Prohibition of terrorist acts in wartime

Terrorist acts committed in wartime have a different legal connotation. Violence - carried to its extreme - is inherent in war; it is also inherent in terrorism. This raises the question of the distinction to be made between two different types of violence: "licit violence" in armed conflicts governed by the laws of war, as opposed to "illicit violence" (which includes terrorism). On what criteria is the distinction based?

The first criterion relates to the status of the person committing violence: members of the armed forces of a party to an armed conflict have a right to participate directly in hostilities. No other persons have that right. Should they nevertheless resort to violence, they breach the law. Their deeds may constitute acts of terrorism.

The rule is clear and is not likely to raise any significant problems in international armed conflicts. Difficulties arise in situations of non-international armed conflicts and wars of national liberation. We shall discuss these topics in greater detail further on.

The second criterion is derived from the rules governing the protection of specific categories of persons and the rules on methods and means of warfare in armed conflicts: to be licit, the use of violence in warfare must respect the restrictions imposed by the law of war. Consequently, even members of the armed forces legitimately entitled to the use of violence may become terrorists if they violate the laws of war.

Is it necessary to say that, in practice, it is not always easy to make a distinction between terrorist violence and legitimate acts of war?

We have now reached the point where we must examine the existing law applicable in armed conflicts with respect to the prohibition of terrorist acts. The main sources are the four Geneva Conventions of 12 August 1949 relating to the protection of victims of armed conflicts, and their two Additional Protocols of 8 June 1977. Although only approximately one third of the international community has ratified the 1977 Protocols to date (February 1986), for the purpose of this analysis they will nevertheless be deemed to have the force of law for the community of nations.

The fundamental principles of international law recognized in the Charter of the Nuremberg Tribunal (the "Nuremberg Principles") must also be taken into consideration, since they too deal with terrorist acts in times of peace and of war and declare them to be international crimes.

Finally, the aforesaid conventions on specific offences, such as the Hostage Convention and the Convention on Hijacking, must also be consulted on particular issues.