52
Report of the Eminent Jurists Panel on terrorism, counter-terrorism and human rights
or civilian objects and the taking of hostages may take place during or in the absence
of armed conflict.85 When such conduct occurs in peacetime (even during a national
emergency or during internal disturbances not amounting to armed conflict) the
legal framework that applies is not international humanitarian law, but that of international human rights law and domestic criminal law. However, if similar acts trigger
or occur during an armed conflict, they may well constitute war crimes, and the
applicable legal framework is that of international humanitarian law, coupled with
international human rights law.
One serious consequence of the US’s conflation of terrorism with warfare has been
to label as “enemy combatants” the perpetrators of terrorist acts and members
of, or persons allegedly associated with, terrorist groups outside of situations of
armed conflict. As noted, international humanitarian law only applies to recognised
situations of armed conflict, and the term “combatant” can have legal meaning only
in the context of such conflicts. Thus, when terrorist suspects are detained in the
absence of warfare, they cannot under IHL be properly classified as combatants
and/or tried for war crimes. Yet, this is precisely what President Bush’s November
13, 2001 Military Order provides for.86 This measure, inter alia, authorised the detention and military trial of “enemy combatants” for “violation of the laws of war and
other applicable laws”. “Enemy combatants” were defined to include any alien
whom the President (in his sole discretion) determined had “engaged in, aided
or abetted or conspired to commit” acts of international terrorism, regardless of
whether the proscribed acts were committed, or such persons were captured, in
a situation of armed conflict as understood by IHL.87 Acts of terrorism committed
outside of armed conflict are criminal acts. However, they are not war crimes under
international law,88 and neither the US President nor the US Congress can unilaterally make them so. Designating terrorist suspects as combatants in situations not
entailing armed conflict not only has potentially draconian consequences for the
persons concerned, but also utterly distorts humanitarian law’s customary and
treaty-based field of application.
85
See Report of the Independent Expert on the protection of human rights and fundamental freedoms while
countering terrorism, UN Doc. E/CN.4/2005/103, 7 February 2005, para. 17.
86
US White House, “Military Order, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against
Terrorism”, 13 November 2001, available at www.whitehouse.gov/news/releases/ 2001/11.
87
See Section of the Military Order, 13 November 2001; see also subsequent definitions of “unlawful enemy
combatant” contained in Section 948a of the Military Commissions Act (MCA), enacted in 2006.
88
Section 6 of the Military Commissions Instructions No. 2, 30 April 2003, includes offences such as terrorism,
spying and conspiracy. Section 650v(b) of the MCA equally covers criminal conduct such as “material support
to terrorism”. These are not universally considered war crimes. See also report of the Special Rapporteur
on Human Rights and Terrorism, Mission to the United States of America, UN Doc. A/HRC/6/17/Add.3, 22
November 2007, para. 20.
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