains covered by Article 33 of the Third Convention). The armed forces are also defined in the
paragraph 1 of the same as designated organized armed groups, units under a command responsible to
that party for the conduct of its subordinate and they are subject to internal disciplinary system which
enforces compliance with international law of armed conflict. Individuals who do not qualify as
combatants are civilians and civilians are protected. Persons who are no longer members of the armed
forces should also be regarded as civilians held in the Blaskic case by ICTY.28 The protection for
civilians continues unless they directly participate in hostilities. Hostile acts should be understood to be
acts which by their nature and purpose are intended to cause actual harm to the personnel and equipment

The White House Memorandum, “Humane Treatment of Taliban and Al-Qaeda Detainees”, February 7, 2002
27

para.2(c).
Prosecutor v. Thihomir Blaskic ( Judgment) ICTY-95-14-T (3 March 2000) at para.180.
28
of the armed forces. So a civilian individual will lose its entitlement of protection under IHL when during
the armed conflict he participates directly in hostilities along with its armed forces of its own country.29
Given the qualification for being combatant it can be plainly said that terrorist or terrorist organization are
not combatant, rather by definition must be civilian. But on the ground of their participation in hostilities
directly, although it does not correspond with the meaning of hostility as aforesaid, they can be legitimate
target of attack.

On basis of the definition of combatant as in article 43(2) it can be assumed that other than member of the
armed forces none is qualified as combatant to enjoy the privileges under IHL. But when we examine the
definition of civilian individuals under Article 50 of the Additional Protocol 1, we find members of other
armed groups (such as militias, volunteer corps , organized movement group) can be considered as
combatant , not being the member or part of armed forces if they fulfill the four conditions laid down in
Article 4A(2) of the Geneva Convention III. The conditions include being under responsible command,
wearing fixed distinctive sign such as uniform, carrying arms openly; and conducting their operations in
accordance with the laws and customs of war. The terrorist groups such as Taliban, Al-Qaeda and
Islamic, although they fulfill some of the conditions, they all do not conduct their operations in
compliance with laws and customs of war.

In the ‘global war on terrorism’ the US argued that the Taliban , who are the members of the armed forces
of the de facto government of Afghanistan ‘have not effectively distinguished themselves from the
civilian populations of Afghanistan. Moreover, they have not conducted their operations in accordance
with the laws and customs of war;30 therefore they could not be considered as lawful combatants.31As
regards members of the Al-Qaead and or their affiliates The US views that they are unlawful combatant.
The US view about Taliban appears to be self-contradictory. On the one hand, the US says, they are the
members of the armed forces of de fact government of Afghnistan and on the other hand they are saying
owing to their non-compliance with laws of armed conflict, they cannot be combatant whereas the
underlying principle of Article 44 of the Additional Protocol 1 states that ‘ while all combatants are
obliged to comply with the rules of international law applicable in armed conflict, violations of these rules
shall not deprive a combatant of his right to be combatant, or if he falls into the hands of adverse party, of
his right to be a prisoner of war.

Similar view of the US has been held by the Israeli Supreme Court in the case of Srur et al vs. the State
of Israel regarding the Hezbullah fighters who were captured in 2006 armed conflict in Lebanon. The
Court rejected the PoW status argument by saying that Hezbullah constituted an independent terrorist
organization whose members failed to comply with the conditions of lawful combatants under Article
4A(2) of the Geneva convention III, since they disguised themselves as civilians, did not carry arms
openly, and did not conduct their operations in accordance with the laws of war.32

See ICRC, Commentary on Protocol Additional to the Geneva Conventions of 12 August, 1949 and Relating to the
29

Victims of International Armed Conflict.

Sassoli, M. “ Use and Abuse of the Laws of War in the ‘War on Terrorism’’’ , 22 (2004) Law and Inequlaity.
30

PP.195-221, at p.204.
ibid
31

Srur et al vs. The State of Israel ( Judgement) ( November 20, 2006) Crim App 8780/06, 8984/06.
32
‘Lawful combatant or unlawful combatant are the self-made terminologies of the US administration and
their allies, they are nowhere used in the IHL treaty texts. The US Supreme Court has clarified their legal
position under IHL in the Quirin case as it held:

Lawful combatants are subject to capture and detention as prisoners of war by opposing
military forces. Unlawful combatants are likewise subject to capture and detention, but in
addition they are subject to trial and punishment by military tribunals for act which render their
belligerency unlawful.

If this legal clarification is a part of ratio-decidendi of the case, what is legal authority of this under
IHL ? If this is a simple observation used as obiter-dicta of the case, it contradicts with the horizontal
approach of the application of IHL by both conflicting parties. For example, if a member of the US
forces is captured by them, the claim of PoW as combatant is legally justified, which is not true in the
case of the other. In addition, during the conflict, combatants are legitimate targets of military attack as
part of military necessity, so what will be true to the case of unlawful combatant, would they be the
legitimate target of the opposing belligerent groups?

Terrorist Captured: Detention, Treatment and Prosecution

In an international armed conflict, determination of the legal status of the captured persons is very
crucial for their eligibility of prescribed type of protection and treatment under the Geneva Convention
III including Additional Protocol 1. The detainee has to satisfy any category as mentioned in the
Article 4 A of the Geneva Convention III. Bianchi writes that uncertainty, particularly in terms of recent
practice, surrounds the legal status to be attributed to terrorists suspects, due to the difficulty, or
reluctance of the States to accord PoW status to members of the militia groups belonging to a party to a
conflict who have allegedly committed terrorists acts, or civilian status to persons who are not members
of the armed force, but may have been involved in acts of terrorist violence during armed conflict. 33The
disregard for categorizing properly the status of detainee eventually gave rise to the creation of
Guantanamo Bay and secret centers. In the beginning, the Bush administration’s position was quite
negative as regards the PoW status of both Taliban and Al-Qaeda detainees. Later on, they shifted their
position in the face of criticism, particularly, from human rights organizations. President Bush
announced in 2002 that ‘the Geneva Convention will apply to the Taliban Detainees, but not to the Al-
Qaeda. However it disregarded their PoW status on the ground that they are unlawful combatant. The
decision of the US administration regarding Taliban was a deviation from the application of Article 5 of
the Geneva Convention III that clearly provides that: “Should any doubt arise as to whether persons
having committed a belligerent act and having fallen into the hands of enemy, belongs to any categories
enumerated in Article 4, such person shall enjoy the protection of the present Convention until such
time as their status has been determined by a competent tribunal”.34

As regards Al-Qaeda and its members the US argued that Al-Qaeda is an international terrorist group
and cannot be considered a party to the Geneva Convention. Its members, therefore, are not covered by

Bianchi, A., “ Terrorism and Armed Conflict: Insights from a Law or Literature Perspective”, 24(2011) Leiden
33

Journal of International Law, pp. 1-21,at pp.14-15.

34
the Geneva Convention, and are not entitled to PoW status under the treaty.35 Likewise, George
Aldrich argued that detained members of Al –Qaeda are clearly not entitled to PoW status, if captured
while accompanying Taliban forces, once they have been identified, they may be “lawfully prosecuted
and punished under national laws for taking part in hostilities and for any other crimes , they have
committed.”36 However, the Hamadan decision in 2006 effectively overruled that US position, finding
that at least Common Article 3 of the Geneva Conventions, which provides minimum protection during
non-international armed conflict for captives. ICRC, position is also against the US administration as it
holds that persons detained in connection with an international armed conflict waged as part of the fight
against terrorism-the case with Afghanistan until the establishment of the new government in June
2002-are protected by IHL applicable to international armed conflict. Combatants who do not fulfill the
criteria for PoW status or civilians who have taken a direct part in hostilities (so called ‘unprivileged’ or
‘unlawful’ belligerents) are protected by the Fourth Geneva Convention provided they are enemy
nationals.37

The ICRC’ view reveals that all detainees in international armed conflict irrespective of their status are
entitled to protection under IHL either in the capacity of PoW or civilians. According to this view, Al-
Qaeda detainees are entitled to protection under IHL. This principle may be based on the legal
presumption that anyone who participates in armed conflict of international nature, if they are detained
will have the protection under IHL. The author’s view is that any failure by a group engaging in
international armed conflict to fulfill the requirement of PoW will not deprive the individual detainees
of having protection under IHL or any other principles of international law. In this context, J.N.
Saxena’s comment is plausible to mention. According to him the list given in Article 4 of the Geneva
Convention III is not necessarily exhaustive, so there is no reason to conclude that persons not in any of
the categories in the Article, cannot be considered to be prisoners of war; they may be outside the
provisions of the conventions, but are not to be excluded from the Law on Nations in general, as is
clearly substantiated by the Article 142 of the Geneva Convention III and Article 1(2) of the Additional
Protocol I.38 Nevertheless, it may be said to be true that the relevant provisions of protection under
Geneva Convention apparently encounters some adequacies in terms application in newly emerging
situation of war against terrorism.

Another associated issue is the end of detention of the detainees of the ‘war against the terrorist’.
According to IHL principle detention continues during the armed conflict and ends upon the cessation
of hostilities. But terrorism, however, rarely ends; rather it is something to be managed and minimized
instead of permanent defeat.39 Therefore without any grasp of when the end of hostilities against
terrorists, it remains highly likely that ‘law of war’ detention will actually become generational or
lifetime detention-a paradigm not contemplated under IHL and it contradicts with protective and

The Wight House Press Secretary Announcement, “ President Bush’s determination of the legal status of Taliban
35

and Al-Qaeda Detainees”., ( The White House, 7 February 2002), at http://www.state.gov/s/1/38727/.htm.

Ibid.
36

See ICRC’s Report on “ International humanitarian law and the challenges of contemporary armed conflicts”
37

International Conference of the Red Cross and Red Crescent, 28 November-1 December,2011.
Saxena J.N. ‘ Protection of Prisoner of War’ in M.K. Balachandran, Rose Varghese (ed.) ‘ Introduction to
38

International Humanitarian Law’ (1997) ICRC, pp.141-160,at p.143.

Blank, L.R., “ The Consequences of a ‘War’ Paradigm for Counterterrorism: What Impact on Basic Rights and
39

Values ? “ 46(2012) Georgia Law Review, pp.719-741,at p.730.

preventive purposes of traditional detention under IHL. It is something that gives rise to significant
moral and legal questions.40

Ibid at pp.730-31.
40