Branding an armed group as “terrorist” cannot alone cancel the applicability of international humanitarian law (IHL). The vast majority of contemporary armed conflicts involve non-State armed groups with which the law of armed conflict can be addressed. In three important clarifications of the law, Stephane Ojeda shows why counter-terrorism efforts – including the ongoing negotiation of the UN-led draft Comprehensive Convention on International Terrorism – should take care not to undermine the integrity and relevance of IHL, as well as ongoing efforts to bring armed groups to comply with the law.

The UN have been negotiating an originally Indian-sponsored draft Comprehensive Convention on International Terrorism (CCIT) since 1996. While 9/11 and the recent rise of the Islamic State group (ISg) have each led to surge of activities in the negotiations, the UN General Assembly’s Sixth Committee, which deals with legal affairs, has been struggling in a drafting impasse for 20 years. The last round of consultations on the draft CCIT of the specifically dedicated Working Group/Ad Hoc Committee has only confirmed the existence of long-standing divergent positions. In particular, disagreement revolve around what should be included and what should be excluded from the CCIT’s scope of application.

Despite some caveats, the draft CCIT does not expressly exclude situations of armed conflict from its scope of application. Nonetheless, it does not accord precedence to international humanitarian law (IHL) – which governs armed conflicts – as the lex specialis. It only excludes from its scope certain acts committed in such situations. The relationship between the definition of acts deemed terrorist under the draft CCIT and acts committed in armed conflict is actually one of the points of disagreement holding up the conclusion of negotiations.

Instead of focusing on the overall relationship between terrorism, counter-terrorism and IHL, this brief post aims at providing a few elements of clarifications – only from an IHL viewpoint – on three interlinked issues, which seem to lead to continuous misconceptions.

1. The problem of double classification: terrorist group vs. non-state party to the conflict

IHL makes a distinction between two types of armed conflicts, international (IAC) and non-international (NIAC). IAC requires the hostile resort to armed force involving two or more States, or national liberation movements. Situations of occupation are also governed by the rules of IHL for IACs. NIACs requires protracted armed confrontations occurring between governmental armed forces and the forces of one or more armed groups, or between such groups arising on the territory of a State. The armed confrontation must reach a minimum level of intensity and the parties involved in the conflict must show a minimum of organization.

The core IHL instruments governing IACs are the four Geneva Conventions of 1949 (GCs, universally ratified), their First Additional Protocol of 1977 (AP1, ratified by 174 States) and applicable customary rules. NIACs are governed by Common article 3 to the GCs (CA3), the Second Additional Protocol of 1977 (AP2, ratified by 168 States) and applicable customary rules.

“…if you do not consider your adversary as a party to an armed conflict, then you cannot carry out a military operation against it. You cannot have it both way: either you wage military operations governed by IHL or you carry law enforcement operations governed by human rights law.”

Whenever a situation of violence and a group fulfill the above legal conditions, any group can be a party to an armed conflict. The terms “terrorist group”, “non-state armed group” (NSAG) and “non-state party to the armed conflict” are not mutually exclusive. No IHL provisions preclude NSAGs listed as terrorists at international, regional or domestic level from being considered as party to an armed conflict within the meaning of IHL. However, if you do not consider your adversary as a party to an armed conflict, then you cannot carry out a military operation against it. You cannot have it both way: either you wage military operations governed by IHL or you carry law enforcement operations governed by human rights law. You cannot wage war, legally speaking, against a non-existing adversary party to this war.

Practical and political issues might emerge from this double-classification: how to generate respect for IHL by a NSAG which has been labelled a “terrorist group” regardless of its actions on the ground? This may also become an obstacle to peace negotiations and reconciliation efforts in the future, as illustrated by the request from the Taliban, in January 2016, to be removed from the “UN blacklist”.

A concern from numerous States is that the recognition of a situation of armed conflict would somehow “legitimize terrorists”. IHL rules are very clear in this respect though. For instance, CA3 states that the application of its provisions “shall not affect the legal status of the Parties to the conflict”. Indeed, the fact of applying the rules of IHL does not imply or constitute recognition by a State that the adversary has legal status or authority of any kind. It does not limit in any way a State’s right to suppress a threat to its security by all the means provided for by law, nor does it affect a State’s right to prosecute, try and sentence persons suspected of criminal offences, according to applicable law.

2. Non-state armed groups as “armed forces” under IHL

Under IHL, the term “armed forces” refer to the armed forces of both the State and non-state parties to the armed conflict. CA3 provides that “each Party to the conflict” must afford protection to “persons taking no active part in the hostilities, including members of armed forces”. CA3 does not refer to “the” armed forces, which could suggest state armed forces alone, but rather to “armed forces”, thus including the non-state party as well.

State armed forces first consist of a State’s regular armed forces. However, the notion of State armed forces also includes other organized armed groups or units that are under a command responsible or “belonging” to the State party to the NIAC. State armed forces traditionally consist of personnel with a combatant function and personnel with a non-combatant function, namely medical and religious personnel. Non-state parties to a NIAC do not have armed forces in the sense established under domestic law. However, the existence of a NIAC requires the involvement of fighting forces on behalf of the non-state party to the conflict that are capable of engaging in sustained armed violence, which requires a certain level of organization: the NSAGs. Such NSAGs constitute – in the ICRC’s view – the “armed forces” of a non-state Party to the conflict in the sense of CA3.

It is interesting to note that some UN sectorial conventions on terrorism (e.g. 2005 Nuclear Terrorism; 1997 Terrorist Bombings) have also been interpreted – not unanimously though – as encompassing both State and non-state parties to armed conflict when using the terms “armed forces”. Any other interpretation would mean that members of NSAGs would either not be protected at all, or they would be privileged in that they – unlike governmental armed forces – would be protected at all times except when they are directly participating in hostilities.

3. No impunity under IHL for “terrorist acts” committed in armed conflict

There is a growing tendency at State and UN levels to consider any act of violence carried out in an armed conflict by a NSAG as being terrorist in nature and therefore necessarily unlawful, even when such acts are not prohibited under IHL (e.g. attacks against military objectives). This is partly due to the general willingness to punish the ISg and other affiliated groups for the atrocities they committed, and the related – albeit unfounded – fear that to argue otherwise might lead to impunity for those acts.

IHL already provides a strong legal framework with explicit prohibitions applicable also to NSAGs designated as terrorists whose serious violations entail individual criminal responsibility both at domestic and international level (e.g. universal jurisdiction for acts amounting to war crimes). Moreover, the lawfulness of the use of force (regulated by the UN Charter) should have no impact on the lawfulness of acts committed in situations of armed conflict (regulated by IHL). IHL regulates both lawful and unlawful acts of violence in all situations of armed conflict – be they labelled wars of national liberation, fight against foreign occupation, humanitarian war, etc. – and expressly prohibits terrorist acts in all instances (GC4, Art.33; AP1, Art.51; AP2, Art.13).

International jurisprudence has provided many further elements in this regard, such as the ICTY’s Galic (2003) and Milosevic (2007) cases, and the SCSL’s Brima et al (2007), Sesay et al (2009) and Taylor (2012) cases.

The combatant immunity – i.e. a combatant cannot be prosecuted for its mere participation in hostilities (unless s/he committed war crimes) – only exists in IAC. There is no combatant immunity for members of NSAGs as this concept is not as such applicable in NIAC. Such persons may be prosecuted under domestic law for their participation in hostilities, including for acts that are not unlawful under IHL.

Some argue that given this already existing possibility of prosecution of all acts – lawful and unlawful – at domestic level, it would not matter much to replicate it at international level, in particular through the CCIT. The truth is that the interface between IHL and domestic law have already resulted, as stated in Part VI of the 2011 ICRC Challenges report, in a “lopsided legal situation unfavourable to NSAG compliance with IHL”. That is why Article 6§5 of AP2 sought a remedy to this imbalance by calling for the “broadest possible amnesty to persons who have participated in the armed conflict”.

The CCIT would add an additional layer of incrimination at the international level to all acts committed by NSAGs, regardless of their lawfulness under IHL. Meanwhile it would devoid of meaning Article 6§5 of AP2 (which the ICRC views as a customary rule) by taking away the offer of amnesty, as those acts would obtain the rank of international crimes. Those measures would reduce the likelihood of obtaining respect for IHL even further.

And it is precisely this increasing lack of respect that has led to the historically unprecedented joint appeal from the UN Secretary General and the ICRC President in 2015.

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While it is perfectly understandable that ISg’s atrocities would impact on all discussions involving NSAGs, it would be useful to adopt a broader viewpoint. The vast majority of contemporary NIACs are affecting millions of human beings and involve NSAGs with whom IHL issues can be addressed. The ISg and affiliated armed groups represent only a minority.

Thus, it is important to ensure that counter-terrorism efforts, including the drafting of the CCIT, do not undermine not only the integrity and relevance of IHL governing NIACs but also the efforts engaged to reach out the majority of NSAGs to bring them into compliance with IHL. To act differently may eventually be counter-productive, as also suggested by the recently adopted 5^th Review of the UN Global Counter-Terrorism Strategy, which stresses that when counter-terrorism efforts neglect the rule of law at international level and violate international law, including IHL, they may further fuel violent extremism that can be conducive to terrorism.

Stephane Ojeda is Deputy Head & Legal Advisor to the ICRC Delegation to the United Nations, New York.

Follow on Twitter @stephane_ojeda.

Related content

• Terrorism, counter-terrorism and IHL: Primer on a recurring conversation – Ellen Policinski, 2 November 2016.

• International humanitarian law and the challenges of contemporary armed conflicts – ICRC Report, October 2015.

• 17^th annual Bruges colloquium on terrorism, counter-terrorism and international humanitarian law, 20-21 October 2016.

• ICRC web portal on terrorism