NATIONAL LAW INSTITUTE UNIVERSITY,BHOPAL

INTERNATIONAL HUMANITARIAN LAW

TRIMISTER XII-PROJECT

LAWS OF WAR IN THE WAR ON TERROR

SUBMITTED TO:

Dr. DEBASHRI SARKAR

(ASSISTANT PROFESSOR)

SUBMITTED BY:

PRASHANT VERMA

2016 BA.LLB. 98

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 ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep regards to our
Professors for their exemplary guidance, monitoring and constant encouragement throughout
the completion of this project topic. The blessing, help and guidance given by their time to
time shall carry me a long way in the journey of life on which we are about to embark. Also,
the guideline provided by them to stick to the deadline was also encouraging.
I have taken efforts in this project. However, it would not have been possible without the kind
support and help of many individuals and organizations. I would like to extend my sincere
thanks to all of them.
My thanks and appreciations also go to my colleagues in developing the project and people
who have willingly helped me out with their abilities and new ideas about the same.
I am obliged to my college, National law institute University, BHOPAL for the valuable
information provided by it in various fields. Lastly, I thank almighty, my parents, and friends
for their constant encouragement without which this assignment would not be possible.

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 TABLE OF CONTENTS

S. No. Title Page No.

1 ABSTRACT 4

2 LITERATURE REVIEW 5

3 RESEARCH METHODOLOGY 6

4 INTRODUCTION 9

5 OPERATION ENDURING FREEDOM 10

6 OPERATION IRAQI FREEDOM 11

7 APPLICABILITY OF INTERNATIONAL HUMANITARIAN 12

LAW

8 BREACH OF IHL PRINCIPLES 16

9 FURTHER DEVELOPMENT OF LAW 20

10 PERSONAL OPINION 20

11 CONCLUSION 21

12 BIBLIOGRAPHY 23

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 LAWS OF WAR IN THE WAR ON TERROR

ABSTRACT

International Humanitarian Law is a body of law that seeks to govern the conduct of
hostilities by limiting the means and methods of warfare. Its main purpose is to take care of
the civilians and people who are no longer part of the hostilities, and sparing these groups
from the effects of armed conflicts. IHL might or might not be able to control occurrences’ of
war but aims to minimise the evil of it. The attacks on 11 September 2001 in USA by a
terrorist group Taliban constituted a turning point in relationships between international law,
global institutions and terrorism. Infact up till now there is no definition of “terrorism”. The
author tries to explain the term as well as try to analyse the shift in the subject of armed
conflict that initially occurred between states and other nations. This paper will try to shed
light upon the challenges posed by war on terrorism and other counter terrorism measures on
proper application of the law of war as stipulated in the four Geneva Conventions and
subsequent Additional Protocols, focusing on the incident mainly. This paper therefore
discusses the incident in the first part of the paper, then goes on to understand applicability of
IHL on terrorism and breach of IHL principles throughout the process undertaken by Taliban
and USA in response of the attack and therefore the humanitarian relief and refugee issues
arising. Lastly, the paper tries to understand if the law is sufficient and developed enough or
needs amendments to cater to such situations, concluding by the author’s opinion on the
same. This paper thus focuses to determine the shifts taking place in international
humanitarian law and how it is affected by terrorism.

KEYWORDS:
International humanitarian law; terrorism; counter terrorism; the war on terrorism; Geneva
Conventions; Additional Protocols; ICRC

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 LITERATURE REVIEW

There have been many research studies conducted, reports and papers written in this context
to understand and analyse involvement of terrorist groups in disrupting peace and order
during armed conflict. A summary report was prepared by International Committee of the
Red Cross entitled "International Humanitarian Law and the Challenges of Contemporary
Armed Conflicts" decided to address the problem of the interplay of IHL with other legal
regimes in situations of violence as the agenda of its 27th round table on current problems of
international humanitarian law.1 was to consider the interplay between IHL and the other
legal regimes that apply in situations of violence, mainly human rights law, refugee law and
international criminal law.2 This discussion failed to define the term ‘terrorism’ which is
attempted by the author in the present paper. Another research paper was written in this
context by Hans-Peter Gasser who is a former Senior Legal Advisor of the International
Committee of the Red Cross, Geneva, and former Editor of the International Review of the
Red Cross.3 He discussed various instances of armed conflicts across the world and
characterized the appalling acts of cruelty against civilians, perpetrated with the sole aim of
terrorizing the civilian population of a country at war. The major developments pointed out
by him on the substantial impact of how international humanitarian law operates and rules
pointed out prohibiting terrorism as on the measures taken to counter terrorist violence
helped in writing the present paper. However 9/11 attacks were not the focus of the former so
lacked certain intricacies. William K. Lietzau, a professor in National War College discussed
in his paper” Old Laws, New Wars: Jus ad Bellum in an Age of Terrorism“; the attacks in US
at large and analysed jus ad bellum prior and post 9/11. It also explains the circumstances
associated with military intervention in Afghanistan—and terrorism generally revealing that

1
The International Institute of Humanitarian Law, San Remo, Italy, in cooperation with The International
Committee of the Red Cross, Geneva, Switzerland XXVIIth Round Table on Current Problems of International
Humanitarian Law: “International Humanitarian Law and Other Legal Regimes: Interplay in Situations of
Violence” :Summary report Prepared by the International Committee of the Red Cross Supplement to the report
prepared by the International Committee of the Red Cross entitled "International Humanitarian Law and the
Challenges of Contemporary Armed Conflicts", November 2003

2
The title of the round table was the same as that of this report.

3
Hans-Peter Gasser. 2002. Acts of Terror, Terrorism, and International Humanitarian Law, International
Review of the Red Cross.

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the same underlying concerns informing past rejections of anticipatory self-defence theories
in fact apply in this case as well.4
Adam Roberts, Montague Burton Professor of International Relations at Oxford University
and Fellow of Balliol College and co-editor, with Richard Guelff, of Documents on the Laws
of War in his paper “ Counter-terrorism, Armed Force and the Laws of War”, incorporates
information regarding Humanitarian Issues in Military Targeting.5
Dr. Lyal S. Sunga, , is currently an Associate Professor and Director of the LLM Programme
in Human Rights at the University of Hong Kong Faculty of Law and Visiting Professor at
the University Centre for International Humanitarian Law in Geneva. He in his paper
explained Individual Responsibility in International Law for Serious Human Rights
Violations and the emerging system of International Criminal Law and developments in
codification and implementation of the same.6
Hisakazu Fujita, Professor of International Law, Kansai University, School of Law, Japan
tried to distinguish in his research paper if the 9/11 attacks , legal character of "war on terror",
if it is a war or an armed conflict or policing campaign.7
Afandi Sitamala, in his paper elaborated on the fact that there is a changing face of armed
conflicts and how international humanitarian law has gained importance in the era of
terrorism. He came up with an idea of new war on terrorism which is on the same idea as that
of US while preparing for response in 9/11 attacks. This paper acted as an inspiration for the
author while writing the present paper as well.8
Various ICRC reports and research studies have been relied upon for the purpose of writing
the present papers and also as an attempt to fill the loopholes and areas not covered by the
other authors.
4
William K. Lietzau, “Old Laws, New Wars: Jus ad Bellum in an Age of Terrorism”; 12 August 2013

5
Adam Roberts, 2002, 2003. This is a revised version of Counter-terrorism, Armed Force and the Laws of War,
44 Survival 1 (Spring 2002), 7–32

6
Lyal S. Sunga, Can International Humanitarian Law Play and Effective Role in Occupied Iraq, 3 ISIL Y.B.
Int'l Human. & Refugee L. 1 (2003)

7
Hisakazu Fujita, International Humanitarian Law: War on Terror in Afghanistan, 3 ISIL Y.B. Int'l Human. &
Refugee L. 59 (2003)

8
Amy H. McCarthy, Erosion of the Rule of Law as a Basis for Command Responsibility under International
Humanitarian Law, Chicago Journal of International Law, Vol.18, No.2, Hlm.58

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 RESEARCH METHODOLOGY

The Research Methodology consists of triangulation method wherein analysis of library

based data, web based analysis and user experience using diverse resources has been used.
Primary and Secondary data such as research papers, conventions and research studies etc.
have been relied on for the purpose of understanding and interpretation of the sections and
concepts.
STATEMENT OF PROBLEM

Both in international armed conflicts and non-international prohibits any actions that can be
classified as acts of terrorism. New developments against acts of terrorism that although not
yet fully incorporated into the IHL, are currently growing.

The fundamental principles of the IHL refer to the implementation of international legal
principles in the midst of the absence of specific international law that refers to the conditions
of conflict against terrorism.

HYPOTHESIS
The application of humanitarian law aims to prevent unintended suffering in armed conflict
both for civilians and soldiers who have not fought from inhumane acts. One of the important
roles of the ICRC is in the interpretation of international law and its principles. IHL itself
both in international armed conflicts and non-international prohibits any actions that can be
classified as acts of terrorism. New developments against acts of terrorism that although not
yet fully incorporated into the IHL, are currently growing.

OBJECTIVE OF STUDY
This article explores how various aspects of the ‘global War on Terror’ may be affecting the
future development of international law on the use of force. I examine these effects within
three areas of international law – the law of anticipatory self-defence, the law of self-defence
against non-state actors, and the applicability of international humanitarian law to non-state
armed groups. Only in the latter two areas do I find evidence that international law is
evolving to accommodate the new realities of global terror. While such developments in the

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law reflect the supposed need by states to use military means to combat terrorism, they also
seem to confer at least a limited international legal personality upon terrorist groups such as
Al-Qaeda. This not only indicates a shift in the basis for legal personality, but also potentially
undermines the legitimacy of international law and frustrates states' efforts at combating
terrorism.

RESEARCH QUESTION

What are the 5 laws of war?

What is the meaning of war on terror?

Which date is significant to the war on terror?

Does the Geneva Convention apply to terrorists?

What are the basic principles of IHL on war of terror?

What are the further development of law ?

INTRODUCTION

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The September 11 attacks were a series of four coordinated terrorist attacks by the Islamic
terrorist group al-Qaeda against the United States on the morning of Tuesday, September 11,
2001. The attacks killed 2,977 people, injured over 6,000 others, and caused at least
$10 billion in infrastructure and property damage. Additional people have died of 9/11-
related cancer and respiratory diseases in the months and years following the attacks9.
Four passenger airliners operated by two major U.S. passenger air carriers all of which
departed from airports in north-eastern United States bound for San Francisco and Los
Angeles—were hijacked by 19 al-Qaeda terrorists. Two of the planes, American Airlines
Flight 11 and United Airlines Flight 175, were crashed into the North and South towers,
respectively, of the World Trade Center complex in Lower Manhattan. Within an hour and 42
minutes, both 110-story towers collapsed. Debris and the resulting fires caused a partial or
complete collapse of all other buildings in the World Trade Center complex, including the
47-story 7 World Trade Center tower, as well as significant damage to ten other large
surrounding structures. The third plane, American Airlines Flight 77, was crashed into the
Pentagon, the headquarters of the U.S. Department of Defense in Arlington County, Virginia,
which led to a partial collapse of the building's west side. The fourth plane, United Airlines
Flight 93, was initially flown toward Washington, D.C., but crashed into a field in Stonycreek
Township near Shanksville, Pennsylvania, after its passengers thwarted the hijackers.
9/11 is the single deadliest terrorist attack in human history and the single deadliest incident
for firefighters and law enforcement officers in the history of the United States, with 343 and
72 killed, respectively. The suspicion of terrorist attack by al-Qaeda by right as intelligence
agencies analysed.
The United States responded by launching the War on Terror and invading Afghanistan to
depose the Taliban, which had failed to comply with U.S. demands to extradite Osama bin
Laden and expel al-Qaeda from Afghanistan. Many countries strengthened their anti-
terrorism legislation and expanded the powers of law enforcement and intelligence
agencies to prevent terrorist attacks. Although Osama bin Laden, al-Qaeda's leader, initially
denied any involvement, in 2004 he claimed responsibility for the attacks. Al-Qaeda and bin
Laden cited U.S. support of Israel, the presence of U.S. troops in Saudi Arabia, and sanctions
against Iraq as motives. After evading capture for almost a decade, bin Laden was located in
Pakistan and killed by SEAL Team Six of the U.S. Navy in May 2011.

9
“Terrorists Hijack 4 Airliners, Destroy World Trade Center, Hit Pentagon; Hundreds Dead”, Washington Post,
12 September 2001, A1; E. Lipton, “Struggle to Tally All 9/11 Dead by Anniversary”, N.Y. Times, 11
September 2002; http://www.comptroller.nyc.gov/ bureaus/bud/reports/impact-9-11-year-later.pdf

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The destruction of the World Trade Center and nearby infrastructure seriously harmed the
economy of Lower Manhattan and had a significant effect on global markets, which resulted
in the closing of Wall Street until September 17 and the civilian airspace in the U.S. and
Canada until September 13. Many closings, evacuations, and cancellations followed, out of
respect or fear of further attacks. Numerous memorials have been constructed. As a
consequence of the attacks, the United States has been in a state of national emergency ever
since 2001.10
There were grave breaches of international law and this transnational attack resulted in
breach of humanitarian law and human rights.

OPERATION ENDURING FREEDOM

Operation Enduring Freedom (OEF) was the official name used by the U.S. government for
the Global War on Terrorism. On October 7, 2001, in response to the September 11
attacks, President George W. Bush announced that airstrikes targeting Al-Qaeda and
the Taliban had begun in Afghanistan.11 Operation Enduring Freedom primarily refers to
the War in Afghanistan, but it is also affiliated with counterterrorism operations in other
countries, such as OEF-Philippines and OEF-Trans Sahara.
In response to the attacks of 11 September, the early combat operations that took place on 7
October 2001 to include a mix of strikes from land-based B-1 Lancer,  and B-52
Stratofortress bombers, carrier-based F-14 Tomcat and F/A-18 Hornet fighters,
and Tomahawk cruise missiles launched from both U.S. and British ships and submarines
signalled the start of Operation Enduring Freedom.
The initial military objectives of OEF, as articulated by President George W. Bush in his 20
September Address to a Joint Session of Congress and his 7 October address to the country,
included the destruction of terrorist training camps and infrastructure within Afghanistan, the
capture of al-Qaeda leaders, and the cessation of terrorist activities in Afghanistan.
In January 2002, over 1,200 soldiers from the United States Special Operations Command
Pacific (SOCPAC) deployed to the Philippines to support the Armed Forces of the

10
Amy H. McCarthy, Erosion of the Rule of Law as a Basis for Command Responsibility under International
Humanitarian Law, Chicago Journal of International Law, Vol.18, No.2, Hlm.581

11
Peter Weiss, “Terrorism, Counterterrorism and International Law”, Arab Studies Quarterly, Vol.24,
No.2&3, Spring/Summer, 2002. p.11

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Philippines (AFP) in their push to uproot terrorist forces on the island of Basilan. Of those
groups included are Abu Sayyaf Group (ASG), al-Qaeda and Jemaah Islamiyah. The
operation consisted of training the AFP in counter-terrorist operations as well as supporting
the local people with humanitarian aid in Operation Smiles.
In October 2002, the Combined Task Force 150 and United States military Special Forces
established themselves in Djibouti at Camp Lemonnier. The stated goals of the operation
were to provide humanitarian aid and patrol the Horn of Africa to reduce the abilities of
terrorist organizations in the region. Similar to OEF-P, the goal of humanitarian aid was
emphasized, ostensibly to prevent militant organizations from being able to take hold
amongst the population as well as reemerge after being removed.
The military aspect involves coalition forces searching and boarding ships entering the region
for illegal cargo as well as providing training and equipment to the armed forces in the
region. The humanitarian aspect involves building schools, clinics and water wells to enforce
the confidence of the local people.12
Since 2001, the cumulative expenditure by the U.S. government on Operation Enduring
Freedom has exceeded $150 billion.13
The operation continued, with military direction mostly coming from United States Central
Command. The U.S.-led coalition initially removed the Taliban from power and seriously
crippled al-Qaeda and associated militants in Afghanistan. However, success in quelling the
Taliban insurgency since the 2001 invasion has been mixed. Many believe that the Taliban
cannot be defeated as long as it has sanctuary in neighbouring Pakistan and that Operation
Enduring Freedom has transformed into a continuing full-fledged war with no end in sight.14

OPERATION IRAQI FREEDOM

The Operation Iraqi Freedom which is also known as Iraq War was a protracted armed
conflict that began in 2003 with the invasion of Iraq by a United States-led coalition that

12
Hisakazu Fujita, International Humanitarian Law: War on Terror in Afghanistan, 3 ISIL Y.B. Int'l Human. &
Refugee L. 59 (2003)

13
Joko Setiyono, The Role of the ICRC in the Development of International Humanitarian Law in the Global
Era, Law Reform Journal, Volume 13, Number 2, 2017, p.220.

14
The Commentary on the third Geneva Convention (ICRC, Geneva, 1958, p. 23) or the Commentary on the
fourth Convention

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overthrew the government of Saddam Hussein. The conflict continued for much of the next
decade as an insurgency emerged to oppose the occupying forces and the post-invasion Iraqi
government. An estimated 151,000 to 600,000 or more Iraqis were killed in the first three to
four years of conflict. In 2009, official US troops were withdrawn, but American soldiers
continued to remain on the ground fighting in Iraq, hired by defence contractors and private
military companies. The U.S. became re-involved in 2014 at the head of a new coalition; the
insurgency and many dimensions of the civil armed conflict continue.15
The invasion occurred as part of a declared war against international terrorism and its
sponsors under the administration of U.S. President George W. Bush following
the September 11 terrorist attacks. In October 2002, Congress authorized President Bush to
use military force against Iraq should he choose to. The Iraq War began on 19 March 2003,
when the U.S., joined by the U.K. and several coalition allies, launched a "shock and awe"
bombing campaign. Iraqi forces were quickly overwhelmed as U.S.-led forces swept through
the country. The invasion led to the collapse of the Ba'athist government; Saddam was
captured during Operation Red Dawn in December of that same year and executed by a
military court three years later. However, the power vacuum following Saddam's demise and
the mismanagement of the occupation led to widespread sectarian
violence between Shias and Sunnis, as well as a lengthy insurgency against U.S. and coalition
forces. Many violent insurgent groups were supported by Iran and al-Qaeda in Iraq. The
United States responded with a troop surge in 2007, a build-up of 170,000 troops. The surge
in troops gave greater security to Iraq's government and military, and was largely a success.
The winding down of U.S. involvement in Iraq accelerated under President Barack Obama.
The U.S. formally withdrew all combat troops from Iraq by December 2011.
The Bush administration based its rationale for the war principally on the assertion that Iraq,
which had been viewed by the U.S. as a rogue state since the 1990–1991 Gulf War,
supposedly possessed an active weapons of mass destruction and that the Iraqi government
posed a threat to the United States and its coalition allies. Some U.S. officials falsely accused
Saddam of harbouring and supporting al-Qaeda, while others cited the desire to end a
repressive dictatorship and bring democracy to the people of Iraq.16
In the aftermath of the invasion, Iraq held multi-party elections in 2005. In the summer of
2014, the Islamic State of Iraq and the Levant launched a military offensive in northern Iraq

15
I. Brownlie, International Law and the Use of Force by States, 1963, 272 – 275

16
CommissionofInquiryintotheEventsattheRefugeeCampsinBeirut,FinalReportat 53–54 (1983)

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and declared a worldwide Islamic caliphate, eliciting another military response from the
United States and its allies. The Iraq War caused over a hundred thousand civilian deaths and
tens of thousands of military deaths. The majority of deaths occurred as a result of the
insurgency and civil conflicts between 2004 and 2007. Subsequently, the Iraqi Civil War,
which was largely considered a domino effect of the invasion, propelled at least 29,000
civilian deaths in addition to the displacement of five million people within the country.17

APPLICABILITY OF INTERNATIONAL HUMANITARIAN LAW

One of the most crucial question is to ask whether IHL and international criminal law must be
applied to this new kind of armed conflict called "war on terror". The term or concept of
international criminal law has not yet been sufficiently established but rather may be
composed of a set of rules of international conventions relating to criminal acts such as
hijacking, crimes against humanity, genocide, etc., as well as to international criminal
tribunals such as the Statute of the International Criminal Tribunal for the Former Yugoslavia
(ICTY), that of the International Criminal Tribunal for Rwanda (ICTR) and Rome Statute of
the International Criminal Court (ICC).18
As to IHL, it is composed of two categories of rules: the so-called Hague law and the Geneva
law. The former includes the methods and means of warfare. The cardinal principles of
Hague law are the military objectives, that is, the distinction between military and civilian
targets and the protection due to the civilian population, and those of the prohibition of means
causing unnecessary suffering. They were provided in the Hague Regulations on the laws and
usages in land warfare of 1907. The regulations of the use in war of certain specific weapons
by conventions too belong to this category. The Geneva law includes the Geneva
Conventions on the Protections of Victims in Time of War of 1949 as well as Additional
Protocols of 1977.
IHL becomes applicable in all circumstances in an equal manner by the parties in conflict,
even if one side has insisted the right of self-defence or rather, on the contrary, has been
considered as aggressor by Security Council1 of the UN. It must be noted, however, that the
principle of reciprocity in application of IHL by both parties does not apply if one party

17
http://www.defenselink.mil/news/Sep2001/ t09252001_t0925sd.html (Dec. 28, 2002)

18
Geneva Conventions and Persons Held by US Forces, Human Rights Watch Press Backgrounder, 2 9th
January
2002.

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insists on the right of reprisals or countermeasures when the other violates a rule of
humanitarian law.19
In consequence, the parties in conflict in Afghanistan, that is, the US and its allies on the one
hand and the Taliban regime on the other, had to compulsorily apply the regulations of the
Hague law in their operations. In particular, the US as the leading armed forces in their
unilateral bombing mission attacks in Afghanistan must have observed cardinal principles of
the Hague law. Additional Protocol I relating to the protection of victims of international
armed conflicts reiterates the basic rules of the Hague law, namely, in an armed conflict the
right of the parties to choose methods and means of warfare is not unlimited, and that it is
prohibited to employ weapons, projectiles and material and methods of warfare of a nature
that cause superfluous injury or unnecessary suffering.20 In addition, by its Article 36, the
parties are under an obligation to determine in their study, development, acquisition or
adoption of a new weapon, means or method of warfare, whether its employment would, in
some or all circumstances, be prohibited by this Additional Protocol or by any other rule of
international law.
While neither the US nor Afghanistan is a party to this Protocol, such basic Hague rules
regarded as customary ones should have been necessarily applied to. For instance, the use of
cluster bombs by the US Air Force in Afghanistan should have been banned. The legality of
their use even in this anti-terrorist campaign is very doubtful in the light of these customary
and basic rules of humanitarian law. While little information on damages resulting from the
US bombardments had been released, many and large areas where the Afghan people live
with or without Taliban/Al-Qaeda fighters have been destroyed by the bombardments and
more than presumably 3000 of Afghan people perhaps more than the number of victims in
the WTC and the Pentagon by terrorist attacks of 11 September died. Any act on this
violation went unsaid now.
Disagreement occurs in the definition of terrorism. According to Nissan Horowitz, the notion
of terrorism "depends on its observation" the question that arises from the statement is "why
the attack on September 11, 2001, was called terrorism, while the bombing of a hospital in
Kabul was not called terrorism.21 The paradox of the term terrorism is actually not impossible

19
Commentary, IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva,
1958), p. 51

20
Article 35, para 1 and 2
21
Amnesty International-Library-United States of America: The threat of a bad

14
to digest as Peter Weiss said, "terrorists act because of the sense of injustice received by his
group, therefore he is a hero to the whole group, which may be as small as an anarchist cell or
as large as the entire tribe, nation, religion, class or other social groupings.22
However, only in the second Convention can we find a definition of terrorism, in which there
are two main characteristics:
1. Terror is intended to cause serious death or bodily injury to civilian groups or other people
who are not involved in the feud and,
2. The aim is to intimidate the population or persuade governments or international
organizations to accept certain policies.23 According to Weiss, the formulation of the words in
the first clause is not only inadequate but also leaves an open question of whether terrorism
can be carried out by the state or only by state actors?
The Organization of the Islamic Conference on Combating International Terrorism outlines

the example of terrorism as a group or individual as formulated as follows:

"Terrorism"
means any act of violence or threat of violence whatever the intention or motive is carried
out; (whether) to carry out a collective or individual criminal plan with the intention of
terrorizing the people or threatening to endanger them or harm their lives, respect,
independence, security, or rights or to become an environment or any public or private
facility or property as endangering, or seizure or seizure of all of that, or endanger national
power or international facilities, or threaten the stability, integrity, political unity or
sovereignty of an independent state.24
In the 42nd paragraph of the 2005 UN Special Report, it was explained that the cumulative
definition classifies dangerous acts as "terrorism" if they are only designed to terrorize,
intimidate or impose, and are already in violation of sectoral agreements. This provision is

example, undermining international standards as "war on terror" detentions continue. AI INDEX.- AMER
51/114/2003, 1 9 th August 2003, p. 16

22
Attorney General Transcript News Conference regarding Zacarias Moussaoui, I1th December 2001 DOJ
Conference Centre.

23
M. Iqbal Asnawi, The Consistency of International Humanitarian Law Enforcement in International
Relations, Samudra Keadilan Law Journal, Volume, Nomor I, 2017, p.111

24
Convention on Islamic Conference Organization on Combating International Terrorism Article 1 (2) adopted
by UN in Ouagadougou on 1 July 1999. International Instruments that related toward the protection and
prevention of International Terrorism Act p.189 2000.

15
well received by the UN Special Rapporteur on Human Rights and Terrorism because it
embodies the concept of terrorism which is narrow and respects human rights.25
New developments against acts of terrorism that although not yet fully incorporated into the
IHL, are currently growing. Where many of the armed conflicts are generally categorized as
non-international armed conflicts, the use of IHL against non-state armed groups, where the
mechanism to hold these groups accountable for their actions is still much left behind.26

BREACH OF IHL PRINCIPLES

There are various principles incorporated in international humanitarian law which were
breached during the course of 9/11 attacks and USA response to the same. There are as
follows:
1. Anticipatory self- defence- The 9/11 terrorist attack was clearly seen as an act of war;
the United States intervention in Afghanistan arguably required no explanation or
justification.27 There seems to have been universal acceptance of the proposition that
this particular use of force was both lawful and appropriate. It is not immediately
clear, however, what legal analysis justified such an intervention and how that
justification could be articulated to provide some predictability for future operations
proved it right. U.S. interventions undertaken in the name of anticipatory self-defence,
although criticized was somehow justified and allowed under Article 51 which
intended to sanction the use of force in self-defence against an ongoing incursion only
until the U.N. Security Council can act to restore peace and security. Most certainly,
there was time between 9/11 and the initiation of U.S-lead hostilities in Afghanistan
for United Nations Security Council action on this matter. 28 And, given that the

25
The UN Security Council mentioned “[...] terrorism [...] cannot and should not be associated with any
religion[...]” in Resolution No. 2170 (2014), preamble para. 6.

26
Enhancing Civilian Protection by Engaging Non-State Armed Groups under International Humanitarian
Law”, Journal of Conflict & Security Law (2017), Vol. 22 No. 1, Oxford University Press 2017,
doi:10.1093/jcsl/krw007, p.29.

27
M. J. Glennon, “Preempting Terrorism; The Case for Anticipatory Self- Defense”, Wkly. Standard, 28
January 2002, 17, 24

28
R. Roeper, “Even Towering Figures are Often Unknowns”, Chicago Sun Times, 14 April 2003, 11; “Saddam
and His Statue Take a Fall”, Tulsa World, 10 April 2003, A18

16
 Security Council had acted in Resolution 1368 to condemn the attacks and to
recognize the applicability of a self-defense right, but not specifically to authorize the
use of force, comity with past practice would have prompted the strict constructionist
to assert that the United Nations’ Resolution was not intended to justify military
intervention.29 Many have long deemed unlawful under the U.N. Charter both of these
self-defence related justifications for the use of force: past criticisms of anticipatory
self-defence have been most vituperative and sustained due to the absence of a
precursor “armed attack” against which to “defend;” peacetime reprisal is impugned
for not being defensive at all—rather it responds to a completed act. Operation
Enduring Freedom fits well in category.30 The use of force is not in its most essential
nature defensive, and it is ultimately a pre-emptive measure in anticipation of future
attacks. Unlike pure anticipatory self-defence however, Operation Enduring Freedom,
which enjoys far greater international acceptance than past uses of force in the
anticipatory self-defence category, is characterized by an additional retaliatory
component.31
2. Proportionality- “Proportionality” is a long-established principle that sets out criteria
for limiting the use of force. It relates to the proportionality of a military action
compared to a grievance, and thus constitutes a further link between jus in bello and
jus ad bellum. It involves a complex balance of considerations, and it would be
incorrect to interpret this principle to imply a right of retaliation. In the present
scenario, the principle of proportionality is therefore in tension, but not necessarily in
conflict, with the current US military doctrine, which favours the overwhelming use
of force in order to achieve decisive victory quickly and at minimum cost in terms of
US casualties.32 Therefore, this breach remains unaddressed to.
3. No difference between combatants- The laws of war are clear which shows that the
political and military leaders of all the States involved in the conflict the United States
and their allies as well as Iraq are equally responsible for loss to property and lives.

29
S/RES/1368 (2001) of 12 September 2001:
The Security Council, Reaffirming the principles and purposes of the Charter of the United Nations

30 th
Yoram Dinstein. 2005. War, Aggression and Self-Defence. Edition 4 edition. New York: Cambridge
University Press.

31
D.W. Bowett, “Reprisals Involving Recourse to Armed Force”, AJIL 66 (1972), 1 et seq. (1)

32
UnitedStatesandNATOstrategicdoctrine,pages191-208

17
 They are forbidden to attack civilians or civilian targets, or use indiscriminate or
prohibited weapons. They are obliged to protect civilians, allow humanitarian
assistance and treat humanely all combatants who are captured or civilians who are
detained. It is also established rule that anyone who violates these principles must be
brought to justice. Responsibility is individual and applies as much to the soldier as to
the general, to the political leader as to the bomber pilot. All states have a
responsibility to bring to justice those who commit grave breaches of the laws of war,
whoever they are and wherever they committed their crimes.33 The same has been
observed by Irene Khan, Secretary-General of Amnesty International. 34 Disturbingly,
neither the US along with Britain’s assistance, nor Iraq agreed not to deploy cluster
bombs which in effect mine an area with unexploded bomblets. Neither did they
refrain from the use of weapons incorporating depleted uranium which are suspected
of causing serious sickness on an indiscriminate basis over the longer term. This
failure to distinguish sufficiently between combatants and civilians in military attacks
shows a clear breach of humanitarian law.35
4. Failure to prevent looting, destruction to cultural property- Another disheartening
consequence of poor Coalition planning was the failure to establish basic law and
order following the overthrow of Saddam. Television news coverage shot in April
2003, portrayed general lawlessness in Baghdad as well as looting and destruction of
Iraqi cultural property, exposing the Coalitions shocking lack of foresight to protect
cultural sites.36 On 17 April 2003, a UNESCO international experts meeting stated
that it deplores and is deeply shocked by the extensive damage to, and looting of the
cultural heritage of Iraq caused by the recent conflict. It calls on the Coalition forces
to observe the principles of the 1954, Hague Convention for the Protection of Cultural
Property in the Event of Armed Conflict and its two Protocols. 37 The meeting also

33
Micheal, H. Hoffman, “Terrorists Are Unlawful Belligerents, Not Unlawful Combatants: A Distinction With
Implications For The Future of International Humanitarian Law”. Case W.Res Journal of International Law,
Vol, 34, 2002

34
Irene Khan, "Iraqis' Rights: Protecting the Innocent", International Herald Tribune, 28 March 2003

35
Peter Ford, "Surveys Pointing to High Civilian Death Toll in Iraq: Preliminary reports suggest casualties well
above the Gulf War", The Christian Science Monitor, 22 May 2003.

36
UNESCO Document 32 C/INF.14 of 6 October 2003.

37
UNESCO Press Release No. 2003-26 of 17 April 2003.

18
 called on the Coalition to: safeguard all museums, libraries, archives, monuments and
sites in Iraq by deploying armed force immediately to those places and prevent the
export of all antiques, antiquities, works of art, books and archives from Iraq. It
further called for an immediate ban on the international trade in objects of Iraqi
cultural heritage, the voluntary and immediate return of cultural objects stolen or
illicitly exported from Iraq and the deployment of an immediate UNESCO fact-
finding and assessment mission. It was estimated that more than 1,500 paintings and
sculptures went missing from the Museum of Fine Arts in Baghdad, only 400 of
which were so far recovered.38
5. Treatment of prisoners and detainees- The US authorities every now and then have
consistently stressed that the detainees in their custody are being treated humanely
placing particular emphasis on the provisions of appropriate food and medical care.
The US officials have also given assurances that detainees will be treated humanely
during interrogations.39 However, when the US transported more 158 prisoners,
captured Taliban/Al-Qaeda members to the US Naval Base at Guantanamo Bay, it is
reported that they have been kneeling before their captors, their legs in shackles, their
hands bound in manacles, their mouths covered by surgical masks and their eyes
blinded by large goggles with black tape. 40 The Defence Department released
photographs to show them. More than 600 men, some as young as 13, of 42
nationalities-including citizens in the concentration camp have been detained for
many months at the American naval base in Guantanamo Bay. 41 They have been in
custody without access to family, lawyers or any semblance of due process. 42 They
have been denied a speedy trial. The delay in question has violated the principles or
the spirit of the Geneva Conventions for the protection of the victims during armed
conflicts.

38
Barry James, "UNESCO Lengthens List of Looted Art in Iraq: Thousands of Treasures
Said to be Missing", International Herald Tribune, 24 May 2003.

39
Dexter Filkins, 3,000 Forgotten Taliban, Dirty and Dying, INT’L HERALD TRIBUNE, Mar. 15, 2002, at 1

40
Ali Fleischer, White House Press Briefing, 3rd March 2003.

41
Ai Index.- Amer 51/114/2003, 1 9 Th August 2003, P. 16

42
International Herald Tribune, 2 4th January 2002.

19
 FURTHER DEVLOPEMENT OF LAW

The phenomena of global terrorism and the response thereto, while by no means wholly new,
pose many challenges to existing legal provisions, from matters as large as the meaning of
“armed conflict” to those as detailed as the conditions of detention. Thus it is not surprising
that there were several suggestions that the existing laws of war might need to be revised,
updated, supplemented or reinterpreted to take into account new forms of conflict. The case
for such reconsideration, which basically arose in connection with the war in Afghanistan and
the many related issues, may have been reinforced by events elsewhere, especially the
numerous cases of Palestinian suicide bombings in 2001–2. 43 There are certain suggestions in
this context, which are- (a) the conditions of application of the laws of war; (b) the
classification and treatment of detainees; (c) legitimate means of responding to suicide
bombers who by definition cannot be deterred by normal means, and whether reprisals can
ever be justified in this context; (d) the interpretation of the rules on targeting in the light of
the experience of recent wars in Afghanistan and elsewhere; and (e) remnants of war, a
problem that includes but is by no means restricted to cluster bombs, and is in any case the
subject of separate negotiation in a UN framework in Geneva. 44

PERSONAL OPINION

Terrorism is a scourge to which the international community has been striving to respond for
decades. The obvious challenges it poses are not only long-lasting, but also immediate.
Terrorism is a global phenomenon sometimes closely link to armed conflict; and one which
the international community is increasingly facing. Terrorism negates the fundamental
principles of humanity as well as the essential principles and objectives of international
humanitarian law. In this regard, the ICRC condemns acts of terrorism, irrespective of their
perpetrators, be they committed in or outside an armed conflict, and is deeply distressed by
their devastating impact on communities and individuals.

43
Jacques, Moreillon, “Contemporary Challange to Humanitarian Law”, Journal of Peace Research, Vol.24,
Issue 3, September 1987

44
Kristen Tomuschat, 2002, 11 September 2001 and The Legal Consequences, Trier, Law Regulation Forum

20
Neither armed conflict nor terrorism are new forms of violence. Both have existed for a long
time and have, for most part, been understood to be separate phenomena, as demonstrated by
the different legal frameworks that regulate them. The perception that armed conflict and
terrorism differ and that their respective legal rules are distinct has radically changed since
September 2001 and the subsequent launching of the so-called "global war on terrorism".
Recent years have again seen the rise of non-State armed groups resorting to acts of terrorism
and the subsequent engagement of a coalition of States against them. This situation has put
the relationship between IHL and the legal framework governing terrorism back into the
spotlight and may have even created the perception that there may be a new "global war on
terrorism" involving a group or groups of unbounded geographical reach.
Another aspect needs attention which is that any use of force against non-state armed groups
designated as terrorist or against members and affiliates thereof, is not necessarily
synonymous with a situation of armed conflict governed by IHL. 
Question of IHL applicability is whether non-state armed groups designated as terrorist fulfil
the organization criterion for classifying a situation as a non-international armed conflict.
Therefore, it is important to curb and cater to this new era of “internationalized civil war”

CONCLUSION

The application of humanitarian law aims to prevent unintended suffering in armed conflict
both for civilians and soldiers who have not fought from inhumane acts. One of the important
roles of the ICRC is in the interpretation of international law and its principles. IHL itself
both in international armed conflicts and non-international prohibits any actions that can be
classified as acts of terrorism. New developments against acts of terrorism that although not
yet fully incorporated into the IHL, are currently growing.

The fundamental principles of the IHL refer to the implementation of international legal
principles in the midst of the absence of specific international law that refers to the conditions
of conflict against terrorism. These fundamental principles must be respected and
implemented by the parties regardless of the circumstances because these fundamental
principles are the basic protection for humans as living things. IHL will not be carried out
effectively if the parties do not want to do it.

21
Recent developments like killing of Osama -bin – Laden’s son as confirmed by USA
continues to show the breach of international law. Also a recent attack on US embassy in
Afghanistan on the anniversary of 9/11 showcases the hot blood between the regimes.
Therefore, dissemination of these principles will also increase the awareness of other parties
to be able to monitor the possibility of violations of international legal principles in the
conflict against terrorism.

BIBLIOGRAPHY

BOOKS AND COMMENTARIES:

 Anne Sophie Gindroz, 1996, “Course Material on International Humanitarian Law”;

ICRC.

 Antonio Cassese. 2005. International Law, 2nd edition. New York: Oxford University
Press.

 Hans-Peter Gasser. 2002. Acts of Terror, Terrorism, and International Humanitarian

Law, International Review of the Red Cross.

 Kristen Tomuschat, 2002, 11 September 2001 and The Legal Consequences, Trier,
Law Regulation Forum

 Martin Dixon MA. 1996. Textbook on International Law. Edisi 3rd. London:
Blackstone Press Limited.

22
  Noam Lubell, 2011, Extraterritorial Use of Force against Non-State Actors, Oxford
Monographs in International Law, Oxford University Press, Oxford.

 Philip Alston & Ryan Goodman, International Human Rights The Successor to
International Human Rights in Context, Oxford University Press, 2005.

 Yoram Dinstein. 2005. War, Aggression and Self-Defence. Edition 4th edition. New
York: Cambridge University Press.

 Hisakazu Fujita, International Humanitarian Law: War on Terror in Afghanistan, 3

ISIL Y.B. Int'l Human. & Refugee L. 59 (2003)

 Joko Setiyono, The Role of the ICRC in the Development of International

Humanitarian Law in the Global Era, Law Reform Journal, Volume 13, Number 2,
2017, p.220.

 The Commentary on the third Geneva Convention (ICRC, Geneva, 1958, p. 23) or the
Commentary on the fourth Convention

LAW JOURNAL:

 Amy H. McCarthy, Erosion of the Rule of Law as a Basis for Command

Responsibility under International Humanitarian Law, Chicago Journal of
International Law, Vol.18, No.2

 Agus Wahyudi, Terrorism and International Law, Mimbar Hukum.

Ben Saul, “Enhancing Civilian Protection by Engaging Non-State Armed Groups
under International Humanitarian Law”, Journal of Conflict & Security Law (2017),
Vol. 22 No. 1, Oxford University Press 2017, DOI:10.1093/jcsl/krw007,

 Cristina Pellandini, Ensuring national compliance with International Humanitarian

Law: The role and impact of national IHL committees, The Parliamentarian, Issue 3,
2016

 Hilly Moodrick-Even Khen, Aido s̄ , and Dike in International Humanitarian Law: Is

IHL a Legal or a Moral System? ,

 Jacob Kellenberger, International Humanitarian Law at The Beginning of 21st

Century, ICRC Officials Statement, 5 September 2002

 Jacques, Moreillon, “Contemporary Challange to Humanitarian Law”, Journal of

Peace Research, Vol.24, Issue 3, September 1987

 Markus H Simarmata, The Importance of IHL Principles in Terrorism Regulation,

Legislasi Journal Indonesia Vol 15 No.2 - July 2018

 M. Iqbal Asnawi, The Consistency of International Humanitarian Law Enforcement in

International Relations, Samudra Keadilan Law Journal, Volume I, Number I, 2017

23
  Micheal, H. Hoffman, “Terrorists Are Unlawful Belligerents, Not Unlawful
Combatants: A Distinction With Implications For The Future of International
Humanitarian Law”. Case W.Res Journal of International Law, Vol, 34, 2002

 Peter Weiss, “Terrorism, Counterterrorism, and International Law”, Arab Studies

Quarterly, Vol.24, No.2&3, Spring/Summer, 2002.

 Reni Windiani, Indonesia's Role in Combating Terrorism, Social Sciences Journal

Vol. 16 No. 2, July Edition, 2017,

 Yowanda, The Use of Armed Force Against Terrorist Groups From the Perspective of
International Humanitarian Law, Lex et Societatis, Vol. I, No. 4, 2013

REPORTS:

 Barry James, "UNESCO Lengthens List of Looted Art in Iraq: Thousands of

Treasures
 Said to be Missing", International Herald Tribune, 24 May 2003.

 Dexter Filkins, 3,000 Forgotten Taliban, Dirty and Dying, INT’L HERALD
TRIBUNE, Mar. 15, 2002, at 1

 Ali Fleischer, White House Press Briefing, 3rd March 2003.

 Ai Index.- Amer 51/114/2003, 1 9 Th August 2003, P. 16

 International Herald Tribune, 2 4th January 2002.

 Hans-Peter Gasser who is a former Senior Legal Advisor of the International

Committee of the Red Cross, Geneva, and former Editor of the International Review
of the Red Cross

 UNESCO Document 32 C/INF.14 of 6 October 2003.

 UNESCO Press Release No. 2003-26 of 17 April 2003.

 Amnesty International-Library-United States of America: The threat of a bad

example, undermining international standards as "war on terror" detentions continue.
AI INDEX.- AMER 51/114/2003, 19th August 2003, p. 16

 UNSC Res 1373 (28 September 2001) UN Doc S/RES/1373

 UNSC Res 2176 (24 September 2014) UN Doc S/RES/2178

 Draft, Article 2, print out version UN Doc. A /57/37, Annex II

INTERNATIONAL TREATY

 UN Charter 1945
24
  Hague Convention, 1807

 Geneva Convention 1949

 Additional Protocol I

 Additional Protocol II

 Additional Protocol III

 Convention on Islamic Conference Organization on Combating International

Terrorism

25