IHR Wk.

10
Terrorism, War and Human Rights

Professor Michael C. Davis

Spring 2018
 What is Terrorism?
• Violent acts aiming to intimidate a population or compel a
government to do something. Include state terrorism?
• Earlier law enforcement targeted specific acts.
– Hostage taking, hijacking or crimes against humanity.
• Comprehensive int’l law definition first offered in the Int’l
Convention on the Suppression of the Financing of Terrorism:
– “Any other act intended to cause death or serious bodily injury to a civilian
… when the purpose of such act, by its nature or context, is to intimidate a
population, or to compel a Government or an international organization
to do or to abstain from doing any act.”
• Does the context tell us whether terrorism or insurgency?
 Definition Refined:
2004 UNSC Res 1566
• “Recalls that criminal acts, including against civilians,
committed with the intent to cause death or serious bodily
injury, or taking of hostages, with the purpose to provoke a
state of terror in the general public or in a group of persons
or particular persons, intimidate a population or compel a
government or an international organization to do or abstain
from doing any act, and all other acts which constitute
offenses within the scoped of and as defined in the
international conventions and protocols relating to
terrorism, are under no circumstances justifiable by
considerations of a political, philosophical, ideological,
racial, ethnic, religious or other similar nature…” (adopted
unanimously)
 Causes of Terrorism
• Martha Crenshaw: “The first condition that can be considered a
direct cause of terrorism is the existence of concrete grievances
among an identifiable subgroup of a larger population, such as an
ethnic minority discriminated against by the majority.”
• Robert Pape relates extreme suicidal terrorism to “the perceived
foreign occupation of a group’s homeland.”
• Pape advocates also why people accept terrorism.
 Aims of Terrorist Acts
• Terrorism is a tactic often adopted in the name of self-
determination.
• Excessive governmental actions are often adopted in the name of self-
defense or sovereignty.
• Should international law be more attentive to autonomy
regimes since terrorism often arises from the efforts of
dissatisfied insurgent groups to gain autonomy.
• Should we do more to define the concept of autonomy and related
due process rights to secure it?
• Recall the Indian BJP leader Naidu: “You HR people are more
interested in protecting the terrorist than the victims.”
In the Name of Fighting Terrorism?

• What should governments do in the name of fighting terrorism?

– After 9/11 did fighting a global “war on terrorism” make sense?
» Is the “war on terrorism” war or simply law enforcement?
» If a war than IHL? If law enforcement than IHR?
» Did the label effectively turn it into a war?
– What is the proper balance between security and HR?
– Are terrorists entitled to full procedural protections? (Naidu’s Q?)
 The UNSC Response
• On 9/12 UNSC determined that the 9/11 attacks constituted a
“threat to international peace and security” and recognized
the applicability of the “inherent right of individual or
collective self-defense.”
– Did Al Qaeda represent the ultimate terrorist nightmare, the
possibility of a terrorist network acquiring the ultimate weapon of
mass destruction? ISIS?
– In late September the UNSC also used its binding Chapter VII powers
to require financial, penal and regulatory measures against terrorists.
– The UNSC also established the Counter-terrorism Committee (CTC),
which appears to have no geographic or time boundaries.
UNSC’s Counter Terrorism Committee
• In 2006 CTC instructed its Executive Directorate to act to
insure state counter terrorism actions comply with HR
requirements.
• Has the cascade of national terrorism laws
encouraged repressive states to violate HR, to
crackdown on opponents?
• Have states used immigration laws to target
foreigners, taking advantage of lax procedural
standards—racial profiling?
 Emergencies and Derogation from HR
• How do IHR apply during declared national emergencies?
– The editors note that even in the absence of a derogation clause in a treaty
there may be reasons to justify derogation such as fundamental change of
circumstances, necessity or force majeure.
– HR treaties do allow emergency derogations under extreme circumstances.
– But ICCPR Art. 4 specifies that certain rights are not subject to derogation
even in war:
• right life; cruel, inhuman and degrading treatment; slavery; imprisonment for breach of
contract; ex-post facto criminal law; personhood; and thought, conscience and religion.
– Jus Cogens peremptory norms and the rights listed in Art. 4 (2) may not be
derogated from.
– In addition the Committee list a number of elements of other rights as non-
derogable in para. 13 of its commentary, including:
• humane treatment of persons deprived of liberty, prohibitions against taking hostages, the
rights of minorities, forcible deportations and population transfers or incitement to
discrimination, hostility or violence.
 HRC General Comment 29
• Outlines procedures and factors for derogation:
– first, you officially proclaim a state of emergency acting within
constitutional and other provisions of law;
– second, admonished to carefully consider whether justified;
– third, the principle of proportionality requires that measure taken be
strictly limited to what is required by the exigencies of the situation;
– fourth, non-derogable rights may still have limitations;
– fifth, derogation may not involve discrimination;
– sixth, other international obligations, such as crimes against humanity
or prohibitions against taking hostages, should not be violated in the
name of derogation;
– seventh, procedural guarantees should be met, ie there is no
justification to derogate from the fair trial requirements; and
– Eighth, the state must give a sufficient account of the relevant facts to
justify derogation—such facts as will be relevant in later judging the
permissible degree of derogation.
 IHL and IHR
• IHL arises under the four Geneva Conventions, two protocols
and the ICC and is very specialized and detailed, addressing:
• the treatment of wounded, sick, shipwrecked (1 and 2); prisoners of
war (3rd) and civilians (4th).
• These were the first multi-lateral international human rights treaties to
be signed by every country in 2006.
• Being specialized treaties, under the principle of lex specialis
derogat generali (special rule takes precedence over general
rules) it may preempt IHR in the contexts where it applies.
– including international armed conflict or military occupation—subject
to the non-derogation requirements.
 IHL Basics
• Four Geneva Conventions establish the international standards
for humanitarian treatment in war.
– Treatment of members of armed forces wounded and sick (1 and 2)
– Prisoners of war (3)
– Treatment of civilians.
• Common Article 3 in all four Geneva conventions operates like
a separate treaty,
– extending more limited humanitarian requirements to non-
international armed conflicts and to non-state actors if other provisions
do not apply.
– Requirements include basic human rights such as freedom from
torture, murder, mutilation, right to fair trial and the right to be treated
humanely.
– Has come up over US policy in Iraq and Gitmo.
 Geneva Protocols
• The 1977 Protocols elaborate further rules.
• Protocol I applies to international armed conflict and includes within
such definition national liberation and other armed struggles to
achieve self-determination.
• 166 countries have signed but not the US, which views most of
this as customary international law.
• Protocol II elaborates rules for internal armed conflict.
• 162 countries have signed but not the US.
• The ICC Rome Statute creates an international criminal court.
– The Rome Statute is thought to codify existing customary IHL.
– Will discuss in week 12.
 IHR and War
• IHR applies in war and peacetime.
– Though war often provides the occasion for derogation, specific rights
are explicitly not subject to derogation in time of war, torture being
example.
– All of the IHL treaties explicitly include HR.
– In a general sense IHL governs the relationship between states, while
IHR focuses on relationship between government and the governed.
– In the Advisory Opinion on the Legality of the Threat or Use of
Nuclear Weapons the ICJ upheld the rule that HR law still
applies during war.
– The ICC makes this explicit in Art. 72.
 What IHR Requires in War
• Determining what IHR requires in time of war may require
reference to IHL.
• ICJ offers the following formulation as to what is required, noting
three possible situations:
– some rights may be exclusively matters of IHL,
– others may be exclusively matters of IHR, and
– yet others both.
– So in the Nuclear Weapons Case the court used reference to IHL to
decide what is arbitrary deprivation of life.
 Regulating Detention at Guantanamo
• Are the prisoners at Gitmo covered by POW rules or common
article 3? Are they beyond the law?
– Are the detainees “unlawful combatants,” to which only civilian rules
in Geneva 4 and common article 3 apply?
– Or are they POWs who deserve the trial rules that the holding country
uses for its own soldiers, that apply under Geneva 3?
– Geneva 3, Art. 4 applies to members of the armed forces of a party to
the conflict and to members of militias and volunteer corps that meet
the following criteria:
» being commanded by a person responsible to his subordinates;
» having a fixed distinctive sign recognizable at a distance;
» carrying arms openly; and
» conducting operations within the laws and customs of war.
 US Rejects Geneva 3 for Gitmo
• Geneva 3, Article 5 says that when there is doubt such
prisoners enjoy protection until their status is reviewed by a
competent tribunal—status review board
• The US rejection of Geneva 3 application was rejected by the
Inter-American Commission (and later the US Supreme Court)
– While the US is not party to the Inter-American Convention, it is
bound by the American Declaration and subject to the Commission.
– Held no person is outside the law—non-derogable rights—US is bound
to take precautionary measures to determine detainees legal status.
– American Declaration Art. 18 and the tradition under Martens clauses
in IHL conventions requires persons not under the convention are still
protected by international law.
 US Rejection of Geneva 3 cont
• The US responds, arguing that the detainees are unlawful
combatants subject neither to Geneva 3 or 4.
– In the US view the lex specialis rule means that IHL preempts article 18
of the American Declaration and HR law in general—no need status
review.
– The Taleban detainees have not distinguished themselves from the
civilian population and do not follow laws and customs of war.
• Al Qaeda is a terrorist group and cannot be considered a state party.

• Rasul v. Bush and Hamdi v. Rumsfeld sided with Commission.

– Congress (Republican) then passed the Detainee Treatment Act of
2005 limiting such review to the DC Circuit.
– These issues have also come re the UK terrorisms acts in Europe.
 Fair Trial Under Geneva Conventions
• The Geneva Conventions and their protocols have three fair-
trial guarantees:
– 1) Common Article 3 outlaws the passing of sentences and the
carrying out of executions without previous judgment pronounced by
a regularly constituted court;
– 2) While the Civilian Convention permits states to suspend treaty
obligations when dealing with unlawful combatants such as spies and
saboteurs, such person shall be treated with humanity and not
deprived of a fair and regular trial;
– 3) Article 75 of Additional Protocol I (viewed as binding customary law)
specifies the elements of the right to a fair trial guaranteed to all.
These provisions establish a floor of fair trial if more specific
guarantees do not apply.
What Sort of Trial Can Terrorist Expect?
• The Inter-American Commission has held that military tribunals are
inappropriate for trying civilians unless no other tribunals are available.
• What about terrorist or unlawful combatants?
• The Inter-American Commission’s Special Report on the Right to a Fair
Trial, 2002, concluded that military officers who are subordinate to
higher command do not satisfy the requirement of independent and
impartial courts.
• The Commission notes some derogation is permitted from public trial
requirements regarding the right to examine all witnesses, and to
provide physical protection for judges.
• The Geneva Conventions expressly provide for POWs to be tried by
military tribunals.
Incal v. Turkey, ECHR Grand Chamber 1998
• Facts: Criminal proceedings in the Ismir National Security Court against Mr.
Ibrahim Incal and members of the People’s Labor Party for inciting racial hatred
and hostility in violation of the Criminal Code, the Prevention of Terrorism Act
and the Press Act. The National Security Court, which had one military officer in
a three judge tribunal, convicted him and sentenced him to seven month in
prison plus a fine. The constitution does not allow one-off special courts so the
National Security Courts were created to deal with acts involving the stability of
the state—against the indivisible unity of the state and against the democratic
system. Included normal constitutional guarantees.
• Issue: Can Izmir National Security Court with one military judge included in the
panel be regarded as an “independent and impartial tribunal under Art. 6/1 of
the ECHR? Held: No
• Rational: The Government claimed that the military officer on the tribunal only
conformed to military protocol and was free from any official pressure. The
ECHR defines independence with regard to “the manner of appointment of
members and the term of office, the existence of safeguards against outside
pressure; and the appearance of independence. The court appreciates that the
same constitutional safeguards apply but worries about them being subject to
military discipline. This is not determine only in the abstract. From the
standpoint of the accused would he expect objectivity.
• Dissent: Does not see cause for suspicion, given constitutional guarantees.
 Hamden v. Rumsfeld, US, 2006
mentioned on p. 475, not assigned
• Facts: This case involves an Al Qaeda member held at Gitmo who was designated
for trial by military commission. These commissions were special tribunals created
by executive order for this purpose. They were not military court martial courts.
Congress had not authorized the tribunal.
• Issue: Can prisoners from a terrorist organization who do not qualify for POW status
be tried by an independent tribunal created by the president? Held: No
• Rational: The Commission, not authorized by Congress (implying that if it was the
outcome could be different), was unlawful and violated a congressional statute
requiring the president to adhere to IHL. The Military Commissions violates
common article 3 because it did not constitute a “regularly constituted court” and
the government failed to justify setting up a special adhoc tribunal outside the court
martial system—implying that such would be a regularly constituted court.
Procedures precluding the defendant from seeing classified evidence also failed to
afford the judicial guarantees indispensable to civilized people (this appears to
imply at least those procedures provided in Protocol I, art. 75). The court does not
need to address his complaint that he was not afforded POW status under Geneva 3
because even common article 3 was not satisfied.
• Note: Noteworthy for allowing detainee to assert rights under Geneva Conventions.
• The President quickly proposed and Congress authorized the US Military
Commission Act of 2006, Which supplied the missing Congressional authorization—
otherwise provided virtually the same same rules as the executive order.