|Prohibition of Terrorist Acts in International Humanitarian Law (International Committee of the Red Cross , 1986, 16 p.)|
As already indicated, the purpose of this paper is to discuss the provisions of international humanitarian law which address the challenge of terrorism. It is therefore clear from the start that the analysis is restricted to situations of armed conflict, since only then does international humanitarian law become applicable. The term "armed conflict" as defined in international law covers any conflict, between states or within a state, which is characterized by open violence and action by armed forces.
International or internal situations which do not bear the essential characteristics of armed conflict, although marked by collective violence, consequently do not come within the range of this analysis - in particular, situations of internal strife, riots and violent repression, which are not covered by the humanitarian law instruments.
Defining the matter under consideration is of great importance, since it should be clearly understood that only terrorist acts committed in situations of armed conflict fall within the scope of application of international humanitarian law. Terrorism in "peacetime", that is, in situations which cannot be classified as armed conflicts, is not covered by international humanitarian law which, in such situations, is quite simply not applicable.
The second term which calls for explanation is "terrorism".
Terrorism is a social phenomenon with far too many variables to permit a simple and practical definition. There seems to be no consensus among legal authors and other experts on its meaning and consequences. Even international law has failed to expressly define terrorism and terrorist acts. A glance at the only attempt to formulate an explicit definition having international legal authority may illustrate the difficulties involved. The Convention for the Prevention and Punishment of Terrorism (Geneva, 1937) indeed defines "acts of terrorism" as "criminal acts directed against a State or intended to create a state of terror in the minds of particular persons, or a group of persons or the general public". In our era, to restrict the definition of terrorism to offences against a State would quite obviously overlook the realities of contemporary life.
The various international conventions adopted over the last 25 years are all limited to some specific aspect of terrorism and therefore they are of no help in a search for a comprehensive definition. They are, in chronological order:
- Convention on Offences and Certain Other Acts Committed on Board Aircraft, Tokyo, 1963;
- Convention for the Suppression of Unlawful Seizure of Aircraft (Hijacking), The Hague, 1970;
- Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Sabotage), Montreal, 1971;
- Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons Including Diplomatic Agents 1973;
- International Convention against the Taking of Hostages, 1979; and
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.
This paper will not attempt to give a new and comprehensive definition. It would be superfluous anyway, as the everyday usage of the term is sufficient for our purposes.
It seems that the term "terrorism" in everyday language covers the following aspects:
- without exception, terrorism is a crime;
- terrorism is the use or threatened use of violence, usually against human life;
- terrorism is a means to attain political goals which, in the view of those resorting to it, could not be attained by ordinary (lawful) means;
- terrorism is a strategy: it is usually brought to bear over a period of time by organized groups according to a set programme;
- terrorist acts are often directed at outsiders who have no direct influence on or connection with what the terrorists seek to achieve; terrorists often hit indiscriminately at their victims;
- terrorism is used to create fear which alone makes it possible to attain the goal;
- terrorism is total war: the end justifies all means.
These statements are intended to give a general outline of the phenomenon of terrorism. In occasional instances, one or the other element may be lacking; for instance, there may be no political goal whatsoever, or the crime may be perpetrated by an individual acting on his own.
One can presume that terrorist acts are prohibited without exception by internal legislation of all States and are subject to prosecution and punishment under national criminal law. Insofar as they are inspired by political motives, offenders may be granted immunity from extradition as provided for in extradition treaties or domestic legislation. In recent years, however, the trend has been to exclude terrorist acts from such derogations (for example, see the European Convention on the Suppression of Terrorism, 1977).