Humanitarian Law

What are the legally relevant features of “terrorist attacks”? Ans: A single universal or national law cannot curb terrorism or acts of terror by their very nature. What one can discuss is the use of force by state and non-state actors under international law. Then only it is possible to contextualize the notion that terrorist attacks fall under some kind of a legal framework. Terrorist attacks are in contravention of the letter and spirit of the Geneva Conventions of 1949. The strategy and tactics employed by terrorists are specifically prohibited under Part IV of Protocol I of the Geneva Conventions (GC) of 1949.

All States prohibit recourse to terrorist acts by domestic legislation, in particular criminal law. In legal terms, the issue arises as to whether terrorism is a crime or is a way of warfare. Definitions would depend on the type of response that is made to combat terrorist attacks. Article 85 of Protocol I of the GC states that an act of terror such as “making the civilian population or individual civilians the object of attack…when committed willfully…shall be regarded as grave breaches. ”

A terrorist act inherently is illegal. But states have to find ways and means to define the act to be able to legally combat terrorism. The terrorist act can be seen as an act with criminal intent; aiming to impact on the physical and psychological nature of human beings. It could be seen as intending to cause bodily harm; homicide and other forms of criminal activity. In wider terms, terrorism is also a form of warfare and therefore some legal points relating to the law of armed conflict come into play in a terrorist act.

These have to do with the specific targets of a terrorist act and the methods employed to achieve those ends. The 1937 Convention for the Prevention and Punishment of Terrorism, defined acts of terrorism as “criminal acts directed against a State or intended to create a state of terror in the minds of particular persons, or a group of persons or the general public. ” This unfortunately never entered into force. Defining the problem at a global level and then finding legal parameters would make the task easier rather than generating country-specific legal situations to handle acts of terror.

In 1996 the UN General Assembly began working on the text of a Comprehensive Convention of International Terrorism. But this is still some way off from fruition. Therefore, it is left to individual nations to evolve their own legal systems to define terrorist acts. This means that while country A may view such acts within the ambit of criminal law, others may view terrorist acts as threats to national security and make laws that not only seek to curb terrorists, but also create linkages that prevent people from supporting terrorists.

The old adage that one man’s terrorist is another man’s freedom fighter creates the ideal problem when trying to find the legal parameters within which terrorist attacks would fit. This requires an understanding not only of the circumstances in which such acts are perpetrated, but also who or what are the intended targets. Under international humanitarian law, the killing of civilians or discriminate attacks targeting civilians is a violation of the GC. The basic premise is that violence underlies all war like activity.

The issue is that terrorism often uses maximum violence. Put another way, terrorism employs violence to achieve its ends. Therefore, fitting terrorism within a legal frame is possible, but only just. This is because situations vary over time and place over the nature of the terrorist act. But as long as the act of terror aims at inflicting damage to human beings and in turn societies as a whole, there have to institutional frameworks like the GC to understand the problem.

Sarah from Law Aspect

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