Edited by Ben Saul
Chapter 13: Terrorism and international humanitarian law
Terrorism has long presented challenges for both states and humanitarian protection in armed conflict. Debates have taken place for over a century about irregular combatant status, the legitimacy of non-state armed groups, violence motivated by politically ‘just’ causes, terrorist means and methods of warfare, and the regulatory challenges of asymmetrical conflict. Many of these issues resurfaced or assumed a new complexion after 9/11, with stark challenges to international humanitarian law (IHL) presented by a particularly powerful victim of terrorism, the United States. Purported gaps or inadequacies in IHL have stimulated much discussion, whether from the perspective of state militaries, ‘terrorists’, or civilians. Others chapters in this book explore different facets of the relationship between terrorism and IHL, including detention, interrogation and torture, irregular rendition, military trials, targeting killings, and the nexus with international human rights law. This chapter focuses on the fundamental threshold issue when IHL applies to violence involving terrorism or terrorist groups, in the context of international or non-international armed conflicts. It includes a discussion of the particularly complex problem of ‘transnational’ violence and the geographical and temporal scope of hostilities. The chapter then briefly considers the legal consequences of the classification of conflicts, as regards targeting, detention, substantive criminal liabilities, and the procedure of criminal trials. It concludes with some observations about the impact of international counter-terrorism law on the effectiveness of IHL, including its balance between military necessity and humanitarian protection.
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