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Понятие гражданских лиц в международном контртерроризме The notion of civilians in international counter-terrorism
Алиев Темирлан
Студент 6 курса Факультет Юридический Российский Университет Дружбы Народов ул. Миклухо-Маклая, 6, Москва, 117198 e-mail: aliev-temirlan@inbox.ru
Aliev Temirlan
Student 6 term Faculty of Law Peoples' Frienship University of Russia st. Miklukho-Maklaya, 6, Moscow, 117198 e-mail: aliev-temirlan@inbox.ru
Аннотация.
В статье рассматриваются основные вопросы, вытекающие из концепции современной борьбы против терроризма, которые порой вызывают спорные мнения по поводу методов ее проведения.
Annotation.
The article discusses the main issues arising from the concept of the modern fight against terrorism, which sometimes cause controversial views about its methods.
Ключевые слова: Конттерроризм, права человека, гражданские лица, МГП.
Key words: Counter-terrorism, human rights, civilians, IHL.
There is a specific issue concerning the status of civilian, which takes place within the concept international counterterrorism. Today the notion of a member of terrorist group is very vague since international law does not currently contain a clearly agreed definition of "terrorism" and "terrorist". Since the beginning of the 1990s, the UN has attempted to define these concepts and draw up a single holistic treaty. However, all attempts now remain only in draft form and it could not be embodied as a full-fledged agreement. On the other hand, at the moment there are several conventions that are designed to provide States with certain standards of counter-terrorism. However, they are oriented towards international cooperation in preventing terrorism, hence taking certain measures, such as preventing the financing of terrorist organizations, restricting the movement of certain individuals, etc.
As the States today lack specific legal instrument that would completely regulate and direct their counterterrorism actions within the framework of IHL, they, in turn, are inclined to make up their vision of terrorism and to draw their own pictures of who the terrorist is. Therefore, very often counterterrorism measures on the part of States run counter the provisions of laws and customs of war.
IHL, in its turn, mentions the concept of terrorist acts and defines them as violence deliberately directed against civilians in order to spread fear among the civilian population. Thus, this is a violation of humanitarian law. Nevertheless, IHL does not give a clear definition of such persons. However, IHL is not required to do so, since this law considers that a ban of terrorist acts is sufficient. The problem is that States are usually inclined to mark as terrorist even those acts that are not forbidden by IHL. For example, IHL does not prohibit the use of violence against members of the enemy armed forces. However, if during an internal armed conflict a person attacks a soldier of State's army, the State calls him terrorist and punishes that person to the fullest extent of its domestic law. Moreover, if for the State a given person is a terrorist, then for the local community he may well be a hero, or maybe even that person is just a civilian indeed.
Actually, current international counter-terrorism originates, as many experts state, after September 11, 2001, when the United States suffered an attack on its territory by the so-called terrorist organization Al Qaeda and declared a "war on terror". This led to different anti-terrorist operations led by the United States, along with their allies in the territories of third States such as Afghanistan, Iraq, Pakistan, and some other countries.
In order to consider the notion of civilian in the framework of international counterterrorism it is necessary to pay attention to two aspects in which his status is abused: in terms of conducting an attack and in terms of detention. In both aspects, the status of persons envisaged by IHL in accordance with the principle of distinction has been blurred. If IHL claims that there are combatants, on the one hand, and there are civilians, on the other, and that the latter should enjoy immunity from direct attacks, then the concept of counterterrorism proposes the third category of persons.
Very often civilians participating directly in armed conflicts are referred to as unlawful or illegal combatants in legal literature, military manuals and case law. The term "unlawful combatants" was first used by the U.S. Supreme Court in 1942 when in the case Ex parte Quirin it stated that law of war makes distinction between those who are lawful and unlawful combatants; unlawful combatants are likewise to lawful ones to be captured and detained; however, in addition, they are subject to trial and punishment by military tribunals for actions that make their belligerency illegal.
Today the US legal act which establishes unlawful combatant status is the Military Commissions Act 2006. Title 10 of the act includes the notion "unlawful enemy combatant" and defines it as following:
"a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al-Qaida, or associated forces); or a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense."
As for the Geneva law concerning this issue, then article 5 of the third Geneva convention requires that a tribunal determine whether a person is entitled to POW or even civilian status, and that every captured individual should be presumed a prisoner of war until determined otherwise by a competent tribunal.
The designation of some persons as "unlawful combatants" has been the subject of criticism by different institutions including Amnesty International, Human Rights Watch as well as the International Committee of the Red Cross.
ICRC's legal advisor Knut Dornmann on this issue said that the terms "unlawful combatant", "unprivileged combatants/belligerents" do not appear in the treaties of international humanitarian law. However, they have often been used at least since the beginning of the last century in legal literature, military manuals and case law; their meaning and consequences regarding the protection regime is not always clear.
Human Rights Watch have pointed that no gap exists between the third and fourth Geneva Conventions. If an individual is not protected by the provisions of the third Convention as a prisoner of war then he or she is definitely subject to the norms of fourth Convention.
Apart from the USA, other countries also make use of this term within their domestic laws. For example, Israel, since the 2002 "Imprisonment of Illegal Combatants Law", makes theoretical distinctions between lawful and unlawful combatants and the legal status thereof. The United Kingdom's Crown Prosecution Service (CPS) also makes such distinction.
The essence of such concept is that, as supporters argue, unlawful combatant is to be detained in conformity with IHL, which would mean they forfeit their rights as criminal defendants or as civilian detainees under domestic law.
In many cases, it happens that persons take part in a battle at night, but during the day, they turn into pacific civilians, for example, working on farms, etc. How to deal with such persons? Are such persons entitled to protection from attacks by day when they are unarmed and vulnerable? The US asserts that there are individuals who fall outside the strict remit of IHL: they can be targeted and they do not benefit from protection offered to "protected persons" since they are neither combatants nor civilians.
Nonetheless, according to ICRC the correct view is that there are two categories, combatants and civilians, and the latter is comprised of two sub-categories, civilians and civilians losing their protection because they are taking a direct part in the hostilities.
In this case, it is necessary to take a look at the question of the attack in accordance with the concept of direct participation in a military conflict. While a combatant can be lawfully targeted, a civilian must remain protected against direct military attacks as long as they do not take direct part in the hostilities. Professor Cassese's position is that the terms "direct part" and "such time" are to be interpreted strictly and narrowly. A civilian participating in hostilities loses the protections granted to civilians only for such time that he is actually taking a direct part in the combat activities, such as when he shoots or positions a bomb. A civilian preparing to commit hostilities might be considered a person who is taking a direct part in hostilities, if he is openly bearing arms. When he lays down his weapon, or when he is not committing hostilities, he ceases to be a legitimate target for attack. Thus, a person who merely supports the planning of hostilities, or who sends others to commit hostilities, is not a legitimate target for attack. Such indirect aid to hostilities might expose the civilian to arrest and trial, but it cannot turn him into a legitimate target for attack.
However, practice shows that, relying on the concept of the third category of persons, the United States conducts the policy of "preventive attacks", and Israel, in turn, carries out "targeting strikes". Both of them is to kill designated terrorists without leaving room for possibility of giving up. The entire targeted killings policy operates in a secret world in which the public eye does not see the dossier of evidence on the basis of which the targets are determined. There is no judicial review: not before, nor after the targeted killing. In at least one case, it is suspected that there was a mistake in identity, and a person with a name similar to the wanted terrorist, who lived in the same village, was killed. The United States does not consider it appropriate to apply the law of war to such individuals since "the terrorists themselves do not comply with IHL standards." The USA's principal argument against identifying Taliban and Al Qaeda fighters as combatants is that the Taliban and Mujahedeen don't wear uniforms and do not abide by international humanitarian law. However, practice shows that the Taliban distinguish themselves from the civilian population b y wearing black turbans. According to a number of authors, this is enough to distinguish fighters of Taliban and Al Qaeda from civilians.
Israel claims that even though terrorists are essentially civilians, harming civilians who directly involved in hostilities is permitted in any case, even if they are not fighting right now. There is no prohibition on striking at the terrorist at any time and place, as long as he has not laid down his arms and exited the circle of violence.
Moreover, in the framework of the fight against terrorism, States sometimes resort to excessively radical measures that lead to violations of principles other than the principle of distinction. It is especially true regarding the principle of proportionality when it comes to civilian casualties which often many times greater than the benefits of neutralizing the enemy. For example, according to OCHA (United Nations Office for the Coordination of Humanitarian Affairs), during only the year 2014, in the Gaza Strip, over 1,500 Palestinian civilians were killed and more than 11,000 injured by Israeli attacks. Israeli attacks striking residential buildings accounted for a significant number of the civilian casualties, raising concerns about respect for the principles of distinction, proportionality and precaution in attack under international humanitarian law.
As mentioned above, the second issue in terms of international counterterrorism is that of detention. When it comes to the internment of those suspected of terrorism or of having links with terrorists who were caught during military operations or otherwise detained, the status of such persons again raises many questions. However, regarding the status of persons interned in the course of counter-terrorism, the main issues among those are: 2) whether their detention is lawful; 3) what law applies to them; 1) what is the legal status of such detainees under IHL.
Most opinions agree on the problems arising from the detention of suspects, i.e. administrative detention for security reasons was perhaps most pronounced in the situation with the persons who were detained by the United States during the "war on terrorism" and then placed in the Guantanamo military base in Cuba. Since the attacks of September 11, 2001, a key element of the US counterterrorism operations has been the detention of suspected terrorists. As of mid-2012, the United States held 168 terrorism suspects at Guantanamo Bay, Cuba, and roughly three thousand in Afghanistan.
The 2001 AUMF (The Authorization for Use of Military Force) authorizes the US President to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. Although detention power is not specifically mentioned in the 2001 AUMF, the US courts have repeatedly held that the statute authorizes the detention of members of al-Qaeda and associated forces for the duration of hostilities as a fundamental incident of waging war.
The position of the US government for a long time was that the norms of international law are not applicable to these persons, since the conflict itself cannot be qualified as international or non-international in the light of international humanitarian law. Even if international humanitarian law is applicable, the detainees are "illegal combatants" whose status is not defined in international humanitarian law, and that the US Constitution do not apply extraterritorially. Over time, it was nevertheless recognized that the relations between members of terrorist organizations and the US armed forces captured during the armed conflict in Afghanistan are governed by international humanitarian law applicable in non-international conflicts, as well as relevant international human rights law 1. Cases of detainees were investigated by the Guantanamo Military Commission in the absence of the right to have a lawyer, to familiarize themselves with materials and evidence, and also without the right to appeal against detention in court. It was several years before the US Supreme Court in 2004 in the cases of Rasul v. Bush and Hamdy v. Rumsfeld recognized the detainees the right to access lawyers and appeal the lawfulness of deprivation of liberty in American courts, based on the US Constitution. In a decision in the Hamdan v. Rumsfeld case of June 29, 2006, the Supreme Court concluded that the composition and procedures used by the military commission in Guantanamo violate both US law and the Geneva Conventions for the Protection of War Victims of 1949. In addition , in this decision it was indicated that the President did not have the right to create commissions bypassing the legislative branch of power. The answer to this decision was the adoption in 2006 by the Congress of the Act on Military Commissions, which, despite the position of the Supreme Court, excluded the right of detainees to use the habeas corpus guarantee. In turn, this provision was found to be contrary to the US Constitution in 2008 in a decision by Bumedien v. Bush. In general, the use of internment in armed conflicts of a non-international character is associated with two main questions, the answers to which are in the international legal plane. First, is the use of interns appropriate в in armed conflicts of a non-international character to the requirement of "legality" established in international human rights law; secondly, what is the scope of the procedural rights and guarantees that should be provided to detainees under international law?
One of the main issues of concern within the detention concept is the identification of individuals sufficiently associated with terrorist organizations. The United States holds the position that a person who is "a member" or
"substantially supports" terrorist organizations, in particular Al Qaeda, the Taliban, or related groups is to be detained. The problem is that there is uncertainty as to which particular actions constitute sufficient evidence of such membership or support. The 2001 AUMF does not provide a clear answer to the question of what is membership in a terrorist organization, and as a result, revealing membership is complicated by the informal and sometimes unstable organizational structures of the groups involved.
Significant factors examined by USA evaluating whether an individual's connection to al-Qaeda, Taliban or related organization constitutes membership include:
• attendance at military training facilities associated with terrorist groups,
• overnight use of affiliated guesthouses,
• self-identification with an organization through verbal or written statements,
• participation in a group's hierarchy or command structure" (both military and non-military), and
• participation in an organization's activities (both military and non-military).
Listed factors are quite vague and large in meaning thus subject to different interpretations. The related question of whether the State may detain an individual on the basis of his or her support of an enemy organization, even when the individual is not a member of the organization, has been a source of controversy.
Another issue in terms of detention of terrorist is denial of detainees of the access lawyer as well as to court. In 2004, a few cases were filed in US courts challenging the denial of the detainees' right to access the court to challenge the status of the persons in question as "enemy combatants" and the lawfulness of their detention. In the case of Rumsfeld vs Hamdi, the Supreme Court ruled that US citizens have certain constitutional rights, including the real opportunity to challenge the factual grounds for such detention in before a neutral "decision maker" and that government violated international and domestic law by depriving detainees of habeas corpus. As for the hundreds of non-citizens detained in Guantanamo, the reaction was completely different. However, in 2008 in the case in Boumediene v. Bush US Supreme Court ruled that 'unlawful enemy combatants' held by the United States at Guantanamo Bay have the right under the US Constitution to challenge their detention before regular courts. The Court also ruled that the procedures for review of the detainees' status under the 2005 Detainee Treatment Act were not an adequate and effective substitute for habeas corpus. It therefore declared unconstitutional section 7 of the 2006 Military Commissions Act, which denied habeas corpus to any detained foreign 'enemy combatant'. Despite that US Court established that writ of habeas corpus belongs to all detainees irrespective of their citizenships, today US persists deny this right to foreign nationals and prison in Guantanamo still operates and as of 2019 contains 40 detainees.
There is some views claiming that torture in certain circumstances is morally admissible for preventing a greater evil. According to IHL as well as international law of human rights nothing can justify torture. After having visited Guantanamo prison, ICRC has expressed great concerns regarding the legal consequences of the US practice of keeping suspects in undisclosed detention in the context of counterterrorism. Such detention has many times been condemned in that the methods used in special prisons violate the right to freedom from torture. The ICRC inspectors accused the U.S. military of using "humiliating acts, solitary confinement, temperature extremes, and use of forced positions" against prisoners.
Other problem arising out of suspect terrorists' detention is the duration of detention. It has been a very questionable issue in the context of counterterrorism. Normally, the end of armed conflict normally marks a bright line between lawful and unlawful law-of-war detention. In a normal armed conflict, combatants can only be detained until the end of hostilities or can be held accountable for crimes committed during their war. If convicted of a crime they may be detained punitively past the end of hostilities.
In the current conflict, the difficulty arises of determining what would marks the end of hostilities. The US stated that it is in the war against Taliban, al-Qaida and affiliated groups; there is no question that under IHL the USA has authority to detain persons who have engaged in armed conflict until the end of hostilities, but it is unknown when they will end. Thus, the question is whether that time of unraveling has arrived. After all, the conflict between the United State s and al-Qaeda, the Taliban, and unspecified "associated forces" appears likely to continue indefinitely. If persons who are "part of or substantially support any of these groups may be detained for the duration not simply of the active combat operations in Afghanistan, but for the duration of U.S. counterterrorism operations, then they may be detained indefinitely.
Thus, detention of persons suspected in terrorism or for taking direct part in terrorist actions in the context of international counterterrorism raises the question of whether such detention is legal and complies with IHL standards.
Список используемой литературы:
1. Hampson FJ Detention, the "War on Terror "and International Law // The Law of Armed Conflict: Constraints on the Contemporary Use of Military Force / Ed. By Howard M. Hensel. - Burlington, 2005.
2. http://digital-commons.usnwc.edu/cgi/viewcontent.cgi?article=1127&context=ils
3. https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5733&context=fss_papers
4. https://pdfs.semanticscholar.org/729a/0841a144420b7f777da925b89de6f4742c4f.pdf
5. https://www.icrc.org/en/doc/assets/files/other/irrc_849_dorman.pdf
6. https://www.nytimes.com/2004/11/30/politics/red-cross-finds-detainee-abuse-in-guantanamo.html
7. https://www.nytimes.com/2019/09/16/us/politics/guantanamo-bay-cost-prison.html
8. OCHA. Fragmented lives. Humanitarian Overview. 2014. Available on: https://reliefweb.int/sites/reliefweb.int/files/resources/annual_humanitarian_overview_2014_english_final.pdf
9. Oona A. Hathaway. The Power to Detain: Detention of Terrorism Suspects After 9/11. Yale Law School, 2013. Available at: https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5733&context=fss_papers (last visited 10.09.2019)
10. Supreme Court of Israel, The Public Committee against Torture in Israel et al v. The Government of Israel et al HCJ December 11 2005. Available at: https://h2o.law.harvard.edu/collages/41951 (last visited: 11.08.2019)
11. UN Committee against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Second Periodic Reports of States Parties Due in 1999, CAT/C/48/Add.3/Rev.1 https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CAT%2FC%2F48%2FAdd.3%2 FRev. 1&Lang=en
12. United States, Ex Parte Quirin et al. Supreme Court of the United States, 317 US 1 (1942). https://supreme.justia.com/cases/federal/us/317/1/
