Is international humanitarian law an appropriate legal framework through which to fight against terrorism?
How International Humanitarian Law deals with terrorism
According to Jean Pictet, international humanitarian law constitutes a critical part of international public laws which largely focuses on the maintenance of humane ideals and protection of individuals in times of war. It is a “body of principles and norms intended to limit human suffering in times of armed conflict and to prevent atrocities” (Conte, 377). The international humanitarian law comprises of international treaty and customary law. Its main objectives involve protecting persons who are no longer taking part in the hostilities (such the sick, wounded as well as civilians) and restricting the parties the methods of warfare between parties to a conflict (Conte, 377). On the other hand, terrorism is defined as violence or threat to violence against the lives, property and wellbeing of innocent civilians (Gasser, 553).
The International humanitarian law neither provides an explicit definition of terrorism nor does it attempt to address the issue of terrorism directly. This may be due to the fact that terrorism, as a social phenomenon, has many aspects which vary from case to case (Gasser, 552). However, the law prohibits numerous acts committed in armed conflict, which would otherwise be considered as acts of terrorism if they were committed in times of peace (Conte, 378). Therefore, the international humanitarian law deals with terrorism in its capacity to deal with armed conflict.
While dealing with the issue of terrorism, the law seeks to draw a distinction between legitimate violence and acts of terrorism. According to the international humanitarian law, the right to use force or commit acts of violence in armed conflict is restricted to the armed forces, which preserve the right to choose the means of warfare (Gasser, 554). Additionally, such violence should only be directed to the armed forces of the other party and not the civilian population. In light of these provisions, the use of illegal means of warfare such as terrorism against ordinary civilians amounts to a crime which is punishable at the domestic and the international level.
When does terrorism amount to armed conflict?
The human international law, through the four Geneva conventions and two protocols identifies four categories of armed conflict; international armed conflict or occupation, wars of national liberation or self determination, non international armed conflict under common article 3, and non international armed conflict under additional protocol 2 (Conte, 378). Some people hold the view that terrorism does not amount to armed conflict because terrorism involves sudden peaks in violence with specific targets while armed conflict develops over a long period of time. In this view, terrorist actions cannot be qualified as armed conflict. However, terrorism acts can be perpetrated during war, and organized terrorists actions can initiate armed conflict.
Terrorism may amount to armed conflict as states retaliate against each other through terrorist attacks. The relationship between terrorism and armed conflict is also constantly evident in numerous warring situations. Terrorism may occur in the context of an ongoing protracted conflict, or lead to military intervention and war. Additionally, terrorism acts may result due to a reaction as a result of intervention in international armed conflict, which further intensifies an international armed conflict. In all these cases, terrorism serves to precipitate armed conflict or intensify an already existing armed conflict.
Are the rules of international or non international armed conflict applicable?
The rules of international and non international armed conflict apply to cases of terrorism in so far as such acts of terrorism occur in the context of armed conflict (Gasser, 555). Since the rules emphasize on the protection of civilian rights, it ensures that any actions that are directed towards the destruction of civilian property and lives, are not perpetrated. Since terrorism is an action that is directed towards the prohibited acts, it is deemed illegal according to the international humanitarian law, making the laws governing international and non international armed conflict relevant in cases of terrorism.
Other provisions of humanitarian law are also relevant in determining the role of international humanitarian law on terrorism. Such provisions include rules governing the protection of cultural property against hostile acts as well as legal protection often awarded to property containing dangerous forces. In the case provided, the state intends to fight against terrorism following a series of attacks on its military as well as its civilian population. However, the applicability of the law of armed conflict in the protection of the members of the armed forces is not self evident because what may appear to be a terrorist act in a civilian case may not appear to be so in the case of armed forces exchanges (Gasser, 557). However, given that the IHL law prohibits the use of weapons to cause unnecessary suffering to members of the opposing party indicates that terrorism acts against members of the military may be considered a crime (Gasser, 557)
Relevant legal rules to evaluate the question of collateral damages
According to the Merriam Webster dictionary, collateral damage refers to “an injury inflicted on something other than the intended target;” with specific reference to civilian casualties of a military operation (Catherwood & Horvitz, 87). In this case, military’s airplane attacks lead to death of civilians and the destruction of property owned by innocent civilians. Legally, collateral damage should involve unavoidable and unplanned damage to civilian personnel and property incurred while attacking a military objective. Therefore, the military is prohibited from engaging in actions for which they are entirely certain that they will result in massive collateral damages.
The international law does not prohibit collateral damage per se, since it is quite difficult to enact laws that prohibit accidents. However, international law relating to armed conflict restricts indiscriminate attacks that can potentially inflict harm to innocent civilians and their property. Indeed, the international humanitarian law dictates that an attack should be cancelled or suspended if it is expected to cause loss of civilian life or property that “would be excessive in relation to the concrete and direct military advantage” (Catherwood & Horvitz, 87). Article 51 further prohibits attacks using weapons whose impacts cannot be properly controlled.
The international humanitarian law further requires that in an international conflict, constant care should be taken to ensure that the civilian population is protected as well as their property. In this case, the military’s plane attack clearly fails to protect the civilians, who in turn lose their lives as well as their property. Consequently, on the face value, such military action may be considered as legally unjustifiable since the consequences were easily predictable. However, in order for such military action to be considered justifiable, the executors must demonstrate that the loss incurred by the civilian populations is insignificant compared to the loss that the state would have incurred if they had failed to retaliate.
Criteria for evaluating whether collateral damages are unlawful
Evaluating and assessment of collateral damages poses a number of challenges owing to the fact that both direct and indirect impacts of such actions must be weighed in order to determine their legality. The most common means of evaluation involves weighing the military necessity and the principle of proportionality against the collateral damages. The combination of the two principles gives rise to the conclusion whether such actions are legally justifiable or not. If the military action is deemed necessary in order to prevent the occurrence of a national crisis, and if the cost incurred during such actions is substantially low compared to the cost of inaction, then such military action is considered legally justifiable.
The direct and indirect impacts of such military actions should not lead to massive violation of human rights. The direct impacts refer to loss of lives and property during military actions. The indirect effects include long term medical trauma, illnesses and impact on the affected families. Military actions should be designed to protect the lives of civilians and not destroy them. Consequently, military actions that lead to destruction of civilians’ lives and property are obviously questionable in a court of law. However, if in this case, the loss of lives was unavoidable, probably because the plane contained terrorist who were set to perpetrate terrorism acts that would lead to massive losses of lives in the country including those of the civilians in the aircraft, then such military attacks would be justifiable.
The principle of discrimination forbids indiscriminate attacks that are not directed at a specific military action. Based on this principle, a military action must be necessitated by the need to accomplish at a specific military objective. Additionally, the principle dictates that parties to a conflict direct their operations against combatant and military objectives rather than property, persona and places. Therefore, military actions that are not motivated by a specified objective may be viewed as illegal.
Can military operations be launched against a military objective if children are surrounding it?
International law has created provisions which ensure the protection of the most vulnerable members of the population, including women and children, and prohibits actions that are aimed inflicting suffering to such members of the population. Additionally, other international laws relating to respect for human rights in armed conflict offer important guarantees for the protection of children in such incidences. Moreover, international law clearly stipulates that states and military forces actively spare children as well as women from the ravages of war. This is done by ensuring that children are protected against persecution, torture, punitive measures, degrading treatment and violence in the event of war.
Given the emphasis that is placed on the protection of children in armed conflicts, military forces may refrain from launching military operations against a military objective that involves children. The law clearly states that children should be subjected to special respect and protection during war, and should not be involved in direct hostilities during war. Consequently, the military should not direct their actions against children in their efforts to attack the other party. In fact, children who are orphaned or separate from their families in the event of war should, with the consent of the protecting power, be evacuated to a neutral region until such a time that the war subsides. Additionally, parties to the conflict are expected to ensure that children below the age of fifteen are excluded from taking part in direct hostilities and should not be recruited in the armed forces. These regulations remain valid for both international and non international armed conflict.
Rules governing the delivery of humanitarian aid in a non international armed conflict
According to article 18 of additional protocol 2 of the international humanitarian law, individuals subjected to armed conflict have a right to humanitarian assistance, and the parties to such conflict are under obligation to accept such humanitarian relief, which is critical for the survival of the population (Stoffels, 519). The civilians’ right to humanitarian assistance thrives from the principle of inviolability. States are obligated to ensure wellbeing and demonstrate respect for life and humanity for all individuals residing within their territories (Stoffels, 517). In this light, states must refrain from violating individual rights and must embrace measures necessary to ensure that such rights are not abused. This implies that states have a duty to ensure that civilians affected by armed conflicts are adequately supplied with resources critical, for their survival during such warring periods. If the state is not in a position to do so, then it should allow third parties to provide humanitarian aid to the affected population.
The humanitarian organization also have the right to provide humanitarian assistance, which entails the right to provide victims with relief supplies needed for their survival, as well as the right that such offer of aid not to be unreasonable denied by the concerned authorities (Stoffels, 521). States and other parties to the conflict are obligated to permit entry, passage, and access of humanitarian aid in their territories. In this light, states must authorize entry and passage of humanitarian aid for the affected populations, parties to the conflict must not obstruct such humanitarian efforts and the affected parties must actively ensure that humanitarian assistance is offered effectively, and that the humanitarian actors and their supplies are safe and secure (Stoffels, 521)
Humanitarian assistance is deemed acceptable if it adheres to the basic principles of humanitarianism, impartiality and neutrality. If the humanitarian assistance does not comply with these principles, and favors one party to the conflict over the other, the parties involved are at discretion to decline or sign authorization for such assistance. In such cases, humanitarian assistance is not protected as such under International humanitarian law (Stoffels, 539).
Authorization for the delivery of humanitarian aid
Historically, a state’s involvement in internal armed conflict is viewed as an issue that the international community should not interfere with, given that each country is considered to be a sovereign state (Dungel 1). Additionally, the responsibility to ensure proper nourishment and wellbeing of the civilians rests on the hands of the state. Therefore relief societies should only play an auxiliary role in assisting state authorities in the execution of this task (Dungel 1). According to this argument therefore, State A would require authorization from State B in order to distribute relief food to the rebel held area. Indeed, the international humanitarian law, in article 18 stipulates that, humanitarian organizations “have a right of initiative in offering relief actions” and that if civilians are suffering undue hardships owing to a lack of supplies essential for survival”, relief action should be undertaken but under the consent of the relevant authority (Dungel 1). Clearly, under these provisions, the authorization by the affected state is critical in enabling humanitarian actors to effectively deliver relief.
In this case, such authorization potentially threatens the principle of neutrality given that the region in question is that which is held by the rebels. Since the IHL stipulates that such authorization be provided by “high contracting power concerned” which is the government, it may be reluctant to authorize humanitarian aid provision in such areas (Dungel 1). Therefore, since the rebel group has de facto control over the territory in question, it is rational that the party be considered as a high contracting power. Therefore, authorization by state extends to the point where such aid is transported over the territory in which it controls, while the authorization for delivery of aid to the rebel held area lies in the hands of the rebel group.
Principals governing humanitarian aid
Humanitarian principles, in their broadest sense are based on international humanitarian law, and are designed to guide the work of humanitarian actors. The four key principles are; humanity, neutrality and impartiality.
Humanitarianism is founded on the basic principle of humanity, which according to the Red Cross is the desire “to prevent and alleviate human suffering wherever it may be found…to protect life and health and to ensure respect to the human being” (Volberg, 51). Under this principle, organizations, governments, military force s, among other institutions may feel obligated to provide aid to civilians affected by an emergency, and have a moral responsibility towards other members of humanity. Their main aim is to alleviate human suffering and contribute towards protection of life, health, wellbeing, and respect for human life. In this case, the military decision to provide humanitarian aid while at the same time providing military assistance may be driven by humanity considerations, in which the military is motivated to do so with the aim of alleviating human suffering for civilians.
According to the principle of neutrality, humanitarian actors should remain neutral in the conflict, and should not take sides with either of the conflicting parties. This ensures that organizations provide aid to all victims without any exceptions. Based on the principle of neutrality, the humanitarian actors should first and foremost focus on the material needs of the civilians while remaining distant to the political or social issues that have precipitated the armed conflict. However, in this case, State A’s military is already offering military assistance to one the parties to the non international armed conflict, which significantly compromises the neutrality of State A.
In conclusion, the principle of impartiality dictates that humanitarian actions are carried out based on the need, giving priority to the most urgent humanitarian needs. The principle of impartiality rejects discrimination and subjective distinctions in the provision of humanitarian aid. In this case, State A provides military assistance and later decides on distributing humanitarian aid , which raises the questions whether their actions are solely guided by the needs of the civilians, and whether the state has given priority to the most urgent cases of distress.
Catherwood, Christopher & Horvitz, Alan Leslie, encyclopedia of wars and genocide, New York: InfoBase Publishing Group.
Conte, Alex. Human rights in the prevention and punishment of terrorism, New York: Springer. 2010. Print.
Dungel, Joakim, a right to humanitarian assistance in internal armed conflicts respecting sovereignty, neutrality and legitimacy: practical proposal to practical problems.
Gasser, Hans-Peter, Acts of terror, “terrorism” and international humanitarian law, International Review of the Red Cross, volume 84 No 847. 2002.
Stoffels, Ruth Abril. Legal regulations of humanitarian assistance in armed conflict: achievement and gaps, International Review of the Red Cross, volume 86 no 855. 2004.
Volberg, Thorsten. The politicization of humanitarian aid and its effects on the principles of humanity, impartiality and neutrality, GRIN Verlag. 2007 Print.