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The Interplay Between International Humanitarian Law, Terrorism and the “Foreign Terrorist Fighter” Regime

Published online by Cambridge University Press:  22 March 2019

Sandra Krähenmann
Sandra Krähenmann*
Affiliation:
Senior Research Fellow, Geneva Academy of International Humanitarian Law and Human Rights, sandra.krahenmann@graduateinstitute.ch.
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Extract

There seems to be a natural connection between armed conflict and terrorism: both involve acts of violence by nonstate armed actors. The acts of armed groups during armed conflicts are frequently labeled as acts of terrorism. Similarly, both international humanitarian law (IHL) and the international legal regime governing terrorism address acts of violence committed by nonstate armed actors. Yet, these superficial similarities obscure the significant conceptual differences between acts of violence in armed conflicts and those outside armed conflicts as well as the differences in the legal regimes governing them. Before turning to an analysis of UN Security Council (UNSC) Resolution 2178 (2014), it is necessary to briefly explain how IHL addresses acts of terrorism, followed by a brief description of the international treaty regime governing terrorism, including how this regime regulates its relationship with IHL.

Type
Foreign Fighters: Looking Beyond Counterterrorism Laws
Information
Proceedings of the ASIL Annual Meeting , Volume 112 , 2018 , pp. 307 - 310
Copyright
Copyright © by The American Society of International Law 2019 

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References

1 ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Report, 31st International Conference of the Red Cross and Red Crescent 49 (2011); Gasser, Hans-Peter, Acts of Terror, “Terrorism” and International Humanitarian Law, 84 IRRC 547–70, 559, 562 (2010)Google Scholar.

2 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (AP I), Art. 51(2), June 8, 1977, 1125 UNTS 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (AP II), Art. 13(2), June 8, 1977, 1125 UNTS 609. According to the ICRC Customary International Humanitarian Law Study, this rule is also a norm of customary international law applicable in both international and non-international armed conflicts, see ICRC, Customary International Humanitarian Law, Rule 2, Violence Aimed at Spreading Terror Among the Civilian Population. See also Andrea Bianchi & Yasmin Naqvi, International Humanitarian Law and Terrorism 196–99 (2011); Krähenmann, Sandra, Foreign Fighters Under International Law, 7 Geneva Acad. Briefing 24–26 (2014)Google Scholar.

3 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (GC IV), Art. 33, Aug. 12, 1949, 75 UNTS 287; AP II, supra note 2, Art. 4(2)(d). See also Marco Sassóli with Lindy Rouillard, La definition du terrorisme et le droit international humanitaire, Revue québécoise de droit international 29–48 (2007); Krähenmann, supra note 2, at 26–30.

4 Gasser, supra note 1, at 547–70, 559–62 (2010). See also Roberta Arnold, Terrorism, War Crimes and the International Criminal Court, in Research Handbook on International Law and Terrorism 282–97 (Ben Saul ed., 2014).

5 ICRC, supra note 1, at 49.

6 Hmoud, Mahmoud, Negotiating the Draft Comprehensive Convention on International Terrorism. Major Bones of Contention, 14 J. Int'l Crim. Just. 1039, 1035–36 (2006)Google Scholar.

7 Lim, C. L., The Question of a Generic Definition of Terrorism Under General International Law, in Global Anti-terrorism Law and Policy 38, 45–47 (Ramraj, Victor V., Hor, Michael & Roach, Kent eds., 2005)Google Scholar.

8 International Convention for the Suppression of Terrorist Bombings, Art. 19(1), entry into force May 23, 2001.

9 Id. Art. 19(2).

10 Sassóli, supra note 3, at 44; Kimberley Trapp, The Interaction of the International Terrorism Suppression Regime and IHL in Domestic Criminal Prosecutions: The UK Experience, in Applying International Humanitarian Law in Judicial and Quasi-judicial Bodies 173 (Derek Jinks, Jackson N. Maogoto & Solon Solomon eds., 2014).

11 SC Res. 2178, para. 6 (Sept. 24, 2014).

12 SC Res. 2178, preambular para. 8 (Sept. 24, 2014).

13 See the list of proscribed groups and organizations: www.gov.uk/government/publications/proscribed-terror-groups-or-organisations--2.

14 See the list of designated foreign terrorist organizations: www.state.gov/j/ct/rls/other/des/123085.htm.

15 Hegghammer, Thomas, Should I Stay or Should I Go? Explaining Variation in Western Jihadists’ Choice Between Domestic and Foreign Fighting, 107 Am. Pol. Sci. Rev. 1 (2013)CrossRefGoogle Scholar.

16 Report of the Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination, §§ 22–24, UN Doc A/70/330 (Aug. 19, 2015); Bakke, Kristin M., Help Wanted? The Mixed Record of Foreign Fighters in Domestic Insurgencies, 38 Int'l Sec. 150 (2014)Google Scholar; Rich, Ben & Conduit, Dara, The Impact of Jihadist Foreign Fighters on Indigenous Secular-Nationalist Causes: Contrasting Chechnya and Syria, 38 Stud. Conflict & Terrorism 113 (2014)Google Scholar.