Sometimes counter-terrorism measures take place in the context of widespread armed violence. In such situations, questions of compliance with the body of international law which specifically regulates armed conflict, international humanitarian law (IHL), may arise. In general, IHL becomes applicable where violence, involving armed parties, has reached an intensity sufficient to amount to an "armed conflict", whether international or non-international in nature. IHL is also applicable in circumstances of military occupation. These issues are examined in more detail in Module 6.
The focus here is on IHL as one of the principal legal regimes making up the international legal framework governing counter-terrorism measures, as is reflected in the UN CT Strategy, focussing especially on its accompanying sources.
There are approximately 100 treaties aimed at reducing human suffering in times of war which make up the body of law known as IHL. These include the 1899 and 1907 The Hague Conventions, as well as topic specific treaties such as the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction. For this Module, the treaties of most relevance are the four Geneva Conventions of 1949 and their two Additional Protocols of 1977.
International humanitarian law instruments
There are four Geneva Conventions of 1949:
Additionally, there are additional protocols to the Geneva Conventions 1949:
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (adopted 8 June 1977, entered into force 7 December 1978).
The commentaries accompanying these treaty instruments, as tools for interpreting and applying them, are currently being updated by the International Committee of the Red Cross (ICRC), the principal guardian of these treaty instruments, to reflect 21 st century interpretations and issues. This includes developments in law and practice since the Geneva Conventions were adopted in 1949 when some of the current warfare related issues did not exist. It is hoped that this will assist in the Conventions being applied more effectively to modern armed conflict situations.
Customary IHL is important too as a legal source. During an extensive ten year ICRC study of which rules of IHL had acquired customary IHL status, 161 were identified in the findings published in 2005. This source of law is especially important in relation to States which are not parties to all six of the core IHL treaties, since they remain bound by parallel obligations existing under customary IHL. Most of these treaty provisions are widely regarded by States to have now acquired customary IHL status. This source of law is of special significance in situations of internal armed conflict - which are currently the predominant form of armed conflict and a common context in which military counter-terrorism operations occur - for which the treaty framework is less well developed and detailed than for international armed conflict. Customary international law also possesses a number of advantages over treaty law in that it is constantly evolving in parallel with State practice and opinio juris. It can adapt more easily and quickly to new challenges and legal developments than treaty law since it does not require any lengthy negotiation process to agree changes.
One other important issue relates to violations of IHL, including grave breaches of the Geneva Conventions, which are governed by both treaty instruments, notably the Rome Statute of the International Criminal Court 1998, as well as customary international law. These issues are considered in more detail in Modules 4 and 6.