Contemporary terrorism has primarily manifested itself through ideological and revolutionary movements.156The earliest revolutionary movements appeared in the 1920s in South America following the establishment of autocratic regimes that were assisted through external intervention. Contemporary movements are less inclined to remove anti-democratic governments as they are to bringing revolutionary terrorism to the masses,157which is also the cause for numerous illicit operations such as drug-trafficking. The erosion of the South American revolutionary movements began with the death of Ernesto ‘Che’ Guevara, which saw terrorist operations conducted for the first time in urban centres, and the adoption of Marxist/
Leninist teachings advocating that the execution of terrorist acts was within the purpose of uprooting political power.158These movements, detached from Che Guevara’s idealist socialist society, ultimately failed, while their successors in this region of the world seem to be fighting regular armed conflicts against governmental forces, their operations widely linked to organised criminal activity.
Ideological movements in Europe had, until very recently, been inspired by Marxist and, to a lesser degree, by fascist theories. Other groups such as Baader Meinhof and the Red Brigades drew their motivation from the theories of anarchocommunism
150 TheSecretaryofStateisauthorisedtodeterminewhetheraforeigncountryhasprovidedrepeatedsupport to international terrorism, and should therefore be designated as a State sponsor of terrorism. See the 1979 Export Administration Act, 50 USC § 2405(j); 1961 Foreign AssistanceAct, 22 USC § 2371.
151 28 USC §§ 1610(a)(7) and (b)(2).
152 Alejandre v Republic of Cuba996 F Supp 1239 (1997).
153 Flatow v Islamic Republic of Iran,999 F Supp 1 (1998);Cicippio v Islamic Republic of Iran,18 F Supp 2d 62 (1998); see also SD Murphy, ‘Contemporary Practice of the US Relating to International Law’, 94 AJIL(2000), 117.
154 Rein v Socialist People’s Libyan Arab Jamahiriya,162 F 3d 748 (1998)cert denied,119 S Ct 2337 (1999).
155 M Vadnais, The Terrorism Exception to the Foreign Sovereign Immunities Act: Forward Leaning Legislation or Just Bad Law?’, 5UCLA J Int’l L & ForAff (2000), 199, p 201.
156 See generally G Schwarzenberger, Terrorists, Hijackers, Guerillas and Mercenaries’, 24 CLP (1971), 257.
157 K Hortatos,International Law and Crimes of Terrorism Against the Peace and Security of Mankind,1993, Athens: Sakkoulas, pp 29–30; see E Halperin,Terrorism in Latin America,1976, London: Sage.
158 Ibid,Halperin, pp 32–33.
as formulated by Kropotkin and Bakunin, the latter especially advocating the abolition of capitalism and collectivisation of production and consumption.159Were ideological and revolutionary movements to disseminate their agenda without the use of violence, the invocation of international human rights law would certainly aid their plight against any oppressive regimes. Nonetheless, the mere fact that violence has been used by a group does not automatically render that group a terrorist organisation. Since the principle of self-determination of peoples is well established in international law,160a certain degree of violence must necessarily be legitimised to pursue it when all other peaceful means have failed. Article 1(4) of the 1977 Additional Protocol I to the Geneva Conventions of 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) equates to international armed conflicts those struggles in which peoples are fighting against colonial domination, alien occupation and racist regimes in the exercise of their right to self-determination.161The three conditions contained in Art 1(4) are exhaustive, thus being applicable only to a limited number of groups. Article 1(4) was earlier preceded by the General Assembly Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the UN, which affirmed not only a duty to refrain from forcible action depriving peoples of their right to self-determination, but made it clear that in their actions against, and resistance to, such forcible action, peoples are entitled to seek and receive support in accordance with the 1945 UN Charter.162 These legal developments offer the conclusion that organised groups and members thereof enjoy legitimate combatant status under international law, as long as their struggle falls within Art 1(4) of the 1977 Protocol I.163The level of violence permitted in an ensuing armed conflict with government forces is thereafter regulated by international humanitarian law—and not the various anti-terrorist treaties—and applies equally to both parties. Not only acts of terrorism,164but all acts of violence to life or property are prohibited against non-combatants.165
With the demise of the major racist, colonial and occupation regimes by the 1980s the General Assembly Sixth Committee’s resolutions on terrorism continued to affirm the legality of all national liberation struggles in their exercise of self-determination,166 but, in practice, these rights were not afforded to such movements. In fact, the reasons for dropping draft Art 24 (on terrorism) of the International Law Commission’s Code of Offences in 1996 were definitional problems and the precise relationship between
159 Ibid,pp 35–39.
160 1945 UN Charter, Arts 1(2) and 55; 1966 International Covenant on Civil and Political Rights, Art 1, 999 UNTS 171.
161 1125 UNTS 3 (1979).
162 GA Res 2625 (24 October 1970); similarly GA Res 3103 (12 December 1973), affirmed the legitimate character of self-determination struggles and the fact that ensuing armed conflicts are of an international nature and covered by the 1949 Geneva Conventions.
163 See C Pilloudet al, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949,1987, Geneva: Martinus Nijhoff, pp 41–56.
164 1977 Protocol I, Art 4(d).
165 Ibid,Arts 4, 48.
166 GA Res 36/109 (10 December 1981); GA Res 38/130 (19 December 1983); GA Res 40/61 (9 December 1985); GA Res 42/159 (7 December 1987); GA Res 44/29 (4 December 1989); GA Res 46/51 (9 December 1991); GA Res 49/60 (9 December 1994); GA Res 50/53 (11 December 1995); GA Res 51/210 (17 December 1996); GA Res 52/165 (15 December 1997).
terrorism and self-determination.167 Despite some clear-cut acts of terrorism perpetrated by their members, it is obvious that groups such as the IRA, PKK and the PLO fall squarely within the parameters of Art 1(4) of the 1977 Protocol I. However, none of these groups were recognised as having this status, although the PLO was admitted with observer status in international organisations. It should be noted that, on the insistence of Turkey, an Annex was attached to General Assembly Resolution 49/60 (1994) identifying terrorism as a factor endangering friendly relations and territorial integrity. Turkish insistence on the maintenance of ‘territorial integrity’
relates to its interest in labelling Kurdish rebel fighters as terrorists, refusing to allow them recognition of their legitimate struggle under international law.168
A similar troublesome situation has arisen with regard to the treatment by the US military of captured Taliban and Al-Qaeda members. Despite a series of confusing statements in early 2002, the US Government’s position seems to differentiate between Taliban and Al-Qaeda members, characterising the latter as unlawful combatants, while recognising that the former belonged to the forces of a State that was a party to the Geneva Conventions.169Both the Military Order of 13 November 2001 and the US position in general make it clear that the protection and guarantees afforded under the Geneva Conventions will not apply to Al-Qaeda members.
Certainly, the characterisation of Al-Qaeda fighters as unlawful combatants may to a certain degree be justified and on account of the gravity of the situation and the strength of this organisation particular security measures may have to be employed.
However, this does not mean that they are not entitled to fair trial guarantees under the Geneva Conventions and Protocol I of 1977, Art 75 of which obliges parties to grant fundamental guarantees to those combatants that do not benefit from more favourable provisions. Similarly, the use of military commissions against individuals deemed to fall outside the ambit of armed conflict and humanitarian law presents a serious contradiction in criminal procedure terms.170That is, if one is classified as falling outside the scope of the laws of war, then the offences accused of having been committed are common criminal offences, even if extremely serious, but which in any event are subject to the jurisdiction of ordinary courts.
The fact that legitimate national liberation movements may conduct some urban operations by violating domestic criminal law or international norms does not entail the passing of such groups into the sphere of terrorist organisations. Rather, any infractions should be attributed to persons taking a direct or indirect part in these infractions of the law, in the same way that armies are not outlawed in cases where their members violate international humanitarian law.
167 ILC,Report on the Work of Its 48th Session,UN Doc A/51/10, Supp No 10 (6 May-26 June 1996).
168 Even if the PKK is considered to be outside the context of 1977 Protocol I, Art 1(4), the scale of military operations between government and rebel forces is unquestionably within the ambit of the 1949 Geneva Conventions, common Art 3, a provision that is part of customary law.
169 Both are to be tried by military commissions, in accordance with Military Order of 13 November 2001, Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism, F Reg 57833, vol 66, No 222.
170 See generally DA Mundis, The Use of Military Commissions to Prosecute Individuals Accused of Terrorist Attacks’, 96AJIL(2002), 320; HH Koh, The Case Against Military Commissions’, 96AJIL (2002), 337.