International Journal of Legal Studies and Research (IJLSR)

THE FIGHT AGAINST TERRORISM AS A CONTEMPORARY CHALLENGE TO INTERNATIONAL HUMANITARIAN LAW: RENDERING THE LAW OF WAR OBSOLETE Roman Girma Teshome♣ ABSTRACT International humanitarian law (IHL) is a body of law that seeks to govern the conduct of hostilities by limiting the means and methods of warfare. Its main purpose is to spare certain group of individuals, i.e. civilians and people who are no longer taking part in hostilities, from the effects of armed conflicts. IHL might be unable or is not meant to alleviate the occurrence of war ones and for all, even though this would be the ideal yearning. However, the pivotal role of IHL in minimizing the evils of armed conflict cannot be overlooked. Its proper application can protect those who do not or no longer take part in war and vulnerable groups who need special protection, such as women and children. Nevertheless, in the last few decades, IHL is becoming more prone to contemporary challenges that have been taxing its proper application. Counter terrorism measures adopted by states in response to the recent outrageous terrorist attacks are one of these intricate challenges. This article will try to shed a light upon the challenges posed by the war on terrorism and other counter terrorism measures on proper application of the law of war as stipulated in the four Geneva Conventions and the subsequent Additional Protocols.

KEYWORDS: International humanitarian law; terrorism; counter terrorism; the war on terrorism; Geneva Conventions; Additional Protocols

GENERAL OVERVIEW: INTERNATIONAL HUMANITARIAN LAW AND ITS CONTEMPORARY CHALLENGES Pursuant to the definition put forward by the International Committee of the Red Cross (ICRC), “international humanitarian law (IHL) is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or no longer participating in hostilities and restricts the means and methods of warfare. IHL is also known as the law of ♣

LLB from Addis Ababa University, Ethiopia, 2015 and Currently, LLM student at Central European University, Hungary, Email: [email protected]

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war or the law of armed conflict.” The application of IHL is limited to armed conflicts; it does not cover internal tensions and disturbances, such as isolated acts of violence. Once the conflict started, this law applies to both sides irrespective of who started the fighting.1 International humanitarian law applies to armed conflicts, however it does not regulate whether a state may actually use force, which is governed by a distinctive part of international law stipulated under UN’s charter.2 Hence, IHL governs the acceptable conduct of war, jus in bello rather than the initial lawfulness of war, jus ad bellum.3 In other words, the principal focus of IHL is governing how military operations may be conducted, rather than the legality for reason of their irruption.4 The rules of IHL are mainly contained in the four Geneva Conventions of the 1949 that are signed or ratified by almost every state in the world. These conventions are developed and supplemented by two further agreements, the Additional Protocols of the 1977 relating to the protection of victims of armed conflicts, as well as the third Additional Protocol of the 2005. There are also other agreements that prohibit the use of certain weapons and military tactics and protect certain categories of people and goods, such as the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, and its two protocols, the 1972 Biological Weapons Convention and the 2000 Optional Protocol to the Convention on the Right of the Child on the Involvement of Children in Armed Conflict among others. Above all, many provisions of IHL are now accepted as international customary laws which bind all states.5 In dealing with armed conflicts, IHL distinguishes between international and non-international armed conflicts. Unlike the cases of international armed conflicts, which is subject to wide range of rules, including those set out in the four Geneva Conventions and Additional Protocol I, a more limited range of rules apply to internal armed conflicts, which are laid down in common Article 3 and Additional Protocol II.6

1

International Committee of the Red Cross (ICRC) (2015), What is International Humanitarian Law? (2004, available at https ://www. icrc .org /eng /assets /files /other /what _is_ihl.pdf last visited November 2, 2015), p.1 2 Ibid 3 Gerald L. Neuman, Humanitarian Law and Counter Terrorism Force (EJIL, vol.14 No.2, 2003), p.284 4 Morgan Kelley, Challenges to Compliance with International Humanitarian Law in the Context of Contemporary Warfare (Independent Study Project (ISP) Collection, paper 1618, 2013), p.7 5 Ibid 6 ICRC (2015), supra note 1, p.1

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However, for the reasons attributable to the changing nature of armed conflicts in the 21st century, the proper application of IHL is susceptible to plenty of challenges in the current world. These challenges are mainly the result of modern developments of warfare, dominance of non-state actors and propagation of internal armed conflicts. Consequently, these recent developments in warfare and changes in the nature of armed conflicts have posed enormous challenge on the implementation of IHL rules, which led many to argue that IHL is non-applicable in the modern era. 7 As Gabor Rona puts it, “there is a complaint that humanitarian law has failed to keep up with the changing nature of armed conflict, always fighting the last war rather than the next one.”8 Undoubtedly, warfare in the 21st century is vividly distinctive from that of the early 20th century. After the Second World War, changes related to the nature of war, civilian and military technologies and approaches towards military occupation have challenged the proper application of IHL in the era dominated by violent internal armed conflicts. Despite the traditional statecentered notion of war in which battle is fought between soldiers as agents of state, the current scenario is quite different. It is characterized by complex and vague cases of violence with less clear-cut distinctions.9 Hence, the contemporary world has witnessed advances in technology, globalization, and proliferation of internal armed conflicts that have created a complicated scenario in which IHL, anticipated during the post-WWII, was not initially intended to manage. 10 Contemporary situations, such as Security detention, multinational forces, occupation, the privatization of war and automatization of war and cyber warfare among others, are challenging the effective implementation of the law of war. Likewise, terrorism and the fight against terrorism are also peculiar scenarios that are taxing the proper application of IHL. 11

TERRORISM: A RISING THREAT TO THE SECURITY OF THE WORLD Terrorism is one of the ambiguous and controversial terms in international arena and it doesn’t have one settled definition. The difficulty in defining terrorism mainly arises from the fact that in particular circumstances, it can

7

Kelley, supra note 4, p.7 Gabor Rona, Interesting Times for International Humanitarian Law: Challenges from “The War on Terror” (The Fletcher Forum of World Affairs, vol.27:2, 2003), p.56 9 Kelley, supra note 4, p.8 & 9 10 Ibid, p.10 11 Gentian Zyberi, Contemporary Challenges to International Humanitarian Law (Norwegian Centre for Human Rights, November 2012), p.2 8

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be legitimate to use violence. 12 However, the most universally accepted definition is that “terrorism is the use of violence to create fear (i.e. terror, psychic fear) for political, religious, or ideological reasons that is intentionally aimed at noncombatant targets, civilians or iconic symbols and the objective is to achieve the greatest attainable publicity for a group, cause, or individual.” 13 Nevertheless, no matter how it is defined, the bottom line is that terrorism is one of the most sensitive issues in the 21st century. It has posed a massive threat to the security and stability of the world. There are wide varieties of terrorist organizations. For instance, depending on their size and resources, they can be minor groups that could not be able to engage in continued struggle or large scale typically armed forces controlling territories in civil war and using terrorism as a supplementary means. They may also vary based on their purpose and aspiration, some might have secession or revolution within a state as an end in mind, others may seek to express their grievances and destabilize their government or some may be simply psychotic.14 Terrorism is not a new incident in the international arena; for many years acts of terrorism in all forms have endangered and killed innocent people, jeopardized fundamental freedoms and seriously impaired the dignity of human beings.15 Nevertheless, the rise of particular groups, contrary to the traditionally known terrorist states, has changed the concept of terrorism giving it a new form and scope. These groups commonly called as ‘terrorist groups or entities’ are now terrorizing the world in a way that the world has not foreseen. Bio-terrorism and attacks in the name of religion, to mention few, have emerged as new forms of terrorism in the international arena. In this regard, September 11 attacks on New York’s twin buildings have been the peak point of these new threats, sending a clear message to the world that no one or no state is safe from the devastating effect of terrorism, in spite of economic power and tight security.16 The attacks of September 11, which is described as ‘a day of unprecedented shock and suffering in the 12

OSCE Office for Democratic Institutions and Human Rights, Countering Terrorism, Protecting Human Rights, A manual (published by the OSCE Office for Democratic Institutions and Human Rights (ODIHR), Warsaw, Poland, 2007), p.23 [hereinafter OSCE/ODIHR manual] 13 Jonathan Matusitz, Terrorism and Communication (published by SAGE publication Inc, 2013), p.4 14 Neuman, supra note 3, p.290 15 Sabin Von Schorlemer, Human Rights: Substantive and Institutional Implications of the War Against Terror (IJIL, vol.14 no.2, 2003), p.265 16 Maya Arakon, The Fight Against Terrorism and Security Strategies in the European Union after 9/11(available at www.esiweb.org/pdf/esi_turkey_tpq_vol6_no4_mayaarakon .pdf last visited November 2, 2015), p.98

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history of the United States’, have resulted in the death of nearly 3000 civilians. 17 These attacks have immensely disturbed the world peace and stability; the ramification of this horrific incident extended even beyond the United States to all other regions. In recent years, the world has observed many devastating and shocking terrorist attacks that have affected the peace and stability of the world, such as terrorist attack on Garissa University, Kenya and hostage taking by Boko Haram. Moreover, the emergence and prompt spread of Islamic State and its recurrent attacks are becoming a headache for many countries. On November 13, 2015, a simultaneous terrorist attacks stormed at six different locations in Paris left at least 129 people dead and over 350 injured. Consequently, French President François Hollande blamed this horrible incident on Islamic State terrorist organization that claimed responsibility afterwards.18 The very recent attack on Istanbul Ataturk Airport, detonated by three suicide bombers, is also attributed to this organization. Therefore, with no doubt, terrorism is one of the foremost intricate challenges of the modern era, which is highly affecting the security of the world.

THE NEXUS BETWEEN TERRORISM, COUNTER TERRORISM AND INTERNATIONAL HUMANITARIAN LAW Terrorism or counter terrorism and international humanitarian law are different subjects in international law. However, this does not mean that they don’t have any relationship whatsoever and they can never be raised together in certain circumstances. IHL as a law of armed conflicts and terrorism or counter terrorism as a prominent phenomenon of the current world may cross paths in some cases. Generally, the relationship between terrorism and IHL can be seen from two aspects, i.e. prohibition of terrorism by IHL and application of IHL to terrorism and counter terrorism. PROHIBITION OF TERRORISM BY INTERNATIONAL HUMANITARIAN LAW International humanitarian law as stipulated in the four Geneva Conventions and the two Additional Protocols contain explicit and implicit prohibitions to terrorism. For instance, article 33 of the Fourth Geneva Convention19 and 17

Stephen P Marks, International Law and the ‘War on Terrorism’: Post 9/11 Responses by the United States and Asia Pacific Countries (Asia Pacific Law Review, Vol.14, No.1, 2006), p.58 18 Paul Belkin, France: Efforts to Counter Islamist Terrorism and the Islamic State (November 18, 2015 available athttps://www.fas.org/sgp/crs/terror/IN10301.pdf last visited February 12, 2016), p.1 19 Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949 (available at https://www.icrc.org/ihl.nsf/INTRO/380last visited November 9, 2015), article 33

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article 4(2) (d) of Additional Protocol II 20 explicitly prohibit acts of terrorism committed against all persons who do not take direct part in hostilities or who have ceased to take part in hostilities. In addition, articles 51(2) 21 of Additional Protocol I and 13(2) 22 of Additional Protocol II also prohibit acts of terrorism in the conduct of hostilities, providing that “acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited”. Acts of terrorism are either attacks directly targeting civilians or indiscriminate attacks affecting civilians in one way or another. Nevertheless, for terrorist acts to fall under the ambit of the above provision, striking civilians or the civilian infrastructure is not exclusively mandatory. Threats of violence that are aimed at spreading terror among the civilian population are also prohibited. In relation to this, the intention to spread terror is a necessary element, because even the attack directed against military or lawful targets may create fear among civilians in some cases. For instance, aerial bombardment of military target in vicinity to civilian area has the effect of terrorizing the civilian population.23 On the other hand, IHL also contains implicit prohibitions to terrorism. For instance, the fundamental principle to distinguish between combatants and civilians is in clear contrast to the practice of terrorism. The principle of distinction is a cornerstone of IHL, which requires persons engaged in armed conflicts to distinguish between civilians and combatants and civilian objects and military objects.24 This principle is the basis for the prohibition of many acts that would be considered as terrorism, such as the use of human shields and hostage taking.25 In addition to these, common Article 3 also condemns terrorism implicitly as it prohibits the taking of hostages and “violence to life and person, in particular murder of all kinds, mutilation,

20

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977 (available at https://www.icrc.org/ihl.nsf/INTRO/475?OpenDocument last visited November 9, 2015), article 4(2) (d) 21 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 (available at https://www.icrc.org/ihl.nsf/INTRO/470 last visited November 9, 2015), article 51(2) 22 Additional Protocol II, supra note 19, article 13(2) 23 Hans-Peter Gasser, Acts of Terror, “Terrorism” and International Humanitarian Law (IRRCVol.84 No 847 September 2002), p.556 24 International Committee of the Red Cross (ICRC) (2007), International Humanitarian Law and the Challenges of Contemporary Armed Conflicts (International Review of the Red Cross, volume 89 number 867, September 2007), p.722 25 Christopher Paulussen, Testing the Adequacy of the International Framework in Countering Terrorism: The War Paradigm (International Centre for Counter Terrorism (ICCT) Research Paper, August 2012), p. 7 & 8

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cruel treatment and torture” activities.27

26

, which encompasses many terrorist

Therefore, IHL unequivocally prohibits acts of terrorism and these prohibitions are absolute. Terrorist acts causing death or serious injury to civilians are grave breaches of the Fourth Geneva Convention, which are regarded as war crimes.28 APPLICATION OF INTERNATIONAL HUMANITARIAN LAW ON TERRORISM AND COUNTER TERRORISM International humanitarian law, which is stipulated in the Geneva Conventions of 1949 and their Additional Protocols of 1977, does not anticipate armed conflict in the context of modern terrorism. However, this doesn’t mean that IHL cannot accommodate terrorism and counter terrorism acts when these phenomena amount to armed conflict. Terrorist acts may occur during armed conflicts or peace times. Since the application of IHL is restricted to war times, it doesn’t regulate terrorist acts that take place in peace times. However, if terrorist acts are committed during international or non-international armed conflicts, the rules of IHL are applicable. Likewise, despite the criticism forwarded against humanitarian law on its failure to incorporate rules on terrorism and counter terrorism, the existing principles and norms of IHL are applicable when the war on terror amounts to armed conflict and fulfills all the preconditions of the law of war. 29 We cannot reasonably expect humanitarian law to anticipate every new form of conflict that may occur in the future and incorporate rules. However, the now existing rules of IHL can safely apply if the material reality of the war does not contradict with these rules. As it has been deduced above, the application of IHL is only limited to international and non-international armed conflicts. Under the 1949 Geneva Conventions, international armed conflicts are those fought between States. According to the 1949 Geneva Conventions, international armed conflicts has to involve two or more states as opposing parties to the conflict. Hence, the post 9/11 war between US-led coalition and the Taliban regime in Afghanistan, waged as part of the war on terror, is considered as international armed conflict, since it was fought between two sovereign 26

Geneva Conventions of 1949 (available at https://www.icrc.org/en/war-and-law/treatiescustomary-law/geneva-conventions last visited November 9, 2015), common Article 3 27 Paul Tavernier, Consequences of the Application of IHL in the Struggle Against Terrorism (CYIL, 2010 available at files.cyil.eu/200000010-bb85dbc7f8/CYIL_4_ tavernier.pdf last visited November 9, 2015) p. 68 28 Gasser, supra note 23, p.556 29 Rona, supra note 8, p.57

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states. Consequently, the Geneva conventions and Additional protocol I apply to this case, the latter apply as a customary international law, since both states are not party to the protocol.30 In other situations, the war on terrorism can also take the form of non-international armed conflict when it does not involve two or more states as conflicting parties. For instance, the one fought in Afghanistan between the Afghan government, supported by coalition of different armies, and remnants of the Taliban and Al-Qaeda is clearly an internal armed conflict.31 International humanitarian law applies to any armed conflict, if it fulfills the requirements of international or internal armed conflict. There is nothing that hinders IHL from applying to terrorism and counter terrorism measures when they amount to armed conflicts, in which case IHL will step in to protect those who do not or no longer take part in hostilities. “Humanitarian law is quite at home with the war on terror when it amounts to armed conflict. When the war on terror does not meet the criteria for armed conflict, it is not that humanitarian law is inadequate, but rather that its application is inappropriate.”32 As it is evident from the definition itself, the very edifice of terrorism is in clear contrast with IHL, which is mainly concerned about protecting civilians. However, although violence primarily targeting civilians is in direct contrast with the purpose and fundamental notions of IHL, even people who are considered as terrorists should be protected by IHL whenever it is necessary.33 Terrorists are human beings and they should be treated humanely which necessitates limits on conduct of hostilities when war is waged against them and their treatment when they cease to take part in hostilities. However, above all, IHL should apply to armed conflicts between states and terrorists to protect individuals who do not participate in hostilities or civilians, which can be the foremost victims of both terrorism and counter-terrorism. Hence, the proper application of IHL is mainly essential for the protection of civilians.34 Some of the principles of IHL should be construed to the effect of excluding terrorists from enjoying particular rights and privileges; on the other hand, the law of war usually provides direct or indirect protection even to terrorists.35 IHL is not concerned about the motives and identity of parties who engage in war, rather it’s concerned with protecting certain groups of individuals and minimizing the evils of war by limiting methods and means 30

ICRC (2007), supra note 24, p.725; See also Marks (2006), supra note 17, p.60 Ibid 32 Rona, supra note 8, p.28 33 Neuman, supra note 3, p. 289 34 Ibid, p. 298 35 Ibid 31

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of warfare. Thus, applying IHL to terrorism and counter terrorism acts when they amount to armed conflicts goes hand in hand with the whole purpose of IHL.

THE FIGHT AGAINST TERRORISM: OVERVIEW OF THE CHALLENGES DISTURBING INTERNATIONAL HUMANITARIAN LAW With the rise of non-state armed groups that resort to acts of terrorism and frequent terrorist attacks, states and the United Nations have reacted by tightening the existing counter terrorism measures. 36 Particularly, 9/11 attacks can be taken as a turning point in the status quo of the fight against terrorism by the US and European states. 37 States, particularly US, have been engaging in series of measures and military operations to combat terrorism, such as the military operations in Iraq and Afghanistan. The use force against terrorist organizations may take different forms, from police actions to full scale military operations38 and the war against terrorists may be conducted on the high seas, against the host state or within a host state.39 As a consequence of the outrageous incidents of September 11, plenty of states have engaged in varies precautionary measures to prevent terrorist acts from being committed in their jurisdiction. These measures include: • • • •

Employing strong police surveillance techniques, particularly on foreign residents. Adopting quite brutal interrogation methods, which may be considered as inhuman treatment or torture and contravene fundamental rights. Limiting due process and fair trial rights of suspected terrorists, such as denying access to witnesses, ignoring the right to presumption of innocence and right to counsel among others. Imposing more stringent procedures on asylum seekers, refuges and migrants against the special protection accorded to them, for instance returning such persons to the country where they have reasonable fear of persecution, which is contrary to the principle of nonrefoulement.40

36

International Committee of the Red Cross (ICRC) (2015), International Humanitarian Law and the Challenges of Contemporary Armed Conflicts (Report Submitted for the 32nd International Conference of the Red Cross and Red Crescent), p.16 & 17 37 Arakon, supra note 16, p.98 38 Neuman, supra note 3, p. 291 39 Ibid, p. 292-296 40 Gasser, supra note 23, p.565 & 566

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Shortly after the attack, the United States government administration classified the ‘global war on terrorism’ as a single worldwide international armed conflict against a transitional non-state actor (Al Qaeda).41 However, does this mean that there is a global armed conflict being waged? According to ICRC’s view there is no single global war being waged against terrorism and all situations of violence that are colloquially referred as a part of “the war on terror” must be seen on a case-by-case basis. In other words, where violence is qualified as international or internal armed conflict based on the Geneva Conventions, IHL is pertinent to apply. Where it does not, other bodies of law will apply, for the application of humanitarian law is only limited to cases of international or non-international armed conflicts.42 Likewise, immediately after the November 13 Paris attacks, France proclaimed a series of counter terrorism measures, such as: • • • •

Declaration of a national state of emergency for the coming three months, which confers on law enforcement expanded authority to search and seize terrorist suspects. Employing tight emergency controls on France’s borders that were previously open borders. Increasing state’s authority to force dual-nationals and foreigners, who are believed to take part in terrorist activities, to leave the country. Opening 10,000 new law enforcement jobs over the next five years, as a part of establishing strong security system.43

In addition to these, following the attack France engaged in the “war” against Islamic State. Within 48 hours of the attacks, it launched its most hostile air strikes so far, on the Islamic State strong hold of Raqqa, Syria; the number of French fighter jets conducting airstrikes increased considerably.44 Along with the United States and other countries, France is also vigorously taking part in the international coalition engaging in military responses against the Islamic State in Iraq and Syria.45 Non-compliance with the rules of IHL is not only the result of actions of non-state actors, in fact states also disregard and violate the principles of IHL during armed conflicts. The new paradigm of war, allegedly called ‘the 41

Marco Sassoli, Transitional Armed Groups and International Humanitarian Law (Program on Humanitarian Policy and Conflict Research Harvard University Occasional Paper Series, number 6, 2006), p.5 42 ICRC (2007), supra note 24, p.724 & 725, See also ICRC report (2015), supra note 36, p.18 43 Belkin, supra note 18, p.2 44 Ibid, p.1 & 2 45 Ibid, p.2

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global war on terror’, launched by the US government following the attacks of September 11 is one of the prominent and controversial challenges of IHL in the 21st century.46 In addition, excessive counter terrorism measures taken by other states in response to the recent devastating terrorist attacks have also challenged the proper application of IHL. Overall, “Counter terrorism responses, combined with a robust counterterrorism discourse in both domestic and international fora, have significantly contributed to a blurring of the lines between armed conflict and terrorism, with potentially adverse effect on IHL.”47 The UN has generally affirmed that counter terrorism measures taken by states must be in line with international law, including the rules and principles of humanitarian law. However, the reality is far from this notion, states usually involve in measures manifestly banned by IHL for the sake of combating terrorism. 48 These states apply IHL to where it doesn’t reasonably fit and limit the application of IHL to where it should apply appropriately. Therefore, in relation to the war on terrorism, not only is the under application of IHL that is a challenge to proper application of humanitarian law, but also over application of IHL rules. OVER APPLICATION OF INTERNATIONAL HUMANITARIAN LAW In some occasions, states have ignored the applicability of humanitarian law rules, despite the existence of the material reality of war that necessitates the intervention of IHL. In other scenarios, states have expanded the implementation of IHL to incorporate cases that cannot be qualified as armed conflicts.49 From of a legal perspective, the war on terrorism is not usually regarded as internationally justified conflict. Nevertheless, the position of the US government is to the opposite; it applies IHL to situations where it does not rightfully apply, such as upholding actions of targeted killing of alleged terrorists as legitimate enemy combatants. This over application denies this group of individuals the better protection they would get under the laws of peace, which also affects the proper application of IHL.50 Since 2001, the US administration has been arguing that it is engaged in a “global war on terror”, in which the rules of law of armed conflict (IHL) apply and the regular criminal law enforcement of dealing with terrorism plays a minimal role. This assertion is highly resisted by many legal scholars and even

46

Kelley, supra note 4, p.22 ICRC report (2015), supra note 36, p.17 48 Kelley, supra note 4, p.23 49 ICRC (2007), supra note 24, p.720 50 Kelley, supra note 4, p.23 &24 47

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ICRC. According to these scholars, IHL can only apply to specific cases of the war on terrorism, such as the armed conflicts in Iraq and Afghanistan.51 The US authorities and some scholars even claimed that the global war on terror is an international armed conflict, which fall in the ambit of the Geneva Conventions. However, as it has been asserted earlier all instances of the war on terrorism cannot be qualified as international armed conflicts. Pursuant of the law of war, international armed conflict has to be fought between two or more states. Hence, the more suitable nomenclature for most cases of the war on terror would be “transnational” or “interstate”, i.e. armed conflicts that stretch beyond state boundaries, but that do not involve two or more states as opposing parties to the conflict.52 This, equating the war on terrorism with international armed conflict, is not without effect; it limits the application of international criminal and human rights law. As Gabor Rona pointed out: “The error of United States’ choice of nomenclature is neither insignificant nor innocent. The U.S. view, if accepted as statement of law, would serve as a global waiver of domestic and international criminal and human rights laws that regulate, if not prohibit, killing. Turning the whole world into a rhetorical battlefield cannot legally justify, though it may in practice set the stage for, a claimed license to kill people or detain them without recourse to judicial review anytime, anywhere. This is a privilege that, in reality, exists under limited conditions and may only be exercised by lawful combatants and parties to armed conflict.”53 Therefore, the application of international humanitarian law should only be limited to international and internal armed conflicts. Extending its application and over applying it to every military operations will deprive persons of the better protection they would get under the laws of peace, such as human rights law and criminal law. UNDER APPLICATION OF INTERNATIONAL HUMANITARIAN LAW Some states usually limit the application of humanitarian law rules to the fight against terrorism so that they can legalize their illegal acts and atrocious counter terrorism measures. IHL protects victims of terrorism, but in certain circumstances it also protects the terrorists themselves when they 51

Milanovic Marko, Lessons for Human Rights and Humanitarian Law in the War on Terror: Comparing Hamdan and the Israeli Targeted Killing Case (International Review of the Red Cross, volume 89 number 866), p.375 and 376 52 Rona, supra note 8, p.65 53 Ibid

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are “hors de combat”.54 Nonetheless, in relation to the issue of Guantanamo prisoners, the US government took the position that terrorists are unlawful combatants. However, such category of “unlawful combatants” does not exist in IHL. The distinction between combatants and non-combatants (civilians) is the main distinction in humanitarian law and there is no place for a third category.55 In recent war in Afghanistan, undoubtedly an international armed conflict to which the Geneva Convention Relative to the Treatment of Prisoners of War is applicable, the United States denied the detainees prisoners of war (POW) status. This vividly contravenes Article 4(1) of the convention, which provides that POWs are enemy combatants who have fallen in the hands of the belligerent state.56 The US has further alleged that even the Taliban are not eligible for POW status, since they failed to have a fixed, distinctive sign (uniforms) and did not conduct their operations in accordance with laws and customs of war. Nonetheless, these preconditions are part of Article 4(2) of the same convention that applies to militias and volunteer corps,57 not to regular members of armed forces, who fall under the domain of Article 4(1).58 In case of doubt whether persons having committed a belligerent act are combatants, article 5(2) of Convention III prescribes that they must be treated as prisoners of war “until such time as their status has been determined by a competent tribunal.” In the case of those detained in Guantanamo and arrested in Afghanistan, in which IHL of international armed conflicts applied, there is no doubt as to their status.59 However, even if the doubt arises, their prisoners of war status is presumed, until their status is finally determined by a competent tribunal. Not only has the US denied its Guantanamo detainees POW status under the third Geneva Convention, but also rejected the application of the fourth Geneva Convention for the Protection of Civilians, thus leaving them without any legal safeguard. Contrary to this, ICRC provided that all armed conflict detainees should get protection either under the third or fourth Geneva Convention; there is no other group of persons involved or affected by international armed conflicts who fall outside the ambit of protections

54

I.e. Persons who were combatants, but no longer taking part in hostilities. Tavernier, supra note 27, p.70 56 Convention (III) Relative to the Treatment of Prisoners of War. Geneva, 12 August 1949 (available at https://www.icrc.org/ihl.nsf/INTRO/375?OpenDocument last visited November 9, 2015), article 4(1) 57 Ibid, article 4(2) 58 Rona, supra note 8, p.65 59 Sassoli, supra note 41, p.17 55

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accorded by IHL.60 In other words, just because detained enemy combatants are deprived of POWs status, it doesn’t mean they don’t get any legal safeguard from the system of IHL. Such persons have to be considered as civilians and conferred with entitlements enumerated under the fourth Geneva Convention on the protection of civilian population during war times. On the other hand, if they are not nationals of the belligerent party to the conflict, but citizens of third states, they will maintain the status of foreign nationals. Hence, civilian detainees have to be treated pursuant to the principles put forward in the fourth Geneva Convention. They can be put on trial and punished accordingly if they are suspected of serious crimes. The fourth Geneva Convention does not give them a green light to be free from prosecution for taking part in acts of terrorism, but it does grant them a right to fair trial.61 The principle of distinction is one of the fundamental principles of international humanitarian law. This principle is clearly stated under article 48 of the first additional protocol, which provides that parties to a conflict shall always distinguish between civilian population and combatants and between civilian objectives and military objectives. 62 Consequently, according to article 51(2) of the same protocol, civilian population cannot be the object of attack 63 and paragraph 4 of the same article prohibits indiscriminate attack.64 More specifically, paragraph 5 addresses the matter of target areas in relation to prohibited indiscriminate attacks, which includes different sorts of attack by bombardment which targets as a single objective a number of visibly separated and distinct military objectives located in a city, town, village or other areas containing a similar concentration of civilians or civilian objects.65 Similarly, article 52(2) of the protocol stipulates that attacks shall be strictly limited to military objectives.66 Overall, according to the above provisions, a distinction must be made between civilians and combatants and it is prohibited to direct attacks against civilians. Moreover, the principle of

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ICRC Commentary on the Geneva Conventions of 12 August 1949 (available at https://www.icrc.org/eng/resources/documents/publication last visited November 15, 2015) See also ICRC (2007), supra note 24, p.727 61 Gasser, supra note 23, p.568 62 Additional Protocol I, supra note 21, article 48 63 Ibid, article 51(2) 64 Ibid, article 51(4) 65 Ibid, article 51(5), See also Natalino Ronzitti and Gabriella Venturini, The Law of Air Warfare: Contemporary Issues (Essential Air and Space Law (volume 1), Eleven International Publishing) 66 Additional Protocol I, supra note 21, article 52(2)

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distinction stipulated under article 48 has obtained the status of customary international law.67 French air strikes after the Paris attacks are clearly against this principle; air strike is one of the precarious means of warfare, in which case it is hard to distinguish combatants from civilians, especially if it targets an area that contain a concentration of civilians. The French airstrikes targeted Raqqa, a city in Syria in which many civilians live in. Even if there is no clear evidence about the casualties of the attack, air bombardment of a city is regarded as indiscriminate attack. Therefore, French airstrikes in response to Paris attacks is in clear violation of the principle of distinction recognized in the above provisions and accepted as a customary international law. Generally, the war on terrorism is a contemporary phenomenon that is challenging the proper application of IHL. States limit or over apply IHL to make it fit with their own objectives and actions, which is against the protective purpose of humanitarian law rules. As Morgan Kelley puts it: “In reality the self-serving attitude adopted by states, and method of “picking and choosing” when and how the rules of IHL can apply, should be regarded as one of the gravest threats to humanitarian norms that the world is currently facing, if for no other reason than the fact that it is practiced by the very states who drafted the rules of IHL in the first place.”68

CONCLUSION The new methods and means of warfare developed in recent years have been challenging the proper application of IHL, which was created in the post WWII era. Advance in technology, globalization and proliferation of internal armed conflicts have ignited the situation and made it difficult for humanitarian law rules to apply as envisaged. Hence, IHL is facing plenty of challenges which led many to argue that the laws of war stipulated under the four Geneva Conventions and the two Additional Protocols are inadequate and obsolescence. The fight against terrorism is also one of the contemporary challenges of international humanitarian law. Even though terrorism is not a new occurrence, the attacks of September 11, 2001 are taken as a turning point in the international arena, which led many states, principally the US, to take 67

International Committee of the Red Cross (ICRC) (2016), The Principle of Distinction Between Civilians and Combatants (available at https://www.icrc.org/customaryihl/eng/docs/v1_cha_chapter1_rule1 last visited February 23, 2016) 68 Kelley, supra note 4, p.25

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strong counter terrorism measures including full scale military operations. Following the attack, the US government has declared “the global war on terror”. Other states have also employed stringent counter terrorism measures as a response to the recent outrageous terrorist attacks. This scenario requires IHL to step in whenever it amounts to international or internal armed conflict. However, states have been challenging the proper application of IHL rules either by over applying them or limiting their application. This is clearly contrary to the ultimate aim of IHL, which is protecting all persons who do not or no longer take part in hostilities. States should not cut or enlarge international law so that it can go with their interest and justify their actions or inactions. Whenever it fulfills the requirements of international or internal armed conflict, IHL rules should apply to the war on terrorism and even terrorists should get protection under IHL when they cease to take part in hostilities. According to ICRC: “The very edifice of IHL is based on the idea that certain categories of individuals must be spared the effects of violence as far as possible regardless of the side to which they happen to belong and regardless of the justification given for armed conflict in the first place. The nonapplication or selective application of IHL, or the misinterpretation of its rules for domestic or other political purposes, can – and inevitably does – have a direct effect on the lives and livelihoods of those who are not or are no longer waging war.”69 Even if international humanitarian law did not anticipate this new paradigm of armed conflict, it can accommodate terrorism and counter terrorism activities whenever they amount to international or non-international armed conflicts. The problem is not that IHL is obsolete and unable to comprehend new developments, but it is the actions and inactions of the states that is rendering the law of war ineffective. After all, the application of international law depends on the commitment of states. Non-application and selective application of these rules can disturb the whole purpose of IHL, which is shielding people who do not or no longer take part in hostilities from the devastating effects of armed conflict.

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ICRC (2007), supra note 24, p. 720 & 721

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