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Terrorism is a phenomenon from the point of view of international humanitarian law

02.11.2015 15:09

International humanitarian law (IHL) is a set of international legal standards that apply when armed violence reaches the level of armed conflict - international or non-international. The best known IHL treaties are the four Geneva Conventions of 1949 and their two Additional Protocols of 1977, but there are a number of other IHL treaties designed to alleviate the suffering of people in times of war. These include the 1997 Ottawa Convention on landmines.

IHL, which is sometimes also called the law of armed conflict or law of war does not give a definition of "terrorism", but prohibits in armed conflicts, most acts that would qualify as "terrorist" if they were committed in peacetime.

One of the fundamental principles of international humanitarian law requires all parties involved in armed conflict, in any circumstances, to make a distinction between civilians and combatants and between civilian objects and military objectives. "The principle of distinction '- a fundamental principle of international humanitarian law. Derived from it are many specific IHL rules, such as the prohibition of deliberate or direct attacks against civilians and civilian objects, the prohibition of indiscriminate attacks and the use of "human shields". In addition, international humanitarian law prohibits the taking of hostages.

In situations of armed conflict from a legal point of view, it would be pointless to qualify as a "terrorist actions" deliberate acts of violence against civilians, as they are considered as war crimes. According to the principle of universal jurisdiction a person alleged to have committed war crimes can be prosecuted not only by the State in whose territory the crime occurred, but by all the state.

IHL says about terrorism

IHL specifically mentions and prohibits "measures of intimidation and terror." Article 33 of the Geneva Convention IV states that "Collective penalties and likewise all measures of intimidation or of terrorism are prohibited." Additional Protocol II Article 4 prohibits "acts of terrorism" against persons not taking direct part or who have ceased to take part in hostilities. The main purpose - to stress that individual civilians and the civilian population as a whole can not be subjected to collective punishment, which, undoubtedly, are among the factors that create a climate of terror.

The two Additional Protocols to the Geneva Conventions also prohibit acts aimed at spreading terror among the civilian population. "The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of terrorizing the civilian population" (AP I, Art. 51 (2) and AP II, Art. 13 (2 )). These provisions are a key element of IHL rules governing the conduct of hostilities. They prohibit during armed conflict acts of violence that do not provide a real military advantage. It is important to keep in mind that even a lawful attack on military targets can cause fear among the civilian population. However, these provisions outlaw attacks that specifically aim to terrorize civilians, such as the use of artillery against the civilian population in the cities or sniping of civilians.

Can the individual actions of the "war against terrorism" in the aggregate classified as "transnational" armed conflict?

As mentioned above, IHL applies only during armed conflict. The central element of the concept of armed conflict is the existence of "parties" to the conflict. Parties to an international armed conflict may be two or more states (or states and national liberation movements), while in non-international armed conflict with each other can stand as a party or a state and armed groups (for example, rebel forces), or just armed groups. In any case, a party to an armed conflict must be organized to a certain extent, like the armed forces, have a certain command structure and the ability to comply with international humanitarian law and ensure its observance.

The rules of IHL apply equally to all parties to an armed conflict. It does not matter whether one or the other side of the aggressor or is in a state of self-defense. It does not matter, and whether a state party to the conflict or rebel groups. Accordingly, each party to an armed conflict are allowed to attack military installations and is forbidden to resort to attacks specifically targeting civilians. Equality of rights and obligations under international humanitarian law allows the parties to the conflict to know the extent to which they may act and rely on the similar behavior of the opposing party.

Specific aspects of the "war on terrorism" launched after the attacks against the US on September 11, 2001, indicate that there is an armed conflict as defined under IHL. As an illustration, you can lead a war that a coalition of states under the leadership of the United States led in Afghanistan since October 2001 1949 Geneva Conventions and customary international law were fully applicable to that international armed conflict, which opposed each other US-led coalition On the one hand, and Afghanistan, on the other. However, many acts of violence from those that occur in other regions of the world and are usually described as "terrorist", are the work of loosely structured groups or organizations or individuals who are, at best, connects the common ideology. It is doubtful whether on the basis of the known facts, these groups and organizations could be considered as a party in any of the types of conflicts, including the "multinationals". But even if international humanitarian law and does not apply to such acts they are still subject to the law. Regardless of the motives of the perpetrators, the acts that take place outside the framework of the conflict should not be subject to the law of war, and the provisions of domestic or international law.

Most of the measures undertaken by States to prevent or suppress terrorist acts do not reach the level of armed conflict. Measures such as intelligence gathering, cooperation between law enforcement and the judiciary, extradition, criminal sanctions, financial investigations, the freezing of accounts or diplomatic and economic pressure on states accused of supporting persons who are suspected of terrorism, are not generally considered as acts of war.

"Terrorism" - a phenomenon in which, as in war, there is no clear-cut enemy. Fighting only with an identifiable party to an armed conflict. For this reason, the term "war on terrorism" is more appropriate than the "war on terror".

What law applies to persons who have been detained in the fight against terrorism?

States have the right and duty to protect its citizens from terrorist attacks. Appropriate measures may include the arrest or detention of individuals suspected of terrorist offenses. However, they must be carried out within the framework of clearly defined by national law or international law.

In case of doubt as to whether this or that held by the person entitled to prisoner of war status, Geneva Convention III requires that the solution of this issue must be rendered by a competent court. Civilians, detention for security reasons, are entitled to the protection afforded by the Geneva Convention IV. Combatants who do not meet the criteria, which are entitled to prisoner of war status (for example, the open carrying of weapons) and civilians taking a direct part in hostilities in an international armed conflict (the so-called "non-privileged" and "unlawful" combatants) under the protection of the Geneva Convention IV, if they are citizens of enemy powers. Unlike POWs such persons may be prosecuted under domestic law for restraint by both the fact of participation in hostilities and for committing criminal acts. They may be imprisoned until the end of the serving of their sentences.

Persons detained in connection with non-international armed conflict, which is part of the fight against terrorism, both in Afghanistan since June 2002 are protected by Article 3 common to the four Geneva Conventions, and customary international humanitarian law. They also apply the provisions of international human rights law and domestic law. In the case of criminal prosecution on suspicion of committing crimes, they are entitled to judicial guarantees stipulated by international humanitarian law and human rights law.

All persons detained outside of armed conflict in the fight against terrorism, are protected by the domestic legislation of the state and the holding of international human rights law. If they are tried on charges of committing any crimes, they are provided with fair trial guarantees provided by domestic law and human rights law.