"guerrilla" and "terrorism" in internal armed conflict
TRANSCRIPT
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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).
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68 THE
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[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).
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GUERILLA
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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
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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).
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GUERILLA
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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]
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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.
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GUERILLA
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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).
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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).
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GUERILLA
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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 ]
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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).
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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]
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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 .
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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
LAW
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
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1983]
GUERILLA
AND
TERRORISM
population must endure throughout any prolonged internal armed
conflict
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