UNIVERSITY OF ESSEX DISSERTATION

SCHOOL OF LAW
LLM/MA IN: LLM in IHL

STUDENT’S NAME: Agnieszka Szafranowska

SUPERVISORS’S NAME: Noam Lubell

DISSERTATION TITLE:

Counterterrorism, International Humanitarian Law, and Non-International Armed Conflict

COMMENTS: (PLEASE WRITE BELOW YOUR COMMENTS)

MARK:

SIGNATURE: DATE:

Counterterrorism, IHL and NIAC 1

 UNIVERSITY OF ESSEX

SCHOOL OF LAW

LLM in International Humanitarian Law

2018-2019

Supervisor:
Noam Lubell

DISSERTATION

Counterterrorism, International Humanitarian Law, and Non-International Armed Conflict

Name: Agnieszka Szafranowska

Registration Number : 1806570
Number of Words: 15721
Date Submitted: 11 September 2019

Counterterrorism, IHL and NIAC 2

Counterterrorism, International Humanitarian Law and Non-International Armed Conflict

Agnieszka Szafranowska

Index
List of Abbreviations……………………………………………………………………………………… 03
I. Introduction ……………………………………………………………………………………………04
II. The International Responses to Terrorism: Conventions, Resolutions and Domestic Law …….. 07
A. Evolution of the International Response to Terrorism……………………………………..08
B. UNSC Resolutions and Proliferation of Domestic Counterterrorist legislation …………11
III. Current Counterterrorist Framework in Non-international Armed Conflict…………………………19
A. IHL and Terrorism...……………………………………………………………………………19
B. NIAC, IHL and Counterterrorism……………………………………………………………..21
IV. Counterterrorism and IHL in NIAC …………………………………………………………………….25
A. Equality and Distinction………………………………………………………………………..26
B. Access to Medical and Humanitarian Aid………..………………………………………….35
V. Conclusion…………………………………………………………………………………………………39
VI. Bibliography………………………………………………………………………………………………..41

List of Abbreviations
AP Additional Protocols to the Geneva Conventions
CA3 Common Article 3 of the Geneva Conventions
CCT Comprehensive Convention Against International Terrorism
CTC Counter Terrorism Committee
FARC Revolutionary Armed Forces of Colombia
GC Geneva Conventions
GWOT Global War on Terror
IAC International Armed Conflict
ICC International Criminal Court
ICRC International Committee of the Red Cross
ICTY International Criminal Tribunal for the Former Yugoslavia
IHL International Humanitarian Law
IHRL International Human Rights Law
ISIS Islamic State of Iraq and Levant (ISIL, IS, and various names)
LTTE Liberation Tigers of Tamil Eelam
MSF Médécins Sans Frontières
NAM Non-Aligned Movement
NIAC Non-International Armed Conflict
NSAG Non-State Armed Groups
OAS Organisation of American States
OAU Organisation of African Union
OIC Organisation of Islamic Cooperation
PKK Kurdistan Worker’s Party
POW Prisoner of War
SC Security Council
SCSL Special Court for Sierra Leone
STL Special Tribunal for Lebannon
UNGA United National General Assembly
UNSC United Nations Security Council
UNSCR United Nations Security Council Resolutions

Counterterrorism, IHL and NIAC 3

Counterterrorism, International Humanitarian Law and Non-International Armed Conflict

I. Introduction

Terrorism’s long history shows how easily the term falls prey to political manipulation ‘one man’s terrorist

is another man’s freedom fighter,’1 and the one who holds the power determines the narrative. Yet it is

impossible to write a critical paper about counterterrorism without referring to terrorism a multitude of

times, different definitions that can be envisaged based on previous assumptions, perhaps we are

speaking of the plurality of ‘terrorisms.’2 Thus, it may be useful to keep the following in mind:

Terrorism can be understood at a basic level as the public use of violence to inspire

terror […] The profusion of more narrow definitions that have emerged in the twentieth

and the twenty first centuries reflect a need to create legal and moral categories that

delegitimise particular uses of terror in order to justify action against them. These

definitions of terrorism are fluid and unstable. They depend on who is formulating them,

what their interests are, and whom they are talking about. 3

It is important to note that despite of the ubiquitous use of the term terrorism, it can be argued that it

has ‘no legal significance’4 in the absence of a single internationally agreed definition. 5 As will be

established, terrorism is a political construction that is unable to find its place in law, perhaps for very

good reasons. Putting in question the term of terrorism does not condone acts and/or violence, which

cause fear through intention or actions. Such acts are unacceptable in peace and in war.

The terrorist label, however, as the construction of the exceptional ‘other,’ 6 that then is claimed to fall

out of existing legal regimes, can be politically expedient and counterproductive, especially in war, as it

further polarises the conflict and makes reconciliation more difficult. 7 In spite of this, the international

1 Helen Duffy, The ‘War on Terror’ and the Framework of International Law (Cambridge University
Press 2009) 18.
2 As quoted in Ben Saul, 'Definition of Terrorism in the UN Security Council: 1985-2004' (2005) 4

CHINESE J INT'L L 161.

3 The definition offered by Brown includes ‘inspire terror in order to influence the actions of third parties.’

However, the latter can be also contentious so it was omitted to keep it to the core element. Warren C.
Brown ‘The Pre-History of Terrorism’ in Erica Chenoweth, Richard English, Andreas Gofas and Stathis
N. Kalyvas (eds) The Oxford Handbook of Terrorism (Oxford 2019) 87.
4 Rosalyn Higgins as quoted in Andrea Bianchi ‘Counterterrorism and International Law’ in Erica

Chenoweth, Richard English, Andreas Gofas and Stathis N. Kalyvas (eds) The Oxford Handbook of
Terrorism (Oxford 2019) 661.
5 Michael J. Boyle ‘Introduction’ in Michael J. Boyle (ed) Non-Western Responses to terrorism

(Manchester University Press 2019) 3.

6 Nicole Detraz, International Security and Gender (Polity Press 2012) 114.
7 Detraz (n6) 100.

Counterterrorism, IHL and NIAC 4

community, through conventions and more recently through the United Nations (UN) Security Council

(SC) Resolutions (UNSCR) acting under Chapter VII, push States to respond, to what some see as an

exceptional phenomenon,8 with criminalisation of terrorism through domestic legislation. From the

international perspective, this drive for domestic counterterrorist laws is deemed necessary to increase

cooperation among States, deny safe havens and confront the transnational terrorist threat. 9 On the

domestic level, these laws have been criticised from a human rights perspective for suppressing dissent

and prioritising security over, for example, the right to privacy or due process and for challenging jus

cogens principles such as torture.10 Although, the counterterrorist laws are intended to suppress

transnational terrorist acts committed during times of peace, they usually apply to domestic acts of

violence which are increasingly labelled terrorism. Gradually, one can observe the blurring of the lines

between peace and war, politically if not yet legally. For example, in 2015 the Canadian Prime Minister,

‘conflated war and crime when he defended a counter-terrorism bill … on the basis that ‘violent Jihadism

is not a human right, it is an act of war…’ [which] is politically popular, but it ignores…[that] [e]ven in

war, there are laws.’11 Beyond politics, the domestic legislation could take form of sanctioning a military

response to counter terrorism. For example, the US Authorization to Use Military Force (AUMF)

approves targeted killings outside of conflict, and maintains that it is consistent with the laws of war.12

For instance, the UK did not classify the ongoing violence from the Irish Republican Army (IRA) during

the 1970s and 1980s, however it did enact emergency legislation, which some have said had been

enacted to ‘circumvent the Geneva Conventions and other bodies of humanitarian law regulating

conduct in war.’13 There may have been multiple reasons why the UK did not wish to declare it an armed

conflict, one could be to not legitimise the IRA, and by instead labelling them ‘terrorists’ it could justify

8 Carla Ferstman, ‘Human Security and Extraordinary Rendition’ in Alice Edward and Carla Ferstman
(eds) Human Security and Non-Citizens (Cambridge University Press 2010) 535.
9 The Special Tribunal for Lebanon explained transnational terrorist threat as: ‘connection of

perpetrators, victims, or means used across two or more countries, but it may also be significant impact
that a terrorist act in one country has on another – in other words, when it is foreseeable that a terrorist
attack that is planned and executed in one country will threaten international peace and security, at
least for neighbouring countries.’
Special Tribunal for Lebanon, ‘Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy,
Homicide, Perpetration, Cumulative Charging,’ (16 February 2011) STL-11-01/1 para 90. [From herein
STL Interlocutory Decision]
10 The most poignant example of this has been extraordinary rendition and the use of detention and

treatment of detainees in Guantanamo Bay in the Global War on Terror. For example, see Duffy (n1)
11 Kent Roach ‘Thematic Conclusions and Future Challenges’ in Kent Roach ed. Comparative

Counterterrorism Law (Cambridge University 2015) 740.

12 Roach (ibid) 738.
13 Juliana van Hoeven, 'Counter-Terrorism Measures and International Humanitarian Law: A Case

Study of the Troubles in Northern Ireland' (2016) 37 U PA J INT'L L 1109.

Counterterrorism, IHL and NIAC 5

its own domestic law to protect national security with special powers and courts ultimately leading to

many allegations of human rights abuses. 14 Outside of conflict, law enforcement and International

Human Rights Law (IHRL) should apply unless it is replaced by another mechanism, which should be

consistent with international law. 15 The laws of war, as codified in the Geneva Conventions (GC) and

their Additional Protocols (AP), known as International Humanitarian Law (IHL) were developed to

provide rules on the conduct of hostilities balancing military necessity while safeguarding the minimum

of humanity, even to one’s enemy, even if considered a ‘terrorist.’

Much has been written about distinguishing the terrorist framework from IHL, first clarifying the law of

jus ad bellum particularly refuting the concept of the Global War on Terror.16 Then in reasserting that

IHL is different to terrorism and sufficient to regulate jus in bello in so far as it prohibits and criminalises

acts of terrorism.17 Less has been written about how States use domestic counterterrorist legislation in

civil wars, otherwise knowns as Non-international Armed Conflicts (NIAC). One of the reasons for this

may be the challenge in surrounding the classification of NIACs. Another may be that IHL in NIAC

recognised the primacy of State sovereignty and provides a role for domestic legislation to criminalise

armed opposition groups, which has resulted in asymmetrical rules. Given the increased

internationalisation of NIACs and the proliferation of counterterrorist legislation this should be re-

examined.

The aim of this paper is to understand how this internationally undefined terrorist label, albeit with a

counterterrorist framework that inspired the proliferation of domestic counterterrorist laws, intersects

with IHL and then understand the effect of this relationship on NIAC. As such, the first part will chart the

main evolution of the international response to terrorism through an overview of conventions,

14 Ibid.
15 Françoise Hampson, F ‘The conduct of hostilities versus the law enforcement paradigm’ in ICRC-
COE Terrorism, Counter-Terrorism and International Humanitarian Law 17th Bruges Colloquium 20-
21 October 2016, 47.7 (Collegium, Autumn 2017) Available <www.coe-icrc.eu>
accessed 20 August 2019, 85. Derogations of certain rights in times of emergencies may be
permitted, however this should be specific, declared and limited to the necessity of the limitation and
states cannot derogate from jus cogens rights (ex. freedom from torture) Daragh Murray Practitioners’
Guide to Human Rights Law in Armed Conflict (Oxford University Press, 2016) page 59
16 See for example, Helen Duffy The War on Terror (n1)
17 See for example, Jelena Pejic ‘Armed Conflict and Terrorism: There is a (Big) Difference’ in Ana-

Maria Salinas de Frias, Katja L.H. Samuel and Nigel D. White (eds.) Counter-terrorism: international
law and practice (Oxford University Press 2012)

Counterterrorism, IHL and NIAC 6

resolutions and the accompanied difficulties in coming to consensus on defining terrorism. The second

part will look at how terrorism is understood in IHL, particularly in NIAC. The third part will examine,

through a number of examples, how this counterterrorist framework and the domestic legislations

interacts with IHL, and understand whether it undermines and/or impedes its application in NIAC.

II. The International Responses to Terrorism: Conventions, Resolutions and

Domestic Counterterrorist Law

It is first useful to look at the historical evolution of the international community’s attempts at defining

terrorism, and its response to terrorist actions through various mechanisms. Debates continue on

whether there is a universally agreed definition; meanwhile, sectoral conventions, UN Security Council

Resolutions (UNSCR) issued under Chapter VII, and the subsequent domestic counterterrorist

legislation could be interpreted as forming a counterterrorist normative framework, which is contested

by some for not adding anything beyond the existing domestic and international law mechanisms.18 In

spite of the criticism it is clear that States continue to insist on terrorism in ‘their statements and

increasingly in international instruments.’ 19 As such, it is impossible to deny that there is a normative

framework, but, it needs to be stressed that it is not a ‘unified field of international law, but comprises

of disparate norms emanating from multiple sources,’ and as a minimum it aims to ‘establish extensive

jurisdiction over the offences, and investigate, apprehend and ‘prosecute or extradite offenders.’’ 20

The following will give an overview of the international community’s historical evolution and main

developments, and underline points of contention, and analyse its relationship with IHL with the aim to

determine whether this framework clashes with existing international law or exacerbates some of the

ongoing debates, before proceeding to identifying and analysing its effects in and on NIAC.

18 Bianchi (n 4) 660.
19 Marco Sassòli, International Humanitarian Law: Rules, Controversies and Solutions to Problems
Arising in Warfare, (Elgar 2019) para 10.22.
20 Ben Saul ‘Terrorism, Counter-Terrorism and International Humanitarian Law’ (2016) Sydney Law

School Legal Studies Research Paper No. 16/37 Available at <http://ssrn.com/abstract=2778893> Last
accessed 20 August 2019, 8.

Counterterrorism, IHL and NIAC 7

 A. Evolution of the International Response to Terrorism

One of the earliest attempts at creating an international treaty against terrorism dates back to 1937.

Following the assassination of the Yugoslavian king and French Foreign Minister, the League of Nations

proposed a Convention on the Prevention and Punishment of Terrorism, which would not be adopted

as States could not agree on terrorism ‘as a means to a political end.’ 21 Between 1936 and 1981 there

were 109 different proposed definitions. 22 In spite, of a continuous push for an international instrument

to criminalise terrorism, there would be an equally consistent resistance. After the Second World War,

there was concern, especially from the Non-Aligned Movement (NAM) of developing States (this would

later be taken up by the Organisation of Islamic States (OIC)), that defining terrorism as a political crime

would criminalise and/or suppress struggles of self-determination opposing colonialism, and insistence

to include State terrorism in the definition.23 Unable to move forward with a definition for a

comprehensive convention, the international community started to criminalise acts, such as hostage

taking and hijacking of planes, through sectoral conventions.

Overall, since 1963 to date, 19 Conventions including their Protocols were adopted. 24 These treaties

ensured each country could establish jurisdiction over grave transnational acts, and normally excluded

acts of violence committed domestically. 25 Progressively they include clauses to either prosecute or

21 Ben Saul ‘Defining Terrorism’ in Erica Chenoweth, Richard English, Andreas Gofas and Stathis N.
Kalyvas (eds.) The Oxford Handbook of Terrorism (Oxford 2019) 36.
22 Duffy (n1) 18.
23 Duffy (n1) 19. For a chronology of events, different struggles and terrorist acts See Ben Saul and

Naomi Hart ‘Chronology of Events’ Ben Saul (ed.) Documents in International Law (Hart Publishing
2012).
24 Convention on Offences and Certain other Acts Committed on Board Aircraft 1963; Convention for

the Suppression of Unlawful Seizure of Aircraft 1971; 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 Maritime Navigation 1988; Protocol for the
Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf
1988; Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil
Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of
Civil Aviation 1988; Convention on the Marking of Plastic Explosives for the Purpose of Detection 1991;
International Convention for the Suppression of Terrorist Bombings 1997; International Convention for
the Suppression of the Financing of Terrorism 1999; Protocol to the Protocol for the Suppression of
Unlawful Acts Against the Safety of Fixed Platforms located on the Continental Shelf 2005; Protocol to
Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 2005
Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft 2010;
Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation 2010; Protocol
to Amend the Convention on Offences and Certain Acts Committed on Board Aircraft 2014
25 Saul ‘Saul ‘Terrorism, Counter-Terrorism …’ (n 20) 9.

Counterterrorism, IHL and NIAC 8

extradite the perpetrator eliminating the political exception, which would prevent extradition if the crime

was proven to be political.26 Only six include exclusion clauses, which makes the specific acts

inapplicable during armed conflict, due to the application of IHL.27 Three explicitly mention terrorism,28

and only the 1999 Convention for the Suppression of Financing of Terrorism is heralded for stipulating

what it means by terrorism,29 and since it has been widely ratified,30 its definition has become a point of

reference. Saul goes as far as claiming that its consistent provisions, supported with subsequent

UNSCR and State practice, could be interpreted as an ‘international anti-terrorism law’ coming from

different sources but ‘sufficiently universal and rule like so as to establish genuinely new customary

international law rules.’31 Although it does not exclude itself from application in conflict, some of its

language blurs the language between peace with conflict when it refers to ‘any other person not taking

an active part in hostilities.’32 As will be shown later this law has had some, perhaps unintended

consequences, specifically on humanitarian action.

In contrast, efforts to design a Comprehensive Convention Against International Terrorism (CCT) that

started in 2000 have so far been unsuccessful. The intention is not to exhaustively analyse the different

proposals and the intricacies of the language surrounding the negotiations, as this has been covered

elsewhere.33 It is, however useful to note that the three ongoing points of contention can be summarised

26 Saul ‘Defining Terrorism’ (n 21) 39. Extradition law traditionally allowed for an exception to be argued
for a political offence, however, this has been removed in certain treaties. Duffy (n 1) 24.
27 Van Poecke, T. ‘The IHL Exclusion Clause, and why Belgian Courts Refuse to Convict PKK Members

for Terrorist Offences’ (EJIL Talk, 20 March 2019) Available from: <https://www.ejiltalk.org/the-ihl-
exclusion-clause-and-why-belgian-courts-refuse-to-convict-pkk-members-for-terrorist-offences/ >
accessed 28 August 2019.
28 Namely, the 1997 International Convention for the Suppression of Terrorist Bombing; 1999

International Convention for the Suppression of the Financing of Terrorism and the 2005 International
Convention for the Suppression of Acts of Nuclear Terrorism.
29 Article 2 first refers to crimes stipulated in the preceding conventions and then expands to the

following:
‘2 (b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person
not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act,
by its nature or context, is to intimidate a population, or to compel a government or an international
organization to do or to abstain from doing any act.’ International Convention for the Suppression of the
Financing of Terrorism (adopted 9 December 1999; entered into force 10 April 2002) No. 38349 [From
herein 1999 Terrorist Financing Convention]
30 Refer to UN Treaty Collection, available < https://treaties.un.org/ >
31 Ben Saul ‘The Emerging International Law of Terrorism’ in Ben Saul (ed.) Documents in

International Law (Hart Publishing 2012) Lxxvii.

32 Daniel O’Donnel ‘International treaties against terrorism and the use of terrorism during armed

conflict and by armed forces’ (December 2006) 88.864 IRRC 869.

33 For example, see, Mahmoud Hamoud ‘Negotiating the Draft Comprehensive Convention on

International Terrorism: Major Bones of Contention’ (2006) 4 Journal of International Criminal Justice

Counterterrorism, IHL and NIAC 9

as the fear of political abuse of a definition of terrorism, its scope of application, and relationship to the

other Conventions. 34 The first two relate to whether struggles of liberation would be excluded from the

definition of terrorism, and thereby perceived as ‘legitimate’ causes that oppose the State either in

armed conflict or occupation. For this reason, the NAM/OIC advocated for a definition to include State

terrorism. 35 And as such the other outstanding question related to excluding the convention from these

situations and if then it would exclude armed forces and if this interpretation would include non-state

armed groups.36 One interesting observation likens these debates to the

historic and seemingly everlasting divide over who has the right to use force without

being described as a terrorist…The dominant military power approach versus the

‘patriotic’ power approach appeared once again as it had during the negotiations of the

1907 Hague Regulations, the 1949 Geneva Conventions and the 1977 Additional

Protocols to the Geneva Conventions. 37

The outstanding questions centre around the legitimacy, or rather the right to use force, with Western

States arguing that violence could only be used by the State and rendering everything outside of this

as terrorist. This viewpoint denies that conflict is inevitable, an underlying assumption of IHL which aims

to apply the rules of war equally without entering into questions of legitimacy. For this reason,

counterterrorist laws should include specific exclusion clauses to distinguish situations of conflict and/or

occupation regulated by IHL from counterterrorist laws which aim to outlaw any violence not used by

the government.38

In the absence of a Comprehensive Convention, there are 25 regional conventions and their protocols.39

Some have produced ‘generic definitions’, which have not added much to the definition of terrorist,

while, others, such as the Organisation of American States (OAS) referred to existing conventions which

list specific acts of terrorism.40 It could be argued that together with the sectoral conventions they

contribute to a normative framework, in which terrorism is criminalised, yet the absence of a

34 Ibid 1031.
35 UNGA, ‘Letter dated 3 August 2005 from the Chairman of the Sixth Committee addressed to the
President of the General Assembly’ (12 August 2005) UN Doc A/59/894
36 Ibid.
37 Hamoud (n 33) 1033.
38 Pejic ‘Big Difference’ (n 17) 191.
39 For reference: UN, International Instruments Related to the Prevention and Suppression of

International Terrorism (UN NY, 2019)

40 Duffy (n1) 27.

Counterterrorism, IHL and NIAC 10

comprehensive definition puts into question what is meant by terrorism. In spite of the seriousness that

the international community ascribes to terrorism, it is worth noting that the Rome Conference leading

to the establishment of the International Criminal Court (ICC) was unable to define terrorism and

therefore could not include it as crime in its statute due to the different positions and subsequent fears

that any adaptation would politicise the ICC. 41 It is interesting to note that even guidance for States,

such as, the Commonwealth Secretariat Model Law notes the absence of consensus and gives two

options in how to define terrorist act and advises, but does not instruct, that ‘[c]ountries may also wish

to include specific exclusion clauses such as those relating self-determination or national liberation

movements.’42 States were pushed by the UN Security Council to react to the threat of terrorism on

peace and security by enacting domestic laws, however, the push lacked a consistent and uniform

approach which may have created a common understanding and approach. Unfortunately, as the

different mechanisms have shown there are differing approaches, which underlines the difficult of

speaking of one ‘terrorism.’

B. UNSC Resolutions and Proliferation of Domestic Counterterrorist legislation

Nevertheless, while the debates over terrorism’s definition continued, the international community when

confronted with sensational transnational bombing by groups such as Al Qaeda, 43 through the UN

Security Council Resolutions took a proactive approach and branded terrorism as ‘threat of peace and

security’ and under Chapter VII mandate passed resolutions obligating member States to ‘prevent,

suppress and punish terrorism’.44

As such, two main approaches in countering terrorism ensued; UNSCR 1267 (1999) established the

sanctions regime against the Taliban for ‘harbouring and training terrorist in the territory of Afghanistan

as well as their refusal to surrender Osama Bin Laden.’ 45 Following September 11, 2001 (from herein

41 Ben Saul ‘Defining Terrorism’ (n 21) 38.

42 Commonwealth Secretariat ‘Model Legislative Provisions on Measures to Combat Terrorism’
(September 2002) available
<https://www.unodc.org/pdf/crime/terrorism/commonwealth_model_english.pdf> accessed 20 August
2019. 4-5.
43 First, the 1998 bombing of the US embassy in Nairobi, Kenya and Dar es Salam, Tanzania, which

resulted in UNSCR 1267 and then the attack on the US twin towers in September 11, 2001, after which
UNSCR 1373 was issued. UNSC, Resolution 1267 (15 October 1999) UN Doc S/Res/1267
44 The Security council acting under Chapter VII in its functions to restore peace and security can pass

resolutions that all UN member States are obligated to implement. Bianchi (n 4) 667.
45 UNSC, Resolution 1267 (15 October 1999) UN Doc S/Res/1267

Counterterrorism, IHL and NIAC 11

9/11), UNSCR 1373, reaffirmed the approach of classifying terrorism as a ‘threat to international peace

and security,’ and under Chapter VII, instructed States to become party to relevant conventions and

strengthen their laws to counter terrorism. It had a strong focus on stopping the ‘financing, supporting

and promoting terrorism.’ The Counter Terrorism Committee (CTC) was to oversee the implementation

of UNSCR 1373,46 and provide technical support.47 Yet, both resolutions, and subsequent ones, lacked

a definition of terrorism and referred to the previous sectoral conventions, most of which do not define

terrorism. After much criticism, UNSCR 1566 (2004), also acting under Chapter VII, provided what could

be understood as the UNSC political working definition:

Recalls that criminal acts, including against civilians, committed with the intent to cause

death or serious bodily injury, or taking of hostages, with the purpose to provoke a state

of terror in the general public or in a group of persons or particular persons, intimidate

a population or compel a government or an international organization to do or to abstain

from doing any act, which constitute offences within the scope of and as defined in the

international conventions and protocols relating to terrorism, are under no

circumstances justifiable by considerations of a political, philosophical, ideological,

racial, ethnic, religious or other similar nature… 48

However, it does not obligate States to adopt it as such.49 It can be argued that it does not add anything

beyond what was already existing.50 Normally the aforementioned acts are either punishable by criminal

law, or even by IHL considering it has identified civilians as a specific category begetting the question,

from an IHL perspective, as opposed to armed forces. So, aside from proscribing States to enact laws,

the Security Council has not offered an undisputed meaning of terrorism at an international level. 51

Moreover, UNSC Resolutions emphasised that domestic counterterrorist legislation must be in line with

international law, yet there is no ‘general rule of international law specifying the relationship’ between

the two and even lex specialis could not be useful as each norm could be seen as ‘best adapted to the

overlapping, exceptional violence that they address.’52 The exclusion clause is an instructive tool to

46 UNSC, Resolution 1373 (28 September 2001) UN Doc S/Res/1373

47 Duffy (n1) 31.
48 UNSC, Resolution 1566 (08 October 2004) UN Doc S/Res/1566 para 3.
49 Saul ‘The Emerging International Law of Terrorism’ Lxxiii.
50 Ibid. Lxxv.
51 Ibid. Lxxvi.
52 Saul ‘Terrorism, Counter-Terrorism…’ (n 20) 8 – 9.

Counterterrorism, IHL and NIAC 12

guide courts to which law is at play at any given time since there is nothing else that stipulates this. In

its absence transnational terrorist acts could be crimes under both IHL and counterterrorist legislation.53

Debates about whether or not to include an exclusion clause are more about ‘political struggle over

labelling and the stigmatisation and delegitimization it brings.’ 54 For this reason, the exclusion clause is

imperative to ensure the distinction between the two regimes and encourages compliance and ‘the

effectiveness of IHL and its humanitarian purpose’55

The listing and sanctions regime started with UNSCR 1267, which ordered travel bans, arms embargo

and freezing of assets of the Taliban, a NSAG in Afghanistan that was accused of harbouring the

terrorist Al Qaeda,56 and established a sanctions committee to monitor its implementation by States.57

Subsequent resolutions would continue in a similar manner and the more recent, UNSCR 2249 (2015),

expanded the committee’s remit to the oversee the listing and delisting of the ‘ISIL (Da’esh) and Al-

Qaeda Sanctions List.’58 In this resolution States were instructed to take ‘all necessary measures’ [a

term used for the authorization of the use of force] and to ‘redouble and coordinate their efforts to

prevent and suppress terrorist acts committed by ISIS.’59 The use of such harsh language conflates war

and terrorism, which is not the purpose of this resolution, and given that States are left to their own

interpretation is careless. Following the directives of the UNSCR 1373 the sanctions and listing

mechanism appears in regional mechanisms such as the EU Council Regulation 60 and has been

translated into domestic legislation. For example, the UK enacted the Terrorist Asset-Freezing Act

(2010) and publishes a ‘Proscribed Terrorist Organisation’ list, which in addition to 14 previously

proscribed Northern Irish Organisations enumerates 76 international organisations this includes groups

53 Ibid 10.
54 Ibid 11.
55 Ibid 12.
56 The Taliban was instructed to “cease the provision of sanctuary and training for international

terrorists and their organizations, take appropriate effective measures to ensure that the territory
under its control is not used for terrorist installations and camps” UNSCR 1267, (n 45) 2.
57 Ibid. (n 45) 3.
58 Bianchi (n 4) 668.
59 Ibid 664.
60 Council of European Union ‘Factsheet: The EU list of persons, groups and entities subject to

specific measures to combat terrorism’ (14 January 2015) available at

<https://www.government.se/4ad8f7/contentassets/29f8d11a200f413c89cb6ef398562cd6/eu-fact-
sheet-on-terrorism.pdf > accessed 30 August 2019.

Counterterrorism, IHL and NIAC 13

such as Boko Haram, Al Shabab and the Kurdistan Worker’s Party (PKK). 61 These groups are also

recognised as parties to a NIAC. 62 It is also interesting to note that the UK list is much wider than the

EU List which only identifies 21 groups which does not include Boko Haram and Al Shabab. 63 It is

instructive to compare also to the ‘UN Consolidated List,’ which includes Al Shabab, but not Boko Haram

or the PKK.64 Indeed States are complying with the UNSCR, but the discrepancies between the lists

underlines different interpretations of what constitutes terrorism and/or a terrorist group. Furthermore,

it can reflect political interpretation, alliances and differing security concerns. 65 In general, the listing

process has been criticised for lack of transparency, due process and questioned for its effectiveness. 66

In the absence of an authoritative international definition of terrorism, the 2011 Special Tribunal

Lebanon (STL) attempted to ascertain whether there is an international crime of terrorism. In order to

establish its own jurisdiction it based itself on the Arab Convention Against Terrorism, Lebanese

domestic law and measured these against UNSC and United Nations General Assembly (UNGA)

Resolutions.67 It interpreted that terrorism as a customary crime ‘exists in peacetime and not in armed

conflict.’68 Since the aforementioned laws had various interpretations of terrorism, the STL looked for

common elements that could satisfy a customary rule. 69 The STL proceeded to show how this crime

has been recognized and interpreted by other courts, which base themselves on the Conventions and

61 UK Home Office ‘Proscribed Terrorist Organisations’ (12 April 2019) available

<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/7
95457/Proscription_website.pdf> accessed 30 August 2019.
62 Anyssa Bellal, The War Report: Armed Conflicts in 2018 (Geneva Academy, April 2019) 32. Also,

can refer to the Uppsala University Classification project, available

<https://ucdp.uu.se/#/encyclopedia>
63 Council Decision (CFSP) 2019/25 of 8 January 2019 amending and updating the list of persons,

groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the
application of specific measures to combat terrorism, and repealing Decision (CFSP) 2018/1084
[2019] OJ L.6.6 [From herein EU Sanctions List]
64 UN Security Council Consolidated Sanctions list (01 September 2019) available

<https://scsanctions.un.org/fop/fop?xml=htdocs/resources/xml/en/consolidated.xml&xslt=htdocs/resou
rces/xsl/en/consolidated.xsl> accessed 02 September 2019.
65 In 2010, a more thorough comparison was made, which demonstrated there ‘is less overlap than

one can expect.’ Benjamin Freedman ‘Officially Blacklisted Extremist/Terrorist (Support)

Organizations a Comparison of Lists from six Countries and two International Organisations’ (May
2010) 4.2 Perspectives on Terrorism 46.
66 Roach (n 11) 752
67 STL Interlocutory Decision (n 9) 3.
68 Saul ‘Terrorism, Counter-Terrorism …’ (n 20)

69 ‘The perpetration of a criminal act (such as murder, kidnapping, hostage-taking, arson, and so on),

or threatening such an act; ii) the intent to spread fear among the population (which would generally
entail the creation of public danger) or directly or indirectly coerce a national or international authority
to take some actions, or to refrain from taking it; iii) when the act involves a transnational element.’
STL Interlocutory Decision (n 9) para 85.

Counterterrorism, IHL and NIAC 14

the UNSC resolutions, and the behaviour in States in prosecuting perpetrators as well as adapting own

laws.70 Criticism of this conclusion has pointed out that state practice of domestic counterterrorist

legislation showed differences across 160 countries and identified that some of the laws ‘patently violate

international human rights law, such as being too vague to satisfy the principle of legality and freedom

from retroactive criminal punishment under article 15 of the International Covenant on Civil and Political

Rights.’ 71 As such, the STL contributes to the attempt at criminalising terrorism in international law in

times of peace, however, the criticism suggests that it is far from being accepted. As will be shown

below, in times of war, acts of terrorism, or ‘international crime of terrorism in times of armed conflict is

indeed defined in [IHL].’72

As the above establishes, attempts in defining terrorism have been inconclusive. Sectoral treaties

outlawing specific transnational terrorist acts are the groundwork of a normative counterterrorist network

by extending jurisdiction to either prosecute or extradite. The UNSC Resolutions have contributed to

this, but aside from obligating adoption of domestic counterterrorist legislations, its response has been

irresponsible, or perhaps just political, in not offering a concrete definition and guidance in how States

should proceed creating an incoherent approach. In spite of the plethora of legislation at international,

regional and domestic level, even STL’s attempt to identify a customary norm has due to criticism been

inconclusive. Yet this has not impeded the use of the term, which undoubtedly gives emphasis to the

severity of a crime, but for this reason can also be easily manipulated politically.

Post 9/11 and particularly following UNSCR 1373, 155 new laws were adopted by 109 States in

comparison to 36 laws in 31 States pre-9/11. 73 For those that have not had many prosecutions ‘there

is a sense that new terrorism laws have been enacted primarily to comply with supra-national

70 STL Interlocutory Decision (n 9) para 86-90.

71 Saul ‘Emerging International Law of Terrorism’ (n 31) Lxxiv.
72 Antonio Coco, ‘The Mark of Cain the Crime of Terrorism in Times of Armed Conflict as interpreted

by the Court of Appeal of England and Wales in R v. Mohammed Gul’ (2013) 11 Journal of
International Criminal Justice 428.
73 Elena Pokalova ‘Legislative Responses to Terrorism: What Drives States to Adopt New

Counterterrorism Legislation? Terrorism and Political Violence’ (2015) Terrorism and Political
Violence, 478.

Counterterrorism, IHL and NIAC 15

demands.’74 For example, in 2002 Nigeria ‘jumped on board and criminalise terrorism and adopted the

OAU [Organisation of African Union] definition word for word’ without an internal debate. 75

On the whole, domestic counterterrorist legislations are meant to facilitate cooperation, prosecution and

extradition of those responsible for transnational terrorist acts, most prominently the financing,

supporting and promoting terrorism, and in accordance of international law. 76 The legislation usually

addresses domestic acts, which in the past would have been ‘prosecuted as ordinary crime or offences

against public order or state security.’77 Although the international framework to counter terrorism was

intended to cover the gap of legislation during peace time, what is interesting to note is that these laws

have been readily used in countries experiencing internal conflict. For example, a study of 35,000

terrorism related prosecutions found that half of them were in Turkey and China, ‘with Turkey accounting

for a third of these convictions and Turkey and China accounting for more than half of them.’ 78 A more

detailed study would be required to understand specifically the specific crimes and convictions, but both

countries are not known for their open media and information especially when it comes to security

matters, however, both have internal resistance movements. Already, the statistics are suggestive. In

some cases, States have incorporated terrorist offences in their penal code as opposed to having

separate terrorist laws.79

It is also possible that States ‘diverse historical and political national contexts’ 80 influence own

interpretation and in conceptualising what is terrorism or who is a terrorist. 81 For example, the ‘UK

approach can make a terrorist out of nothing.’82 This can be politically convenient, however, the implied

lack of precision could put in question whether the law satisfies the principle of legality. 83 At both an

international, and domestic levels, laws need to be ‘sufficiently clear and accessible that individuals are

74 Roach (n 11) 686.

75 Jennifer Giroux and Michael Nwankpa ‘A vicious cycle: The growth of terrorism and
counterterrorism in Nigeria, 1999-2016) in Michael J. Boyle (ed) Non-Western Responses to terrorism
(Manchester University Press 2019) 418.
76 Duffy (n1) 43.
77 Saul ‘Defining Terrorism’ (n 21) 35.
78 Roach (n 11) 685.
79 Pokalova (n 73) 477.
80 Duffy (n1) 30.
81 Ibid.
82 Roach (n 11) 679.
83 Duffy (n1) 30.

Counterterrorism, IHL and NIAC 16

able to conform their behaviour to the limits of the law.’ 84 For this reason, the sectoral conventions with

clear prohibitions of acts were more readily agreed than a vague, yet disputed, and political concept of

terrorism. It is also worth interrogating whether these different broad laws would ‘satisfy the requirement

of ‘double criminality,’ which often represents a hurdle in terrorism-related extradition case.’85 Again,

this raises questions whether the proliferation of domestic counterterrorist laws have added anything

new or have been effective.86 The international push for domestic legislation was to facilitate interstate

cooperation, and yet in reality the focus on legislating without a unified understanding of what is to be

criminalised may have a counterproductive effect.

Whilst during times of peace, in a functioning democracy, this may not seem as an immediate concern

due to presumed checks and balances. 87 In other political systems and during times of war these

approaches can have adverse effects. Especially if there is already internal opposition and the

counterterrorist laws take form as administrative or military legislation. For example, Russia since the

early 1990s faced an internal opposition from Chechnyan separatist movement. It first confronted this

opposition with legislation entitled ‘Suppression of Terrorism’ (1998), which ‘in a way Russia bombed

Chechnya into Radica Islam.’88 When the resurgence of radical Islam came in early 2000, in response

Russia changed its approach and made concessions with a ‘Chechenization’ geared towards the re-

integration of fighters, accompanied by formal amnesties, and massive reconstruction programmes,

which answered some of the underlying grievances of the population. 89 This also demonstrates an

approach to contain the violence, rather a policy of ‘wiping out,’ 90 which is often implied in

counterterrorist rhetoric.

84 Duffy (n 1) 40.
85 Bianchi (n 4) 662.
86 Bianchi (n 4) 660.
87 Roach (n 11) 672; Perhaps one of the reasons for the division between the democratic states

adherence to the use of terrorism is due to the insistence that any challenge to the government has to
be done through the democratic process, which may not be available in other political systems and
the use of force against the government may seem more legitimate. Mariona Llobet Anglí ‘What does
terrorism mean?’ in Aniceto Masferrer and Clive Walker (eds) Counter-terrorism, Human Rights and
the Rule of Law (Edward Elgar, 2013) 34. This also relates to the concept of legitimacy, and as far
back as the 17C, it was accepted that if the sovereign was not protecting the people then it would be
legitimate to stand up against him. Noam Zamir Classification of Conflicts in International
Humanitarian Law: The Legal Impact of Foreign (Edward Elgar Publishing 2017) 15.
88 Ekaterina Stepanova ‘Russia’s Response to terrorism in the twenty-first century’ in Michael J. Boyle

Non-Western Responses to terrorism Manchester (Manchester University Press 2019) 34.

89 Ibid.
90 Ibid.

Counterterrorism, IHL and NIAC 17

Often these military legislations allow special powers or exceptional regimes, which have been criticised

for being secretive and not follow due process, and thus prone to abuse. 91 If in fact the situation is one

of NIAC, then IHL should apply, however not all countries have enacted exclusion clauses. Some, like

Canada clearly excludes both international and non-international armed conflict from the terrorism

related offences clearly giving way to IHL application. In contrast, neither Australia or the United

Kingdom share this view.92 This may indicate that if outside of scope IHL, then any other situation should

be compliant with International Human Rights Law (IHRL) and actions should be conducted through

police and law enforcement.93

It is interesting to note that in Russia one of its counterterrorist operations was deemed to contravene

the right to life because of disproportionate use of force. The European Court of Human Rights (ECHR)

did held that Russia did not derogate its obligations during the operations: ‘[n]o state of emergency or

martial law has been declared in Chechnya. No federal law has been enacted to restrict the rights of

the population of the area. No derogation under Article 15 of the Convention has been made.94 The

government referred to its legislation on the Suppression of Terrorism, which was upheld at the highest

level and cited praise from the President for the said operation, one of the reasons why he did not allow

for proper investigation and prosecution of those involved.95 This illustrates the use of domestic

legislation in lieu of derogations, or application of IHL, possibly due to the fact that the State was

confronted with what it called a terrorist group and for this reason was more easily able to invoke internal

powers. Also, it highlights the role of an outside mechanism, in this case, regional able to make a

judgement on the application of domestic laws in pursuing terrorism, and it would be interesting to make

a survey of all counterterrorist laws to see if they are compatible with international law, or if in the

urgency of responding to the terrorist threat they would have similar gaps. Such jurisprudence is

necessary to hold State’s accountable for their actions, however, it seems to be the exception rather

than the rule.

91 Pokalova (n 73) 492.

92 Saul ‘Terrorism, Counter-Terrorism …’ (n 20) 13.
93 Hampson (n 15) 85. This has a more protective framework than IHL because use of force is

regulated by the proportionality of the threat posed and not in relation to the military objective.
94 Isayeva v. Russia App no. 57950/00 (ECHR, 24 February 2005) para 133.
95 Ibid para 143.

Counterterrorism, IHL and NIAC 18

 III. Current Counterterrorist Framework in NIAC

The previous section established the international community’s challenge in coming to an agreed

definition of terrorism and the surrounding debate of whether, or not, it should apply in conflict. These

issues have been transposed onto States after the progressive push, through UNSC Resolutions, to

criminalise terrorism in domestic legislations. This section will explore first the interplay between IHL

and terrorism, and then see how they interact in NIAC.

A. IHL and Terrorism

Since 9/11 and the US Global War on Terror (GWOT), a widely disputed and legally incorrect term,

there is a tendency to conflate terrorism and armed conflict.96 This as well perpetuates the rendering of

the terrorist as the ‘other’ and ‘non-citizen,’ and facilitating harsh policies in response to terrorist acts.

Although both terrorism and conflict imply the use of violence, there are important differences between

the two. Acts of terrorism do not automatically trigger an armed conflict. 97 If a conflict is determined,

even if one of the parties are so called terrorist groups, then it could trigger the application of IHL (the

Four Geneva Conventions (GCI-IV) and the two Additional Protocols (API/APII)), which recognises that

there may be lawful attacks on appropriate targets so long as there is a military objective and it follows

the rules of distinction and proportionality. Furthermore, IHL in its essence recognises the equality of

belligerents and advocates for the protection of prisoners, sick and wounded and civilians and ensures

provision of humanitarian aid. In contrast, counterterrorism aims to criminalise all violence by non-state

actors. As such, if not separated then domestic counterterrorism laws challenge the logic of IHL and

can impede its application leading to adverse effects for the victims of conflict.

96 Identified as one of the main challenges in 2011. ICRC, ‘International Humanitarian Law and the
challenges of contemporary armed conflicts’ 31st International Conference of the Red Cross and Red
Crescent (October 2011) Geneva 31IC/11/5.1.2 page 48.
97 It is a factual consideration when an armed conflict is triggered. IAC are wars between States and

an armed attack can trigger the application of IHL. NIAC are essentially civil wars, although a much
more complicated classification can be determined, and are between a State and a non-state armed
group, or can be between two non-state armed groups. They can be internationalised (i.e. outside of
the borders of one state) It can be determined based on the level of violence reaching a certain
threshold, which has to be beyond an internal disturbance or riot, and a minimum organisation of the
armed group usually said that need to follow orders. Noam Zamir Classification of Conflicts in
International Humanitarian Law: The Legal Impact of Foreign Intervention (Edward Elgar Publishing
2017) 57, 61.

Counterterrorism, IHL and NIAC 19

Distinction between the two regimes does not mean that there would be impunity for terrorist acts during

war. IHL adequately covers the prohibition of acts that cause terror, even during war. First of all, through

the basic rules of distinction and proportionality. 98 Moreover, explicitly Article 33 of GCIV, States that

‘all measures of intimidation or of terrorism are prohibited.’ 99 Similarly, API Article 51.2 calls for the

distinction of civilians and prohibits ‘acts or threats of violence the primary purpose of which is to spread

terror.’100 The same is found in APII under Article 13.2, additionally APII Article 4.2 lists acts, such as

taking of hostages, degrading treatment, rape and acts of terrorism which are at all times prohibited. 101

These interpretations have been confirmed in International Court for the Former Yugoslavia (ICTY) with

the prosecution of Galić, the Commander responsible for the bombing of Sarajevo. 102 The court

examined the ‘nature, manner, timing and duration of the [bombing] campaign’ 103 in order to establish

intent to cause terror and deduced that from the acts no civilian was made to feel safe and so its purpose

could be no other than to ‘instil in the civilian population a state of extreme fear.’104 The court confirmed

that this crime incurred individual criminal responsibility customarily applied also in NIAC. In a similar

manner, the Special Court for Sierra Leone (SCSL) established in a number of cases (Brima et al.

(2008), Sesay et al (2009), and Taylor (2012)) that acts such as burning of property, sexual violence

and violence, such as amputations and mutilations, were found to have had the intent to spread terror

and were successful in their prosecution on this basis.105 Although, IHL does not define terrorism as

such, it does ensure that any terrorist acts are prohibited. In fact, its focus on acts and behaviour can

be easier to discern and punish than an intent to cause terror, which presumably would need to form

part of a pure crime of terrorism.

98 O’Donnel (n 31) 863.

The relevant articles for distinction and proportionality: Article 48 (distinction), Article 51 (protection of
civilians from, for example, indiscriminate attacks) and Article 57 (to take all feasible precautions) in
the Convention (IV) Relative to the Protection of Civilian Persons in Time of War art. 2 (adopted 12
Aug. 1949, entered into force Entry into force: 21 October 1950) 75 UNTS 287 [hereinafter GC IV]
99 GC IV (ibid) Article 33.
100 Other relevant articles are Art 37.1 which prohibits perfidy and Art 75.2 which prohibits the taking

of hostages. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I), (adopted 8 June 1977, entered into
force 7 December 1979) 1125 UNTS 3 [hereinafter API]
101 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of

Victims of Non-International Armed Conflicts (Protocol II) (adopted 8 June 1977, entered into force on
7 December 1978) 1125 UNTS 609 [hereinafter APII]
102 Bianchi (n 4) 666.
103 Saul ‘Terrorism, Counter-Terrorism …’ (n 20) 4.
104 Ibid 5.
105 Ibid 5.

Counterterrorism, IHL and NIAC 20

 B. NIAC, IHL and Counterterrorism

IHL was codified after decades of international armed conflict, and so its provision in this context is

extensive and clear. Since, then the majority of conflicts are NIAC and it is important to note that it is

increasingly internationalised. Since, it is technically an internal conflict, States generally may not wish

involvement from the international community and there is no international body that can authoritatively

classify it as such and apply IHL.106 Yet, given the internationalisation of NIAC this should be considered

along with a reinforcement of IHL, which in NIAC is less protective ‘its rules accord much consideration

for the concerned State’s sovereignty.’107 This becomes more important with the proliferation of

domestic counterterrorist legislation, especially if they do not exclude themselves from situations

governed by IHL .

IHL in NIAC is governed by either Common Article 3 (CA3) to all Four Geneva Conventions or Additional

Protocol II, both proclaim only the most basic rules as compared to IAC. However, CA3 has increasingly

become known as a mini convention and its application covers a lot of the same rules, and although

technically there can be a difference of application between CA3 and APII, the ICRC Customary Study

does not distinguish because in practice States do not make the distinction. 108 Moreover, has shown

that through State practice many of the rules of IAC are also applicable in NIAC. 109 In fact, the ICRC

Customary Study found that ‘148 out of a total of 161 rules formulated are applicable regardless of

whether international or non-international conflict is involved.’110 However, important differences

remain. The most significant is that, unlike in IAC, in NIAC, there is no combatant status and therefore

no equality of belligerency between States and non-state armed groups (NSAG). States can and do

106 ICRC, Commentary on the First Geneva Convention (Cambridge University Press, 2016) para
865. ‘Furthermore, it serves to underline that, as international humanitarian law applies based on the
facts, regardless of whether a State qualifies the members of a non-State armed group as ‘terrorists’
or its actions as ‘terrorism’, humanitarian law applies if and when the conditions for its applicability are
met.’ Ibid para 867. ICRC classifies conflicts for their perusal and discussions with States, this,
however is rarely shared with the public.
107 Sassòli ‘International Humanitarian Law’ (n 19) Sassòli suggest that it would make sense for

development of a ‘law specific to such transnational armed conflicts,’ however it is doubtful that this
would result in a protective framework as States are still reluctant to give any recognition to non-state
armed groups, and ultimately any such law would need to determine whether it would reinforce the
equality of belligerent. (para 10.30)
108 Jelena Pejic ‘The protective scope of Common Article 3: more than meets the eye’ (March 2011)

93.811 IRRC 2.
109 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law

Volume I: Rules (Cambridge 2005) [From herein ICRC Customary Study] xxxv
110 Pejic ‘Protective scope…’ (n 108) 17.

Counterterrorism, IHL and NIAC 21

criminalise the participation in NSAG. Arguably this has been made worse with NSAG being labelled

as terrorist, although this label does not ‘preclude that they are also armed groups for the purpose of

IHL. While terrorist acts may be committed in a NIAC and may even trigger a NIAC, they neither

necessarily trigger a NIAC or preclude the applicability of IHL of NIACs.’111 However, it does mean that

with the domestic counterterrorist laws the terrorist labelled NSAG can, and do fall, under their

provisions.

It is interesting to note that the State’s ability to criminalise opposition under domestic law in NIAC

mirrors the questions of legitimacy and right to use violence, which were brought out during the

discussions to define terrorism during the Drafting of the CCT. As previously mentioned, the NAM/OIC

position insisted that any definition of terrorism should not criminalise national liberation struggles, and

there should be no difference in application between State and non-state armed forces underlining the

importance of the exclusion clause. These arguments were put forward for the legitimate struggles post

colonialism. In that same vein, IHL in IAC recognises that a national liberation movement (NIAC) can

fall under its provision, Article 1.4 extends to ‘include armed conflicts in which peoples are fighting

against colonial domination and alien occupation and against racist regimes in the exercise of their right

of self-determination.’112 This extension is accompanied with combatant privileges which does not

criminalise participation, and affords prisoner of war (POW) status if captured, in order to ensure

humane treatment and enable exchanges to facilitate peace negotiations. And, prosecutions would be

reserved for those who had violated IHL. This allowance under API, for some, was seen as legitimising

terrorism.113 It seems that the modern State is sensitive to any opposition to its power, even though

history shows that conflict is inevitable and one of the reasons for developing rules that need to be

applied during the war.

Equality of belligerency is one of IHL’s main principles and there are interesting historical examples that

show that in internal conflicts States would make ad hoc agreements to abide by laws during conflict,

or for the duration of the conflict States would recognise the insurgent as belligerent and later prosecute

111 Sassòli (n 19) para 10.28.

112 Article 1.4 API (n 100)
113 Sassòli (n 19) para 10.25.

Counterterrorism, IHL and NIAC 22

them as traitors.114 Unfortunately, States fear that extending equality would award legitimacy, although

IHL is clear that its application ‘has no bearing on the legitimacy in the law.’ 115 In APII, once it was

decided that States could criminalise participation, and the implication on equality, as a recourse APII

Art 6.5 advocated for States to afford ‘the broadest possible amnesties.’ 116 Amnesties could be

interpreted as an exemption from prosecution, but they were considered in order to ‘encourage gestures

of reconciliation which can contribute to re-establishing normal relations in the life of a nation which has

been divided.’117 This demonstrates IHL’s long term intention is preserving a sense of humanity in war

to allow for reconciliation, which is more difficult the more a conflict is polarised, something that the

terrorism term successfully feeds.

Yet ,considering that terrorism and armed conflict are often conflated and the international law is not

sufficiently authoritative much is still left to State interpretation. For instance, the UK in R v Gul (2012)

prosecuted a law student for disseminating videos that ‘showed attacks by Al Qaeda, the Taliban and

other proscribed groups on military targets, including those in Chechnya and Coalition forces in Iraq

and Afghanistan, [and] the use of IEDs against Coalition forces […].’118 The jury then sought clarification

if these attacks would be considered terrorist if they in fact they hit a legitimate target, such as the

armed forces, in a NIAC. The judge accepted that in an international armed conflict they would not, but

claimed the UK’s right to criminalise such acts under its domestic laws, which would render any attack

by a so-called terrorist group to constitute an act of terrorism.119 This decision has been criticised for

failing to recognise the exclusion clause and wrongly claiming that “there is nothing in international law

which would exempt those engaged in attacks on the military during the course of an insurgency from

the definition of terrorism.”120 This completely ignores the exclusion clause of certain conventions,

including the Terrorist Bombing Convention, which does not cover acts perpetuated in times conflict

114 ICRC Commentary 2016 (n 106) para 359.

115 Article 3 GCIV (n 98)
116 APII (n 101)
117 ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12

August 1949 (Nijhoff Publishers 1987) para 4618

118R v Gul as quoted in Kimberly Trapp ‘R v Mohammed Gul: Are you a Terrorist if You Support the

Syrian Insurgency?’ (EJIL Talk, March 14 2012) Available at < https://www.ejiltalk.org/r-v-mohammed-

gul-are-you-a-terrorist-if-you-support-the-syrian-insurgency/#_edn7> accessed 25 August 2019
119 Coco (n 72) 428-9.
120 Trapp (n 118).

Counterterrorism, IHL and NIAC 23

from its application.121 Although, it should be noted as well that the different conventions have different

scope of application for the exclusion. 122 Moreover, as was seen, IHL sufficiently addresses acts of

terrorism in conflict and can be relied upon to make appropriate interpretations as has been done by

various courts; for instance, the Italian Court deferred to it in the Bouyahia Maher Ben Abdelaziz (2007)

case, and the US Courts referred to IHL to interpret domestic legislation in the Yunis (1999) case.123

More recently, based on its exclusion clause the Belgian court dropped prosecution of the PKK with a

complex yet detailed consideration of the different laws and jurisdictions at play. Although it accepted

that the PKK ‘could fit the Belgian Criminal Code’s definition of a terrorist group’ it opted to accept their

actions in Turkey and ‘their nexus to the conflict and benefit from the application of the exclusion clause,

[concluding that] the PKK is not a terrorist group […] and participating in its activities is not a terrorist

offence.’124 The Belgian decision looked beyond the ‘terrorist’ label awarded to the PKK by Turkey, the

US and the European Union and instead judged it based on the context and relevant considerations of

the laws at play facilitated by the exclusion clause.

The debates, for example for the discussions on the draft CCT regarding the exclusion clause included

questions of what constituted armed forces. The Western position advocate that only State armed

forces can be excluded from any counterterrorist legislation. 125 Such a conclusion would disregard the

notion that States can also be held responsible for terrorism and result in an unequal application of the

law. When it concerns NIAC, the readings of CA3 have interpreted armed forces to include NSAG so

long as they are sufficiently organised to follow orders. 126 This can be easily disputed as domestic

legislation allows for the criminalisation of armed groups, however, it is also true that that ‘States have

121 Trapp (n 118) makes the point that the court should have referred to this as the UK is also a
signatory
122 O’Donnel (n 31) 868. For example, the Bombing Convention only excludes acts in armed conflict

but to no other situations, such as occupation governed by IHL.

123 Coco (n 72) 431.
124 The EU framework has an exclusion clause, but according to the author only Belgium and Ireland

have incorporated it into their domestic legislations. Van Poecke (n 27).

125 Hamoud (n 33) 1036.
126 The ICRC Customary Study has qualified Art 43 of API as reaching customary status and being

applied in NIAC and IAC alike. Art 43 states that ‘organized armed forces, groups and units which are
under a command responsible to [a party to the conflict] for the conduct of its subordinates’. This
definition is not dependent on state organ or agent status and therefore applies to non-state armed
groups as long as they are organized and operate on the basis of command responsibility.’ Trapp (n
118).

Counterterrorism, IHL and NIAC 24

accepted that killing persons taking part in hostilities of non-international character should not

necessarily be criminalised and punished.’ 127 If this is the case, then this recognition suggests that

States still wish to make a distinction which requires identifying the armed group as such, whether as

an identifiable organised group or as directly participating in hostilities. Inadvertently, this recognises

the principle of distinction, suggesting that States recognise that there are lawful targets, even in NIAC,

even if attacked by NSAG. This is important because one of the major concerns with the inequality of

NSAG, and the criminalisation of acts that could be considered lawful under IHL, is that it de-incentivises

them from respecting the rules of war since they will be punished regardless if they abide by them or

not.128 This is already a challenge in NIAC and is exacerbated by counterterrorist legislations that do

not exclude themselves from contexts, such as conflict and occupation that should be governed by IHL,

and even criminalise beyond participation and look at association, material support, financing, etc..

The preceding section showed that IHL sufficiently prohibits and criminalises terrorist acts committed

in conflict. It also explained the constraints of IHL application in NIAC, namely the criminalisation of

NSAG, which already challenges IHL application. At the same time, customary and State practice when

it concerns distinction, for example, show that even in NIAC the core IHL principles apply. However,

these are challenged by counterterrorist legislation.

IV. Counterterrorism and IHL in NIAC

In view of the aforementioned challenges, this section will highlight what happens when the

counterterrorism framework and IHL intersect in non-international armed conflict. The aim is to

demonstrate how domestic counterterrorist legislations, inspired by international framework, impede

IHL application. For this reason, the following will assume that IHL is the normative framework applied

in times of conflict, including NIAC, with the focus on three core principles; equality of the parties,

distinction between civilian and fighter and provision of medical and humanitarian aid. Indeed, as was

described in the previous section equality of the parties is not accepted in NIAC, however, the below

examples aim to put into question the concerns of States in legitimising the opposition by recognising

them as equal from the start. In practice, States end up negotiating and even award amnesties to the

127 Coco (n 72) 153.

128Olivier Bangerter ‘Reasons why armed groups choose to respect international humanitarian law or
not’ (June 2011) 93.882 IRRC 377.

Counterterrorism, IHL and NIAC 25

designated terrorist groups. By not extending this equality, and by criminalising beyond participation to

those who ‘support, associate and finance,’ the distinction between who is a fighter and who is a civilian

are blurred. This has many adverse effects and challenges the application of IHL including the provision

of medical and humanitarian aid. A comprehensive survey of all NIAC affected countries and practices

is outside the scope of this study, however, the examples below bring to light some of these effects and

challenges.

A. Equality and Distinction

As has been shown, whether through rhetoric, policy or laws the ill-defined, yet highly emotive terrorist

label, is politically convenient, as it ‘…publicly defines them as immoral and evokes fear and moral

disgust against them…denies that they have any serious political context or legitimacy … dehumanizes

and demonises them, and is used to morally legitimise state violence against them…’ ⁠129 This, in the

short term allows the State to take hard line approaches with the publics support and conflicts can end

in capitulation of the opposition, and often through peace negotiations. Although, States are reluctant

to award legitimacy at the start of the conflict, negotiating with the so-called terrorists at the end

undoubtedly has an important legitimizing effect. It is noteworthy to underline that the US is in continued

peace negotiations with, the UNSCR 1267 blacklisted, Taliban, and in spite of its continued use terrorist

tactics. In order to enter in negotiations, the UN had to adjust the Sanctions regime and lift travel bans

so that the parties could meet.130 Years of delegitimizing the group have not stopped the natural

outcome of the conflict, which would be either through military defeat or peace negotiation. For this

reason, it could be seen as a missed opportunity to not recognize them as equal parties to the conflict

and thereby expect compliance with IHL and foresee the prosecution of war crimes. Instead, in practice

there is greater emphasis on prosecuting membership, association, material support and limited

prosecutions of war crimes.

It is also instructive to look at Colombia where the forty-year internal conflict between the FARC and

the government was increasingly framed within the GWOT as a fight against terrorism; this conveniently

129 Jeffrey Sluka ‘Terrorism and taboo: an anthropological perspective on political violence against
civilians’ (August 2008) 1.2 Critical Studies on Terrorism 174.
130 UN ‘Security Council Adopts Text Extending, Adjusting Sanctions Regime against Taliban Affiliates

ahead of Debate on Afghanistan’ (21 December 2015) SC/1275.

Counterterrorism, IHL and NIAC 26

facilitated US military support, and enabled strong military response.131 However, when it came to

negotiate a peace deal there was a sizeable public campaign opposing any negotiation ‘[g]iven their

perspective of FARC as a terrorist organization, they [did] not conceive a negotiated solution as a proper

way out of the conflict.’132 This illustrates how a political delegitimization of the opposition with the

terrorist label is not useful in long run to facilitate ‘peace and security.’

In contrast, IHL does not concern itself with why a conflict started and it focuses on trying to minimize

the effects of the conflict on those not and/or no longer participating, which is in the long run in the

interest of peace. For this, it requires that both parties abide by the rules. In NIAC, NSAG have little

incentive to abide by the rules because their participation in criminalized. And by ‘[t]aking a solely

repressive approach to armed groups amounts to encouraging them to violate the law.’ 133 The terrorist

label, now accompanied with counterterrorist laws, which exacerbate this repressive approach.

For instance, it is interesting to note how the US Courts responded to an NGO who sought clarification

of the terrorist material support laws, which included criminalising the ‘training, expert advice, or

assistance’ to a terrorist designated group. The Humanitarian Law Project intended to give, amongst

other activities, legal training in IHL to political supporters of the Tamil independent movement (since

the armed wing, the LTTE had been militarily defeated) and the PKK (whose aim is to establish an

independent Kurdish state in Southern Turkey). 134 However, the court upheld the constitutionality of

the material support provision saying that training the ‘PKK on how to use international law to resolve

disputes would provide that group with information and techniques that it could use as part of a broader

131 Oscar Palma ‘The changing meaning of ‘terrorism’ in Colombia: A matter of discourse’ in Michael
J. Boyle (ed) Non-Western Responses to terrorism (Manchester University Press 2019) 246.
132 Palma (n 131) 265.
133 Bangerter (n 128) 377. Bangerter explores various reasons why NSAG may not respect the rules

of war. For this paper it is useful to highlight that one of them may be that the NSAG may not know
the rules. Admittedly, some may reject the rules as a western concept, however, he highlights that
there have been various initiatives done to demonstrate the universality of the rules. For example,
ICRC did a study on the Birimaygedo rules of war in customary Somalian law and highlighted that
these even go beyond current IHL. Ibid 367. Other studies have compared Islam and IHL finding
commonalities. See for example, Dr. Ahmed Al-Dawoody ‘IHL and Islam: An overview’ (ICRC
Humanitarian Law & Policy Blog, March 14, 2017) available: <https://blogs.icrc.org/law-and-
policy/2017/03/14/ihl-islam-overview/> accessed 01 September 2019. For this reason, engagement
with groups should be seen as important.
134 Holder Attorney General et al v. Humanitarian Law Project No.08-1498 (US Supreme Court

Syllabus, October Term 2009) 9.

Counterterrorism, IHL and NIAC 27

strategy to promote terrorism, and to threaten, manipulate, and disrupt.’ 135 Given the labelling of the

organization as terrorist the court could not conceive it in any other light than having a destructive impact

on the system, while it could provide an alternative to the use of violence. The Court went on to say

that,

[t]he majority justifies the criminalization of this activity in significant part on the ground

that “peaceful negotiation[s]” might just “bu[y] time…, lulling opponents into

complacency.” Ante, at 32. And the PKK might use its new information about “the

structures of the international legal system . . . to threaten, manipulate, and disrupt. 136

This reading suggests that the Court is concerned more that the material support would somehow serve

to legitimise the NSAG, as opposed to being concerned that the material support would facilitate acts

of terrorism, since the teaching of IHL would presumably decrease such acts. Its reading is contrary to

the principle of IHL as it ostensibly does not take into consideration, for example the effect of violence

on civilians during conflict. Second of all, it makes a presumption that NSAG cannot change, perhaps

politically prefers to keep them criminal in order to facilitate their repression; however, there are many

examples of NSAG restraining behaviour once the rules are made clear. 137 This is an example of how

counterterrorist laws usurp humanitarian space that IHL has, through the years, attempted to safeguard

in a conflict with the pure intention of minimising the adverse effects on those who are not or no longer

participating in hostilities.

In contrast, on the local level it is almost surprising to learn that States consider, and allow for, amnesties

for members of some of the most notorious terrorist NSAG, such as Boko Haram, al Shabaab and to

lesser extent ISIS in Iraq. The following examples will be drawn from these three NSAG that continually

steal headlines for their terrorist tactics and therefore have been sanctioned by the international

community. It is also important to at least consider that these groups have evolved or are rooted in

complicated local contexts that cannot be adequately explained in this paper. 138 Acknowledging these

realities does not justify their tactics, however, reducing them to terrorists may in the short term facilitate

135 Ibid 6
136 Ibid 6
137 See for example, ICRC ‘The Roots of Restraint in War’ (ICRC, December 2018)
138 For a brief overview of the groups see the relevant articles in Ronald Slye and Mark Freeman, The

Limits of Punishment: transitional justice and violent extremism (Institute for Integrated Transitions,
May 2018) Also, Stathis N. Kalyvas ‘Is ISIS a Revolutionary Group and if Yes, What Are the
Implications?’ (August 2015) 9.4 Perspectives on Terrorism 42.

Counterterrorism, IHL and NIAC 28

a heavy-handed approach, but in the long run will not address the underlying issues driving the

continued use of violence. Regardless, of the reasons for the conflict, inevitably States will need to

consider how to end it in a way that can facilitate a longer peace, and this may be particularly difficult if

a lot of violations have happened and if it is difficult to distinguish between the NSAG and the

community.

It should not be surprising that amnesties would be considered as they are normal mechanism in

transitional justice processes. The surprise comes because of the sustained polarising rhetoric against

terrorists, which through ‘othering’ and ‘dehumanising’ detracts from a vision on if ever they may be re-

integrated. Less surprising are stories that insinuate the only way to eradicate the terrorist threat is to

‘kill them all’ as one Iraqi security officer suggested as the way to quell the re-emergence of ISIS.139 Or

stories about ISIS commanders being unable to negotiate withdrawal or surrender with the opposing

Iraqi forces, and therefore would prefer to turn themselves in to Kurdish forces ‘who had a reputation

for taking prisoners rather than executing them.’140 Such behaviour suggests serious violations of IHL.

Undeniably, ISIS has committed a multitude of IHRL and IHL violations,141 however, the respect of IHL

is not incumbent on reciprocity.142 There is a fine balance and the more a conflict is polarised the more

difficult it is to achieve respect for any rules by anyone. This polarisation will also hinder peace and

security.

Unfortunately, on an international level, the UNSC resolutions play into this rhetoric by perpetuating an

inadequately defined term. Moreover, it is interesting to note that the UNSC approach may differ based

on groups, for example the UNSCR 2349 (2017) advocates for comprehensive approaches for Boko

Haram, which includes human rights compliant de-radicalisation. In contrast the UNSCR 2379 (2017)

139 Mara Redlich Revkin ‘After the Islamic State: Balancing Accountability and Reconciliation in Iraq’
(May 2018) in Ronald Slye and Mark Freeman, The Limits of Punishment: transitional justice and
violent extremism (Institute for Integrated Transitions, May 2018) 60.
140 Redlich Revkin (ibid) 60.
141 For example, see Human Rights Watch, Flawed Justice: Accountability for ISIS Crimes in Iraq

(Human Rights Watch, December 2017) and lists abuses by ISIS and forces in opposition to ISIS.
142 The ICRC Customary Study lists it as a rule in both NIAC and IAC based on Article 1 and Article 3

common to the Geneva Conventions and additional protocols, which emphasise that rules must be
respected in ‘all circumstances.’ (n 109) 499.

Counterterrorism, IHL and NIAC 29

on ISIS is less comprehensive and focuses on prosecutions of war crimes committed by ISIS, 143 and

without addressing the prosecution of war crimes committed by forces fighting ISIS. 144 It is not clear, if

this suggests that on the list of terrorists there are better or worse terrorist, and how this would be

determined, or this further demonstrates the different terrorisms at play. Different approaches would be

more comprehensible, if for example, one NSAG would be complying more with IHL, than the other,

and therefore able to receive different treatment. For this, the State would need to acknowledge the

NSAG as such and be open to more equal treatment in conflict, for example allow IHL training, or enter

into an agreement to respect the rules, rather than focusing on mere delegitimization. On this point, it

is also interesting to note that the Nigerian government intervened with UN against listing Boko Haram

as a terrorist organisation as it would make it more complicated to negotiate with them, 145 showing the

potential effect of the international counterterrorist framework and its effects on local context that need

a pragmatic engagement with NSAG.

On the question of amnesties, IHL foresees this even in NIAC, especially for those who participated in

the conflict, but did not commit crimes.146 Admittedly, one of the challenges of present-day conflicts is

the NSAG groups rejection of governments or international institutions. For instance, Boko Haram

outright rejects negotiation and prospect of amnesty from the Nigerian government demonstrating the

highly polarised nature of the conflict. 147 Nevertheless, as a measure to counter recruitment and

encourage defection the government adopted ‘Operation Safe Corridor,’ which is a policy not enshrined

into law, but one which includes a de-radicalisation and amnesty programme because the military

campaign ‘frequently conflated perpetrators with victims.’148 Likewise in Somalia, since it is becoming

increasingly likely that a military solution may not be possible, the government has started to explore

143 Ronald Slye and Mark Freeman, The Limits of Punishment: transitional justice and violent
extremism (Institute for Integrated Transitions, May 2018) 30.
144 Human Rights Watch, ‘Iraq: Impartial Justice Effort Needed’ (HRW, May 31, 2018) available

<https://www.hrw.org/news/2018/05/31/iraq-impartial-justice-effort-needed> accessed 31 August

2019.
145 Vana Felbab-Brown ‘In Nigeria, we don’t want them back’ (May 2018) in Ronald Slye and Mark

Freeman, The Limits of Punishment: transitional justice and violent extremism (Institute for Integrated
Transitions, May 2018) 102.
146 Article 6.5 states: ‘At the end of hostilities, the authorities in power shall endeavour to grant the

broadest possible amnesty to persons who have participated in the armed conflict, or those deprived
of their liberty for reasons related to the armed conflict, whether they are interned or detained.’ APII (n
101) 317.
147 Felbab-Brown ‘In Nigeria...’ (n 145) 101.
148 Ibid 86.

Counterterrorism, IHL and NIAC 30

programmes to weaken al Shabaab through low- and high-level defections through a de-radicalization

and reintegration programme for low level members of the group. Higher ranking commanders are able

to benefit from ‘ad hoc political deals …, who, in exchange for defecting along with their followers,

receive protection and red-carpet treatment from the Somali government and face no accountability or

scrutiny for their past behaviour.’149 This, in spite of, the UN and other countries that have a formal

policy to not negotiate with al Shabaab.150 The practicalities of war need pragmatism, however, this

should not also be accompanied by impunity and should be held responsible for their actions, which

does not appear to be the current case.

In Iraq, the initial General Amnesty Law (No. 27/2016) allowed the use of pardons for those who joined

IS ‘against their will and did not commit any serious crimes’, however, due to reports of corruption and

abuse the law was amended and now ‘preclude[s] pardons for anyone convicted of terrorism,

regardless of mitigating circumstances.’151 And, in practice, reportedly the judges are reluctant to offer

pardons.152 First, it is interesting to note the use of amnesties even against those sanctioned to be

international terrorists. This shows that in spite of the counterterrorist rhetoric, eventually the State will

need to engage in looking for peaceful solutions to the conflict. Second, the fact that amnesties are

used, even if through defection programmes, puts into question States’ initial reluctance to reinforce

IHL in NIAC for fears of legitimising the group. By criminalising the membership, as will be seen below,

misses the point of holding NSAG accountable for war crimes and other violations of IHL. The

aforementioned amnesty processes have been criticised for allowing impunity. In addition to this, they

can be seen as a missed opportunity in using amnesties influence the NSAG behaviour during the

conduct of hostilities. If there is a real interest, in peace and security then IHL should be reinforced in a

way that NSAG can be incentivised to follow If there is a real interest, in cooperating and punishing

those responsible for terrorist acts then there should be more focus on the crimes committed not

membership, or, the wider interpretation of association, material support, financing, etc.

149 Ibid 129.

150 Ibid 138.
151 Redlich Revkin (n 139) 64.
152 Redlich Revkin (n 139) 65.

Counterterrorism, IHL and NIAC 31

Admittedly, in conflict it may be hard to collect evidence to properly prosecute, nevertheless it is

important to underline that providing justice through criminal prosecutions serves to

address legacies of mass abuse and conflict by removing particularly violent

individuals from society (specific deterrence); signalling that such activity has

consequences (general deterrence); reinforcing the moral repudiation of such activity

(expressive function); and fulfilling retributive expectations, particularly of persons and

communities most affected.’ 153

Already the aforementioned practices suggested a culture of impunity in allowing for defections and

even high-level amnesties without prosecutions of war crimes. For example, in the absence of justice

in Nigeria, the ICC has opened a preliminary investigation against the war crimes and crimes against

humanity perpetuated by Boko Haram and Nigerian military under its complementary jurisdiction when

a country is unwilling or unable to proceed with its own prosecution. 154

Nigerian counterterrorism laws criminalises ‘any person who commits, attempts to, threatens to, or

assists an act of terrorism,’ which has been criticised for the ‘expansive definition and of material and

non-violent support’155 The prosecution for these crimes saturates the system and criminalises large

sections of the population who may have been associated, without delivering justice. 156 Some statistics

show the gravity of the problem, ‘[i]n October, 2017, the Nigerian government announced mass trials of

some 2,540 Boko Haram suspects[…] a further 5,000 would be prosecuted in the coming years.’157 The

trials are held in secret and the offences are not disclosed only convictions. 158 Despite many allegations

against the military, not one has been tried publicly, the government maintains that hundreds of soldier

have been court marshalled after violations during the campaigns against Boko Haram.159 As such the

prosecutions are for simple association charges and do not serious violations such as war crimes or

crimes against humanity.160

153 Sly and Freeman (n 143) 23.

154 Felbab-Brown ‘In Nigeria…’ (n 145) 103.
155 Ibid 102.
156 Ibid 104.
157 Ibid 105. However, there are concerns that many cases may be inadmissible due to mistreatment

and violations during detention.

158 Ibid 105.
159 Ibid 111.
160 Amnesty International, ‘Willingly Unable: ICC Preliminary Examination and Nigeria’s Failure to

Address Impunity for International Crimes’ (10 December 2018) AFR44/9481/2018. 5.;

Counterterrorism, IHL and NIAC 32

Iraq’s 2005 counterterrorist legislation only has six articles and two penalties, either death or life

imprisonment, which can ‘be applied to a wide range of actions, from simple affiliation and causing

damage to property to using explosives and seeking to overthrow the government’161 It is currently

being used to prosecute over ’19,000 people on terrorism-related charges since 2013 and convicted at

lease 8,861, with at least 3,130 sentenced to death.’162 Most are being prosecuted for association, for

example the recommendation for someone who cooked for ISIS was a death penalty, similar sever

penalties for those who worked in administrative functions. Moreover, there is no prioritisation of serious

crimes, and it is interesting to note that Iraq has not criminalised war crimes, crimes against humanity

and genocide.163

Unlike Nigeria and Iraq, Somalia has not enacted recent counterterrorist legislation, and its criminal

code dates back to the 1962 Penal Code, so it is unclear under which laws that suspects are

sentenced.164 Of note is the approaches in neighbouring Kenya that became involved in the fight against

al Shabaab in 2011 and in retaliation ‘al Shabaab and its affiliates launched a retaliatory campaign that

included over ninety attacks […] to target security installations, particularly military garrisons and police

posts in proximity to the border with Somalia. They also carried out attack on bars, transportation

hubs…,’165 In the period after, Kenya took a concerted counterterrorist campaign which in certain

instances could be likened to collective punishment of ethnic Somali communities. For example, after

one terrorist attack the Police launched ‘Operation Usalama Watch’ in which they ‘rounded up more

than a thousand ethnic Somalis in Nairobi and held them at Kasarani Stations.’166 Moreover, apparently

the county commissioner of Mombassa was quoted as saying ‘if we find any of them, we will finish them

ICC, ‘Report on Preliminary Examination Activities’ (12 November 2015) available <https://www.icc-
cpi.int/iccdocs/otp/OTP-PE-rep-2015-Eng.pdf> accessed 29 August 2019. para 192.
161 Hanny Megally ‘Iraq: Heavy-handed Counterterrorism Approach Risks Undermining Success

against ISIS’ (Centre for International Cooperation, March 12, 2019) available <
https://cic.nyu.edu/blog/iraq-heavy-handed-counterterrorism-approach-risks-undermining-success-
against-isis > accessed 30 August 2019.
162 Ibid.
163 HRW (n 141) 30-31.
164 Vanda Felbab-Brown ‘The Hard, Hot, Dusty Road to Accountability, Reconciliation and Peace in

Somalia’ (May 2018) in Ronald Slye and Mark Freeman, The Limits of Punishment: transitional justice
and violent extremism (Institute for Integrated Transitions, May 2018) 138.
165 Jeremy Prestholdt ‘Counterterrorism in Kenya: Security aid, impunity and muslim alienation’ in

Michael J. Boyle (ed.) Non-Western Responses to terrorism (Manchester University Press 2019) 388.
166 Ibid 398.

Counterterrorism, IHL and NIAC 33

on the spot. They are not people to take to court.’167 It is an interesting example of a transnationalised

NIAC which clearly the security forces were not acting within the IHRL framework on their home territory

with such heavy-handed responses that have been on the one hand facilitated by external pressures

and even funding. And on the other hand, criticised for not being effective, since their lack of distinction

of who is the perpetrator from the wider community contributes to the isolation of Kenyan Muslims, who

are caught up in the massive campaigns, and have little success in delivering justice for the victims.

There are a number of issues that emerge from the above examples. One, is an observation that despite

the reluctance of States to recognize NSAG as equal parties to an armed conflict, the practice is to

consider amnesties and re-integration programmes. This however, is rendered difficult if there is very

stark polarization and if the community has experienced grave violations. On the one hand, the

proliferation of prosecution can be seen as a means to deliver justice, but given that the focus is on

membership or association it misses the gravity of the crimes and does not respond to the populations

need for justice. As such, the terrorist label and the criminalization of the membership of the group does

not facilitate justice for terrorist acts in any meaningful or signal that the crimes committed are wrong.

Instead, there are fears that the overboard prosecutions will actually mean a resurgence of groups,

such as ISIS 2.0.168 In addition to the above, it should be mentioned that communities affiliated with

these terrorist NSAG that have committed very serious crimes are often unable to easily integrate back

into communities. In the case of Iraq, for example, women prefer to stay in camps with their children

because they fear retaliation and revenge if they go back to their home towns. There is a distinction

between those who stayed in the ISIS administered territory and those who fled, the former seen as

complicit in the crimes, even if they had no other choice. 169 This is very similar in Nigeria where the

wider population ‘make little distinction between populations who had to endure Boko Haram rule and

actual Boko Haram members.’170 More research would be needed to understand what is eroding this

distinction, an initial suggestion would be counterterrorist laws that focus on membership, participation,

financing, etc. and the assumption that anyone who associates is then deemed a terrorist. It would be

interesting to test this if this and see if it has an impact on the security forces perception. Although

167 Ibid 399.

168 Redlich Revkin (n 139) 70.
169 Redlich Revkin (n 139) 52.
170 Felbab-Brown (n 145) 92.

Counterterrorism, IHL and NIAC 34

stigmatization and polarisation are often a by-product of war, the fact that the justice system enforces

such broad interpretations challenges the IHL principle of distinction and lack of proper prosecutions

for war crimes undermines the rules of war.

B. Access to Medical and Humanitarian Aid

Building on these examples, it is imperative to see how the broad interpretations and criminalisation of

material support, association, financing, etc. affect the IHL principles of providing medical and

humanitarian aid to those affected by the conflict. These principles are firmly embedded in IHL in both

treaty and customary law in both IAC and NIAC with the protection of the wounded, medical personnel

and medical establishments.171 Similarly, IHL upholds that civilians should have access to humanitarian

aid.172 These principles date as far back as 1648 have continued to be applied. 173 Contemporary broad

counterterrorist laws are challenging this humanitarian space. If they have not been directly challenged,

they may suffer a ‘chilling effect,’ which means that those who would have previously been providing

either medical care or humanitarian aid may now refrain in doing so for fear of prosecution.

Most recently, the Security Council through UNSCR 2462, under Chapter VII, obligated States ‘to

criminalise financial transactions carried out with the intention that they are to be used for the benefit of

terrorist organisations or individuals.’174 Although the resolution underlines that this has to be done in

compliance with States obligations in international law, including IHL, which holds firmly that wounded

and civilians should have access to both medical and humanitarian aid the emphasis is on the

prohibition of facilitating terrorism, rather than the provision of medical or humanitarian aid.

171 Rule 35 prohibits to direct an attack against protected zones including shelters of the wounded, the
sick and civilian. Rule 25 and 26 protect medical personnel and their activities. Rule 47 protects
persons hors de combat i.e. wounded. These rules apply in both international and non-international
conflicts and according to the study have been affirmed by state practice. Henckaerts and Doswald-
Beck (n 109).
172 Rule 55 obligates parties to the conflict in both IAC and NIAC to grant access for Humanitarian

Relief to Civilians in Need. Henckaerts and Doswald-Beck (n 109) 194.

173 Zamir (n 97) 15.
174Natalie Weizmann ‘Painting within the Lines: The UN’s Newest Resolution Criminalizing Financing

for Terrorists – without imperilling humanitarian activities’ (Just Security, March 29, 2019) available
<https://www.justsecurity.org/63442/painting-within-the-lines-the-uns-newest-resolution-criminalizing-
financing-for-terrorists-without-imperiling-humanitarian-activities/> accessed 27 August 2019.

Counterterrorism, IHL and NIAC 35

It is interesting to look at Somalia, which, although lacks domestic counterterrorist laws, has been

negatively affected by the international counterterrorist framework and its sanctions against al Shabaab.

For example, in 2008 when the US blacklisted al Shabab, US AID stopped all new funding. By 2010

this had a chilling effect and impeded adequate funding to respond to the 2010 famine. 175 In response,

the UN had to put a specific exemption in order to ensure that people in need would receive aid:

[Operative paragraph 48] Decides that until 15 November 2019 and without prejudice

to humanitarian assistance programmes conducted elsewhere, the measures imposed

by paragraph 3 of resolution 1844 (2008) shall not apply to the payment of funds, other

financial assets or economic resources necessary to ensure the timely delivery of

urgently needed humanitarian assistance in Somalia, by the United Nations, its

specialised agencies or programmes, humanitarian organisations having observer

status with the United Nations General Assembly that provide humanitarian assistance,

and their implementing partners including bilaterally or multilaterally funded non-

governmental organisations participating in the United Nations Humanitarian

Response Plan for Somalia.176

This is one of the only examples where the UN tried to unequivocally instructed states to make an

exemption. Normally, the UNSCR do not include explicit exemptions in their resolutions, which can

have an adverse effect in how State’s implement the resolutions in their domestic legislations. 177

In practice, these international provisions and subsequent domestic counterterrorist laws undermine

these principles. For instance, Médécins Sans Frontières (MSF/Doctors Without Borders) confirmed

that ‘[i]t is indeed the intersection of IHL and domestic criminal and counterterrorist legislation that we

are encountering the greatest difficulty in securing the neutrality and safety of the medical mission and

the protection of our staff and patients.’178 This was made clear in a recently published report that found

175 NRC ‘Principles under pressure: the impact of counterterrorism measures and
preventing/countering violent extremism on principled humanitarian action’ (2018) available
<https://www.nrc.no/globalassets/pdf/reports/principles-under-pressure/1nrc-
principles_under_pressure-report-screen.pdf> accessed 04 September 2019. 23.
176 As quoted in Weizman (n 174).
177
Patrick Duplat ‘Impact of Counter-Terrorism Measures on Humanitarian Action’ in ICRC-COE
Terrorism, Counter-Terrorism and International Humanitarian Law 17th Bruges Colloquium 20-21
October 2016, 47.7 (Collegium, Autumn 2017) 84. Available <www.coe-icrc.eu>
accessed 20 August 2019. 147.
178 As quoted Weizman (n 174).

Counterterrorism, IHL and NIAC 36

out of 16 countries surveyed ’10 countries appear to suggest that the authorities interpret support to

terrorism to include the provision of healthcare […] what is new is not the criminalization of healthcare

per se, but how the counterterrorism framework has purportedly strengthened the legal and moral basis

to justify such actions.’179 For instance, in both Iraq and Nigeria during the conflict doctors have been

arrested for providing care to the NSAG.180 This in spite of IHL prohibition and protection of medical aid,

however, in these cases where there is a NIAC domestic legislation plays an important role. Moreover,

the counterterrorist legislations are left to State’s interpretation and there is no legally binding document

that authoritatively instructs the interaction between international law and counterterrorist legislation, as

discussed above, both could be interpreted as the lex specialis.181 Only a few countries in addition to

the EU Directive explicitly make an exception in their counterterrorist legislations to medical and

humanitarian relief. 182 As with the exclusion clause, this exception should be clearly elucidated in

domestic legislations and in UNSCR. The UN has included in its Global Counterterrorism Strategy a

provision that laws should not ‘impede humanitarian and medical activities.’ 183 However, it is not clear

if all the UN organs that work on counterterrorism encourage the respect for IHL while developing their

policies and guiding States in implementing the binding UNSCR resolutions. 184

In a similar way, the proliferation of broad counterterrorist laws has had an adverse impact on the

provision of neutral and impartial humanitarian aid to populations affected by the conflict. The

counterterrorist legislations responsible are ones that criminalise giving material support, financial

assistance, etc. to terrorist organisations. Increasingly organisations are required to respond to donor

requirements to show that sufficient risk assessment has been taken in order to not be implicated for

providing aid to a designated terrorist organization. There have been cases when donors have

suspended funding after allegations of aid diversion, for example, a programme run by World Vision in

179 Marina Buissonniere, Sarah Wozniak and Leonard Rubenstein ‘The Criminalization of Healthcare’
(June 2018) available < https://www1.essex.ac.uk/hrc/documents/54198-criminalization-of-healthcare-
web.pdf> accessed 29 August 2019, 18.
180 Ibid 19.
181
Saul ‘Terrorism, Counter-Terrorism…’ (n 20) 8 – 9
182 Weizman (n 174).
183 Weizman (n 174).
184 As opposed to non-binding ones like UNSCR 2286 urging states to comply with IHL including the

protection of the medical mission. Alice Debarre ‘Safeguarding Medical Care and Humanitarian
Action’ (September 2018) International Peace Institute available <www.ipinst.org> accessed 04
September 2019. 3.

Counterterrorism, IHL and NIAC 37

Palestine.185 The reporting may be burdensome especially for smaller NGOs, and as a result,

organisations may limit their own engagement with communities, which may put in question a neutral

and impartial approach because actions will not be based on the needs of the population rather on

mitigating own risks.186 Usually, the population who are most at need are the ones who are caught in

between the government and the opposing forces and neutral space is difficult to maintain even without

more pressures put on the organisations by either side.

On top of the donor requirements, organisations also have to confront host governments who may use

counterterrorist rhetoric or laws to influence where they can or cannot work. For example, in Nigeria the

military banned UNICEF from working accusing it for spying for Boko Haram. 187 In general,

organisations have had a hard time working in Nigeria because the government restricts them from

working in certain areas and therefore their programmes potentially exclude those most in need. 188

Organisations working in Iraq were not allowed by the government to work in ISIS areas or in special

cases needed specific permission. This meant that aid was concentrated in certain areas, while absent

in others and therefore again not implemented based on impartial humanitarian needs. 189 This can also

feed into the polarisation of the conflict and the division, stigmatisation and further separation of people.

This section has illustrated how both medical and humanitarian aid, which are protected by IHL, are

currently challenged by the international and domestic counterterrorist framework. This can be

remedied with clear exemptions to medical and humanitarian aid in the UNSCR provisions and

instructions to States to make adequate distinctions and exemption. This, however, would still need to

be detached from the terrorist label, which delegitimises and therefore stigmatises to the extent that

those accused of terrorism find themselves outside of the legal system . IHL is better suited for conflict

situations and it envisages protection for those who are not, or are no longer fighting without making a

distinction.

185
Ibid 17.
186
NRC (n 175) available <https://www.nrc.no/globalassets/pdf/reports/principles-under-pressure/1nrc-
principles_under_pressure-report-screen.pdf> accessed 04 September 2019. 16.
187 Yomi Kazeem ‘Nigeria’s army is accusing international bodies of working with Boko Haram and

undermining soldiers’ (Quartz Africa, December 17, 2018) available <

https://qz.com/africa/1498149/nigerian-army-says-unicef-amnesty-intl-aid-boko-haram/> accessed 01
September 2019.
188 NRC (n 175) 21.
189 Duplat (m 177) 139.

Counterterrorism, IHL and NIAC 38

 V. Conclusion

The aim of this paper has been to show that the internationally disputed term of terrorism and the

international counterterrorist framework, with the proliferation of domestic legislation, has challenged

IHL particularly in NIAC. The threat of terrorist acts in times of peace is undeniably real and States are

confronted with a difficult challenge in trying to prevent, suppress and ultimately punish those who

commit abhorrent violations of human rights and humanitarian law. It is questionable, however, if the

focus on outlawing ‘terrorists’ and ‘terrorism’ is possible given the ambiguity and broadness of the terms,

and how the absence of specificity in law is then open to interpretations by the courts as well as the

public. Given the international counterterrorist framework, and its accompanying bureaucracy, there is

a question if it is too late to come to a common definition, or if precisely because of this, the international

community has no choice but to define terrorism. Underlying the divergent opinions on terrorism is the

question of legitimacy. On the one hand, there are those who do not think that anyone outside of the

democratic state has the right to use force. On the other hand, there are those who want to ensure that

struggles for national liberation will not be labelled terrorist, a term that is derogatory and indeed seeps

the legitimacy out of any fight.

Although, the counter terrorist framework was intended to apply during times of peace, the violence of

terrorism and that of war are increasingly being blurred. As such, the international community needs to,

in the least, authoritatively clarify the relationship of the counterterrorist framework to other international

normative frameworks, namely IHL. This has been done in some conventions and domestic laws, but

they are in few and not consistently applied. Contemporary conflicts are non-international, yet

increasingly internationalised, armed conflicts in which the State is able to criminalise mere participation

in a NSAG. This criminalisation now falls under domestic counterterrorist legislations which have broad

interpretations of who is a terrorist and target not only NSAG members, but anyone who is associated

or provides material support. This results in harsh punishment of anyone who can conveniently be made

to fit the loose-fitting terms. It also results in impunity for war crimes and other serious violations as

‘terrorists’ are punished for who they are and not what they have done.

Counterterrorism, IHL and NIAC 39

The separation of the two is imperative in order to safeguard the humanitarian space that IHL has

constructed and preserved. IHL makes a distinction between the different types of violence with its

underlying logic embedded in the unfortunate reality that there will always be struggles. For this reason,

it advocates that while they are ongoing there should be a space for preserving humanity, in the way

that they are fought and, and in the way, that those who are not or no longer participating are treated.

IHL is clear in prohibiting and punishing those who do not follow the rules, but for this the rules must be

known and this space maintained even when threatened by atrocious violence. There is a larger

question of how IHL can be reinforced in NIAC without eroding principles, but enforcing the protections

of those who do not, or no longer take part in hostilities. The counterterrorist logic of blindly outlawing

any violence and criminalising anyone who may be associated, does not make a distinction on the

context and the acts, and focuses itself solely on who has the legitimacy. Ultimately, this challenges the

application of IHL and the preservation of humanitarian space in situations that rise to the level of a

conflict. And, this in the long run has an adverse impact on peace and reconciliation.

There is a question of the internationalisation of conflicts and how it ties into the above discussion, not

adequately covered in this paper, but an important factor that needs to be considered because

‘international problems need international solutions.’ Framing the terrorist threat as international and

then outsourcing them to domestic counterterrorist legislation may give the appearance of providing

solutions, however, as the above discussion shows this has created a multitude of unintended

consequences that will sooner or later need to be addressed in the interest of peace and security.

Counterterrorism, IHL and NIAC 40

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