1. Prolegomena: encounters
To speak or write on terrorism and armed conflict evokes strong feelings. This is the reason why it is an intractable problem – one that cannot be solved by expertise, in whose worship we live nowadays. If I have learnt one lesson in all these years in which I have been dealing with terrorism,Footnote 1 it is that it is almost impossible to convince by way of rational persuasion and legal reasoning those who hold strong views about it. Whatever efforts are made about finding a balanced approach to the thorniest legal issues, inevitably one will end up raising the sensitivities of those who hold a different view. Maybe Baxter was right when he regretted that the legal concept of terrorism, as ambiguous and imprecise as it is, was inflicted upon us, with dubious utility or added value from the legal standpoint.Footnote 2 Be that as it may, whatever one says about terrorism, strong passions are likely to be involved and strong reactions should be expected. Legal reasoning and arguments about terrorism bring immediately to the fore animosity if not sheer confrontation based on value judgements and political bias. On the other hand, international humanitarian law (IHL) is perceived as a highly technical branch of international law, the repository of which is a restricted circle of individuals, many of whom are based in Geneva. But there is one thing that the legal discourses about terrorism and IHL seem to have in common: although for entirely different reasons, both seem cryptic and fairly inscrutable. 9/11 has caused them to meet and the encounter has caused a clash of legal cultures and mindsets, which has not rendered the law applicable to them any clearer or any more accessible.Footnote 3
Indeed, accessibility, broadly understood to include also intelligibility, is a primary value in our profession. Remember Franz Kafka's parable ‘Before the Law’?Footnote 4 ‘Before the law sits a doorkeeper.’ To this doorkeeper, there comes a man from the countryside asking to have access to the Law, whose gate is left open for him to peer through. But the doorkeeper says he cannot grant him entry at the moment and he keeps him waiting all his life. The countryman is curious but he is afraid of the doorkeeper, who says that other dreadful doorkeepers, more powerful than him, stand by the other rooms inside. As the poor man is about to die, he waves to the doorkeeper and asks why no one else in all these years has ever begged for admittance. The doorkeeper answers ‘No one else could ever be admitted here, since this gate was made only for you. I am now going to shut it’.Footnote 5 This is not what the law should be about. People must be let in, even if, inside, things are not arranged as neatly and tidily as one would expect. It is the duty of the gatekeeper to let people in and to allow them to see what there is inside. But I understand that this would diminish his power as gatekeeper. Yet I wish gatekeepers could act differently.
The legal regime of international humanitarian law might appear, at least at first sight, as the most appropriate response to acts of terrorism.Footnote 6 IHL is built upon the principle of the protection of civilian life and property, the clear distinction between military objectives and civilian objects, the prevention of unnecessary suffering, and the unequivocal condemnation of acts that breach those cardinal principles. Terrorism, as commonly understood, is clearly an example of criminal behaviour, which goes against these fundamental principles of IHL. Moreover, some of the tools of IHL can also be helpful in combating terrorism – they allow the detention of persons posing a threat to the security of the state for as long as that threat lasts, they allow the targeting of individuals directly participating in hostilities, they prohibit acts of terror and terrorism, and they provide for a system of enforcement of these rules. Yet terrorism in and of itself is not inherently related to armed conflict and only comes under the regulation of IHL in certain particular situations. History as well as recent practice bears witness to the difficulty of making the factual and legal characterizations that lead to the identification of such situations. That is where the problems lie.
Against this background, rather than providing a comprehensive overview of the numerous ways in which terrorism may intersect with IHL, I have selected a limited number of issues drawn from the main domains of IHL. Incidentally, they coincide with what I think are some of the grey areas where further legal as well as policy analysis is required. These are (i) the characterization of the nature of armed conflicts, both international and non-international, involving armed groups qualified by one of the parties as terrorist groups and the question of what law is applicable to such conflicts; (ii) the characterization of terrorism as a war crime; and, more briefly, (iii) the determination of the status of terrorist suspects apprehended in the course of an armed conflict and the issue of which treatment they are entitled to, including detention standards.
The analysis will be carried out primarily by focusing on the crucial importance of legal characterization and the use of legal categories to determine normative outcomes,Footnote 7 as well as on the importance of taking societal practices duly into account when evaluating the state of the law in any given area.Footnote 8 Furthermore, throughout the paper, use will be made of literary references to illustrate the more mundane aspects of the often tragic realities underlying legal regimes. Finally, (iv) the significance of these three τóποι or loci will be appraised. In particular, reliance on the insights drawn from literature will be explained. I lay no claim to do justice to the law & literature (L&L) movement, of which I am no (conscious) adherent.Footnote 9 Mine is just an occasional encounter that only allows for some basic insights to be drawn from a particularly inspiring way of looking at the law.Footnote 10 The lightness of the approach, however, should not be taken to understate the potential for a more profound impact on the understanding of terrorist violence and armed conflict through the looking glass of literature. Literature is a powerful reminder that the law is not a set of neutral rules elaborated independently of context and historical background, that the human condition remains central, and that legal regulation cannot be oblivious to it, including its most dramatic aspects.
Literary narratives can help us to better understand that the rigidity of legal categories may have to adjust or even yield, at times, to the pressing needs of changing societal contexts if they are to discharge the social regulatory function for which they have been created in the first place.Footnote 11 Finally, it is also worth looking at some techniques of interpretation, developed in the field of literary studies, to shed light on some of the difficult interpretive issues one is confronted with when dealing with IHL and terrorism.Footnote 12 If the grey areas of the law are to be clarified, an interpretation that focuses more on the social consensus of the actors involved about the meaning of legal prescriptions, rather than on abstract rules of interpretation, is likely to be more conducive to establishing agreement among legal operators and decision-makers on how to apply IHL rules.Footnote 13
2. International armed conflicts
War novels have a long tradition. It is as if literature were used by humankind to exorcize the evil of war. Leo Tolstoy's saga of the Napoleonic Wars, War and Peace, described the disruptive effects of war on Russian aristocratic society.Footnote 14 Later, Erich Maria Remarque's All Quiet on the Western Front accurately illustrated the physical and mental duress of war in the trenches, the dehumanizing effect of combat, and the estrangement and alienation of the soldier's life.Footnote 15 Admittedly, war has changed a great deal since, even though its evil continues disrupting human lives.
If the phenomenology of war and armed conflict has changed over time, this is not without consequences for the rules regulating them. Indeed, legal categories are supposed to be applied to factual matrices that are identified beforehand in general and abstract terms. In other words, law provides regulation for certain facts or activities that – experience suggests – occur or take place in a certain fashion. Most of our work is taken up with ‘characterizing’ these facts with a view to determining what the applicable rules are. This premise is particularly relevant as one sets out to explore the scope of application of international humanitarian law in relation to terrorism.
According to the traditional paradigm of IHL, in particular Article 2 common to the four Geneva Conventions, international armed conflict is necessarily inter-state armed conflict.Footnote 16 The military intervention by the United States and other states against Afghanistan in 2001, in response to the 9/11 attacks, can be characterized as an example of an international armed conflict regulated by the Geneva Conventions. The refusal by the United States to apply the Geneva Conventions to al-Qaeda fighters and Geneva Convention III to the Taliban apprehended in the course of the conflict, with the only guarantee that the prisoners should be ‘treated humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva’, casts doubt not on the characterization of the conflict, but rather on the will of a contracting party to the Geneva Conventions to apply them properly.Footnote 17
There are two requirements in order for Article 2 common to the four Geneva Conventions to apply: the existence of an ‘armed conflict’ between two or more of the high contracting parties and state involvement.
As the distinction between international and non-international armed conflicts seems to be of diminishing importance in international practice, some degree of intensity, to be appreciated on a case-by-case basis, appears to be required, even when the armed forces of two or more states are involved. This criterion is instrumental to distinguish such instances of practice as ‘border clashes’, ‘skirmishes’, and ‘minor incidents’ that states do not tend to regard as giving rise to an international armed conflict, properly so-called.Footnote 18 To hold international humanitarian law applicable only to situations in which the violence has attained a certain threshold of intensity seems all the more reasonable as one realizes the different logic that permeates this branch of the law as opposed to the ordinary operation of domestic criminal law, to which situations that do not attain a certain level of intensity are more suitably deferred. Different considerations apply to the other requirement for the identification of an international armed conflict, namely state involvement.
Since the armed conflict must take place between two or more high contracting parties of the Geneva Conventions in order to be qualified as international, the issue of determining state involvement is crucial, particularly in those cases in which such involvement may be controversial. The most difficult issue has turned out to be the determination of the criteria whereby state involvement is to be ascertained for the purposes of characterizing a conflict as an international one.
The divergent evaluation of the criteria of attribution to a state of the conduct of groups of individuals under the law of state responsibility, made by the ICJ in Nicaragua (effective control)Footnote 19 and by the ICTY in Tadić (overall control),Footnote 20 is known as one of the more prominent examples of conflicting jurisprudence in international law. In this respect, the most interesting insight is the one provided by the ICJ in the Genocide case,Footnote 21 wherein the Court held (i) that the test to determine the international character of a conflict does not need to be based on the criteria for attribution under the law of state responsibility, and (ii) that the ‘overall control’ of a state over an armed group, elaborated by the ICTY in Tadić, might well be a suitable criterion for the purpose of characterizing a conflict as international.Footnote 22 Indeed, strong policy arguments exist to promote an expansive use of the notion of state involvement. Given that the protections provided by international humanitarian law rules applicable to international armed conflicts are substantially wider and more advantageous to civilians, the attempt to expand their scope of application by broadly characterizing international armed conflicts can be regarded as a legitimate aim to be pursued in order to foster the protection of international humanitarian law. This point was accurately made by the ICTY Appeals Chamber in the Aleksovski case.Footnote 23
Such recent developments notwithstanding, recent practice attests to the difficulties of characterizing an armed conflict. As regards uses of force against terrorist groups, a certain number of examples can be drawn from international practice. An apt illustration is the use of armed force against terrorist groups in a foreign state's territory not controlled by that state.Footnote 24
For our limited purposes, let us assume that certain states, usually referred to as ‘fragile states’, are incapable, for structural or contingent reasons, to discharge their obligations under international law, including the obligation to prevent use of their territory for the perpetration or preparation of acts against the security of other states. The use of armed force by a foreign state against groups of individuals in the fragile state's territory causes one to wonder whether international humanitarian law should apply, provided that a certain threshold of violence is met. The state- involvement requirement is, quite obviously, problematic. If, formally, two states are involved, as armed force is used by one state in the territory of another state, in practice, hostilities do not directly involve the fragile state's armed forces, for, by definition, the latter state is not in control of the territory (or parts thereof) in which the conflict takes place.
The military intervention of the Israeli Defence Forces in Lebanon in the summer of 2006 raised similar questions. Despite Lebanon's repeated claims of lack of involvement and lack of knowledge of the occurrences in the southern part of its territory,Footnote 25 the qualification of the conflict as an international one met with widespread consensus.Footnote 26 In fact, an interpretation of Article 2 of the Geneva Conventions that expands its reach to conflicts involving a state that is unable or unwilling to disarm, disband, or otherwise control armed groups fighting against another state does not seem unreasonable.
If, in the debates within the Security Council, only sparing reference was made to the applicability of international humanitarian law – and even more rarely, to the Geneva Conventions, thus acknowledging the international nature of the conflict – this was due to the fact that primary attention was devoted to discussing the lawfulness of Israel's recourse to force.Footnote 27 Israel, however, did not consider captured Hezbollah fighters as prisoners of war and charged them with terrorist offences to be prosecuted under the ordinary justice system,Footnote 28 thus highlighting that even when states accept the constraints of the international humanitarian law applicable to international armed conflicts, they are not necessarily ready to submit to all of its legal consequences.
An even more challenging case is represented by the recent conflict in the Gaza Strip, where Israel militarily intervened to hit Hamas positions and activists in December 2008–January 2009. If the threshold of violence was surely met in the circumstances, the peculiar and ambiguous status of the Gaza Strip under international law further complicated an already uncertain scenario. Curiously, Security Council Resolution 1860 defined Gaza as an integral part of the territories occupied by Israel in 1967 and part of the future Palestinian state, forgetting to tell us what Gaza is at the present time!Footnote 29 If an expansive reading of Article 2 could be plausible for the states parties to the Geneva Conventions, quid for an entity that is not yet a state?Footnote 30 Such formalistic preoccupation did not prevent many states from invoking the applicability of rules of international humanitarian law. The problem, however, is that hardly any specific indication was given as to which particular rules of international humanitarian law were applicable and why.
Looking at the reaction by states to the hostilities that brought Israel to re-enter Gaza in January 2009, it is worth noting that many states, including those belonging to the Non-Aligned Movement, looked at the situation in Gaza as one of continuing occupation by Israel.Footnote 31 With the exception of a few states that made express reference to the applicability of Geneva Convention IV, this call for respecting international humanitarian law was left unqualified, consistently with a trend, which seems to have firmly established itself in recent practice.Footnote 32 In other words, whenever military force is used on a less than negligible scale by a state, the immediate reflex for states is to invoke the applicability of international humanitarian law, regardless of any more accurate qualification of the conflict. Equally significant is the reluctance by states to invoke respect for human rights law in such contexts. This seems to be at variance with the widely shared contention, in legal scholarship, that international humanitarian law and human rights law are complementary even in a situation of armed conflict.Footnote 33
3. Non-international armed conflict
The carnage, bloodshed, cruelty, and sufferance of war are no less disruptive in non-international armed conflicts (NIACs). It suffices to think of Ernest Hemingway's For Whom the Bell Tolls, most likely his most famous war novel, set against the background of the Spanish civil war.Footnote 34 The constant presence of death and the ambivalent feeling fighters committed to a cause have towards it, the disruptive impact of love encounters in a setting of peril and death, and the fear of the enemy's warfare machinery are all themes that Hemingway's talent projects from the contingencies to the universality of the human condition in a situation of conflict. The disruptive force of violence and terror are also at the centre of a recent, albeit not well known, novel by Colombian writer Evelio Rosero, who, in his award-winning novel The Armies, describes the devastating effects on the human psyche of witnessing the extreme violence of Colombian civil war.Footnote 35
As far as NIACs are concerned, three remarks are in point. First, as is well known, the definition of NIAC has historically been an area of controversy in IHL. States have tended to be reluctant to admit the existence of a level of hostilities between governmental and non-governmental forces or between such forces that would trigger the applicability of IHL obligations. This is largely due to the fear that recognizing an insurgent group as a party to a conflict will give them legal status and legitimacy. One of the unfortunate consequences of 9/11 is that ever since, the military operations of governments in states experiencing internal armed conflicts have been increasingly justified as part of the global anti-terrorist campaign, rather than as acts of warfare in an Additional Protocol II (AP II) conflict, even when the conditions for the applicability of the protocol were present.Footnote 36 As a result, the prospects for peace in such situations as well as compliance with IHL standards by all parties to the conflict are unlikely to improve.
The second difficult issue, yet again one of characterization, concerns the scope of application of Common Article 3, which lays down some fundamental guarantees and minimum humanitarian principles applicable to an armed conflict not of an international character occurring in the territory of one of the high contracting parties. The two elements, which have proven controversial as regards the applicability of Common Article 3, are the identification of an armed conflict as well as the scope of the territorial-requirement clause.
As regards the requirements for the existence of an NIAC, a cursory consideration of recent practice allows one to spot a number of relevant factors that are instrumental to ascertain the existence of a conflict.
The ICTY Appeals Chamber's 1995 decision in Tadić stressed the importance of ‘protracted armed violence’ between a government and armed groups or between such groups.Footnote 37 In fact, the Trial Chamber in Tadić interpreted the test laid down by the Appeals Chamber as requiring evidence of (i) intensity and (ii) organization of the parties.Footnote 38 Many trial chambers have subsequently adopted this two-pronged test, which serves to distinguish ‘an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law’.Footnote 39
Inconsistencies remain, however. While the ICTY Trial Chamber determined that the criterion of protracted armed violence refers more to the intensity of the armed violence than to its duration,Footnote 40 the ICC Pre-Trial Chamber opted for a slightly different interpretation, finding that the criterion of ‘protracted armed conflict between . . . [organized armed groups]’ focused on the need for the armed groups ‘to have the ability to plan and carry out military operations for a prolonged period of time’.Footnote 41
A number of indicative factors relevant for assessing the ‘intensity’ criterion and the organization of the parties have been identified by the ICTY Trial Chambers, none of which is, in and of itself, essential to establish that the criterion is satisfied. However, the definitional guidance of ‘armed conflict’ provided by the ICTY Appeals Chamber in Tadić has not only been influential at the level of international tribunals. It was accepted by the Commission of Inquiry on Darfur,Footnote 42 it is reflected in the ICC Statute,Footnote 43 and it appears to have affected also the case law of domestic courts. Evidence of this can be traced to the two decisions of the Asylum and Immigration Tribunal in the United Kingdom, respectively on the qualification of the situation in Somalia in 2007 and in Iraq in 2008 as armed conflicts of a non-international character.Footnote 44 The Tribunal held that the principal criteria for an internal armed conflict being found to exist were, in summary form: ‘parties to the conflict’, ‘degree of organisation’, ‘level of intensity’, ‘protraction’, and ‘other relevant factors’.Footnote 45 The Tribunal considered as a ‘prominent’ factor whether the conflict had been admitted to the agenda of the UN Security Council or General Assembly, and also whether the ICRC had expressed any official characterization of the conflict.Footnote 46
The second controversial element is whether or not the conflict must be confined to the territory of a state party to the Geneva Conventions for Article 3 to apply. This was almost certainly the intention of the drafters.Footnote 47 Also, subsequent judicial practice seems to confirm that the conflict must take place within a state.Footnote 48 However, the US Supreme Court in Hamdan held Article 3 applicable to the conflict between the United States and the terrorist network of al Qaeda.Footnote 49 Although technically inaccurate, from the standpoint of the traditional categories of IHL, the broad interpretation, by the US Supreme Court, of the scope of application of Article 3 was well-intentioned, at least from the perspective of providing some minimum guarantees to terrorist suspects in what the US government and the Supreme Court themselves regarded as an armed conflict.Footnote 50 The attempt has met with some scholarly approval.Footnote 51 In principle, I see nothing wrong in going beyond traditional legal categories, as these should not be regarded as immutable, but societal consensus is needed if one wants to provide a different interpretation. In this respect, it certainly is premature to state that international-law actors will subscribe to this view and adjust their practice to this judicially made interpretive development. In other words, practice has not yet sanctioned such a broad interpretation of Article 3. Nor does the contention that Article 3 guarantees are customary in nature help solve the riddle of its applicability to conflicts not occurring merely in the territory of one state. The customary nature of the substantive content of a rule and its scope of application remain two distinct questions.
Finally, I believe that it is a cause for regret that the attempt to elaborate a codification of minimum standards of humanity applicable in all circumstances never materialized. The initiative, which first originated in civil-society and legal-professional circles and was later endorsed by the United Nations,Footnote 52 seems to have lost momentum in recent years.Footnote 53 The blurring of the traditional categories of international humanitarian law and the challenges currently brought to its scope of application attest to the handy character that any such standards would have had in the recent circumstances of the war on terror. Had a carefully drafted document been produced and adopted at the UN level, listing a minimum set of fundamental standards of humanity applicable in all circumstances, it would have been more difficult for states to circumvent fundamental humanitarian protections by simply mischaracterizing the factual situation in which they are to apply.
4. International criminal law
The compelling reasons that led to the negotiations of the Geneva Conventions after the end of the Second World War are well known. The atrocities committed against civilians during the war surely account for one of the most, if not the most, important. Such atrocities are often evoked and the most touching accounts, memoirs, and novels have been written to describe the horror. Rarely, however, has the story of the victims been described or fictionally represented from the perspective of the butchers. I was indeed stunned at reading a novel that was a great success in the French-speaking world, apparently less so in English-speaking countries. The book I am referring to is Les bienveillantes, by Jonathan Littell,Footnote 54 later translated into English as The Kindly Ones.Footnote 55 Quite apart from the genial title, which makes reference to the transformation of the terrible Erinyes, the goddesses of vengeance and punishment, into the good-hearted Eumenydes in Aeschylus’ cycle of tragedies Oresteia,Footnote 56 the book is a real masterpiece – in particular for the way in which it realistically accounts for the carnage and the massacres perpetrated by the SS Einstazgruppen in Occupied Eastern Europe and for all the other atrocities that were committed by the Nazis in concentration and extermination camps. Fear, angst, humiliation, debasement, terror, and even the grotesque are skilfully represented by the author, who makes us experience, through the medium of literature, the feelings of the civilian victims. Gruesome bodily details add up to the disconcerting uneasiness one gets in reading about horror. Even the unsaid, what is left for the reader to imagine, is a powerful representation of horror and human depravation.
Civilians are now protected by IHL, and some of these rules – like the principle of distinction – are considered intransgressible principles of IHL, to use the cacophonous but unambiguous term used by the ICJ.Footnote 57 Civilians cannot be attacked and are protected in a number of different ways, including from collective punishment, reprisals, and acts of terrorism. Article 33 of the fourth Geneva Convention expressly lays down this prohibition. Furthermore, Article 51(2) of Additional Protocol I prohibits acts or threats of violence the primary purpose of which is to spread terror among the civilian population. Analogous provisions are contained in Protocol II applicable to non-international armed conflicts.Footnote 58
The political and legal association of terrorism with war in recent times has had the effect of bringing to the fore the question of whether acts of terror perpetrated in armed conflict constitute war crimes. International and hybrid courts alike have grappled with the criminal elements of ‘acts of terror’ and ‘terrorization’, resulting in the development of new practice on the matter.
The recognition that such offences may amount to war crimes transpired in the mid 1990s. The ICTR Statute included acts of terrorism within the list of war crimes in NIACs.Footnote 59 Although the ICTY was not given the same specific competence, the Trial Chamber and the Appeals Chamber of the ICTY held in 2003 and 2006, respectively, that the crime of terror is covered by Article 3 of its statute concerning the violation of the laws and customs of war.Footnote 60 This was done in the Galić case in which the ICTY condemned General Galić, the responsible commander of the Bosnian Serbs during the siege of Sarajevo, for acts of terror, as a consequence of the shelling and sniping campaign directed against civilians. In particular, General Galić was found guilty of acts the primary purpose of which was to spread terror against the civilian population, according to Article 51(2) of Additional Protocol I (AP I). The Appeals Chamber held that this was a violation of a customary rule of international law, which engaged the individual's criminal liability, under customary law, at the time of the commission of the acts.Footnote 61 The minority harshly criticized this finding. In particular, Judge Schomburg contested the method and the evidence used by the majority in construing the relevant norms of customary international law.Footnote 62 Be that as it may, the Galić jurisprudence was later followed also by the Special Court for Sierra Leone.Footnote 63
In its 2007 judgement in Milošević, the ICTY Trial Chamber elaborated upon the notion of terror in the civilian population, as distinct from the normal effects of legitimate warfare on a civilian population. The Trial Chamber described terror as ‘the intentional deprivation of a sense of security . . . [a] fear calculated to demoralise, to disrupt, to take away any sense of security from a body of people who have nothing . . . to do with the combat’.Footnote 64 In determining what constitutes terror, ‘the circumstances of a particular armed conflict must be taken into account’.Footnote 65 Thus, for example, the greater the proximity of the theatre of war to the civilian population, the more it will suffer from both fear and intimidation; such would be particularly the case, according to the Trial Chamber, in armed conflict conducted in an urban environment, where legitimate attacks against combatants may cause intense fear and intimidation in the civilian population.
What is interesting about this strand of case law is that it implies that under IHL, and more particularly under Article 51(2) of AP I and Article 13(2) of AP II, what seems to be determinant for the identification of the mens rea of terrorization is the primary purpose of the act, which must be the specific intent of spreading terror among the civilian population. No actual harm is required, the identity of the perpetrators as well as their motive being regarded as irrelevant.Footnote 66 The specific intent might not always be as easy to prove as in Galić, but that is a distinct issue.
Interestingly enough, this debate echoes the doubts one is left with as to the real intent of Adolf Verloc, the protagonist of Joseph Conrad's novel The Secret Agent, set in nineteenth-century London at the time of the anarchist bombing of the Greenwich Observatory.Footnote 67 In carrying out his anarchist bomb attack, which resulted in the killing of his brother-in-law, Verloc's motives are unclear. His wife, Winnie, who, upon learning what had happened, stabbed him to death, must have had her own conviction about it, but Verloc's stated intention of causing no casualties leaves the reader in doubt as regards his dolus or specific intent.
5. Status, treatment, and detention
The notions of legal status, treatment, and detention are symbiotically connected in IHL. A person's legal status in armed conflict determines whether they may be detained, for how long a period, and on what grounds. Status may also entail a specific regime of treatment by the authority in whose hands the person finds himself or herself, including rules regarding interrogation, conditions of transfer, and so on and so forth. The specific judicial guarantees assigned to persons being detained on criminal grounds are also directly linked to status. Uncertainty – at least in terms of recent practice – surrounds the legal status to be attributed to terrorist suspects due to the difficulty, or reticence, of states to accord (i) POW status to members of militia groups belonging to a party to a conflict who have allegedly committed terrorist acts, or (ii) civilian status to persons who are not members of the armed forces but who may have been involved in acts of terrorist violence during armed conflict.Footnote 68
Blatant disregard for categorizing properly the status of individuals apprehended in the course of an armed conflict has produced the aberrant and abhorrent phenomenon of Guantánamo and secret detention centres.Footnote 69 Legal categorizations under IHL have been preposterously used to justify the inapplicability of the Geneva Conventions to the war against international terrorists, with a view to depriving individuals of their fundamental rights, regardless of the nature of the offences of which they are accused.Footnote 70
‘Guilt is never to be doubted’, used to say the Officer in another upsetting short novel by Franz Kafka: In the Penal Colony.Footnote 71 In a powerful allegory of oppressive power, Kafka describes a penal colony in which the Officer operates a Machine, which, automatically, without any trial or defence, sentences to death and executes (after torturing them) all those who are put inside it.
The complexity and rigidity of IHL categories may have provided an excuse to set the law aside altogether and to use the logic of Kafka's Machine in its stead. It is of note that in this domain, some initiatives geared towards simplifying or clarifying the regulatory framework got under way recently, with the ICRC the initiator and the main driving force behind them. Reference is hereby made to the administrative-detention guidelines, which cleverly put together a set of ‘Procedural principles and safeguards for internment/administrative detention in armed conflict and other situations of violence’,Footnote 72 and to the ‘Interpretive guidance of the concept of direct participation in hostilities under IHL’,Footnote 73 which is a bit less of a simplifying or clarifying effort, but which nonetheless was prompted by the same compelling needs. Indeed, I believe that this is the way forward for all of those grey areas and lacunae with which the interpreter is confronted in dealing with issues related to terrorism and armed conflict. Soft-law instruments are likely to be far more expedient and effective than any formal step taken at the diplomatic level. Moreover, they have the advantage of engaging the actors in a process of adjustment without the rigidities of formal amendments to the Geneva Conventions and related instruments. Inevitably, when societal consensus is not there, they will reflect the divide, although, by their very existence, they may contribute to diminishing the areas of disagreement and exclude some of the least desirable outcomes.
6. Appraising the τόοι
As announced at the outset, the cursory treatment of the topics related to terrorism in armed conflict has been carried out on the basis of a tripartite structure. First, I have stressed the fundamental importance of characterization, as the identification of the applicable rules is dependent on the way in which one subsumes certain factual matrices into pre-existing legal categories. Second, I have, as much as possible, made reference to societal practice, namely the conduct of the actors involved in international legal processes. Third, I have often had recourse to literature. Let me now briefly take up these three τóποι or loci to illustrate their significance.
6.1. Characterization/qualification
All the substantive issues I have touched upon presuppose an issue of characterization: the international or non-international nature of the conflict and its applicability to conflicts involving terrorist groups, the characterization of terrorism as a war crime, and the qualification of the status of terrorist suspects for the purpose of determining their treatment in armed conflict. This process of characterization, as any other interpretive exercise or practice, is hardly ever a neutral one.
Categories are not immutable abstractions into which sets of facts can be squeezed regardless of whether or not they fit.Footnote 74 They are neither written in stone nor must they be taken to function invariably in a binary mode, in an all-or-nothing, either/or, black-or-white kind of fashion.Footnote 75 Moreover, their characteristic traits of boundedness and fixity are more apparent than real. First, the very choice of which categories to use may produce dramatically different outcomes. Second, what categories actually mean or stand for is, in itself, subject to interpretation. By no means is this heading towards any relativism of sorts, as choices must be justified and interpretive processes must be grounded on social consensus.Footnote 76 But categories ought to be regarded as having some degree of flexibility, within the constraints I have just mentioned, and be looked at as an asset and as a potential tool for change when the societal body demands a readjustment of normative policies. Ultimately, this is an invitation to think not exclusively within the law, but also about the law.Footnote 77 And if we think about the law, we cannot abstract ourselves from its underlying social reality. This latter remark leads me to the second τóποσ.
6.2. Societal practice
The conduct of the actors of international legal processes cannot be overlooked. Law finds its reason in the existence of a community, all the more so in international law, where the law stems directly from the societal body. Claims are put forward and they are either accepted or rejected against the background of what is perceived to be the law by the actors themselves. There cannot be any effective regulatory, adjudicatory, or enforcement schemes in international law in the absence of a sufficient degree of societal consensus. It is quite obvious that I am not talking about states’ consent in the old positivistic or voluntarist fashion.
Two major indications seem to originate from the analysis of societal practice. First, there is consensus on keeping the regulatory framework of international humanitarian law in place. Universal participation in the Geneva Conventions attests to the importance of this patrimony of consensus. Second, there are grey areas in this body of law on which consensus is either broken or evolving in a different direction from that which inspired their adoption. In many instances, it is preposterous to say that the law says this or that. It is the task of academic analysis not to direct the course of future political action, but rather to warn about which consequences the development of certain normative policies might entail. In these areas, it is of paramount importance to reconstruct or build up consensus among the social agents, particularly states and such institutional actors as the ICRC. Soft law can play an important role in this respect.
Whatever branch of the law one is concerned with, including IHL, an effort should be made never to indulge what I would term ‘armchair theorizing’, namely making abstractions and developing theories that are far removed from the social reality that they aim to regulate. Admittedly, a certain strand of scholarship has favoured the emergence of such a bias, particularly by projecting into the practice the ideal of an absolute, rational coherence, detached from reality and removed from the actual practices of the agents. According to Pierre Bourdieu, this amounts to a most serious epistemological error, that of ‘putting a scholar inside the machine’, with the undesirable effect of ‘picturing all social agents in the image of the scientist, or, more precisely, to place the models that the scientist must construct to account for practices into the consciousness of agents as if they were the main determinants, the actual cause of the practices’.Footnote 78 While such transpositions might help one's academic career, they are highly unlikely to contribute to the cause of protecting individuals in armed conflict.
6.3. When IHL encounters literature
Finally, let me broach the last τóποσ or locus and this time the term is indeed in point, as I am talking of the literary references that I have used. One might be tempted to think that such references are but the affectation of erudition by not too humble a writer. The irony is that the same writer despises such affectations. Moreover, tradition has it that a good lawyer must be fairly ignorant and not too curious about what the law is about and, most of all, about what happens outside the law. Incidentally, these are the words of one of the most eminent international lawyers of the last century, Sir Gerald Fitzmaurice, admittedly not an ignorant person.Footnote 79
Literature has a powerful universalizing, often cathartic, role.Footnote 80 Suffice to think of The Pianist,Footnote 81 the memoirs of Wladyslav Szpilman, the Polish pianist who survived the Holocaust and whose story was brought to the screen in Roman Polanski's Academy-Award-winning movie.Footnote 82 When the Nazi officer spots Szpilman in one of his hideouts in Warsaw towards the end of the German occupation, the world seems to collapse and death draws near. And yet Szpilman starts playing Chopin's Nocturne in C sharp minor . . . and all of a sudden, the officer is reconciled with his lost humanity and we relieve the tension just in time to realize that, for once, reality and its fictional representation are one and the same thing. Touching . . . .
Through literature, we may perceive or even see things that not even the most sophisticated legal analysis will ever allow us to see or even to imagine. Literature is also a powerful reminder that what terrorism and armed conflict are about is not just legal technique and rules of IHL. They are about death, wounds, blood, maiming, bereaved persons, hatred, madness, terror, fury, fear, angst, vomit, urine, stench, disease, annihilation, death again.
Literature provides healthy insights on the most mundane aspects of the extreme violence of war and helps us look at it either from the microcosm of the individual or from the universal perspective of humanity. Either way, it puts the human condition at the centre of analysis.Footnote 83 By drawing attention to the concrete experiences of the individual or the collectivity, literature may provide stories that express particular points of view, may create empathy and awareness that all those who are the subjects or the addressees of legal rules are also individuals in specific historically situated, real contexts. The abstract rationalization of the law and the too often complex character of legal regulation can be mitigated by an approach that is more considerate of facts, history, context, and society with a view to making legal processes more attuned to their underlying social realities.Footnote 84 To have recourse to literature to develop such reflexivity shows the need for a certain type of sensitivity rather than for the application of a particular legal methodology.Footnote 85 It creates a critical conscience and smoothes the rigidities of legal categories by emphasizing their contingent, mutable character. Far from being a neutral account of reality,Footnote 86 this approach, which focuses on particular experiences and individual lives, ought to be seen simply as an instrument to develop awareness that certain abstract characterizations of the law and its general rationalizing aspiration may not be left to operate in a human vacuum.Footnote 87 Does that provide an immediate instrumental utility? I do not know, but it makes us more circumspect, hopefully more reflexive, and it helps to enhance the responsibility that comes with our profession.Footnote 88
One may say that this is not our business as lawyers, that Richard Posner's harsh criticism of law and literature as a misunderstood relationship is well taken, as the human condition has nothing to do with the legal setting.Footnote 89 I personally do not agree with that. Nor am I willing to accept this type of criticism from one of the founders of the law and economics movement who has placed at the centre of his rational-choice theory not an individual human being, but a fiction: the Homo oeconomicus.Footnote 90 Yet even Posner acknowledges the importance of teaching and discussing certain aspects of law and literature, ‘such as interpretation, the use of literary techniques in legal writing, the claimed humanizing effect of literature on law’.Footnote 91 Such recognition recasts, in more moderate terms, the heated debate between Posner on the one hand and the L&L movement on the other and shows that different sensitivities to reading and doing law may be complementary tools rather than opposite views of the profession . . . and the world.
To me, literature is a powerful force, which may help us free ourselves from the shackles of formalism and rigidity, inject some ethical values into what is too often perceived as an aseptic, detached, value-free professional activity. Literature has value as an antidote to the venomous attitude of conceiving the law merely as techniqueFootnote 92 and as a reaction to the increasing application of economic analysis and social-sciences methodology to legal studies.Footnote 93
But reference to literature is also inspiring, as it allows us to realize that, also in law, different narratives may be at work at the same time and that they are not necessarily interwoven into a single common thread. The need to play with various narrative levels is a lesson as important to the successful writer as it is to the good lawyer.Footnote 94 Finally, law as literature can teach us a fundamental lesson about how to deal with social or community practices and how to reconstruct the meaning of rules by way of interpretation. By pointing out that the authority of interpretation does not lie in the self-evident and immutable character of the text, but rather in the social consensus of an interpretive community of agents and by underscoring that it is precisely this social consensus that makes an interpretation authoritative, literary criticism may teach an important lesson to law.Footnote 95 That is an interesting line of inquiry that lawyers should further explore.Footnote 96
7. Conclusion
When facing the horror of the extreme violence of war and the heinous character of acts of terrorism, law is expected to provide a suitable regulatory framework and effective mechanisms to punish deviant behaviour. IHL is generally thought to be sufficiently well suited to do so. However, some of its general categories and specific rules are often perceived as either too rigid or too complex. Furthermore, in dealing with them, lawyers usually show little consideration for the underlying social realities. It may very well be that law's ‘self-enclosure’ is the price to be paid to account for its distinctiveness. I honestly do not know whether this is true, but I certainly think it would be a pity were it to be so.Footnote 97
IHL aspires to humanizing war. It seems to me difficult to attain that goal without any empathy with the human condition at times of extreme violence. Literature is no substitute for law; it simply helps to understand better the human context in which the latter operates. For this purpose, legal technique is just not enough. While law and literature as disciplines tend to present themselves in utterly different terms, there is a certain affinity between them. Both are concerned with the interpretation of texts, both create and rely on symbols and myths and use rhetoric in a self-constitutive fashion, and both shape reality through language. Even such an occasional encounter is enough to realize that they are not irreconcilable ways of looking at the world.
