On occasion, a military (or armed conflict) approach to counter-terrorism may be appropriate. Importantly, it is not political rhetoric, such as 'the war on terror', that determines which approach and underpinning legal regime is appropriate; instead, what determines these is whether specific legal criteria, examined in this Module, are satisfied. The correct legal classification of the context in which counter-terrorism responses occur is important since this will determine which legal regime(s) apply: criminal justice responses, underpinned by international human rights standards, govern peacetime responses; whereas International Humanitarian Law (IHL) is the lex specialis (reflecting fundamental, non-derogable human rights principles) governing armed conflict responses. Though a military response can be justifiable in some circumstances where strict criteria are met, it should remain the exception rather than the norm for countering terrorism.
The circumstances leading to a situation of armed conflict can be contentious and political, with lingering uncertainties. Though military measures could be authorized under a collective security approach adopted under the umbrella of the United Nations, generally the approach taken by the United Nations has been to tackle non-State actors by means of non-forcible measures or targeted sanctions. One example includes the Security Council sanctions regime pursuant to Resolutions 1267 (1999), 1989 (2011) and 2253 (2015) concerning Islamic State of Iraq and the Levant (ISIL/Da'esh), Al-Qaida and Associated Individuals Groups Undertakings and Entities. Related uncertainties leave the issue open and unclear as to whether States may unilaterally or in conjunction with allies, use force ( jus ad bellum) against terrorist threats and attacks, such as against non-State actors in a third-party State. Where military force is used, regardless of any unresolved questions regarding the legality of the decision to use it ( jus ad bellum), the military conduct itself is governed by IHL ( jus in bello) which is the focus in this Module.
Significant rule of law concerns have arisen in this context where executive-led, militarily-oriented responses - while not completely replacing criminal justice/human rights approaches - have challenged or eroded the implementation and enforcement of other legal regimes comprising the international counter-terrorism framework. One source of such concern has been where governments have engaged all elements of their national power - legal, economic, diplomatic, financial, military, intelligence, information, etc. - in an attempt to neutralize the threat posed by non-State terrorist actors. While this of itself is not problematic, concerns arise when this results in disproportionate responses that erode human rights and fundamental freedoms in addition to facilitating increased impunity. Where this has occurred, it is important to ensure that the relationship between military and criminal justice responses to terrorism are rebalanced in order to maintain clear parameters between the two paradigms.
On the sub-pages to this section, this Module examines the core principles of IHL; the categorization of international and non-international armed conflicts; the classification of 'combatants' and 'fighters', including the primary implications of these; specific rules governing terrorist acts in an armed conflict setting; and the relationship between IHL and international human rights law, including the significance of the notion of lex specialis: