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Terrorism as War Crime It is a fallacy to argue that terrorism can legally only be considered as a criminal offence in time of peace. Article 4, sub d of the Statute of the International Criminal Tribunal for Rwanda explicitly qualifies ‘acts of terrorism’ as a serious violation of article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims and of Additional Protocol II thereto of 8 June 1977 over which the ICTR has criminal jurisdiction. And as the ICTR only has jurisdiction over offences committed in a non-international armed conflict, the Statute qualifies terrorism as a war crime in a non-international armed conflict.[footnoteRef:1] Whereas terrorism is not explicitly mentioned in the Statute of the International Criminal Tribunal for the former Yugoslavia, the Appeals Chamber of the ICTY has concluded in Galić that terrorization of the civilian population, committed during an armed conflict, has crystallized into a war crime under customary international law.[footnoteRef:2] The Appeals Chamber confirmed the ruling of the Trial Chamber that terrorization of the civilian population constituted a serious infringement of a rule of international humanitarian law, to wit Article 51(2) of the First Additional Protocol that prohibits ‘acts or threats of violence the primary purpose of which is to spread terror among the civilian population.[footnoteRef:3] The Trial Chamber had already clarified that the relevant provisions in the Additional Protocols purported to extend the protection of civilians from terror, as Article 33 of Geneva Convention IV had only a limited scope, protecting a subset of civilians in the hands of the Occupied Power.[footnoteRef:4] Consequently, Articles 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II are addressing all persons – belligerents, civilians and organized groups alike – imploring them to renounce from acts of terrorism in the territory of the parties to an armed conflict.[footnoteRef:5] That the violation of these essential rules of international humanitarian law entailed individual criminal responsibility could, in the opinion of the Appeals Chamber, be inferred from ‘state practice indicating an intention to criminalize the prohibition, including statements by government officials and international organizations, as well as punishment of violations by national courts and military tribunals.[footnoteRef:6] After a comprehensive scrutiny of these instruments and decisions, the Appeals Chamber concluded that customary international law indeed imposes individual criminal liability for violations of the prohibition of terror against the civilian population. [1: In Article 3, sub d of the Statute of the Special Court for Sierra Leone acts of terrorism features as a war crime ( in a non-international armed conflict) as well.] [2: Prosecutor v. Galić, Judgment of the Appeals Chamber, IT-98-29-A, 30 November 2006, par. 91-98. The Trial Chamber, while recognizing that the ICTY had jurisdiction over terror as a war crime under Article 3 of its Statute, had still left the question of the customary international law nature of the crime of terror in abeyance, Prosecutor v. Galić, Judgment and Opinion, IT-98-29-T, 5 December 2003, par. 138.] [3: Article 13(2) of the Second Additional Protocol reads exactly the same] [4: Prosecutor v. Galić, Trial Chamber, par. 120.] [5: See also Antonio Cassese, ‘The Multifaceted Criminal Notion of Terrorism in International Law’, 4 Journal of International Criminal Justice (2006), 944.] [6: Prosecutor v. Galić, Appeals Chamber, par. 92.] Article 8 of the Rome Statute does not mention terror as a war crime. However, both state officials and non-state actors could be exposed to the ICC’s jurisdiction if they have been involved in ‘intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities’ which is qualified as a war crime both in international armed conflicts (Article 8 (2), b, i) Rome Statute) and in non-international armed conflicts (Article 8 (2), e, i) Rome Statute). The actus reus corresponds with mainstream definitions of terrorism, but the special intent to ignite fear in or intimidate the civilian population is absent. Another war crime that closely resembles an act of terrorism in peace time is hostage-taking which requires an intention ‘to compel a State, an international organization, a natural or legal person or a group of persons to act or refrain from acting as an explicit or implicit condition for the safety or the release of such person or persons.’[footnoteRef:7] Although terrorism does not feature as a separate offence in the Rome Statute, there are equivalent war crimes that cover materially the same unlawful conduct. One could even wonder whether the comprehensive regulation of war crimes which is predicated on the rich normative framework of International Humanitarian Law does not obviate the need for identifying terrorism as a distinct war crime.[footnoteRef:8] However, if the jurisdiction in respect of terrorism of the International Criminal Court – and arguably other international criminal tribunals as well – is dependent on the existence of an armed conflict it is obviously of paramount importance to inquire when the threshold of armed conflict is reached. It is to this question that we will now turn. [7: 3 Elements of Crimes – International Criminal Court, New York, 30 June 2000, Article 8 (2) c) (iii).] [8: Compare Claudia Martin, who quotes approvingly the International Committee of the Red Cross, stating that ‘once the threshold of an armed conflict has been reached, there is little added value in designating acts of violence against civilians or civilian objects as “terrorists”’. Claudia Martin, ‘Terrorism as a crime in international and domestic law: open issues’, in: Larissa van den Herik & Nico Schrijver (eds.), CounterTerrorism Strategies in a Fragmented International Legal Order, Cambridge 2013, 649.] Armed conflict as a legal category under IHL and ICL The necessity of defining and delineating the concept of armed conflict emerged when the states parties negotiating the terms of the Geneva Conventions of 1949 decided to include a ‘codex’ on minimum provisions that the parties to a non-international armed conflict had to observe in view of the protection of non-combatants. While section 2 of this well-known Common Article 3 expressly stipulated that it’s application would not affect the legal status of the Parties, some states expressed concern, arguing that these proposals would bestow criminal groups with moral legitimacy and hamper Governments in their measures of legitimate repression. It was feared that the arrangement would ‘cover all forms of insurrections, rebellion and the break-up of states and even plain brigandage’.[footnoteRef:9] In an effort to allay the apprehensions of the opponents, a Special Committee of the Diplomatic Conference assured that Common Article 3 would not include ‘terrorism’ and incidental riots or insurrections, but would only apply ‘to conflicts which, though internal in character, exhibited the features of real war.’[footnoteRef:10] In respect of the actors, the Committee alluded to well organized insurgents who wield control over (part of the) territory and population and have the power to contend the state’s monopoly of violence. [9: Jean S. Pictet (ed.) Commentary IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Geneva: ICRC 1958, 32.] [10: 6 Pictet, footnote 15, 33.] In their attempt to enhance the protection of civilians and other vulnerable categories during hostilities, the international criminal tribunals have considerably widened the scope of the concept ‘armed conflict’. While an exhaustive analysis of this intriguing topic is beyond the ambit of this article, we will briefly refer to some decisions that highlight the difference with the prior approach.[footnoteRef:11] In Tadić the Appeals Chamber pioneered uncharted waters and propounded a definition that would serve as an authoritative point of departure for later judgments. According to the Appeals Chamber, an armed conflict exists ‘whenever there is a resort to armed forces between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’.[footnoteRef:12] In relation to non-international armed conflicts the definition clarified two aspects. First of all, armed conflicts can occur without any involvement of the official government and can therefore be fought between insurgent groups inter se. This extension of the scope of Additional Protocol II which only applies if the central government is one of the warring parties, reflects the sensitivity for the problem of failed states.[footnoteRef:13] Secondly, in order to qualify as an armed conflict, two cumulative conditions have to be satisfied: [11: For a comprehensive and seminal discussion of the topic, see Anthony Cullen, The Concept of NonInternational Armed Conflict in International Humanitarian Law, Cambridge 2010. For a concise survey, see Fleck, D. , The Handbook of International Humanitarian Law, 2nd ed. Oxford 2010, Chapter 2.] [12: Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, Case No.: IT-94-1-AR72, par. 72.] [13: On this topic, see also Cullen, footnote 17, 146-148.] a) the armed forces should display a certain level of organization and b) the fighting should have a certain degree of intensity. As these criteria are obviously still rather vague, they require further elaboration and interpretation in practice.[footnoteRef:14] In Limaj, the Trial Chamber had the opportunity to flesh out these standards, as it had to determine whether an armed conflict had existed between the Kosovo Liberation Army (KLA) and Serbian armed forces.[footnoteRef:15] The organizational strength of the KLA was measured in terms of its capacity to wield internal control over its people, to formulate and execute concerted military action and to operate as a unity in external relations.[footnoteRef:16] The Trial Chamber also shed light on the requirements in the realm of intensity of the conflict, mentioning, among others, the frequency and seriousness of armed clashes, the mobilization of elite military groups and the effects on the civilian population.[footnoteRef:17] [14: Compare Prosecutor v. Rutaganda, Case No. ICTR-96-3, Judgment, 6 December 1999, par. 93: ‘The definition of an armed conflict per se is termed in the abstract, and whether or not a situation can be described as an “armed conflict”, meeting the criteria of Common Article 3, is to be decided upon on a case-by-case basis.’] [15: 1 Prosecutor v. Limaj et al. Judgment, Case No. IT-03-66-T, 30 November 2005.] [16: Prosecutor v. Limaj, par. 46 and 125.] [17: Prosecutor v. Limaj, par. 146, 150 and 166.] The requirements in respect of organization have gradually crystallized in 5 groups of factors that would be indicative of sufficient organization: ‘i) the presence of a command structure, ii) the capability of the group to carry out operations in an organized manner, iii) the level of logistics, iv) the level of discipline and the ability to implement the basic obligations of Common Article 3, v) the ability to speak with one voice’.[footnoteRef:18] [18: International Law Association, Final Report on the Meaning of