December 1, 2015

The late Karin Tackaberry, in her July 2007 essay “Time to Stand Up and Be Counted: The Need for the United Nations to Control International Terrorism” noted that with respect to international law, terrorists and other non-state actors engaging in armed conflict were now openly operating in an international dimension, and were orientated territorially, politically, or ideologically, with specific interests, approaches or outcomes in mind. Tackaberry, who was one of the most engaging and foresightful international lawyers specialising in the field of International Humanitarian and Armed Conflict Law, forewarned in a series of essays in the years preceding her untimely passing in 2012 of a number of contemporary terrorist scenarios that unfolded later. Boston, Bangkok, Ottawa and Sydney are representative of this precedence, however it is when you read Karin Tackinberry through the retrospective lens of ISIL/ISI, how it started, how it was allowed to fester and grow, and the consequences of the international community not constructively intervening, makes for sobering reading. Would the mass exodus to continental Europe from Syria and Iraq be happening at the extent it is today? International Humanitarian Law and its application (or not, as the case may sometimes be), its legal standing and efficacy in its wider sense, should not just be about terrorism and state-on-state conflict, but about avoiding human created disaster, neglect and brutality.

Principles of International Humanitarian Law

The principles of International Humanitarian Law (IHL) are mostly embodied in the broad framework that encompasses what is popularly known as the Hague Law, the Geneva Law and the United Nations Charter. For much of the last 70 years this “Geneva framework” has provided guidance and rationality amongst international institutions and nation states. However, given the recent surge in the number of conflicts since the end of the Cold War, and even more significantly, how those conflicts are technologically conducted and by whom or even what, serious questions are emerging over how effective or even relevant the current regime of international humanitarian law is. Deliberate environmentally destructive acts or eco-terrorism, cyber attacks or cyberterrorism, the use by proxy of private military and security companies, the use of robots and autonomous drones, the lone wolf or small wolf pack ability to commit international acts of violence are now all part of, or potentially part, of the mileau when it comes to modern threats to humane conduct amongst the international community. If we except that position, then do we believe that it fails to protect the innocent or impedes the need to meet new threats?

If so, your answer maybe that even though the Geneva framework is largely working for what it was primarily designed for – governance of armed conflict between UN member states. It, however, lacks coherency when the framework is applied to these contemporary threats, as well as technological developments that are now emerging and were not part of the intellectual or political consciousness back in September 1945 when the United nations first came together in San Francisco.

But first a little background to the uninitiated regarding IHL and its context in recent events and developments. Following World War Two, the Geneva laws were enacted to develop humanitarian conduct and behaviour of member states and thus control international armed conflict. IHL covers two broad areas. Firstly, international armed conflict law which usually refers to inter-state conflict such as the four Geneva Conventions of 1949 (with the exception of common article 3) and the 1977 Additional Protocol I, and secondly the Common Article 3 to the 1949 Geneva Conventions and the 1977 Additional Protocol II concerning non international armed conflicts which usually refer to intra-state armed conflicts.

The UN Charter

The UN Charter has, since its enactment, legally restricted the ability to go to war, and generally nations have complied as few state-on-state wars between nations have occurred since the UN was formed. However, initially with the end of the Cold War and then definitively bookended following September 11, 2001, another global change has taken place requiring the same genuine level of collective response from all UN members, like they took in 1945. Of course that collective response is based upon the Geneva frameworks of IHL. However, at the same time, running in parallel over the last decade and a half, it has also been a period of time that has seen the rise of a technological revolution develop from the confines of the military-industrial complex into the hands of the individual and everyday usage wherever they may live. Global access to technology can be sought and used, and this is where it touches upon IHL abused, whether in a village in the South Sudan or in an affluent seaside metropolitan area anywhere in the OECD.

When an international collective response is required it is through the mandate powers within Chapter VII of the UN Charter that gives the UN Security Council (UNSC) the authority and responsibility to determine the existence of any “threat to the peace” or acts of aggression that are reported to it by member nations, as well as the response to it through armed enforcement to re-establish peace. It was under Chapter VII resolutions following September 11 that counter terrorist operations began in Afghanistan. The attack on the World Trade Center and the hunt for Osama Bin Laden have clearly revealed the fundamental difference between armed conflict operations in the counter terrorist context from the classical inter-state wars that the Geneva Laws were guarding against during the Cold War. The UNSC when evoking Chapter VII action against the Taliban and Al Qaeda, deemed it an act of global terror and not an isolated territorially specific action, as had previously been regarded as the prior context of terrorism. More recently, Resolution 2170 (2014) condemned the gross, widespread abuse of human rights by the extremist group ISIS/ISIL/Daesh in Iraq and Syria and called on member nations to suppress the flow of foreign fighters, financing and other support to Islamist extremist groups. A US/NATO led response using air strikes and Special Forces began in late December 2014. Of course China and Russia, permanent members of the UN Security Council, were in diplomatic speak “rather unhelpful” in widening the scope of what was possible under the mandate, as well as others relating to Syria using their veto powers and thus constraining a full response under Chapter VII.

Some critics allege that one of the barriers to moving ahead with any real change to our current regime of armed conflict law relating to terrorism has been the inability of the UN to reach a consensus on a workable definition of terrorism since the 1960s. They argue that this lack of a definition has caused an ineffective framework of criminal law-based treaties that rely on domestic laws for the adjudication of actions that are considered terrorist offences. Therefore, it seems if progress is to be made, the first step for the UN General Assembly is to at least agree to a broader definition. Because at international law level their really isn’t one. Though contentious, a couple of explanations are probably wise to include at this juncture. Karin Tackinberry wrote that the “Terrorism” is frequently used to characterise acts of violence that increasingly fall within the category of armed conflict and argued that this does not entirely suffice as a definition as the modern terrorist does not employ violence as a necessary evil but as a desirable form of action. In another nuanced explanation of terrorism Paul Jones (1993) noted, “… to terrorists, violence is not a political weapon, to be used in extremis: It is a substitute for the entire political process.” To Jones and Tackinberry the problem with traditional explanations is that terrorism provisions under the current Geneva laws of armed conflict are only meant to apply to situations involving “Members” of the UN and “High Contracting Parties”.

Since the Cold War ended, the nature and rationale for warfare has evolved into more intra-state conflicts involving asymmetrical warfare and less of a conventional state against state military engagement. That state on state military events are more or less contained through diplomacy and mutual self interests. This is borne out by the fact that there have been more intra-state conflicts in the 20 years since the Berlin Wall fell than the previous 45 years of the Cold War. The UNSC evoked Chapter VII of the UN Charter 18 times for the 12 years from 1990 to 2002 compared to the six times during the Cold War between 1946 and 1989 (Johansson 2003). Asymmetrical warfare has led to the use of tactics and weapons suited for countering the technological advantage of standing armies. An example revealed by Michael N. Schmitt in his article “‘The Vanishing Law of War’ Reflections on Law and War in the 21st Century” published in the Harvard International Review (Spring 2009) is the use by Al Qaeda aligned insurgents of improvised explosive devices as a means of neutralising US mobility and firepower in Iraq and Afghanistan, without exposing themselves to the risks of confronting the Americans head-on. “Unable to engage the enemy directly, insurgents have adopted tactics and strategies that either skirt the law, or violate it outright”. Technology and its use for destructive purposes is rapidly moving from the state level to the small group and individual level. Ideologically-driven lone wolf attackers in urban environments? A young sociopathic computer nerd with a politically disruptive agenda that puts infrastructure at risk, and through that, civilian lives? Low-cost UCAV drones with remote operators? Eco-attacks or enviroterrorism to destroy an economic and socially viable community rival? Not to mention the autonomous lethal robots that may sound like the stuff of a Hollywood sci-fi plot but are a technological more capable than one may think. All are potential activities that go beyond the legal orbit of criminal events within a civil society and transgress into the new grey area not fully captured by the Geneva framework. They are activities that present a direct challenge to a sovereign states security and not just criminal nuisance or malfeasance.

Lack of clarity

It all boils down to a lack of clarity in our legal framework regarding the scope and application of IHL. If military operations between a state and a terror movement, even if they involve the states’ armed forces operating outside its own territory, they are still not enough to bring them within the full scope of provisions regarding international armed conflict in the 1949 Geneva Conventions and the 1977 Geneva Protocols.

Adam Roberts (2002) outlined the dilemma by noting that that anti-terror operations in this context may only assume the form of interventions by a State against those forces conducting terror activities within its own territory, or by countering organised opposition forces that are attempting to overthrow the government and only if those forces are perceived to be committing terrorism. “The principle agreement on non-international armed conflict, Common Article 3 of the 1949 Geneva Convention provides the core rules surrounding what a actions must be avoided, but says little about the application of these rules.” Roberts argues that the problem with Common Article 3 when read with the Protocols, is that it is “based on an assumption that there is a conflict between at least one state actor and at least one non-state group and that non-state group is organised, under command, exercise partial territorial control and can sustain concerted military operations.” In his view this has created the incoherency in the current armed conflict law arrangements.

A post-September 11 world

However, other opinions exist reflecting the status quo, and regard the current Geneva framework as all too relevant in our post-September 11 world and that the current legal framework appropriately triggers the application of criminal responsibility for grave breaches during armed conflict. Gabor Rona (2004), for example, considers that “criminal responsibility should only rest with current legal frameworks via the set up of international criminal courts to deal with transgressions of humanitarian law and abuses during the conduct of armed conflict”. Rona and others like Antoine Bouvier (2006), who also support the status quo, argue that no alternative system is available, and that it would take considerable time to have new rules of international law universally ratifying the context of terrorism. They also take the view that the ability to achieve justice under the present rules should not be underestimated as the current system in their view continues to function in most of today’s conflicts. In some ways that is their achilles heal – “most of today’s conflicts” – most does not mean all conflicts and going back to Tackaberry and Roberts, conflict, both state and non-state, is becoming more asymmetrical, more autonomous and yet very much in the international sphere.

The arguments that a criminal law ‘trigger’ is available via Common Article 3 when read with 1977 Protocols, still assumes that a UN sanctioned counter terror operation using armed force under a Chapter VII resolution is up against at least one non-state group and that non-state group is organised, under command, exercise partial territorial control and can sustain concerted military operations. It could be argued that Rona and Bouvier fall into the mistake of confusing armed conflict as envisioned by Hague and Geneva Laws with contemporary terrorism and that the criminal law response is the complete panacea. Most – is still not all, most still presents a grey area and the law whether it is criminal, civil or with respect to armed conflict, despises any uncertainty or lack of clarity. International human rights law was designed originally to govern the state/individual relationship, with the state the bearer of the obligation and the individual the possessor of the right. International criminal law gives rise to individual criminal responsibility and, accordingly, certain provisions of war crimes law are interpreted in a narrower fashion than their international humanitarian law counterparts. If the law is to be applied directly in situations of armed conflict, this vertical relationship according to Sivakumaran (2011) may require re-thinking, with non-state armed groups, however small, potentially being held subject to human rights obligations.

Though an organised ‘military’ counter-terror response will no doubt be the response under Chapter VII resolution, the terror group they are targeting is not necessarily likely to be under a traditional and identifiable command structure, nor can sustain concerted military operations. That is not always the actual nature of conduct in contemporary terrorist operations, especially now that the unconventional is becoming increasingly more likely. It may not even be a group or populist terrorist cause. Former CIA director Leon Panetta in his recent memoir stated that the rise of the lone wolf or small autonomous or independent terrorist cells are becoming more prevalent, more dangerous. As soon as the ink was dried on Panetta’s book according to the US Congress Research Report of October 10, 2014, ideological sympathetic, geographically transient, yet autonomous informal splinter groups arrived on the international terrorist scene. And the tools and methods are changing faster than the legal framework’s snail-like speed.

Despite those calls that the current regime of international law in combating terrorism does not need changing, even with the escalating level of violence conducted by terrorist groups with international reach, the few anti-terrorism treaties that actually exist are based in criminal law, and not within IHL. Pauletta Otis (2007) argues this point most convincingly stating that to effectively punish and limit terrorism, the UN must move on from the vagaries and scarcities of the treaties prohibiting the crimes of terrorism, and craft a new body of law premised on the law of terrorism within the scope of armed conflict. Her view is that the current regime of anti-terror treaties are not robust enough in the modern context to combat terrorism, nor are they able to remedy the situation. What are needed is new laws are needed that can, or as Rama Mani (2007) puts it, “fill the void in the existing law of armed conflict,” and by creating “a new proposed convention on international terrorism that should focus only on non-State actors.”

It stands to reason that if the world community is actually serious about finding a long-term solution to combat terrorism, shouldn’t the world community find it somewhat easier, faster and more effective to work together and streamline a new international legal solution? One that would cover the vagaries currently surrounding non-international conflicts between terrorists and the United Nations members concentrating on non-state actors? One which would shape and scope coherent and embracing responses to new technological and tactical threats that are beginning to emerge and challenge the current and aging IHL framework? The UN Charter has since its enactment restricted a nation’s ability to go to war, and nations have generally complied as few ‘wars’ between nations have officially occurred since the UN formed over 60 years ago. The existing regime of IHL including the ad-hoc arrangement of criminal treaties, are inadequate to address the violence and aggression waged by non-state actors such as modern trans-national terrorist cells or even lone wolf operator scenario with sympathetic ideological and logistical support. The old IHL is like an analog response to a digital world. It needs an upgrade, a kind of IHL 2.0 to legally capture the new tactics and technology present in armed conflict, terrorism and other acts of anti-humanitarianism. We must give clarity and coherency to an area of international law that is still legally vague and yet, if unchecked, illegally lethal.

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About Michael Liam Kedzlie

Michael Liam Kedzlie is a New Zealander who currently works as the Research and Policy Manager, based in IAFOR’’s Nagoya office. He is responsible for formulating legal policy as well as liaising with the organisation’s university partners and the International Directors of Program. He is also editor of Eye Magazine. He has worked in the tertiary education sectors in both New Zealand and Japan and has in the past worked as a Parliamentary Assistant for a New Zealand MP, as well as in the New Zealand Tourism Industry. Michael has a Master’s degree in Education from Massey University as well as a Law degree from the University of Waikato Law School. He is an enrolled Barrister and Solicitor of the High Court of New Zealand and has broad interests within the Law, Public Policy and Politics.


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