The targeted killing of terrorists on foreign soil - Institute of Advanced ...

Tobias Ruettersh<strong>of</strong>f
Panel 4 (a)
Albeit, the existence <strong>of</strong> an international armed conflict could still be accepted, if one leaves
out the criterion <strong>of</strong> statehood and focuses solely on self-defence against terrorism. In
particular, Art. 1 (4) AP I extends the definition <strong>of</strong> international armed conflict to “armed
conflicts in which peoples are fighting against colonial domination and alien occupation and
against racist regimes in the exercise <strong>of</strong> their right <strong>of</strong> self-determination” (ICRC 1977a) to
give non-state actors the possibility to become a party <strong>of</strong> an international armed conflict.
Disputes between state forces and an international terrorist organisation cannot be subsumed
under this article, because they distinctively differ from situations where national liberation
movements take actions against an occupying force (see Bruha 2002, 412). Such actions are
generally seen as legitimate by the community <strong>of</strong> states, which is certainly unthinkable for
the actions <strong>of</strong> <strong>terrorists</strong> (see Schmitz-Elvenich 2007, 177). Moreover, <strong>terrorists</strong> cannot be
seen as legitimate combatants as defined by the Geneva Conventions. According to Art. 4 A
I GC (ICRC 1949), combatants in an international armed conflict are members <strong>of</strong> the armed
forces <strong>of</strong> a party to the conflict. Terrorists are neither party to the conflict nor do they have
armed forces, they do not fall under it. But Art. 2 A II GC extends the definition to:
Members <strong>of</strong> other militias and members <strong>of</strong> other volunteer corps […] provided that such […] fulfil the
following conditions:
(a) that <strong>of</strong> being commanded by a person responsible for his subordinates;
(b) that <strong>of</strong> having a fixed distinctive sign recognizable at a distance;
(c) that <strong>of</strong> carrying arms openly;
(d) that <strong>of</strong> conducting their operations in accordance with the laws and customs <strong>of</strong> war.
Terrorists do not fulfil these conditions (see e.g. Frowein 2002, 895; Watkin 2003, 10). In
contrast, <strong>terrorists</strong> deliberately disguise themselves to commit attacks amongst a civilian
population and they certainly do not conduct their operations in accordance with the laws
and customs <strong>of</strong> war when <strong>killing</strong> innocent civilians. Besides those legal and factual
arguments, there is also a political argument against a combatant status for <strong>terrorists</strong>, because
they would not only become a legitimate party to the conflict but their goals and means
would receive political legitimisation, particularly with regard to the ius ad bellum.
However, if one party to the conflict does not have combatants, there would not be legitimate
targets on this side <strong>of</strong> the conflict (see Schmitz-Elvenich 2007, 179) 12 . In summary, if there
is no state party involved on the terrorist side in an armed conflict between them and another
state, an international armed conflict is not present. Otherwise, the law <strong>of</strong> international armed
conflict would only bind the state party to its firm rules and not the non-state actor.
12 Kretzmer (2005, 193) notes that it would be a contradiction between ius ad bellum and ius in bello, if Article
51 <strong>of</strong> the UN Charter allows military measures against <strong>terrorists</strong> but there are no legitimate targets under IHL.
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