In the meantime, terrorist actions themselves have several features which make them distinct from traditional armed attacks. For instance, these attacks are usually carried out not by state’s armed forces but by non-state groups, which in the case of 9/11 event have no links with any state. There is no doubt that the attacks were organised by non-state actors. They were not committed by a state, which would otherwise generate the traditional notion of self-defence against an act of aggression5.
Also, the identity of the attackers and their relationship with other entities is usually, at least in the beginning, not clear. Since terrorist organisations and their actions have a non-state character and even if they involve state’s armed forces acting outside its own territory, they are not necessarily such as to bring them within the scope of application of the full range of provisions regarding international armed conflict in the 1949 Geneva Conventions and the 1977 Geneva Protocol I. Because terrorist forces often have little regard for internationally agreed codes of “behaviour”, the resolve of the counterterrorist forces to observe them may also be weakened, taken into account the low expectation of reciprocity. A basic principle of the laws of war is that attacks should be directed against the adversary’s military forces, rather than against civilians. This principle, violated in terrorist attacks specifically directed against civilians.
Therefore, it is meaningful to talk of terrorism, and particularly of the “war on terror” within the frameworks of the International Criminal Law, domestic law and the counter-terrorist treaties. A striking feature of the debate discussing the crimes committed on September 11 is that the most obvious crime, murder, is often forgotten. Murder does not cease to be murder simply because the victims are counted in thousands. Terrorism on the scale of what happened on 11 September should also be recognised as a crime against humanity. Crimes against humanity are generally considered to consist of murder committed as part of a widespread or systematic attack directed against a civilian population. There is also no requirement that the attack occur in an armed conflict and can be committed only by a state.6
Michael Howard, Professor of the History of War at Oxford University, thinks that “to declare war on terrorists or, even more illiterately, on terrorism is at once to accord terrorists a status and dignity that they seek and that they do not deserve. It confers on them a kind of legitimacy. Do they qualify as belligerents? If so, should they not receive the protection of the laws of war? This protection was something that Irish terrorists always demanded, and it was quite properly refused. … But to use, or rather to misuse, the term “war” is not simply a matter of legality or pedantic semantics. It has deeper and more dangerous consequences. To declare that one is at war is immediately to create a war psychosis that may be totally counterproductive for the objective being sought.”7
The viewpoint expressed by Michael Howard forces us to examine the status of both al Qaeda and the Taliban, which appear to be the most controversial actors within so-called “war against terror”. Given the above-mentioned arguments concerning the scope of application of the law of war to “war on terror”, it is reasonable to argue that neither Taliban nor al Qaeda reserve the right to be treated as legitimate subjects within the legal framework of International law and particularly jus in bello.
Although al Qaeda had its headquarters in Afghanistan, and was supported by the Taliban “government”, the latter had not achieved the necessary recognition as the government of the country. The fact that the Taliban’s administration was recognised by only Pakistan, Saudi Arabia and the United Arab Emirates cannot clarify the Taliban’s international status. In addition, such recognition had symbolic and temporary character, because these countries have ceased their diplomatic relations shortly after the events of 9/11. The only administration of Afghanistan legitimately recognised by the UN was the United Islamic Front for the Salvation of Afghanistan, widely known as the Northern Alliance. Therefore, the Taliban was not the legitimate authority of Afghanistan but instead was a group in possession of much of its territory. As soon as the Taliban administration rejected a demand that they imprison Osama bin Laden and hand him over to the United States for trial and punishment, the American authorities decided to engage in self-help, invading Afghanistan on 7 October 2001.8 The attacks against the Pentagon and the World Trade Centre were clear threats to the sovereignty and national security of the USA.
Although this action was undertaken without appropriate verdict of the UN Security Council, it received international support from a variety of states, particularly after al Qaeda made it clear that its terror campaign was not necessarily restricted to American targets. Moreover, the conditions of the war against al Qaeda and the Taliban were such that little room was left for states to adopt a policy of impartial neutrality. The lack of scope for neutrality was especially manifested because al Qaeda was a world-wide net9, and all states have been required by the UN Security Council to take appropriate countermeasures against it.10 These actions were reinforced when in his 20 September address to Congress, President George W. Bush outlined the obligations on world states: “Every nation, in every region, now has a decision to make. Either you are with us, or you are with the terrorists. From this day forward, any nation that continues to harbour or support terrorism will be regarded by the USA as a hostile regime”11.These words can serve as a further evidence that the “rules of game” in the war against terror are unique, therefore should not be mixed with those of a traditional warfare.
If the “war against terror” both theoretically and in practice is nothing to do with the laws of war, how it could be classified then? Although there is no formal legal category, the most appropriate definition in this case would be “international counter-terrorist military operation”, which can be defined as an “offensive military operation organised by a coalition of states, designed to prevent, deter and respond to acts of terrorism”.12 In other words, it is a coalitional pre-emptive action in self-defence. The main treaties relating to the conflict of international armed conflict are formally and fully applicable to counter-terrorist military operations only when those operations have an inter-state nature.
In the case of the Afghan “war on terror”, particularly during the Operation Enduring Freedom some following attributes as well as problems of conducting counter-terrorist operations have become evident:
- The difficulty of conducting separate operations against indefinable enemies;
- The risk that some enemy personnel facing capture might be unwilling to surrender their weapons, which even in such a specific situation will automatically unable them not to meet the criteria for POW status (some of the Taliban and most of al Qaeda prisoners were fanatical fighters, for whom the whole concept of surrender would be anathema);
- Failure to communicate to them that they would be treated in accordance with international standards;
- The possibility that enemy forces might mistreat or execute coalition prisoners;
-
Problems with maintenance of order and stability in liberated regions.13
Although the application of the laws of war may be particularly difficult in counter-terrorist operations, it should not be ignored. In a counter-terrorist “war” there should be strong conscious considerations which militate in favour of observing both domestic and international legal and moral standards.
However, since the beginning of counter-terrorist operations, controversy has surfaced regarding a number of legal issues. Particularly, from late November 2001, the detention, treatment and proposed prosecution of the detainees taken in the “war on terror” and held at US Naval base Guantanamo Bay became the subject of major international disputes.
A modus operandi for determining who is a lawful combatant, entitled to POW status, is addressed directly in two treaties: 1949 Geneva Convention III and 1977 Geneva protocol I. Particularly, the Article 4 of 1949 Geneva convention III (also known as the POW Convention) states, in part:
A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
1. Members of the armed forces of a party to the conflict as well as members of militias and volunteer corps forming part of such armed forces.
2. Members of other militias and members of other volunteer corps, including those of organised resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organised resistance movements, fulfil the following conditions:
a) that of being commanded by a person responsible for his subordinates;
b) that of having a fixed distinctive sign recognizable at a distance;
c) that of carrying arms openly;
d) that of conducting their operations in accordance with laws and customs of war.14
In order to consider the legal status and treatment of Guantanamo Bay detainees one should begin with the distinction that has been drawn between the two main groups: the Taliban and al Qaeda. According to the provisions of the 1949 Geneva Convention III, one key feature in determining the lawfulness of combatants is the affiliation of them to a party to the conflict. Neither the Taliban nor al Qaeda had de jure the affiliation to state of Afghanistan. However, apart from al Qaeda which was referred to as an illegal international terrorist group, the Taliban was de facto administration, controlling almost 90% of territory of Afghanistan. Moreover, there were never evidences of its direct participation in terrorist actions, including 9/11 events. But, as soon as it failed to cooperate with the USA in combating terrorist organisations, particularly al Qaeda, residing in Taliban-controlled Afghanistan, the affiliation of Taliban’s authority to al-Qaeda became clear.
Both the Taliban and al Qaeda failed to meet the criteria for POW status, but for different reasons. The Taliban detainees were members of regular armed forces belonging to a “government” unrecognized by international community.15 Furthermore, the Taliban were not entitled to claim POW status because they did not meet the terms of all conditions required for POW status, for example, its fighters failed to have a fixed distinctive sign recognisable at a distance or wear uniform of any kind). By contrast, al Qaeda detainees constituted irregular forces16 who failed to wear uniforms and who did not respect the jus in bello.
Some evidences also available concerning Taliban’s failure to respect the laws of war, even before the beginning of counter-terrorist military operation. The Taliban fighters were involved in massive crimes against humanity by beheading and killing prisoners and massacring thousands of civilians in different parts of the country. In 1998 and 1999 the International Red Cross reported that the Taliban and their non-Afghan army killed thousands of civilians in Bamiyan and set fire to 8.000 houses and shops.17
As it was in the case of counter-terrorist military operations there is no formal legal category for the status of Guantanamo Bay detainees as well. Given the uncertainties regarding the proper status and treatment of Guantanamo Bay detainees who were involved in hostile activities in various ways, but also failed to meet the criteria for POW status, they are more likely to be called “unlawful combatants”.18 They could be defined as individuals who are either members of the armed forces or persons who take an active part in hostilities, but not conducting their operations in accordance with laws and customs of war. However, in this case in order to better define the status of these detainees, a competent tribunal should be established, which could find a form of a military commission.19
Status, though is only part of controversy. Whatever the status of the Guantanamo Bay detainees, they always reserve a right to humane treatment under customary international law.20
Thus, accepting that there are difficulties in applying international regulations in the special circumstances of “the war on terror”, the attempt should nevertheless be made to apply the law to the maximum extent possible.
References
1 Christine Gray, (2004) International Law and the Use of Force, Oxford University Press, Oxford, p.159
2 , The Law of War in the War on Terror. Foreign Affairs, .
3 Adam Roberts and Richard Guelff eds., (2000) Documents on the Laws of War
3rd edition, Oxford University Press, Oxford. pgs.27-32
4 Grenville Byford, The Wrong War. Foreign Affairs, July/August 2002.
5 Paul Gilbert,(2003) New Terror, New Wars, Edinburgh University Press, Edinburgh, p.5
6 Rome Statute of the International Criminal Court, art.5, UN DOC A/CONF. 183/9 (1998); available at: http:/www.un.org/law/icc/statute/romefra.htm
7 Michael Howard, What’s In a Name?: How to fight terrorism. Foreign Affairs, January/February 2002.
8 President George W. Bush, Presidential Address to the Nation Oct. 7, 2001; transcript is available at http://whitehouse.gov/news/releases
9 Fred L. Borch, Paul S. Wilson., International Law and the War on Terror , International Law Studies, 2003, (see: Michael Schmitt, Counter-Terrorism and the Use of Force in International Law) Vol. 79, p.10
10 See e.g.: the UN Security Council resolutions No1368 and No1373 (12 and 28 September 2001 respectively): available at http://www.un.org/terrorism/sc.htm
11 President George W. Bush, Address to a Joint Session of Congress and the American People. Now. 12, 2002; transcript is available at www. frwebgate.access. gpo.gov
12 Fred L. Borch, Paul S. Wilson., International Law and the War on Terror , International Law Studies, 2003, (see: Adam Roberts, The Laws of War in the War on Terror) Vol. 79, p.184
13 Ibid, p.191
14 See: Adam Roberts and Richard Guelff eds., (2000) Documents on the Laws of War
3rd edition, Oxford University Press, Oxford. pgs.245-246.
15 Yoram Dinstein, (2004) The Conduct of Hostilities Under the Law of International Armed Conflict, Cambridge University Press., p.47
16 Ibid, p.49
17 Lee A. Casey, By the Laws of War: They Aren’t POWs., Washington Post, March 3, 2002.
18 K. Elizabeth Dahlstrom, The Executive Policy Toward Detention and Trial of Foreign Citizens at Guantanamo Bay. Berkeley Journal of International Law, 2003, Vol.21, Issue 3, p.662
19 Yoram Dinstein, (2004), ibid, p.48.
20 Christopher Greenwood, International Law and “the war against terrorism”, International Affairs, Vol. 78, Issue 2, p.316
