Terrorism

TERRORISM
Terrorism is not a relevant category for determining whether IHL applies. IHL applies in
armed conflicts. Thus, IHL covers acts of terrorism committed by States, armed groups
(which may be therefore labelled as ‘terrorist groups’) or individuals that have the necessary
nexus to an armed conflict.
IHL protects persons suspected, accused or convicted of acts of terrorism with a nexus to an
armed conflict according to the category to which they belong independently of their
terroristic act.
IHL normally prohibits terrorist acts committed in armed conflicts. The definition of acts
amounting to terrorism, however, is controversial. Western States suggest that this definition
should include acts directed at government forces or government property with the purpose of
compelling a government to act or to abstain from acting, but IHL does not prohibit such
‘act[s] of terrorism’ committed in an armed conflict. Therefore, discussions about the
definition of terrorism stumble on its relationship with IHL, and it would be important to
clarify the relationship between IHL and anti-terrorism law. The latter should not apply in
armed conflicts to acts not prohibited by the former.
When terrorism may be considered to fall under the legal concept of armed conflict to which
IHL applies?
IHL only applies to acts of terrorism that either have a sufficient nexus to an IAC or a NIAC
or if they trigger such conflicts.
As per USA:
US declared that it was engaged in a ‘war on terrorism’, which was viewed as one
single worldwide IAC against a non-State actor (Al-Qaeda) or, perhaps, also against
terrorism itself as a social or criminal phenomenon.
More recently, the US has abandoned its classification of the ‘war on terrorism’ as an
IAC and now classifies this conflict as a NIAC. This classification is correct as long
as the usual threshold of application of IHL of NIACs is satisfied. Nevertheless, the
US still applies by analogy IAC ‘authorizations’ to kill and to detain to what it now
terms as a ‘novel type of armed conflict.’
How IHL deals with terrorism when it applies?
IHL applies to acts of terrorism or to terrorist groups that have a nexus with an armed
conflict.
In The Prosecutor v. Galic, the Trial Chamber defined the offence as comprising the
following specific elements:
1. Acts of violence directed against the civilian population or individual civilians not
taking direct part in hostilities causing death or serious injury to body or health within
the civilian population.
2. The offender wilfully made the civilian population or individual civilians not taking
direct part in hostilities the object of those acts of violence.
3. The above offence was committed with the primary purpose of spreading terror
among the civilian population.
The Court defined terror as meaning extreme fear and held that provoking such fear had to be
the specifically intended result for the offence to apply.
NIAC IAC
IHL of NIACs must deal with hostilities All persons, including terrorists, who do not
with terrorist armed groups that do not have or have lost combatant status are
represent a State. perforce protected civilian
IHL does not constitute a sufficient legal Combatants can be easily identified based
basis for detaining anyone in NIACs. It on objective criteria that they will normally
simply provides guarantees of humane not deny (for instance, their status as a
treatment and judicial guarantees during member in the armed forces of a party to an
criminal prosecutions. IAC), while a terrorist’s membership, past
behaviour and the future threat he or she
poses can only be determined individually
Possible reasons for arrest, detention or
internment are entirely governed by
domestic legislation and IHRL requiring
that no one is deprived of his or her liberty
except based on the law.
How the definition of terrorism and, more broadly, international anti-terrorism law should
relate to armed conflicts and thus to IHL?
Characteristics / types of terrorism: -
 actions, including forms of violence such as highjacking [sic] or kidnapping

 actors, including persons or organizations
 causes or struggles…
 situations, where terrorist violence is a particularly serious or widespread problem in a
state or region
Any person commits an offence within the meaning of the present Convention if that person,
by any means, unlawfully and intentionally, causes:
(a) Death or serious bodily injury to any person; or
(b) Serious damage to public or private property, including a place of public use, a
State or government facility, a public transportation system, an infrastructure facility
or to the environment; or
(c) Damage to property, places, facilities or systems referred to in paragraph 1 (b) of

the present article resulting or likely to result in major economic loss;
when the purpose of the conduct, 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.
*In NIACs, Common Article 3 protects ‘[p]ersons taking no active part in the hostilities,
including members of armed forces who have laid down their arms’. This term must include
members of both governmental and anti-governmental armed forces*
The Appeals Chamber identified a peace-time customary international-law crime of terrorism

consisting of three elements:
(i) 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 action, or to refrain from taking it;
(iii) when the act involves a transnational element

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TERRORISM

Characteristics / types of terrorism: -

 actions, including forms of violence such as highjacking [sic] or kidnapping

(a) Death or serious bodily injury to any person; or

(c) Damage to property, places, facilities or systems referred to in paragraph 1 (b) of

The Appeals Chamber identified a peace-time customary international-law crime of terrorism

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