Bringing Terrorists to Justice in the Context of Armed Conflict: Interaction between International Humanitarian Law and the UN Conventions Against Terrorism

Abstract

The participation of foreign fighters on the side of terrorist groups has raised many questions about the legal basis for the criminal prosecution of acts of terror during armed conflicts. In cases regarding the commission of terrorist crimes with transnational elements, such as the foreign nationality of the alleged perpetrator, cooperation with other states in matters such as extradition or mutual legal assistance can be crucial. This study will analyse two regimes that may constitute a legal basis for cooperation in criminal matters against acts of terror committed during armed conflicts: (i) the rules on criminal responsibility under international humanitarian law (IHL), and (ii) the United Nations framework of anti-terrorist conventions. IHL has been seen by many as the only framework applicable to acts committed during armed conflicts. In contrast, the position adopted in this article is that IHL does not necessarily exclude the application of other regimes to acts committed during armed conflicts, which can serve as a complementary tool in international efforts for the prevention and suppression of terrorism.

Terrorist offences and international humanitarian law: The armed conflict exclusion clause

“…They consider notably that the sectoral conventions' cooperation regime, involving matters of mutual legal assistance and extradition, should also apply to activities governed by IHL. 61 However, the issue is not whether IHL excludes the application of the sectoral conventions. Indeed, save for the bar imposed by the combatant privilege in international armed conflicts, it does not.…”

Foreign fighters and the tension between counterterrorism and international humanitarian law: A case for cumulative prosecution where possible

“…23 Rather CT instruments merely "contain a list of acts that are typically linked with terrorism and must be criminalised and prosecuted by the state parties (…)". 24 Also relevant to mention when assessing the CT framework is the important role that UNSC resolutions play as a source of CT rules. 25 Given that both armed conflict and terrorism often involve acts of violence committed by non-state armed actors, there seems to be a "natural connection" between CT and IHL.…”