Terrorism, Counter-Terrorism and International Humanitarian Law

Oxford Guide to International Humanitarian Law, B. Saul, D. Akande, eds, Oxford University Press, UK, Forthcoming, 2018

Sydney Law School Research Paper No. 16/37

19 Pages Posted: 13 May 2016 Last revised: 26 Aug 2017

Ben Saul

The University of Sydney Law School

Date Written: May 11, 2016

Abstract

This paper focuses on three key legal issues of particular relevance and specificity to terrorism in armed conflict governed by international humanitarian law (IHL). First, it examines IHL’s specific, narrow prohibitions on ‘terrorism’ in armed conflict and the connected war crime of intending to spread terror amongst a civilian population, which is distinct from peacetime legal notions of terrorism. The war crimes jurisprudence has been developed by the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Special Court for Sierra Leone, and has implications for criminal jurisdiction under customary IHL and before the International Criminal Court. Secondly, the paper analyses the varied and complicated relationships between IHL and different international counter-terrorism law (‘CTL’) norms and instruments. Depending on the norm and context, CTL can apply, not apply, or partially apply in armed conflict, and there is no general international rule determining whether CTL or IHL is the more special law (lex specialis). Often CTL complements and extends IHL’s focus on preventing and criminalising attacks on civilians. Further, CTL often does not directly conflict with IHL. However, some aspects of CTL interfere with IHL’s delicate balance between humanitarian protection and military necessity, by ‘taking sides’, undermining the equality of the parties, and ultimately reducing incentives for non-state armed groups to comply with IHL. Thirdly, this paper concludes by exploring the related, adverse effects of CTL on humanitarian relief operations in armed conflict. National implementation of CTL has variously chilled, restricted, prohibited and even criminalised humanitarian engagement by external actors with armed ‘terrorist’ groups. These measures have both inhibited effective humanitarian assistance to vulnerable civilian populations and undermined the confidence of non-state armed groups in humanitarian cooperation with the international community.

Keywords: terrorism, armed conflict, international humanitarian law, war crime of spreading terror, lex specialis, humanitarian relief

JEL Classification: K10, K30, K33

Suggested Citation

Saul, Ben, Terrorism, Counter-Terrorism and International Humanitarian Law (May 11, 2016). Oxford Guide to International Humanitarian Law, B. Saul, D. Akande, eds, Oxford University Press, UK, Forthcoming, 2018; Sydney Law School Research Paper No. 16/37. Available at SSRN: https://ssrn.com/abstract=2778893

Ben Saul (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

HOME PAGE: http://https://sydney.edu.au/law/about/people/profiles/ben.saul.php

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