Terrorism, Counterterrorism and IHL

Terrorism has dramatically shaped the international scene, all the more since the dawns of the 21st century, making States and international organizations react in accordance through counterterrorism (CT) legislation and operations. While preventing and countering terrorism is a legitimate and necessary effort for States to ensure security at national, regional and international levels, it must respect existing international legal frameworks, including international humanitarian law (IHL).

VERSION FRANCAISE (PDF) => CLIQUEZ SUR LE LIEN SUIVANT: Coup de projecteur sur Terrorisme, lutte contre le terrorisme et DIH disponible sur le site du blog Quid Justitiae de la Clinique de droit pénal et humanitaire (traduction de l'Université Laval).

In practice though, the adoption of exception regimes has brought new legal challenges and important humanitarian consequences: the so-called status of “unlawful combatant” or “unprivileged belligerent”,  the disputed notion of targeted killings, unlawful and undisclosed detention, deprivation of judicial guarantees, torture and other types of ill-treatment, stigmatization of individuals and their families, in particular spouses and children, nationality withdrawal leading to statelessness and stripping of basic rights, and criminalization of humanitarian activities.

Given its relevance, CT has become a regular topic in international fora, such as the United Nations’ Security Council, and while much has been said on its implications for human rights, it’s worth assessing CT operations and national legislations through the lens of IHL as well. Main challenges in that regard relate to maintaining the integrity of IHL vis-à-vis CT frameworks and preserving the humanitarian space that allows impartial humanitarian assistance to populations affected by armed conflict.

IHL Integrity
Even if some are, not all “terrorist” groups are organized armed groups parties to an armed conflict in the sense given to this term by IHL of non-international armed conflicts. At the same time, not all organized armed groups engaged in such a conflict are “terrorist”, although governments against which they are fighting nearly always classify them so. IHL applies only to situations of armed conflict, including those in which some prohibited acts (e.g. attacks against civilians, indiscriminate attacks, acts or threats whose main aim is to spread terror among the civilian population and acts of “terrorism” aimed against civilians in the power of the enemy) or actors are labelled as “terrorist”. Accordingly, CT measures taken during armed conflicts must acknowledge the existence of such situations and preserve the integrity of IHL obligations States have agreed to respect and ensure respect for.

In short, CT and IHL frameworks must be articulated in a way which is compatible with IHL obligations. Thus, even when acting under CT national laws and/or policies, States parties to an armed conflict must respect the rules and principles at the core of IHL, such as non-reciprocity and equality of belligerents, rules on the conduct of hostilities (e.g. distinction, proportionality and precautions), rules protecting those who do not or no longer fight, such as civilians, wounded and sick, and detainees, as well as respect and support humanitarian organizations and individuals bringing  impartial humanitarian aid and care to those IHL protects. This means that rules governing the conduct of hostilities and detention are fully applicable and legal statuses such as combatant, POW and concepts such as direct participation in hostilities remain unaltered, even during CT operations. They require that States make sure CT national laws and measures comply with those rules, as per what the UN Security Council urged in its Resolution 2462 (2019). This can be done by integrating “IHL exemption” clauses in such frameworks.

Humanitarian space
IHL foresees a specific framework for humanitarian relief operations (AP I 70; AP II 18 (2), CIHL Rules 55 and 56) according to which even CT measures must preserve humanitarian space as per IHL requirements, meaning that States must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need.  Thus, this “humanitarian exemption” requires States to adapt their CT measures so as to ensure that humanitarian and impartial organizations can carry on their activities without any sort of repression, as reaffirmed in UN Security Council Resolution 2462 (2019).   This can be done by integrating “humanitarian exemption” clauses in such frameworks.

The Law
More detailed developments and explanations about civilians, their rights, obligations and protection under IHL even in relations to persons or acts labelled as “terrorist” can be found in the “The Law”, “Fundamentals” chapter.  III. International Humanitarian Law: a branch of international law governing the conduct of States and individuals; section d. Acts of terrorism?

The Practice
A selection of related case studies from The Practice further illustrates:

The issue of CT and IHL integrity:

The issue of CT and humanitarian space:

The issue of CT concepts, such as “War on terror” and “Unlawful combatants”:

A to Z

Conduct of hostilitiesDetentionDetaineesDirect Participation in HostilitiesDronesFightersConditions of detentionHumanitarian assistanceHumane treatmentInterrogationJudicial GuaranteesPrisoners of warTargeted KillingsTerror (spreading of)Terrorism and terroristsUnlawful CombatantsUnprivileged belligerentWar on terror.

Teaching resources

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