Terrorism, International Law and Human Rights

Terrorism takes many different forms and manifestations. It has been committed by numerous actors, both State and Non-State. In its most basic form, an act of Terrorism is a Crime. A crime is defined as ‘the intentional commission of an act usually deemed socially harmful or dangerous and specifically defined, prohibited and punishable under the criminal law’ (Encyclopedia Britannica). Terrorist acts such as indiscriminate bombings, armed assaults on civilians, focused assassinations, kidnappings, hostage taking, and hijacking are considered criminal offences in national or international law. Although the state can also commit crimes it often reserves the prerogative to proscribe acts deemed harmful to its citizens as a crime and can punish any person identified as an offender within its legal system and authority (1).

In inter-state wars, or wars between states, crimes committed by the state or ‘war crimes’ can be clearly discerned. In Intra-State wars, where one party to the conflict is often a Non-State actor using unconventional tactics against the state, successfully challenging a state for committing State Terrorism becomes complex as a state is bound by national laws to maintain Law and Order and to safeguard its citizens from harm. This broader definition of the state as the provider of security to its citizens is often considered an inalienable right by many powerful countries. Although there might be problems in the measures adopted by the state in the actual practice of its rights, external actors cannot easily evoke International Law to challenge such states. The violation of International Norms, Rules of Engagement and Ethical Standards by a state is often sighted by National and International Non-State Actors like Human Rights Groups and very rarely by other Nation States.

In many national legal systems, like the Roman Dutch Law for example, a distinction between ‘mala prohibita’ (‘prohibited by statute’) and ‘mala per se’ (‘evil in itself’) exists. In instances where mala per se is evoked, external actors must prove that the state is engaged in the premeditated, unprovoked killing of human beings. The invocation can be based on principles of Human Rights as stipulated by the Geneva Convention.

Obtaining accurate information during an insurgency with regards to deliberate, premeditated and unprovoked killings and repeated acts of Human Rights Violations by the state, especially when the state operates on the premise that it is combating terrorism is a serious challenge. The challenge becomes even more serious when the Non-State actor in an Intra-State conflict has committed serious and highly visible acts of terrorism on a regular basis, thus justifying to a certain degree, the use of unconventional Counter-Terrorism tactics which may sometimes violate Human Rights.

1. Alex P. Schmid. Common Causes of Violent Crime and Conflicts. In: Alex P. Schmid and Irene Melup (Comp./Editor). Violent Crime & Conflict. Proceedings of the International Conference on ‘Violent Crime and Conflicts. Towards Early Warning and Prevention Mechanisms’. Courmayeur, 4-6 October 1997. Milan, ISPAC, 1998, p. 23.