Challenges of Addressing Acts of Terrorism in Non-International Armed Conflicts

Introduction

The international community, under both the League of Nations and the United Nations, have historically found it problematic to reach a consensus position on legal definition of terrorism. In the 1930s, several attempts by the League of Nations to define ‘terrorism’ as “all criminal acts directed against a State and intended or calculated to create state of terror in the minds of particular persons or the general public” was unsuccessful.[1]

In the 1970s the United Nations, like the League of Nations in the 1930s, was not successful in reaching a consensus on definition of terrorism.[2] By 1977, attempts by the United Nations to recognise National Liberation Movements fighting against colonial domination and racist regimes, and to characterize some acts that that could have been interpreted as ‘terrorism’ but were ‘legitimate acts of resistance and liberation’  was also unsuccessful.[3] However, when Additional Protocol I of 1977 to the four Geneva Conventions of 1949 was adopted, National Liberation Movements were recognised as legitimate parties to armed conflict but without providing a definition of terrorism.[4]

In 1994, the UN General Assembly adopted a non-binding Resolution on ‘Declaration on Measures to eliminate International Terrorism.” [5]  The  non-binding UN General Assembly Resolution defined terrorism as ‘criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes’. Notably, the UN General Assembly Resolution condemned, criminal acts conducted ‘in any circumstances, unjustifiable whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature.”[6] The objective of the UN General Assembly Resolution was to divorce the condemnation of terrorism from the value judgements about the reasons that may underpin acts of terrorism.  In other words, acts of terrorism were deemed unjustifiable under any circumstances.

However, while attempts at the United Nations to define ‘terrorism’ continued, the unexpected terrorist attacks on the United States on 11 September 2001 significantly changed the dynamics and discourse on terrorism. The UN Security Council immediately met and adopted a resolution calling on ‘all States not only to adopt wide-ranging measures on the domestic level, but also urged ratification of existing conventions and support for pending conventions’.[7] Since then, a proliferation of  definitions and use of ‘terrorism’ at the domestic level as part of political strategy to fight or undermine political opposition groups, a policy to fight counter-insurgency, anti-terrorism operations and the naming of individuals and organisations as terrorists have tended to undermine respect of human rights and adherence to the rule of law. Use and abuse of ‘terrorism’ at the domestic and international level is a frequent occurrence in a post-9/11 environment.

The paper limits its scope of enquiry to ‘terrorism’ as defined and used in armed conflicts, anti-terrorism and counter-insurgency operations, and how the parties in armed conflict conduct or deploy their forces in urban warfare. The analysis examines how these operations impacts the civilian population, particularly in non-international armed conflicts (NIAC).

Terrorism in non-international armed conflict

International law provides a definition of terrorism for the specific context of armed conflict as regulated by International Humanitarian Law (IHL). IHL prohibits ‘acts or threats of violence the primary purpose of which is to spread terror among the civilian population’ in international armed conflict (IAC) and non-international armed conflict (NIAC).[8]

Common Article 3 of the four Geneva Conventions of 1949 does not expressly refer to ‘acts of terrorism’ but prohibits, among other acts, “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; taking hostages; outrages upon personal dignity, in particular humiliating and degrading treatment”  as stipulated in paragraphs (1) (a),(b) and (c). On the other hand, Article 4(2) (d) of Additional Protocol II expressly prohibits, inter alia, acts of terrorism in NIAC.  A holistic reading of Common Article 3 and Additional Protocol II indicate that all acts of terrorism are prohibited in NIAC.

Serious violations of IHL may also amount to a war crime for which individuals may be held to account.[9] As such, terror inflicted on the civilian population in armed conflict is a special case, providing an exception to the rule that ‘terrorism’ as such is not defined in, and does not constitute a crime, under international treaty law.[10]

Individuals, States and non-State armed groups who resort to acts of terrorism in pursuit of their political, religious or criminal objectives in NIAC violate IHL. In the last two decades, States, individuals and non-State armed groups have increasingly resorted to use of terrorism to oppose political, economic and religious trends they disagree with. In response to internal political or armed opposition, States have used terror tactics in what some States describe as ‘robust counter-terrorism measures’. A situation of ‘tit-for-tat’ has evolved between and among States on the one hand, and individuals and armed groups, on the other hand. All parties to armed conflicts, but particularly State armed forces conducting anti-terrorism or counter-insurgency operations inflict extreme terror on civilians who are the primary victims.  In response to State terror, individuals and non-State armed groups also commit equally extreme acts of terror. In the final analysis, there is very little or no difference between violence committed by the State and its institutions, on the one hand, and equally serious violence committed by individual terrorists or non-State armed groups, on the other hand.[11]

Legal scholars generally concur that it is legitimate and, in many cases, necessary for States to act at the national, regional and international level against acts of terror committed by individuals and non-State armed groups to ensure the security of State sovereignty and security of the population at large. Further, there is consensus among legal scholars that acts of terrorism negate the basic principle of humanity and goes against legal principles underlying IHL.[12]  Overall, acts of terrorism are inherently illegal regardless of their perpetrators, whether or not the terrorist acts are committed in the context of armed conflicts, by States, non-State armed groups, or individuals.

On the other hand, some States use the anti-terrorism and counter-insurgency operations as covers to target domestic and foreign political opponents or enemies of the regime. The consequence of anti-terrorism and counter-insurgency policies, laws and acts adopted and carried out by some States, particularly in Africa, have disproportionately affected the lives of ordinary civilians in the course of their daily life, persons who have no linkage or nexus with terrorism, terrorist organisations or individual terrorists.

Anti-terrorism operations have been conducted in the context of armed conflicts, but mostly targeting local or national political opposition. In other cases, as for example, the fight against Al-Shabaab, a coalition of States under the auspices of the United Nations, conducted counter-insurgency operations within the territory of Somalia and in neighbouring countries terrorizing many civilians with no link or nexus to the armed conflict, terrorism or Al-Shabaab. The Kenya-Somali civilians, since the armed conflicts against Al-Shabaab were launched with the support and approval of the African Union (AU) are disproportionately affected by the anti-terrorism measures.

The conduct of some members of the armed forces of Uganda, Kenya and Burundi operating in Somalia have sometimes had negative impact on civilians in the neighbouring States because of the misperception that IHL does not apply, or applies in a modified version, to groups or persons designated as terrorists and their families, organisations or companies for which they work or associated with. As a consequence of the misperception of IHL, ‘innocent’ civilians have been arrested, detained, and in some cases tortured based on unverified allegations that they are ‘terrorists’, or that they support terrorism. The practice has developed into a pattern for terrorizing political opponents or business competitors by some senior regime officials in the region. Allegations of terrorism or being designated a ‘terrorist’ individual or organisation has become a most favoured tool used by senior regime and military officials against their real, imagined or potential rivals.

In some African States, for example, Federal Republic of Nigeria, a country where Boko Haram operates writ at large, and responses by the State army is ostensibly justifiable, the State is prone to deny that IHL applies to their counter-insurgency operations even in the face of credible evidence of the existence of a state of armed conflict. The rejection of the existence of NIAC is based on the false concern that recognizing the existence of NIAC between Boko Haram and the State of Federal Republic of Nigeria could legitimize ‘terrorists’. The false premise undermines Common Article 3 which recognizes that applicability of IHL does not confer any legal status on non-State party to armed conflict. By Nigeria acknowledging that an armed conflict exists between Boko Haram and the State, or Kenya, Uganda and Burundi acknowledging that armed conflicts exist between them and Al-Shabaab, will not translate into recognition of those non-State armed groups as legitimate ‘terrorist’ organisations.

On the other hand, denying that non-State armed group designated as ‘terrorist’ can be a party to NIAC is problematic because it results in impeding application of the fundamental rules that IHL sets out for both States and non-State parties to armed conflict, for example, the rules on the conduct of hostilities, and may jeopardize the effective application of the protection of civilians contained in Common Article 3 and Additional Protocol II.

There is also a tendency amongst States to consider any act of violence by non-State armed group in armed conflict as an act of terrorism and therefore necessarily unlawful even when the act in question is not, as a matter of fact and law, not prohibited under IHL. This approach by States, whether in the conduct of anti-terrorism or counter-insurgency operations or other acts committed in situations of internal armed conflict, is likely to diminish any incentive to comply with IHL or to negotiate a peace settlement or ceasefire.

In the post-9/11 world, there is the argument that acts of terrorism are exceptional acts which require exceptional response. Thus, some States have developed a discourse according to which the exceptional  threat posed by non-State armed groups designated as ‘terrorists’ require an exceptional  response, a position adopted by some senior officials in the George W Bush administration.[13]  Some States have adopted a policy of dehumanizing adversaries and employing rhetoric to indicate that individuals designated as ‘terrorists’ are undeserving of the protection of IHL and are excluded from due legal process. Unfortunately this trend has gained traction with a number of States engaged in ‘war on terror’ or counter-insurgency, with increasing abuse of human rights.[14]

A consensus position taken by most legal scholars acknowledges that IHL permits neutralizing and overcoming the enemy while preserving standards of humanity in armed conflict. IHL include rules allowing, for example, lethal use of force directed against lawful targets based on the principle of military necessity, proportionality, or internment of enemies or prisoners of war for the duration of the armed conflict. In other words, IHL does not hinder States from fighting terrorism effectively while setting out a baseline of humanity that all States have agreed to respect, even in the most exceptional circumstances.

In most armed conflicts in Africa, a number of legislations have been enacted within the framework of counter-terrorism measures to curb direct and indirect support to groups’ designated ‘terrorist’ organisations. The impact of some of the counter-terrorism laws have led to increased monitoring of and restraints on all activities seen as providing support or assistance to non-State armed groups or individuals designated as ‘terrorists’, or general promotion of respect for human rights by civil society or political parties and organisation in peace-time. Some States have gone further and adopted laws criminalizing any form of support to individuals or groups designated ‘terrorists’. Sanction regimes aimed at ensuring that no resources benefit such individuals and groups have become common practice and has disproportionately affected civil society, particularly Non-Governmental Organisations (NGO) that address human rights violations or provide assistance to internally displaced persons (IDP).

Overall, fight against ‘terrorist organisations’ ‘individual terrorists’ and ‘terrorism’ in most African States have been used, and are still being used to fight political opposition from within the State while the real or genuine fight against terrorism in Africa is sub-contracted to foreign armed forces, or private contractors, as for example, France in West Africa, the British and Americans in East and Central Africa, and the Russians in Central African Republic and earlier Executive Outcome, a private contractor, operated in Liberia.

The foreign armed forces or private contractors operate in Africa with express or tacit invitation or approval of the African governments on whose territory they fight ‘terrorism’. The civilian population, the primary victims of ‘war on terrorism’ have had very little, if at all, legal protection and recourse to justice. The reasons for heavy loss of life among the civilian population is lack of accountability of foreign armed forces operating in Africa  for violation of IHL and the immunity granted by the host State. Similarly, the conduct of private contractors are unregulated, and are not accountable under domestic law or IHL because the host State routinely grant immunity from domestic prosecution for violation of IHL.

Urban Warfare, armed conflicts and Civilian Protection

Urban areas, as for example, cities, towns, trading centres, schools or markets, are places where there are concentrations of civilians. In non-international armed conflicts in particular, these public places are often under siege by the opposing party. Thus, when fighting takes place in a besieged town or city, that is, combat in an urban area, many civilians are killed or die from acts and consequences of direct, or incidental to, armed attacks or military operations.  Starvation, as a policy is urban warfare, is used to control the population and starve the city into surrender with dire consequences on children in particular.

Urban warfare, or urbanization of armed conflict, is a recent phenomenon. States, particularly in Africa, and non-State armed groups, began deployment of urban warfare as a strategy of war from the early 1970s during the period when National Liberation Movements on the African continent began to gain traction in wars against Portuguese colonial domination. The armed conflicts were fought in the forests, schools as well as suburbs of major towns or cities such as Maputo in Mozambique, and Luanda and other towns in Angola.

In the 1990s urban warfare during the NIAC in Rwanda, the world witnessed serious fighting between the government armed forces of the State and non-State armed group – the Rwanda Patriotic Army (RPA) – in Kigali and other major towns in Rwanda. Years later, Uganda armed forces – the National Resistance Army (NRA) – and Rwanda’s RPF fought each other in the urban city of   Kisangani in the DRC, killing many civilians. Uganda and Rwanda are two sovereign States fighting in a third sovereign State without consent of the DRC and in violation of the UN Charter.  In these armed conflicts, military personnel, civilians and civilian objects were often intermingled in the cities resulting in direct and incidental civilian deaths as all parties to the armed conflict sought military advantage.

Similarly, in Sierra Leone, different non-State armed groups fought in Freetown at a time when the official army of the State was either unwilling or unable to protect and defend the sovereignty of the State and its territorial integrity. The three main non-State armed groups curved out the territory for themselves leaving the official army with a small territory in Freetown, the capitol city of Sierra Leone.  In these conflicts, many civilians were wounded, raped or killed.  Use of explosive weapons in towns and cities was a major cause of injury and death among civilians. In many cases, services were disrupted at hospitals, schools and public places were forcefully taken over and occupied by non-State armed group’s commanders for their private use or for their respective militias.[15]

Generally, the principles of distinction, proportionality and precaution which are complimentary, and must all be respected for an attack to be lawful were ignored or deliberately disregarded by all parties to the armed conflict in Sierra Leone.[16] As a general rule, to disregard critical civilian targets and bombard them in any armed conflict, whether IAC or NIAC is harmful and tragic, particularly in cities or towns that contain toxic industrial chemicals, or due to contamination, allow the spread of disease such as cholera due to incidental damage to electricity, water or sewage systems in the area.

Overall, in urban warfare, it is common practice for State armed forces or non-State armed groups to deliberately deny services to specific areas in order to exert pressure on civilians living there. However, determining criminal responsibility for such actions is complex and problematic. The responsibility of a commander in urban warfare, as in other armed conflicts, for example, depends on what the commander knew, or should have known, at the time of the attack, based on information reasonably available to him from all sources in the circumstances. The basic criminal law principles for establishing individual responsibility of a commander apply as provided in Article 6(3) of the ICTR Statute:

The fact that any of the acts [referred to in article 2 to 4 of the present Statute] was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.[17]

Given the intermingling of civilian and military objectives in urban areas, it is critical that information collected prior to, or when planning an operation in urban areas, does not focus solely on verifying that targets are military objectives, although it is a basic legal requirement, but also on assessing the incidental civilian loss, injury or harm, including the indirect ‘reverberating’ effects – the butterfly effect – that may be expected. If the commander fails to do so, or take necessary actions to avoid civilian casualties or destruction of civilian objects, he shall be held liable for the resulting acts.

Additionally, given the interconnectedness of essential service systems in an urban area, city or town, it is particularly important for a commander to consider not only incidental civilian harm directly caused by an attack, but also reverberating effects, provided they are foreseeable. However, what is reasonably foreseeable or should have been foreseen by the commander prior to or when planning the attack, will vary, depending on the circumstances, and on what he knew, when he knew, and the nature of the intended target.

A commander’s knowledge of the factual situation is important and relevant because many objects are used simultaneously for military and civilian purposes and therefore it is prudent to avoid targeting ‘dual use’ objects in urban warfare. For example, a non-State fighter may choose a firing position situated on the rooftop of a civilian house, on a school building, or an apartment in a multi-storey building complex and use the property as a command post. Or the intended target may be a power station or a transformer that provides, or is the source of electricity to both military installations and to the rest of the city residence including hospitals and other public utilities and installations.

During military attack or operations in urban areas, troops are more likely to become involved in firefights and call for reinforcement or air support. The danger and urgency of such situation significantly increases the likelihood of incidental civilian casualties and damage to civilian objects. In the course of ground military attacks or operations in urban areas, use of explosive weapons is exponentially increased. The explosives cause death and severe injuries, and large scale destruction of houses, hospitals, schools and other public institutions.

Under contemporary IHL use of explosive weapons in populated areas is not prohibited per se. However, it is regulated by the rules on conduct of hostilities, notably, the prohibition against indiscriminate attacks; the prohibition against disproportionate attacks; and the obligation to take feasible precautions in attacks. The foundational basis of this rules are inadequate to inform the Prosecutor responsible for conducting cases against commanders who violate IHL with the necessary specificity for drafting a prosecutable indictment.  The reasons for challenges in the drafting of indictment for a war crimes prosecution are both factual and legal.

Factually, the inherent inaccuracy of certain types of explosives weapons systems, but are nonetheless not unlawful or prohibited, such as artillery, mortar and multiple rocket launchers, in particular, a commander’s authorization for use of unguided munitions, as well as unguided air-delivered bombs and rockets, undermine IHL under the prohibition against indiscriminate attack. In defence of the commander’s choice of weapons, however, he is perfectly entitled to use it because neither the weapons nor its use are prohibited by IHL.  Legally, it is very unlikely to find a Judge of a Pre-Trial Chamber who can confirm an indictment based on a general rule on prohibition against indiscriminate attacks which lack specificity because that which is prohibited by IHL is unclear.

Conclusion

Terrorism, and States’ response to individual terrorist attacks, and terrorism in general is likely to continue for the foreseeable future. As ‘terrorists’ improvise and change or improve their strategies and tactics, the States must similarly improve on their response to terror attacks. It is for these and other reasons that it is necessary to adopt an internationally accepted convention that provide for States’ response while simultaneously respecting the rights of civilians and combatants who are hors de combat.

With respect to regulation of urban warfare, it is acknowledged that due to reasons of vagueness, ambiguity and lack of specificity to provide reasonable legal protection to the civilian population and civilian objects in NIAC, Common Article 3 and Additional Protocol II requires amendment. In its current form, IHL places the life of civilians at the discretion and understanding of a commander on what weapon to use and when, and the hope that he will take the right decision in accordance with the vague and imprecise prohibition on indiscriminate attacks. It is too much power to leave to a commander to exercise during armed conflict at a time when it is problematic to determine his or her state of mind resulting in his ability to take rational decisions and issue lawful orders.

Dr Obote Odora is a lawyer and researcher.

[1] Article 2(1), Convention for the Prevention and Punishment of Terrorism (Geneva, 1937, never entered into force), League of Nations Doc.C.546M.383 1937 V.

[2] Dugard, J, “ The Problem of the Definition of Terrorism in International Law,” conference paper, Sussex University, 21 March 2003 (on file with author), p.4

[3] Obote Odora, A, “Defining International Terrorism” 6.1 (1999) E Law – Murdoch University Electronic Journal of Law. See also at https://alexodora.com

[4] Article 1(4), Additional Protocol 1 of 1977 provides in part as follows: “The situations referred to in the preceding paragraphs include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their rights of self-determination….”

[5] GA Res.50/53, 11 December 1995, UN Doc. A/RES/50/53(1995) and G.A Res 51/210, 17 December 1996, UN Doc. A/RES/51/210(1996)

[6] Ibid.

[7] SC Res 1373 (2001), 28 September 2001, UN Doc. S/RES/1373(2001), in para 3, the UN Security Council called on “all States to … (e) Increase cooperation and fully implement the relevant international conventions and protocols relating to terrorism and Security Council resolutions 1269 (1999) and 1368 (2001). SC Res 1269 (1999), 15 October 1999, UN Doc. S/RES/1267 (1999), calls for ‘all States to implement fully the international anti-terrorist conventions to which they are parties’ and it ‘encourages all States to consider as a matter of priority adhering to those to which they are not parties, and encourages also the speedy adoption of the pending conventions’

[8] See Article 51 (2) of Additional Protocol I and Article 13 (2) of Additional Protocol II. See also Article 33(1) of the Fourth Geneva Conventions which provides that ‘terrorism is prohibited’ without defining the phenomena.

[9] See Prosecutor v Galic, Case No.IT-98-29-T, Trial Judgement, 5 December 2003; Prosecutor v Georges Rutaganda, (Case No. ICTR-96-3-A) Appeals Judgement, 26 May 2003.

[10] Duffy, H (2005), The ‘War on Terror’ and the Framework of International Law (Cambridge University Press), p.25.

[11] Sands P, (2008), Torture Team – Rumsfeld’s Memo and the Betrayal of American Values (Palgrave Macmillan), at pp173-177

[12] Goodin, R.E (2006), What’s Wrong with Terrorism? (Polity), see Chapters 4, 5 and 6.

[13] Sands P, (2008), Torture Team – supra, note 209, at pp173-177

[14] Roth, K  “ War in Iraq: Not a Humanitarian Intervention” in Wilson  R.A (ed), Human Rights in the ‘War on Terror’ (Cambridge University Press), pp 143-156; Goldstone R, “The Tension between Combating Terrorism and Protecting Civil Liberties” in Wilson  R.A (ed), Human Rights in the ‘War on Terror’ (Cambridge University Press), pp 157-168; Robertson G, “Fair Trials for Terrorists?”  in Wilson R.A (ed), Human Rights in the ‘War on Terror’ (Cambridge University Press), pp169-183.

[15] Prosecutor v Charles Ghankay Taylor (SCSL-03-01-T), Trial Judgement, 18 May 2012); (SCSL-03-01-A), Appeals Judgement, 26 September 2013.

[16] Prosecutor v Alex Tamba Brimo, Brima Bazzy Kamara and Santigie Borbor Kanu (SCSL-04-016-T), Trial Judgement, 20 June 2007 ; (SCSL-04-016-A), Appeals Judgement, 22 February 2008).

[17] Article 6(3) of the ICTR Statute is in pari materia with Article 7(3) of the ICTY Statute and Article 6(3) of SCSL Statute. Whenever reference to Article 6(3) of the ICTR Statute is made, it should be read as reference to Article 7(3) of the ICTY Statute and Article 6(3) of SCSL Statute as well.