Challenges to Adjudication and Investigation
Edited by Fausto Pocar, Marco Pedrazzi and Micaela Frulli
Chapter 16: Fighting terror within the law? Terrorism, counterterrorism and military occupations
The present chapter will explore how the political dimensions of ‘terrorism’ have influenced the application of international humanitarian law (IHL) in situations of belligerent occupation. For the purposes of this analysis it is worth recalling that terrorism as a legal concept does not constitute the status of an individual or a group but certain prohibited conduct. Notwithstanding the trend in the practice of States and organizations to define a number of organizations and groups as ‘terrorists’, this approach is at odds with the way IHL and international criminal law (ICL) regulate the phenomenon. Terrorism is a prohibited conduct or a crime, not a status. The fact that a number of participants to the conflict are labelled as ‘terrorists’ does not alter the application of the law of armed conflict to their actions. Terrorism however remains a far-reaching phenomenon, affecting the lives of many. Theoretically, it can be a political concept, a military doctrine and a legal category, but it is always the object of irrevocable moral reprobation.
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