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  • Terrorism, Counter-Terrorism and International

    Humanitarian Law

    Terrorisme, Contre-Terrorisme et Droit International Humanitaire

    Proceedings of the Bruges Colloquium

    Actes du Colloque de Bruges

    17th Bruges Colloquium20-21 October 2016

    17me Colloque de Bruges20-21 octobre 2016

  • ICRC Delegation to the EU, NATO and the Kingdom of Belgium

    Dlgation du CICR auprs de lUE, de lOTAN, et du Royaume de Belgique

    Guillaume Muller

    Sous la direction de

    Stphane Kolanowski

    Members of the Editorial Board, College of Europe/

    Membres du Comit ddition, Collge dEurope

    Luis Bouza Garca

    Annelies Deckmyn

    Riccardo Trobbiani

    Domenico Valenza

    NoticeCollegium is the academic journal of the College of Europe. Copyright remains with the authors. The proceedings of this Colloquium have been written by the speakers or by the Delegation of the International Committee of the Red Cross (ICRC) in Brussels on the basis of audio recordings of the Colloquium. These texts were then reviewed by the speakers. The responsibility of the views expressed in Collegium belongs to the authors. The opinions expressed herein are not necessarily those of the College of Europe nor the ICRC.

    AvertissementCollegium est la revue acadmique du Collge dEurope. Tous droits rservs. Les Actes de ce Col-loque ont t rdigs par les orateurs ou par la Dlgation du Comit international de la Croix-Rouge (CICR) Bruxelles sur base denregistrements audio du Colloque. Ces textes ont alors t revus par les orateurs. Les opinions exprimes dans Collegium nengagent que la responsabilit de leurs auteurs et ne reprsentent pas ncessairement les vues du Collge dEurope ou du CICR.

  • 3

    I. PROCEEDINGS OF THE BRUGES COLLOQUIUM/ACTES DU COLLOQUE DE BRUGES p. 5

    Opening RemarksJrg Monar, Rector of the College of Europe WELCOME ADDRESS

    Walter Fllemann, Head of the ICRC Delegation to the EU, NATO and the Kingdom of Belgium p. 7DISCOURS DE BIENVENUE

    Christine Beerli, Vice-President of the ICRC p. 11KEYNOTE ADDRESS

    Session 1Setting the sceneChairperson: Paul Berman, Legal Service of the Council of the EU

    Sandra Krhenmann, Geneva Academy of IHL and Human Rights p. 17LEGAL FRAMEWORK ADDRESSING TERRORISM AND COUNTER-TERRORISM

    Tristan Ferraro, ICRC Legal Division p. 25INTERACTION AND OVERLAP BETWEEN COUNTER-TERRORISM LEGISLATION AND INTERNATIONAL

    HUMANITARIAN LAW

    Gert-Jan van Hegelsom, EEAS Legal Affairs Division p. 31THE EUROPEAN UNION APPROACH TO COUNTER-TERRORISM AND INTERNATIONAL HUMANITARIAN LAW

    DISCUSSION (EN) p. 39

    Session 2Legal parameters of the fight against terrorismChairperson: Elzbieta Mikos-Skuza, University of Warsaw and College of Europe

    Marco Sassli, University of Geneva p. 47LEGAL QUALIFICATION OF THE FIGHT AGAINST TERRORISM

    Rogier Bartels, International Criminal Court p. 56TERRORIST GROUPS AS PARTIES TO AN ARMED CONFLICT

    Noam Lubell, University of Essex p. 67LIMITS OF THE GEOGRAPHICAL SCOPE OF APPLICATION OF IHL IN COMBATING TERRORISM

    DISCUSSION (EN) p. 72

    N 47, Autumn/Automne 2017

  • 4

    Session 3The use of force and other measures of constraint in the fight against terrorismChairperson: Andres Munoz Mosquera, SHAPE Legal Office

    Claire Landais, French Ministry of Defence p. 75LEGAL CHALLENGES IN FIGHTING ARMED GROUPS EXTRA-TERRITORIALLY

    Franoise Hampson, University of Essex p. 84THE CONDUCT OF HOSTILITIES VERSUS THE LAW ENFORCEMENT PARADIGM

    Frederik Naert, Legal Service of the Council of the EU and Catholic University of Leuven p. 92EU COUNTER-TERRORISM SANCTIONS AND IHL BEFORE THE EU COURT OF JUSTICE

    DISCUSSION (EN) p. 102

    Panel discussionState responses to foreign fighters Moderator: Elizabeth Wilmshurst, Chatham House p. 107Panellists:Vaios Koutroulis, Free University of BrusselsChristophe Paulussen, T.M.C. Asser InstituteChristian Ritscher, German Office of the Federal Public Prosecutor General

    Session 4Criminalisation of humanitarian action Chairperson: Ann-Kristin Sjberg, Geneva Call

    Patrick Duplat, International Rescue Committee p. 135IMPACT OF COUNTER-TERRORISM MEASURES ON HUMANITARIAN ACTION

    Dustin Lewis, Harvard Law School p. 141HUMANITARIAN EXEMPTIONS FROM COUNTER-TERRORISM MEASURES: A BRIEF INTRODUCTION

    Kim Eling and Maria Lensu, Cabinet of the Commissioner for Humanitarian Aid and Crisis Management p. 151HUMANITARIAN ACTION IN TERRITORIES CONTROLLED BY DESIGNATED TERRORIST GROUPS: A DONORS PERSPECTIVE

    DISCUSSION (EN/FR) p. 157

    Panel discussionPreventing and countering violent extremism Moderator: Pascal Daudin, ICRC Policy Cell p. 161Panellists:Stephan Husy, Swiss Federal Department of Foreign AffairsDick Clomn, Swedish Red CrossFulco van Deventer, Human Security Collective

    Concluding Remarks Christine Beerli, Vice-President of the ICRC p. 183

    II. LIST OF PARTICIPANTS/LISTE DES PARTICIPANTS p. 187

    III. PROGRAMME (EN) p. 195

    IV. SPEAKERS BIOS/BIOGRAPHIES DES ORATEURS p. 198

  • 5

    PROCEEDINGS OF THE BRUGES COLLOQUIUMACTES DU COLLOQUE DE BRUGES

    Opening Remarks

    WELCOME ADDRESS Jrg MonarRector of the College of Europe

    Distinguished guests, dear friends and colleagues, ladies and gentlemen,

    It is a great pleasure for me to welcome you to this Conference organised by the International Committee of the Red Cross, together with the College of Europe, on Terrorism, Counter-terrorism and International Humanitarian Law (IHL).

    The challenges, ladies and gentlemen, which terrorism poses to States and societies are daunt-ing, both in their magnitude and in their complexity. In their indiscriminate targeting of in-nocent civilians, terrorist attacks constitute a challenge for the very fundamentals of human civilisation and for human intercourse.

    As terrorists, via their activities, are placing themselves outside the normal standards of hu-man behaviour, there is always a risk that States and other public stakeholders (including in-ternational organisations) operate, in their reaction to terrorist attacks, in what may be called grey zones of prevention and repression, in which standards of International Humanitarian Law can be put in danger. As this means potentially adding to the long list of victims of terror-ist activities, such risks clearly have to be avoided to the greatest possible extent. This, in the first place, for those whose human rights may be endangered by States responses. But also, simultaneously for the sake of the legitimacy of States action in response to terrorist attacks. I think it is very important to remember that at the height of the aftermath of the September 11 attacks that shocked the international community, the United Nations (UN) put a major emphasis on this challenge. In Security Council Resolution 1456 (2003) and also in several later resolutions, the UN Security Council has said that States must ensure that any measures taken to combat terrorism comply with all their obligations under international law and should adopt such measures in accordance with international law, in particular International Human Rights standards and IHL.

  • 6

    So, in spite of the huge pressure on the international community after the international terror-ist challenge context of 9/11, a question of how to ensure that human rights standards would continue to be adhered to has been, right from the start, very high on the agenda.

    I think that this gives the topic of todays Conference all of its importance. The College of Europe is very happy that the International Committee of the Red Cross has chosen the College as a partner to host this important international gathering.

    Since 1949, it has been enshrined in the College of Europes statutes that it must make a contribution to cooperation and integration in Europe, as well as to international cooperation between Europe and its partners throughout the world. The College has always endeavoured to make a positive difference to cooperation across borders, to make a positive contribution to the coexistence of citizens of different countries. There is here a clear link with the mission of the International Committee of the Red Cross, and we are therefore very happy that the Red Cross enabled us to fulfil part of our mission through this Bruges Colloquium.

    I would just like to mention that the College of Europe has this year 463 Master students, of which 330 are here in Bruges and 133 on our second campus in Warsaw, in Natolin. Our students are very enthusiastic and want to make a positive difference to European and inter-national cooperation after they leave the College. Some of the students are here today. I think they are fully aware of the importance of todays topic. I would also like to mention that the students of the College this year come from sixty-one different nations, so they are recruited from well beyond the borders of the European Union. I think we can say that in terms of international outreach, there is some parallelism between the College and the International Committee of the Red Cross.

    Lastly, I would like to say that the College has, over the last few years, always had an excellent practical cooperation with the International Committee. You are one of the most appreciated partners in terms of smooth interaction during the preparation of an event, so thank you very much also for this.

    I would then like to hand over to Mr Fllemann, who is Head of the Brussels Office of the International Committee of the Red Cross, and will add, from his perspective, further reflec-tions on the subject.

    Thank you very much.

  • 7

    DISCOURS DE BIENVENUE Walter Fllemann Head of Delegation, ICRC Brussels

    Monsieur le Recteur,

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