It is considered appropriate to ascertain when international law applies and what the essential rules of international humanitarian law are. The International Red Cross explains that international humanitarian law is applicable in two situations; that is to say, it offers two systems of protection: a) International armed conflicts In such situations the Geneva Conventions and Additional Protocol I apply.Humanitarian law is intended principally for the parties to the conflict and protects every individual or category of individuals not or no longer actively involved in the conflict, i.e.:

Wars of national liberation, as defined in Article 1 of Protocol I, are classified as international armed conflicts.

b) Non-international armed conflicts In the event of a non-international conflict, Article 3 common to the four Conventions and Protocol II apply.It should be noted that the conditions of application of Protocol II are stricter than those provided for by Article 3 . In such situations, humanitarian law is intended for the armed forces, whether regular or not, taking part in the conflict, and protects every individual or category of individuals not or no longer actively involved in the hostilities, for example:

Article 3 common to the four Geneva Conventions is regarded as a sort of treaty in miniature . Even including the provisions of Protocol II, the rules on internal armed conflicts remain less complete than those dealing with international armed conflicts. It has proven difficult to strengthen the system of protection in non-international armed conflicts in the face of the principle of State sovereignty. The rules contained in Article 3 are considered as customary law and represent a minimum standard from which the belligerents should never depart.

International humanitarian law and international human rights law (hereafter referred to as human rights) are complementary. Both strive to protect the lives, health and dignity of individuals, albeit from a different angle.Humanitarian law applies in situations of armed conflict . . ., whereas human rights, or at least some of them, protect the individual at all times, in war and peace alike. However, some human rights treaties permit governments to derogate from certain rights in situations of public emergency. No derogations are permitted under IHL [International Humanitarian Law] because it was conceived for emergency situations, namely armed conflict.Humanitarian law aims to protect people who do not or are no longer taking part in hostilities. The rules embodied in IHL impose duties on all parties to a conflict. Human rights, being tailored primarily for peacetime, apply to everyone. Their principal goal is to protect individuals from arbitrary behaviour by their own governments. Human rights law does not deal with the conduct of hostilities.The duty to implement IHL and human rights lies first and foremost with States. Humanitarian law obliges States to take practical and legal measures, such as enacting penal legislation and disseminating IHL. Similarly, States are bound by human rights law to accord national law with international obligations. IHL provides for several specific mechanisms that help its implementation. Notably, States are required to ensure respect also by other States. Provision is also made for an enquiry procedure, a Protecting Power mechanism, and the International Fact-Finding Commission. In addition, the ICRC is given a key role in ensuring respect for the humanitarian rules. . . .

While negotiating Protocol I, delegates at the Diplomatic Conference in Geneva had to find solutions for two controversial issues, namely, the status of wars of national liberation and the legal regime applicable to guerrilla warfare. Acceptable solutions were found for both, and on 8 June 1977 the conference adopted Protocol I by consensus. The two issues have a certain importance for the debate on the law applicable to terrorism.

Article 1, para. 4, of Protocol I declares wars of national liberation to be international armed conflicts. This means that the whole body of law elaborated for international armed conflict also applies to a war in which a people fight against a colonial power in the exercise of their right of selfdetermination.

International humanitarian law must consequently be respected in its entirety by any group which claims to be a liberation movement in the sense of Article 1, para. 4, and Article 96, para. 3. Thus the ban on terrorist acts applies without any doubt to wars of national liberation.

Article 44 of Protocol I slightly modifies one of the age-old conditions a combatant must fulfil in order to be recognized by international law as a member of an armed force. That condition requires a combatant to be identifiable as such, i.e. he must distinguish himself from his civilian surroundings.

According to the new law of 1977, a member of an armed force will, however, not necessarily lose his status as a combatant if, in narrowly defined circumstances of combat, he does not distinguish himself from the civilian environment. This new rule has no bearing on the ban on terrorism, which remains unchanged. Any combatant who chooses to engage in guerrilla warfare remains bound to respect all rules on the conduct of military operations and the protection of civilians. There will be no excuse if he combines (legitimate) guerrilla warfare with a (criminal) terrorist campaign.

Controversy over these two issues subsided after the end of the Diplomatic Conference in 1977. Moreover, no party to any armed conflict has ever invoked either of these two provisions. . . .

24. As indicated in her working paper and in her preliminary report, the Special Rapporteur considers the issue of terrorism to be one of the most controversial issues in the contemporary international legal and political arena. This has been apparent since 1937, when concerted international effort to promulgate the International Convention for the Prevention and Punishment of Terrorism, adopted under the auspices of the League of Nations, failed. Since the failed 1937 effort, the international community has addressed terrorism only in a piecemeal fashion (i.e. crime by crime/issue by issue) rather than comprehensively. The controversial issue of terrorism has thus been approached from such different perspectives and in such different contexts that it has been impossible for the international community to arrive at a generally acceptable definition to this very day. Instead, there exists a plethora of definitions and working definitions advanced by scholars and practitioners, which tend to be either too expansive and broad, so as not to omit any possible interpretation of the phenomenon, or more restricted and narrow, focusing eventually on particular terrorist acts and excluding wide-ranging interpretations.

25. Indeed, it may be that the definitional problem is the major factor in the controversy regarding terrorism. This is all the more true when considering the high political stakes attendant upon the task of definition. For the term terrorism is emotive and highly loaded politically. It is habitually accompanied by an implicit negative judgement and is used selectively. In this connection, some writers have aptly underlined a tendency amongst commentators in the field to mix definitions with value judgements and either qualify as terrorism violent activity or behaviour which they are opposed to or, conversely, reject the use of the term when it relates to activities and situations which they approve of. Hence the famous phrase "one man’s terrorist is another man’s freedom fighter".

26. Because of these problems, the Special Rapporteur has pointed out that in view of the complexity and amplitude of the human rights dimensions of terrorism it would be premature and counterproductive to proceed with a definition before the Sub-Commission determines which issues it considers worth developing, and that finding an all-encompassing and generally acceptable definition of terrorism is too ambitious an aim. However, she had also indicated her leaning towards the view that, in future reports, she may have to explore some working definitions, in order to delimit the subject matter with greater precision and, in particular, with a view to identifying its major aspects and possible relationship to the question of accountability.

27. It is important to note at this point that the views of the Sub-Commission members are divided as to whether the study should undertake a definition of terrorism.

. . .

71. In seeking a definition of terrorism it is essential to set out the difference between armed conflict and terrorism. The Special Rapporteur recognized from the beginning of her work that this issue has been quite contentious in the international community, as illustrated by the oft repeated phrase "one person’s terrorist is another person’s freedom fighter". Concerns have been raised by many States about wars of national liberation in the context of the right to self-determination. These States are determined not to allow the terrorism debate to encroach unduly on this fundamental principle. Others have focused on what is increasingly called "ethnic conflict" or even "nationalist/separatist conflict", even at times giving the impression that any conflict described with those labels is necessarily related to terrorism. The debates in the framework of all United Nations organs and bodies reflect these concerns. However, the Special Rapporteur notes the almost total absence of any legal analysis of these critical areas in the international dialogue. As a consequence, she thinks that it is time to address this issue, because without the clear separation of war and terrorism, there will be no meaningful progress towards a definition of terrorism and, more importantly, no chance to implement meaningful measures to combat terrorism.

72. An obvious reason to distinguish clearly armed conflict from terrorism is because the law of armed conflict (and humanitarian law) automatically comes into effect when there is an armed conflict. This body of law has long-settled definitions, as well as clear obligations, regarding all aspects of military conduct involving both military operations and weaponry (The Hague law) and the protection of victims of armed conflict (Geneva law). Under the law of armed conflict, acts of war are not chargeable as either criminal or terrorist acts. Most importantly, there are clear obligations regarding their enforcement, not the least of which is to respect humanitarian law in all circumstances. Thus it is necessary to distinguish war from terrorism and acts of war from acts of terrorism.

1. Armed conflict and terrorism

73. Armed conflict is a situation where two or more parties armed with military materiel engage in military operations (acts of war) sufficient to meet the customary definitions of armed conflict. What is sufficient in terms of military operations varies depending on whether the conflict is an international armed conflict or not.

74. There is scant guidance in customary humanitarian law regarding the degree of military activity required to constitute an international armed conflict and, hence, to entail the automatic application of international armed conflict law to the situation. However, practice seems to indicate that even very little military aggression on the part of one State against another State is viewed as being sufficient. Most military aggression, however, is quite overt and, although a declaration of war may not be made, the international community is aware that there is an armed conflict.

75. In the case of armed conflict "not of an international character occurring within the territory" of a State (in the terms of common article 3 of the 1949 Geneva Conventions), article 1.1 of the 1977 Protocol Additional to the 1949 Geneva Conventions, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) rounds off the vagueness of common article 3 of the Geneva Conventions and supplies the criteria of military action sufficient to define non-international armed conflicts (otherwise, "internal" or "civil" wars). Article 1.1 provides that Protocol II applies to all armed conflicts which take place in the territory of a State between its armed forces and dissident armed forces or other organized armed groups in sufficient control over a part of its territory as to enable such groups to carry out sustained and concerted military operations and to implement Protocol II. Like common article 3 of the 1949 Geneva Conventions, Protocol II does not apply to situations of internal disturbance and tension, such as riots, isolated and sporadic acts of violence and other acts of a similar nature (which are not deemed to be "armed conflicts"). At lower levels of violence, the distinction between "armed conflicts" and internal disturbances is not free from difficulty, and yet it is also open to abuse.

76. A particular war may arise in an ethnic context - hence the currently popular term "ethnic conflict". Nevertheless, the situation is still a war governed by humanitarian norms and is either a civil war or an international war - which in the case of the "ethnic conflict" label is more than likely a war of national liberation. Similarly, a particular war may arise in a "national/separatist" context; like an "ethnic conflict", it is nonetheless governed by humanitarian law. The popular use of these terms cannot legally annul the obvious application of humanitarian law to the combatants in these armed conflicts.

77. For purposes of determining if a situation is an armed conflict or terrorism, it is rarely necessary to decide whether an armed conflict is a civil war or one in which a group with a claim to self-determination is fighting for national liberation. Many groups engaged in armed conflict claim the right to self-determination. Legal and factual analysis may or may not support such claims. However, if there is armed conflict sufficient to invoke humanitarian law, then humanitarian law has to be applied. Where the international community will have political difficulty is not as to whether there is a war or terrorism, but in determining what type of armed conflict it is. This legal/political controversy, however, belongs not in the debate on terrorism but in debates on which provisions of humanitarian law apply - those governing civil wars or those governing wars identified in article 1.4 of Additional Protocol I. That debate would have to take into account, of course, the principle of self-determination, as set out in the Charter of the United Nations, human rights instruments and resolutions, with regard to the armed conflict in question. Legitimate concerns, raised by the OIC and others in many forums, that the attempt to define terrorism could result in an erosion of the principle of self-determination, could be favourably addressed in the framework of humanitarian law.

78. This is not to say that a situation which is clearly an armed conflict between either two governments, or a government and a group engaged in armed conflict in the defence of its right to self-determination, or a group meeting the test for civil war may not also generate groups unaffiliated with the combatant forces that engage relatively exclusively in terrorist acts. Thus, there may be groups that could be called terrorist groups whose acts may arise from a political position regarding the armed conflict, but who are, for want of a better term, acting outside the armed conflict.

79. Requiring rigour in these determinations does not mean that all acts undertaken in the course of armed conflict are legal acts of war. Humanitarian law identifies acts that are prohibited under the laws and customs of war and, hence, are chargeable as illegal acts.

Customary international law, as well as the Geneva Conventions and their Additional Protocols identify those illegal acts that are considered especially serious international crimes when taking place in armed conflicts. While there is no mention of terrorist acts in the 1907 Hague Convention and Regulations or the 1949 Geneva Conventions, specific mention of a prohibition of terrorism as a method of warfare is made in Additional Protocol II, article 4.2 (d). Additional Protocol I, article 51.2 prohibits war-time "acts or threats of violence the primary purpose of which is to spread terror among the civilian population". It makes no legal sense to focus solely on terrorist acts carried out by combatants in the context of armed conflict and to disregard other acts that also violate the rules of war at the same level of gravity. Allegations of any and all violations of the rules of war should be made in the context of applicable armed conflict law, its enforcement provisions and all the protection and guarantees they provide.

80. There is sometimes an obvious reluctance among States to take seriously and impartially their obligations under the enforcement provisions of humanitarian law instruments. This might be one of the reasons why debate regarding certain armed conflicts is sometimes shifted to debate on terrorism. In any case, the Special Rapporteur notes that in the cases of the former Yugoslavia and Rwanda there has been concerted international effort to address violations of the parties in an impartial way. It remains to be seen how the International Criminal Court, once it is established, will improve the overall situation. Regardless of the status of the Rome Statute, existing international humanitarian law rules provide that any State may seek out and try alleged violators of the laws and customs of war in its national courts or turn such persons over for trial in another State, provided that they do so with impartiality and in proceedings that meet minimum standards. Whatever the perceived gain that may be behind States’ unwillingness to do this and address wars as wars, the removal of some of the current armed conflicts from the terrorism debate would be a major gain in the potential for progress in defining and acting on reducing terrorism.

81. There remain, however, cases where there may be political or other difficulties in determining whether a situation is an armed conflict or terrorism. Thus, for example, in the context of article 2 common to the Geneva Conventions, which provides that humanitarian law applies in all cases of partial or total occupation of territory "even if the said occupation meets with no armed resistance", the following situations may be envisaged. (a) A situation where there has been long-time acquiescence to an occupation but where the occupied people subsequently try to restore or gain their claim to self-determination to the point of taking up arms. Their military actions may be few in number, or relatively ineffective - in other words, not meeting a minimum definition of armed conflict. The occupying power may, then, invoke its long occupancy as proof that its occupation is legitimate and characterize any and all use of force against it as terrorism. (b) There is a situation of nascent civil war - i.e., a situation where there are armed groups who either do not control sufficient territory, or who engage in military activities that are more than sporadic but less than sustained, or whose actions do not qualify as military actions under the laws and customs of war. The group may or may not claim the right to self-determination, but if so, the claim may be, at best, dubious. (c) In yet another situation, a group with a strong self-determination claim may use force, but almost exclusively in ways that clearly violate the laws and customs of war. With regard to the above situations, it can be argued that, in the first, characterization as terrorism could be incorrect, while in the second it could be correct. In the third situation, the perpetrators of acts that violate the laws and customs of war could be charged under applicable humanitarian law provisions or even anti-terrorism laws applicable in the given situation. It goes without saying that, in any event, the peoples’ underlying self-determination claim remains intact. (See http://www.webcom.com/hrin/parker/terrorism.pdf)

As for substance, the criticism of humanitarian law seems to come in two forms that are at once related and contradictory: that applicable law is lacking and that applicable law exists but is a hindrance. First, there is the complaint that humanitarian law has failed to keep up with the changing nature of armed conflict, always fighting the last war rather than the next one. Indeed, though the first Geneva Convention dates from 1864, it was only in response to the First World War, in which massive numbers of prisoners were subjected to unspeakable abuse, that the Geneva Convention for the protection of prisoners of war came into being. Likewise, there was no Geneva Convention for the protection of civilians in armed conflict until after the Second World War, in which civilians were the main victims, and were subjected to mass extermination, indiscriminate attack, deportation, and hostage-taking.

We may concede these facts. We may even concede that humanitarian law, as most recently codified in the Geneva Conventions of 1949 and their Additional Protocols of 1977, does not anticipate armed conflict in the context of modern terrorism (that is, between a state and one or more transnational armed groups). But to conclude that humanitarian law cannot accommodate terrorism and the efforts to combat it when these phenomena amount to armed conflict (the very circumstance that humanitarian law is meant to address) would be wrong.

Humanitarian law is basically fine. Its boundaries are properly drawn in a respectful balance among interests of state security, individual security, and civil liberties. It is effective when properly implemented. Its very vitality and relevance in the War on Terror stems not from any claim that it is capable of encompassing all of the exigencies of terrorism and the efforts to combat it. The strength of humanitarian law lies, rather, in the fact that it is adequate to deal with such exigencies when they amount to armed conflict. There is little evidence that domestic and international laws and institutions of crime and punishment are not up to the task when terrorism and the War on Terror do not rise to the level of armed conflict. But there are powerful reasons to conclude that the application of humanitarian law in those circumstances would do more harm than good. Criticism of humanitarian law is also fine. Humanitarian law can be frustratingly vague, although sometimes for good reason.

It can appear to be internally contradictory and unduly burdensome. But some of the criticisms simply misread the law. These are relatively easy to address. Other criticisms correctly state the law and, in suggesting the need for change, misconstrue the law’s purpose and function. Just as truth is the first casualty of war, logic is often a casualty in the effort to mould the laws of war, or at least their image, for parochial purposes.

The concept of war feeds the vision of an enemy that must be defeated, rather than a criminal problem to be solved. Viewing terrorism as crime, we might be permitted to consider its root causes. But to ask why they make war against us is to risk the appearance of sympathy. In the view of one commentator upon whose words I cannot improve, it is precisely by declaring war against them that we fall into their trap, following them in a scorched earth policy of burning bridges between civilizations and driving civilian populations with them over the precipice.

The Geneva Conventions and their Additional Protocols did not anticipate September 11 or al-Qaeda. And yet, the balance struck between humanitarian law and other legal regimes is probably more valid today than ever before. Civil rights, judicial guarantees, human rights, and the rule of law are not impediments to human security. They are, in fact, the ultimate repositories of it. Humanitarian law, in particular, is a bulwark of human security in times of armed conflict, but only if invoked where it properly belongs and obeyed where properly invoked.

In contrast to the wide ranging definitions for terrorism in the rest of the legislation, the section on terrorism in armed conflict contains a much narrower definition. It is not enough to damage infrastructure or disrupt a national economy. Moreover, the terrorist label can only be applied to actions that are "intended to cause death or serious bodily injury to a civilian or other person not taking an active part in the hostilities in that situation". This contrasts with sections nine and ten, both of which include not only acts that are intended to have specified consequences, but also acts where people are "reckless as to whether" certain outcomes occur. The wording in paragraph c of what constitutes a terrorist act in armed conflict should be broadened to include acts that "are reckless as to whether they cause death or serious bodily injury to a civilian ...that situation".

This so-called ‘military carve-out’ was new. Its tortuous wording reflects an intense and difficult negotiation reflecting the sharp difference of opinion on the extent to which acts by members of armed forces should be subject to the Convention. Interpretative statements about the provision made on signature or accession by Cuba, Egypt, Turkey and Ukraine illustrate this. Cuba in particular stated, inter alia, that the Convention applies with full rigour to ‘activities carried out by the armed forces of one State against another state in cases in which no armed conflict exists between the two’. This is a reference to the view of some States that in the last quarter of the 20^th century the use of force by some other States has been in breach of international law.

The purpose of the first limb of the provision is to take out of the ambit of the convention acts by armed forces during an armed conflict, even if they may be unlawful (see also the last paragraph of the preamble to the Convention). Unlawful acts by members of armed forces are governed by the Geneva Conventions and the rest of the law of armed conflict and will continue to be dealt with in that way, not by the Convention. In the first limb, the term ‘armed forces’ is not qualified, as it is the second limb by the addition ‘of a State’. Thus the first limb armed forces include those covered by Protocol I to the Geneva conventions, which applies also to armed conflicts in which people fight against, inter alia, alien occupation, and those covered by protocol II, which applies to internal armed conflicts. The second limb therefore applies only to the armed forces of a State (see the definition of ‘military forces of a State in Article 1(4)) when they are not involved in an armed conflict, provided they are acting in the exercise of their official duties, not on a frolic of their own. The addition of the reference to the activities being governed by other rules of international law adds little, if anything, since the use of force by States is subject to the rules in the UN Charter and by the law of State responsibility. The result is that if there is no armed conflict, but soldiers as part of their official duty carry out an explosion in a public place in another State, and this use of force is unlawful under international law, the soldiers would not commit a Convention offence but their State would be liable for the act in international law.

The main difficulty experienced by the Ad Hoc Committee in forging a consensus seems to be Article 18 of the draft, dealing with exclusions from the scope of the convention. The text circulated by Richard Rowe of Australia, the Coordinator of the last session, contained the following two paragraphs:

The 52 member states of the Organization of the Islamic Conference proposed alternative versions of these paragraphs. In 18(2) they would substitute "the parties" for "armed forces" and insert "including in situations of foreign occupation" after "armed conflict." In 18(3), they would substitute "in conformity with international law" for "governed by other rules of international law." The effect of the alternative version of 18(2) would be to exempt Hamas, Islamic Jihad, Al Aqsa, Tanzim and Hezbollah from the reach of the convention, provided they were recognized as "parties". Their activities would still be subject to humanitarian law, but only to the extent that humanitarian law was recognized as applying to them in their capacity as non-state actors, which is a gray area in contemporary law. At any rate, other provisions of the draft convention, if adopted in the Rowe version, could result in Palestinians being judged by harsher standards than those applicable under humanitarian law or ordinary criminal law