"guerrilla" and "terrorism" in internal armed conflict

8/11/2019 "GUERRILLA" AND "TERRORISM" IN INTERNAL ARMED CONFLICT

1/16

GUERRILLA

AND

TERRORISM N

INTERNAL ARMED CONFLICT

FRITS

KALSHOVEN*

The terms

guerrilla and terrorism have

been

used so

widely

by

journalists,

commentators, and politicians

in recent

times, that

they

have become

familiar household

words. Nevertheless, these

terms

have

not

acquired

any

precise

meaning

from such daily

use

that would

enable

us

to

determine

with some

degree

of

certainty whether a

given

act falls

into the category of guerrilla warfare or of

terrorism. The general

view

is that guerrilla is used popularly as

a

synonym for good

guy ,

while

terrorism

refers

to the

actions

of the

bad

guys .

This

distinction

de-

pends on the side

with

which

one sympathizes.' The popular distinc-

tion, therefore,

is

particularly inappropriate

for our present purpose,

which

is

to

discover

the

legal

distinction,

if

any, between guerrilla war-

fare

and

terrorism

in the context

of the rules of international humanita-

rian law applicable

in non-international armed

conflicts.

Another distinction, which might appear to

be of

somewhat

greater

relevance, is

often drawn between

the

two terms

depending

on the level

of violence in

a

particular

internal

conflict.

This distinction rests

on

the

observation that insurrectional movements

usually go through an initial

stage of small-scale, scattered violence, then enter into a phase of some-

what

more

organized, sustained military activity,

and

may eventually

reach

the

stage of fairly conventional warfare.

In

this

three-tiered anal-

ysis, acts taking place in

the

initial phase,

including assassinations of

central or local leaders or police officers, raids on

banks, acts of sabotage,

and indiscriminate attacks on civilians, are

often called

terrorist acts.

The term

guerrilla warfare is reserved for acts taking place in the sec-

ond phase, in which

the

actions of

the

insurgents include hit-and-run

attacks

on

military

outposts

and

barracks, laying ambushes, and other

actions

designed to

harass

the

enemy

armed forces, to

cut

off

their sup-

Professor

of

International Law,

University

of

Leiden, Netherlands.

1

Parties, of course, piously condemn their opponent's

resort

to such 'outrageous, shocking'

acts [of terrorism] while

cloaking their own conduct in euphemisms

that

deceive only those who

wish to be deceived. J. BOND THE RULES

OF

RIOT, INTERNAL

CONFLICT

AND

THE

LAW OF WAR

84

(1974).


2/16

68 THE

AMERICAN

UNIVERSITY

LAW REVIEW

[Vol. 33:67

ply

lines and

to

interdict,

if only

temporarily,

the use of

parts of

the

territory

by

the

enemy. Actions

of the

first, or terrorist,

type

may

continue

in this

phase

as

well.

The

scope

of

this enquiry,

however, limits

our

consideration

of

situa-

tions of internal

conflict

to those

that have

reached

the

level

of

an

armed

conflict.

While

the

term

armed

conflict

was

left

undefined

in

common

article

3 of

the

Geneva Conventions

of

1949,2

it

was widely

understood

to exclude

situations

of political

unrest

accompanied

by

nothing

more than

sporadic acts of violence.

Article

1(2) of

Additional

Protocol

II

3

confirms

this interpretation

because

it excludes from the

material

field

of

application

of

the

Protocol

situations

of

internal

dis-

turbances

and

tensions, such

as

riots, isolated

and

sporadic

acts

of

vio-

lence

and

other

acts

of

a

similar

nature,

as

not

being

armed

conflicts.

4

Only armed

conflicts

in

which

the

insurgents constitute

at least

organ-

ized armed

groups which, under

responsible

command,

exercise

such

control

over

a part of

[the territory

of

a state

party to the

Protocol] as to

2.

Article

3 is common

to the four Geneva Conventions

of 1949,

6 U.S.T. 3114,

T.I.A.S.

No.

3362,

75 U.N.T.S. 31;

6 U.S.T.

3217,

T.I.A.S. No. 3363,

75 U.N.T.S. 85;

6 U.S.T. 3316,

T.I.A.S. No.

3364,

75 U.N.T.S. 135; 6

U.S.T.

3516,

T.I.A.S. No.

3365, 75 U.N.T.S.

287. It provides for

the

respect

of

basic

standards of humanity

in

non-international armed

conflicts.

The

text

of

common

article 3

reads as follows:

In the

case

of armed

conflict

not of an international

character

occurring in

the

territory

of one of

the

High

Contracting Parties,

each

Party

to the conflict

shall

be

bound to apply,

as a

minimum,

the

following

provisions:

1)

Persons

taking no active

part in the hostilities, including

members of

armed

forces

who have

laid

down their arms

and

those

placed hors

de combat by sickness,

wounds,

detention, or

any other cause,

shall

in

all

circumstances

be treated

humanely,

without any

adverse distinction

founded on

race, colour, religion

or faith,

sex,

birth or wealth, or

any

other similar

criteria.

To

this end,

the

following

acts

are and

shall

remain prohibited

at any time

and

in any

place whatsoever

with

respect

to

the

above-mentioned

persons:

a)

violence

to

life

and

person,

in

particular murder of

all

kinds,

mutilation,

cruel treatment

and torture;

b)

taking of

hostages;

c)

outrages

upon personal dignity, in

particular

humiliating

and degrading

treatment;

d )

the

passing of sentences

and

the carrying out of executions

without previ-

ous judgment

pronounced by

a regularly

constituted court,

affording

al l

the judicial guarantees

which

are

recognized

as

indispensable by

civilized

peoples.

(2)

The

wounded

and

sick

shall

be collected and

cared for.

An

impartial humanitarian

body,

such as

the International

Committee of

the Red

Cross, may offer

its services to the

Parties to the conflict.

The

Parties to

the

conflict

should

further endeavour

to

bring

into

force,

by means

of

special

agreements, all

or

part

of the

other provisions

of the present Convention.

The

application of

the

preceding

provisions shall

not

affect

the

legal

status

of

the Par-

ties

to

the

conflict.

3 ee

Protocol Additional

to the Geneva Conventions

of 1949

(Protocol II), opened/or

signa

ture

Dec.

12,

1977,

reprinted

n 16 INT'L

LEG L

MATERIALS 1442

(1977) [hereinafter cited

as Protocol

II1.

4.

Id art. 1(2).


3/16

GUERILLA

AND TERRORISM

enable them to carry

out

sustained and concerted

military operations

and

to implement this Protocol

were

included

in its

material

field

of

application

by article 1 l).5 Although

the

conditions

for recognition of

a

series

of

events

as

an armed

conflict

under

Protocol II may be

too

stringent,

it

is clear that

the

situations excluded from coverage

by

article

1(2) are

precisely those

situations that

constitute the

terrorist phase in

the above analysis.

To the

extent

that political

scientists and modern

historians use terrorism to

distinguish this

initial, non-armed

conflict

phase

from

the

subsequent guerrilla phase, this definition of terrorism

cannot

serve the

purpose of

our enquiry.

That part

of international

law and the

writings of

international law-

yers

that

deals

with international terrorism

as

a problem related to

ques-

tions of criminal

jurisdiction,

extradition,

asylum, and the like

is

similarly not

useful to

this

analysis.

The

definitions of

terrorism

found

in

treaties, judicial

decisions

and legal

writings are entirely a

function of

the

peculiarities

of those branches of

international

law. They

cannot

simply be

transplanted, therefore,

to

the totally

different

sphere

of

international

humanitarian law

applicable

in

internal

armed

conflicts

and

to the

specific

question

of

the

distinction between

guerrilla warfare

and terrorism.

A few lawyers have

dealt with

this

question in the course of their writ-

ings

by

stating the

characteristics

that in

their opinion distinguish

the

acts of

terrorists from the acts

of guerrillas.

One

of

these

writers,

James

Bond, discussed

the claim

to use

terror tactics as the

first of

a series

of

claims

to conduct hostilities

unrestrained

by the

rules

applicable

to in-

ternational

conflict.

6

He

has

quoted with

apparent

approval a

defini-

tion of terror

offered by

Thomas

P.

Thornton: a

symbolic

act

designed to influence political behavior by

extranormal

means, entailing

the

use

or threat of

violence.

7

Bond

regarded

this definition

as broad

enough to cover

a

wide variety

of actions,

ranging

from acts of

sabotage

and

political

assassinations of selected

individuals

to

conspicuously in-

discriminate

terror

tactics. Curiously,

this element of symbolism does

not play any part in his

subsequent

evaluation

of these various acts.

Rather,

the

determining

factor

in his

definition appears

to be

whether

an

act violated basic precepts of international

law

as

reflected in com-

mon

article

8

5.

Id

art. 1(1).

6

J

BoND

supra

note

1, at

80. The other

claims listed

under this

heading

are: to use

chemical and biological

weapons,

to

employ

strategic

bombing,

and to

commit

reprisals.

Id

at 8

102.

7. Id at

84 (quoting Thornton, Terrorasa Weapon ofPoliticalAgitation in INTERN L

W R 71,

73 H. Eckstein ed., 1964)). The definition

is there erroneously ascribed

to

Richard Falk.

8. Id at

84-91.

19831


4/16

70 THE

AMERICAN

UNIVERSITY LAW REVIEW [Vol : 7

Thornton

in

effect used

his

definition to distinguish the terrorist from

the guerrilla

in an entirely different manner.

9

In

his

view, the crucial

question was

whether an act was

symbolic-for

example,

whether its

effect

was

largely

indirect, causing

fear,

anxiety,

or

despair.

If

so,

it

was

a terrorist act. Otherwise, it was

an

act of

guerrilla

warfare.'

0

The dis-

tinctions

made

by Thornton in this context were not

meant

as

an appre-

ciation of the various modes of

conducting

internal war,

let alone

as

a

disqualification of

terror

in

particular

as

something

improper

or

illegal;

his

purpose

was

simply

to achieve theoretical

understanding of terror

in the

context

of internal war.

I I

Another interesting aspect of Thornton's

definition

lies in

his

refer-

ence

to

the extranormal

nature of

the

violence

threatened

or used.

While one might hope to find at least

an

element of law in this

aspect of

the definition,

it is

apparent that the extranormality

that he

refers

to

is

sociological rather than

legal:

[T]error lies beyond

the

norms of vio-

lent political

agitation

that are accepted

by a given society. . The

level of

extranormality

varies,

of

course,

from society to

society and

from

time

to time. '

12

The

level

of accepted violent political

agitation

may be

reflected accurately in the legal

norms

in force in a particular society,

but quite

obviously, that

is not

necessarily

the case. A

fortiori,

it

is high-

ly

unlikely

that

this

variable normative

level

would

coincide

with inter-

nationally

accepted

standards

of humanitarian

law or human

rights.

In

any

event, Thornton's

concept of

extranormality cannot

provide any

further

guidance

in

this

analysis, because it does not

distinguish between

guerrilla warfare and terrorism,

both of which

presumably

are

equally

extranormal.

An

example

of Thornton's symbolic

act,

or perhaps a somewhat

cruder version

of it, is reflected in

the

notion of

intimidation,

which

seems

to be the crucial

element

in the definition

of

terrorism

offered

by

Edward Kossoy: Terrorism is intimidation by actual or threatened

use

of

violence

as

a

means of governing

or

securing political

or other

ends. '

3

This definition

is

clearly more tautological than that of Thorn-

9. Thornton, errorasa WeaponofPolitcalAgilalion in INTERNAL WAR 71,

88-95

(H. Eckstein

ed.,

1964).

10. According to Thornton,

[d]efinition

of terror

as

a symbolic act. means

that

the terroristic act is intended and

perceived

as

a symbol. The observer realizes that

the

act implies a

meaning

broader than

its

own

component

parts.

.

[Thus],

if

the

objective

[of

an

act

of

sabotage]

is

primarily

the

removal of

a specific thing or person) with a view towards depriving

the enemy

of its

usefulness,

then the

act is one

of

sabotage. If,

on

the other hand, the objective

is symbolic,

we are dealing with terror.

Id

at

77-78.

11

Id

at 72.

12.

d at

75-76.

13 E Kossoy LIVING WITH

GUERRILLA,

GUERRILLA AS A

LEGAL

PROBLEM

AND

A

POLIT-

ICAL FACT 328

1976).


5/16

GUERILLA

AND TERRORISM

ton. Moreover, the

addition

of

the

phrase

other

ends to

the

definition

renders it so open-ended

as to make it of very

limited utility as

a

legal

tool

even when it is

taken in

its proper

context as

a

description of certain

acts

connected

in

some way

with guerrilla warfare.

Michel

Veuthey,

an

author who is particularly well-informed

about

guerrilla warfare and

humanitarian law,

considers guerrilla

warfare es-

sentially

a non-conventional

form

of warfare, which answers neither

to

the

patterns of traditional

warfare,

whether

in

its

formal or material

acceptation, nor,

consequently,

to

the

framework established by

the

Conventions of The

Hague,

1907

and

Geneva, 1949. 14 How to

situate

terrorism in this

inherently

nonconventional, although

not necessarily

illegal,

form

of

warfare

is

not entirely clear. Veuthey noted

that the

term

terrorism

had

not

yet acquired

a

generally accepted meaning

in

international law,

and that he hesitated to set

forth a definition at

all.

In the end, he

overcame

his hesitation

and offered a tentative definition.

Terrorism is the

excessive

use

of violence by a State

or by an

armed

political

grouping,

having the

purpose to inspire

the

adversary or other

people

with

anxiety,

fear or even a state

of submissiveness.

15

Unlike the previous

definitions, Veuthey's does not focus

on the

goal

that the perpetrator of

the

act seeks

ultimately

to achieve.

Veuthey ap-

pears

to be content to indicate that the

states

of anxiety, fear, or

submis-

siveness are

the

goal. To the extent that

these

psychological

effects

amount

to nothing

but terror

by

another

name, the

definition is

merely

tautological.

The

terms

used by Veuthey might

nonetheless

be regarded

as

a somewhat more precise

description

of the

various

stages

covered

by

the general

notion of terror.

xcessiveviolence

appears to

be

the

most crucial

element of

Veuthey's

definition.

Unfortunately, his

definition does not

answer

the

question

of

what

constitutes

excessive violence.

Is

the

violence excessive

if

it is

in

excess

of community expectations,

in excess of what is permissible

under

the laws of

war,

in excess of what

is needed to achieve the

imme-

diate effect

of

the

act performed-for example, the death

of

a

particular

police officer-or in

excess of some

other standard?

Without any

fur-

ther clarification

on

this

point,

the statement

that

the use

of violence

must be excessive to

be considered

terror begs the

question.

All

in all,

therefore,

the

definition

that

Veuthey

has

offered does not

provide much

help.

Indeed, the

only

definition

that

holds

out promise

as

an

analytical

tool

appears to be the

one

formulated by

Thornton,

and even

there

it

remains to

be

seen whether

that definition

can

play a

significant part

in

14

M.

VEUTHEY GUtRILL

ET

DROrr HUMANrrAIRE 18

(1976)

(translation

by the

author of

this

Article).

15

d at

140

983]


6/16

72 TH

AMERICAN

UNIVERSITY

LAW REVIEW

[Vol.

33:67

the

context

of international

humanitarian

law

applicable

in internal

armed conflicts.

Some

years before the publication

of Michel Veuthey's

book with

its

definition

of

terrorism, Veuthey

had

written a document entitled

Rules

pplicable in Guemilla

Warfare

for

the

International

Committee

of the

Red

Cross (ICRC).

The

ICRC published

the

work

as

part

of the docu-

mentation

submitted

to government

experts

in 1971

for the first

round

of

discussions

on

the

reaffirmation

and

development

of

international

humanitarian

law applicable

in armed

conflicts. '

16

This publication

did

not

define the elusive

concept

of terrorism.

When

that

question

was

raised, the

fact

was

established

that

the term

ha[d]

no legal accepta-

tion .1

7

Taking

into account the

advice

of

experts consulted earlier

by

the ICRC,

the document

concluded

that

it would

be preferable

to by-

pass

the

concept

of terrorism.

Each

of the

various

acts that

were

often

qualified

as terrorist

could

more

profitably

be

examined

under

the

heading

of other specific

issues that

would have

to be

considered

in any

case,

such

as combatant

status, sabotage,

and

protection

of

the civilian

population.

By

publishing

the document,

the

ICRC intended

to

demonstrate

that

the

rules

of

armed

conflict

had

not yet

been

adapted

to the particular

needs of

guerrilla

warfare. Indeed,

neither

the Hague

Convention

and

Regulations

of 1907 nor the

Geneva Conventions

of 1949

even

mention

the

word

guerrilla.

Neither

is

the

word

terrorism mentioned

in

com-

mon

article

3, the

only provision

expressly

applicable

in

an internal

armed

conflict.

Common

article 3 does prohibit

certain

acts, such

as

murder,

the

taking

of hostages, and

summary

executions,

which

have

often

been

labelled

terrorist

acts.

Nevertheless,

the

article does not

qual

any particular

acts as

terrorist ; the

acts

in

question

are qualified as

particularly inhumane and,

hence,

specifically

prohibited

regardless

of

whether

they could

be

regarded

as acts

of terrorism.

In contrast

to

common article 3,

Protocol II although silent

on the

subject

of guerrilla

warfare, refers

to terror

in two places.

The first

reference

is found

in article

4(1) and

(2) (Fundamental

guarantees),

pro-

viding

an improved

and

somewhat expanded

version

of common

article

3(1).

Article

4(1) reaffirms the

basic

principle

of

respect

and humane

treatment

due to [a]ll

persons

who do not

take a direct

part or who

16.

CONFERENCE OF GOVERNMENT

EXPERTS

ON

THE

REAFFIRMATION

AND DEVELOPMENT

OF

INTERNATIONAL

HUMANITARIAN

LAW APPLICABLE

IN

ARMED

CONFLICTs

RULES APPLICABLE

IN

GUERRILLA

WARFARE (1971).

17

Id. at

35

18. Id at

35-37.

The

only

topic singled

out

as

deserving

special study

was that of

political

assassinations.

I d at 37.

Because the

Conference

of Government

Experts rejected

the

entire

idea

of

dealing

with guerrilla

warfare as

a

separate

subject,

however,

this

particular

suggestion

was

not

acted

upon

either.


7/16

1983]

GUERILLA

AND TERRORISM

have ceased to take part in hostilities, whether or not their liberty

has

been

restricted. '

19

The

scope

of

article 4 is, in effect, somewhat

more

limited

than

the quoted phrase

suggests.

In particular, it is not

designed

to

protect the

civilian

population against dangers arising

from

military

operations, a matter which has

been

dealt

with in articles 13 through 18

of

the

Protocol.

2

0

The

list

of specifically

prohibited

acts

was expanded

in article

4(2) of

Protocol II by the addition

of

several items.

21

The

additions include

collective

punishments

and

acts

of

terrorism.

22

The drafting

history

of

article

423

indicates that

the

prohibitions were

copied from article 33 of

the

Fourth

Geneva

Convention

of

1949, which

reads

in relevant

part:

No

protected

person

may

be

punished

for

an

offence

he

or

she

has

not

personally committed. Collective

penalties

and likewise all

measures

of

intimidation

or

of

terrorism

are prohibited.

'24

This language

was

adopted

in

1949

with hardly any recorded debate.

25

The ICRC

Com-

mentary,

however, makes the following observations

about its

meaning

and historical background:

During past

conflicts,

the

infliction of

collective

penalties has

been

intended

to forestall breaches

of the law rather than to repress them;

in

resorting to

intimidatory

measures to

terrorise the

population,

the

belligerents hoped

to prevent hostile acts. Far from achieving

the

de-

sired effect,

however, such practices,

by

reason

of

their

excessive sever-

19.

Protocol

II,

supra

note

3, art. 4(1).

20

ee

INTERNATIONAL COMMITTEE OF THE

RED

CROSS,

DR FT

ADDITIONAL PROTOCOLS

TO THE

GENEVA

CONVENTIONS

OF

AUGUST 12,

1949,

COMMENTARY

137

(1973);

M. BOTHE, K.

PARTSCH

W.

SOLF, NEW RULES FOR VICTIMS

OF ARMED CONFLICTS: COMMENTARY ON THE

Two

1977

PROTOCOLS ADDITIONAL

TO

THE

GENEVA CONVENTIONS OF 1949

642 (1982).

21.

The

text of article

4(2)

reads

as

follows:

Without

prejudice to

the generality

of the foregoing, the following acts

against

the persons

referred

to

in paragraph

1 are and shall remain prohibited

at any time

and in

any place

whatsoever.

a) violence to the life, health and physical

or

mental well-being of persons, in

particular

murder as well as cruel

treatment such as torture, mutilation or any form of corporal

punishment;

h) collective

punishments;

c) taking

of

hostages;

d) acts of terrorism;

e) outrages upon personal

dignity,

in

particular

humiliating and degrading treatment,

rape, enforced

prostitution and any form of

indecent

assault;

slavery and

the

slave trade in all their forms;

g) pillage;

h) hreats to commit any

of the foregoing

acts.

rotocol II,

supra

note 3, art.

4(2).

22.

See i art.

4(2)(b),

(d).

23 SteM. BOTHE, K. PARTSCH & W. SOLF, supra

note 20, at 641.

24.

Geneva Convention

Relative to

the

Protection

of

Civilian

Persons

In

Time

of

War

of Aug.

12, 1949, art.

33

6 U.S.T. 3516 T.I.A.S. No. 3365,

75 U.N.T.S.

287.

25 See DIPLOMATIC

CONFERENCE

OF GENEVA, 1 FINAL

RECORD 118 (1949); DIPLOMATIC

CONFERENCE OF GENEVA,

2A FINAL

RECORD 648-51 (1949); DIPLOMATIC

CONFERENCE

OF

G

NEVA

2B

FINAL

RECORD 406 (1949).


8/16

74

TH AMERICAN UNIVERSITY

LAW REVIEW

[Vol

: 7

ity

and

cruelty,

kept

alive

and

strengthened the spirit

of resistance.

They strike

at

guilty

and innocent alike.

They are opposed

to

all

prin-

ciples based

on humanity

and

justice and

it is for that reason that

the

prohibition of

collective

penalties

is

followed

formally

by the prohibi-

tion

of all measures

of

intimidation

or

terrorism with respect

to pro-

tected

persons,

wherever

they

may

be.

2

6

The closing

phrase of this

commentary reminds

the

reader

that article

33 of

the

Fourth Convention

is found in Section 1 (Provisions

Common

to the Territories

of

the Parties to the

Conflict

and to Occupied

Territo-

ries) of Part

III

(Status

and Treatment

of Protected

Persons). It

derives

its main

importance from the

effect it has on occupation

law,

in

which

it

resolutely removes

all doubt

as

to the illegality

of practices such

as those

applied

widely

in

occupied

territories

during

World

War

11.27

Neither

article

33 of

the

Fourth

Convention

nor

article 4

of

Protocol

II defines terrorism.

The

only

clarification derived

from the

prepara-

tory work of Protocol

II

is

that

the act in question

must be an act

of

violence. The original

draft text

had stated this expressly,

and

although

the phrase

was deleted

in the

course

of

the

debate,

the change

was made

merely

to simplify

the language, not

to

modify

its

meaning.

28

Mr.

Bet-

tauer,

speaking

for

the

United

States

in

an explanation

of his

vote

after

the

adoption of the

paragraph

as amended,

pointed out

that

terrorism

was

an

excessively

vague

word of

which

no

satisfactory

definition ex-

isted.

29

In order

to

avoid any

possible misunderstanding,

he put on

record

his delegation's

understanding that

the reference

to acts of

ter-

rorism

covered

only

such

acts

involving

physical

violence.

3

0

The

preparatory work

clarifies the

close relationship

between the pro-

hibition

of acts

of

terrorism,

on the one

hand, and the

prohibition in

article 4(2)(a)

against violence

to the life,

health

and

physical

and

mental

well-being

of

persons, in

particular murder

as well as

cruel

treat-

ment such

as

torture, mutilation

or any form

of

corporal punishment,

3 1

on the other.

Indeed, it

may

be safe to state

that the act

of

terrorism

26. 4

GENEVA

CONVENTION

RELATIVE TO THE PROTECTION

OF CIVILIAN

PERSONS

IN

TIME

OF

WAR,

COMMENTARY 243 J. Pictet

ed. 1956).

27. In its effect

on occupation law,

article 33 evidently

addresses

the

occupying

power rather

than the resistance fighter.

It has been criticized for

this apparent bias, not

so much with respect

to

the

part of the article quoted above,

but

rather

with respect

to the

prohibitions

on taking hostages

and reprisals

laid down

in

subsequent

paragraphs.

See G.

BEST,

HUMANITY

IN WARFARE

295-96

(1980);

P.

BOISSIER, L'EPIE

ET

LA

BALANCE

121-29

(1953);

R61ing,

The

Law

of

War

and

the

i lton l

urisdiction ince

1945

RECUEIL ES COURS 329, 417-28

(1960).

For

a critical analysis

of Boissier s

writings, see F.

KALSHOVEN, BELLIGERENT REPRISALS

333-39

(1971).

28. 8

DIPLOMATIC

CONFERENCE ON THE REAFFIRMATION

AND DEVELOPMENT

OF INTERNA-

TIONAL

HUMANITARIAN

LAW APPLICABLE

IN ARMED

CONFLICTS OFFICIAL

RECORDS -7,

at

412, CDDH/I/SR.39

(1978) [hereinafter cited

as OFFICIAL

RECORDS].

29. Id 30, at

426,

CCDH/I/SR.40.

30.

31.

Protocol II, supra

note

3, art. 4(2)(a).


9/16

GUERILLA

AND

TERRORISM

covered

by article 4(2)(d) does

not really constitute a separate

category

entirely

independent of article 4(2) a). Rather,

it represents a species

of

the genus violence to the life

32

of the persons protected

by

virtue of

article

4 1).

Its distinctive element consists

of a vague concept of ter-

rorism that was

left

undefined. This lack of clarity is not

a matter of

great concern, however, because the distinction

between acts of

terror-

ism and

acts

involving physical

violence

pure and

simple,

although

per-

haps

suggesting

a difference

in

gravity,

does not entail

any

legal

consequences.

Indeed, an attentive

reading of article

4(2)

shows that the

various acts

prohibited

specifically were

listed

in a rather

random order

and without any apparent

consideration

of their

relative

seriousness.

Here,

as

elsewhere in

the

Protocol,

there

is

no

indication

that

the draft-

ers

of article

4(2) had any

special

legal consequences in mind

when they

added

acts of terrorism

to

the

list of specifically prohibited acts. None-

theless,

if one so

wishes, one

may

regard an act

of

terrorism

as

an aggra-

vated

form of

the

violence mentioned in article

4(2)(a).

Another noteworthy

addition to the list in article

4(2)

is the prohibi-

tion of

threats

to commit any of

the

foregoing acts.

33

The

effect

of

this

addition is to broaden significantly the scope of the

prohibitions enu-

merated

in

article

4(2)(a)

through

g) .

3 4

How

far

this extension is

designed to go, however,

is unclear because

subparagraph

(h)

was

ac-

cepted at the

Conference without a word of commentary.

The limits, if

any, that

the

delegates

had

in mind with respect to

the

notion of

threat

are therefore a matter for

speculation. Had

they spoken

on the

subject,

would they have regarded the merest

threat,

say, of corporal

punishment

35

or

of

taking

someone's

watch

36

as

an

act prohibited at

any time

and

in

any place whatsoever ?

If

so, the wisdom

of

such a

sweeping extension

is

questionable.

Nevertheless, the effect of the

exten-

sion with respect

to

the prohibition

on

acts of

terrorism

is to bring

it

into

line

with

most

of the prohibitions examined earlier, which

address the

threat

of violence

as

well

as

its

actual

use.

Article

13 1),

on

the

protection

of the

civilian

population,

states the

broad

principle that [t]he

civilian

population and individual

civilians

shall enjoy

general protection against

the

dangers arising

from

military

operations.

37

Article 13 2)

translates this

principle into the

following,

somewhat

more

specific, rules: The civilian

population as

such, as

well

as

individual

civilians,

shall

not

be the object of

attack.

Acts

or threats

32. Id For the complete text of

article

4(2),

see

supra

note 21.

33.

Protocol II, supr

note 3, art.

4(2)(h).

34 ee

supra

note

21 .

35. Corporal

punishment

is prohibited

by article

4(2)(a). et

supra note

21.

36.

Pillage

is prohibited

by

article

4(2)(g). ee

supra

note

21.

37.

Protocol

II,

supra

note

3, art. 13(1).

98 ]


10/16

76

TH

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LAW REVIEW

[Vol.

33:67

of violence

the primary

purpose

of

which

is

to

spread

terror among

the

civilian

population

are

prohibited.

'

38

The language

of the

second

sentence

is far more

specific than

the terse

reference

to acts

of terrorism

in

article 4(2).

In

effect,

the

sentence

defines terrorism

in

the

context

of

the

protection

of the

civilian

popula-

tion.

As such, it

resembles

most

closely

the

tentative definition

formu-

lated by

Veuthey.

39

Like

that

definition,

it

does

not

specify

any ulterior

motive

beyond

the spreading

of terror, or,

in

Veuthey's

words, anxiety,

fear or

even

a state

of submissiveness.

'40

Like

Veuthey's definition,

it

requires

a

purpose

rather than

an

intention,

as required

by

Kossoy's

definition

4

'

and also

by

the

original

draft text

submitted by

the

ICRC

to

the Diplomatic

Conference in

1974.42

In the

course

of

the

proceed-

ings, purpose

was

substituted

for

intention,

presumably

with a

view

to

the

slightly

more

objective

nature

of

the

first

term.

4

3

The

requirement

of

a

purpose

disposes

of the argument

that

any act

of

violence

actually resulting

in the

spreading

of

terror among

the

civil-

ian

population constitutes

an

illegal act.

Theprimag

purpose

is

decisive:

an act

performed

for

a

strictly

military

purpose

which

incidentally

or

secondarily

terrorizes

the

population

does not

fall under

the

prohibition.

This theoretical consideration inevitably

leads

to

a further question:

how

does one prove

that a

given

act of

violence

had the

required

pri-

mary

purpose ?

This question

is

compounded

by

another

equally

vex-

ing

question: is it

possible

to

imagine

an act

of violence against

a

military

objective,

the primary purpose

of

which

is to

terrorize

the

civil-

ian

population?

Information

on

how

the authors

of

the provision

saw this

problem

is

not

found

in

the preparatory work

of article

13,

but in

that of

the com-

parable article

51

of

Protocol I

4

the

second

paragraph of

which

is

iden-

tical

to article

13(2). The

acts

of

violence

mentioned

in the

second

sentence

are

synonymous

with

the attacks

mentioned

in

the first

sen-

tence.

The definition

of attacks

in article

49(1)

of Protocol

I is appli-

cable

to

the same

notion

in Protocol

II

as

well.

45

Although

the authors

of Protocol

II in

its final

version

did their

utmost

to

avoid

the

notion

of

38. d

art. 13(2).

39.

ee

supr

notes

14-15

and

accompanying

text.

40.

M. VEUTHEY,

supr

note 14,

at 140.

41.

ee

supr

note 13 and

accompanying

text.

42.

1 OFFICIAL

RECORDS,

supr

note

28, art.

46,

at

16 (Part III).

43. The

Official

Records

do not

provide

an

explanation

for the

change.

44.

ee Protocol

Additional

to the

Geneva

Conventions

of 1949

(Protocol

I), opened

forsign ture

Dec.

12, 1977,

reprintedbin

16 INT L

LEGAL MATERIALS

1391 (1977)

[hereinafter

cited

as Protocol

I].

45. Article

49(1) of

Protocol

I

defines

attacks

as

acts of

violence

against

the

adversary,

whether

in

offence or

defence.

Id

art.

49(1).


11/16

GUERILLA AND

TERRORISM

military

objective,

46

it

may

be assumed that

in an

internal armed con-

flict, as well as

in

an international one, attacks can be directed against

either

military objectives,

against the civilian

population,

or indiscrimi-

nately

against the civilian

population and military objectives

alike.

The

first sentence of article

51(2)

of

Protocol I

and article

13 2) of

Protocol

I147

expressly

prohibits

attacks

of the

second

type.

It is

a

matter

of

inter-

pretation whether it

also covers the

third variety,

i.e.

the

indiscriminate

attack. Although an

interpretation to

that

effect

is not

really of

decisive

importance with

respect to international

armed conflicts,

because article

51(4) and 5) makes special

provision

for

this type

of attack,

48

such

a

separate prohibition is lacking

in

article

13 of Protocol II. The

expan-

sive

interpretation of the

first

sentence

appears

therefore

to

be appropri-

ate. Assuming

that the

expansive

interpretation of

this

sentence

is

correct, the question

posed above

can

be reformulated

as

follows: was

the

second

sentence intended

by

its authors to cover

attacks

on purely

military

objectives, in addition to

attacks

on the civilian

population and

indiscriminate attacks, always

provided

that

the

attacks have

the

re-

quired terrorist purpose?

The drafting history of

Article

51

provides little information on

this

question. In

fact,

the

question

was

not

discussed

in those terms

at

all,

but

was merely

touched on incidentally in the debate

on a related ques-

tion:

whether methods other than attacks,

notably propaganda activi-

ties, should be covered by the

phrase.

In

this context, the

report of

Committee

III

for

the

first session

of the Diplomatic

Conference noted

that some

delegations

had called

for an interpretation of the phrase

going

beyond

the attacks

referred

to

in

the

first

sentence

of the

para-

46.

The

one

remaining

reference

is

found

in

article

15,

Protection of

works

and installations

containing

dangerous forces.

Protocol II, supra note 3, art. 15.

47.

See

supra

text accompanying

note

38.

48.

Article

51 4)

and

5)

of Protocol

I

reads

as

follows:

4.

Indiscriminate attacks

are prohibited. Indiscriminate attacks

are:

(a)

those

which

are

not directed at

a

specific military

objective;

b) those

which employ a

method

or

means

of combat

which

cannot

be directed

at

a specific

military objective;

or

c)

those which employ

a method

or

means of combat

the effects

of which cannot

be limited as

required

by

this Protocol;

and consequently,

in each such case,

are

of a

nature

to

strike military objectives

and

civilians

or civilian objects without

distinction.

5.

Among others,

the

following

types

of attacks are to be

considered

as

indiscriminate:

a) an attack

by

bombardment

by

any methods

or means

which

treats

as

a single

military objective a number of clearly separated and

distinct military objec-

tives

located

in a city town village or other area containing a similar concen-

tration of civilians or civilian objects;

and

b) an attack

which may be expected to cause incidental

loss of

civilian

life, injury

to civilians, damage

to civilian objects

or

a combination thereof, which would

be

excessive

in relation to the concrete

and

direct military

advantage

anticipated.

Protocol I,

supra

note 44, art. 51 4), 5).

1983]


12/16

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[Vol.

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graph.

49

Also, as

noted earlier,

the point

was

made in

the debate

that

attacks

in war,

no matter

what

their

targets were,

cannot

fail

to spread

terror

among

the civilian

population.

The

scope

of

the

rule, therefore,

should be restricted

unambiguously

to

attacks

having that

specific

pur-

pose.

50

These,

however,

are

only

flimsy

indications,

certainly

insuffi-

cient

to carry any

firm

conclusion.

In

the absence

of a clear answer

from

the

preparatory

work,

therefore,

a solution

must be

sought

from a

different

source.

First,

nothing

in the

actual

wording

of the second

sentence

opposes an

interpretation

that

includes

attacks

against

military

objectives.

Further,

a restrictive

inter-

pretation

of the sentence

would,

to

the extent

that it

refers

to cts

of

violence,

reduce

it

to a

mere

repetition of the

first

sentence.

While

this

suggests

the

correctness

of

the expansive

interpretation,

a

counterargu-

ment

lies

in a systematic

consideration.

In

the

section

of Protocol

I

deal-

ing

with the

protection

of

the civilian

population

against

the

effects of

hostilities,

51

article

51 is one

of a series

of articles

that

focus

on

attacks

against

the civilian

population

and

civilian

objects, while

the

question

of

attacks

on military

objectives

and the

risks they

entail

for the

civilian

population

is dealt

with

in a separate

chapter

of that

section.

52

Al-

though

this

argument

is

not particularly strong

even

in

the context

of

Protocol

I, considering

that

another

article

of

the series,

article

56, ex-

plicitly

prohibits

attacks

on certain

objects

even where

these

objects are

military

objectives,

53

the

argument is

entirely

without

force in

the

con-

text

of Protocol

II,

because

Protocol II

does not contain

any provisions

on

precautionary

measures

comparable

to

those

embodied

in

articles

57

and 58

of

Protocol

I.

When

one

concludes,

based on the

above

considerations,

that

military

objectives cannot

be excluded

from

the

objects

of

the

acts

of violence

of

the

second

sentence,

the remaining

question

is

whether attacks

on

military

objectives

can

be

deemed

unlawful

when

they

have

the re-

quired

primary

purpose.

It seems clear

that without

an

indication

to

the contrary,

those

attacks

will normally

be

regarded

as having

served

first

and

foremost,

if not

exclusively,

the definite

military

purpose

of

gaining

a

distinct

military

advantage.

In this

respect, they

are

the

exact

opposite

of attacks

on

the

civilian

population.

While

the latter may

in

fact have

been

conceived

by their

perpetrators

as serving

a

military

pur-

pose,

they

will

normally

be

regarded

as

primarily

designed to

spread

49.

15

OFFICIAL RECORDS

supr note

28, 1

46, at

241, CDDH/50/Rev.

1 1978).

50.

14

OFFICIAL

RECORDS, supr note

28, 1 54,

at 65

CDDH/III/SR.8

(Comments

of Mr.

Girard).

51.

ee

Protocol

I,

supr note

44, part

IV, 1

52.

d arts.

57,

58.

53.

d art.

56 .


13/16

GUERILLA

AND TERRORISM

terror

among

the civilian

population.

Two

examples

are

the disruption

of

an

industrial

production

process

by attacks

against

a

civilian

district

housing

the labor

force of

the industry

in

question,

and a

sniper's

bullet

fired

at a high-ranking

civil

servant

of the

government's counter-insur-

gency

planning apparatus.

Again,

the

indiscriminate

attack represents

a

grey

zone

between

the

two extremes,

because

its

inherent

ambiguity

does

not indicate

a

pri-

mary

purpose.

A

fairly wide

margin of

uncertainty

exists

under

those

circumstances.

Fortunately,

in many

contemporary

internal

armed

con-

flicts

the

perpetrators

of particular

acts of

violence

aid

our

analysis

by

loudly,

and

often

proudly,

claiming

the acts as

their

own.

At

the

same

time

they

explain, frequently with considerable eloquence, why

and

how

they

intend

to

terrorize

the civilian

population

by their

acts.

In

such

cases,

these are

unmistakably

symbolic

acts,

as Thornton

styled

them.

Their purpose

is no longer

a

matter

of doubt.

What,

then, will

be

the

legal

consequences

of such

a

public

confession?

When

an attack

is

directed against

the

civilian

population,

the

only

consequence

is that

it

can be

considered

to have

encroached

on

two

prohibitions instead

of

one: it

falls

under

both

the first and

second

sentences

of article

13(2).

54

The result

is

the

same

for an

indiscriminate

attack,

if it

is

accepted

that

attacks of

this

type are

included in the

pro-

hibition

of the

first

sentence.

Whether attacks

on

military objectives

can

be

held

unlawful merely

because

they

are claimed

to have

had

as a

primary

purpose

spreading

terror

among

the

civilian

population

is another question.

When the

question

is posed

in

these terms,

the wide gap

between

the

legal

and

the

sociological approaches

is apparent.

To bring

about

an improved

un-

derstanding

of terrorism,

Thornton

applied

the notion of

the

symbolic

act

as

a

tool

of

intellectual

analysis.

He

thus

was

able

to

distinguish

acts of sabotage,

as nonsymbolic

acts,

from the symbolic

acts

of

terror-

ism.

To

the lawyer

who

is confronted

with the

rule

laid

down

in the

second

sentence

of

article

13(2),

the

relevant

question

is not what consti-

tutes terrorism

in

an

abstract

or theoretical

sense

but what acts of

vio-

lence should

be

regarded as

unlawful

under

the terms

of that

rule. From

this

point

of view,

an

act

of guerrilla

warfare

directed

with

precision

and

care

against

a

person

or an object

that is

unmistakably

a military

objec-

tive,

and not

otherwise

prohibited by any applicable rule

of humanita-

rian law,

cannot be

regarded

as

an unlawful

act exclusively

by

virtue of

a

stated primary

purpose

of spreading

terror

among

the

civilian

popula-

tion.

This would

attach

too

much

importance to

the

words

or propa-

ganda

accompanying a

perfectly

permissible

act of guerrilla

warfare.

54. ee supra

text

accompanying

note

8

98 ]


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80

TH AMERICAN UNIVERSITY

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REVIEW [Vol. 33:67

Once again,

without an express

statement

to

that

effect on

the part

of its

perpetrators,

the chance that

an act would

be

recognized as an act

designed

to spread

terror

seems extremely

remote. On the

other

hand,

it

is

not

clear why

the propagandistic exploitation

of an

otherwise

irre-

proachable act of warfare

as

an

element of

psychological warfare

would

be so reprehensible

as to make

an

otherwise

lawful

act unlawful.

The

conclusion

on

this

issue must be that

the second

sentence

of

arti-

cle

13(2), of Protocol II

does

not cover

attacks on

military

objectives

with

a professed terrorist

purpose.

It thus does

not

go

beyond

the prohi-

bition

laid

down in

the first sentence

and it

does

not provide

an in-

dependent prohibition that rests on

a distinction

between

lawful acts

of

guerrilla warfare

and

unlawful

acts

of

terrorism.

Quite

apart

from

this

negative

conclusion on

the

main

question,

however,

the

second

sentence

goes

further

than

the first

one in that

it

prohibits both threats and

acts

of

violence

with

a

terrorist purpose.

The

threat

of

violence, indeed,

may well

be

the

sole

remainder of

the suggestion to bring

propaganda

under

the

scope

of

the prohibition.

Attacks

against

the

civilian

population

and indiscriminate

attacks

that have as

their purpose to spread

terror

among

the

civilian

popula-

tion,

will fall

under both

the

first

and

second

sentences

of

article

13(2).

As in

the

case

of article 4, it

is

permissible to

see in

the prohibition

on

the spreading

of terror a sort

of

aggravating circumstance.

Where,

then, lies the distinction between

acts

of guerrilla warfare

and

acts

of terrorism in

the

context of international

humanitarian

law

appli-

cable

in

internal

armed

conflicts? No distinction,

nor

indeed

any

refer-

ence to

terror, is found in article

3

common to

the Geneva Conventions

of 1949.

On

the

other hand, Protocol

II

does

refer to

terror

in tw o

sentences.

The

first

reference, in

article

4, does

not provide

us

with

an

answer to

the question. The

second

reference, in article

13 defines the

notion of terrorism

in some detail,

and

it

prohibits

threats

of terrorist

violence

in addition to

acts

with

a terrorist

purpose.

With regard to

terrorist

acts, neither article

attaches legal consequences

to the prohibi-

tion of these

acts and

threats that do not already

issue from

other

rules

of

humanitarian

law.

From

a legal

point

of view,

therefore,

the

term distinction

used to

differentiate

acts

of

guerrilla warfare

from

acts

of

terrorism

is

probably

too strong. Rather,

the

separate

references to acts

of terrorism

in

arti-

cle

4 and to acts

of violence

the

primary

purpose of which

is to spread

terror among

the

civilian

population

in article

13

serve

to

accentuate

the need

to protect those not

participating actively

in hostilities.

Protec-

tion

is

needed

especially

against acts

of violence that

are

intended

to

intensify

those feelings

of fear, anxiety,

and despair that

the civilian


15/16

1983]

GUERILLA

AND

TERRORISM

population must endure throughout any prolonged internal armed

conflict


16/16

"guerrilla" and "terrorism" in internal armed conflict

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