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Saul, Ben --- "Defending 'Terrorism': Justifications and Excuses for Terrorism in International Criminal Law" [2006] AUYrBkIntLaw 7; (2006) 25 Australian Year Book of International Law 177

Defending ‘Terrorism’: Justifications and Excuses for Terrorism in
International Criminal Law

Ben Saul[∗]

The evil in the tale may be understood, if not excused, by our circumstances.[**]

I. Introduction

The international community has repeatedly condemned terrorism as ‘criminal and unjustifiable’, irrespective of ‘considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify’ it.[1] Despite condemning ‘terrorism’, the international community has never been able to define it,[2] although one prominent jurist argues that terrorism is a customary crime[3] and terrorism has long been prohibited under humanitarian law. [4] On balance, terrorism remains a political term describing various acts and methods of political violence, which is still too imprecise to trigger international criminal liability. In the absence of international agreement on defining ‘terrorism’, as such, the international community has preferred to adopt a range of ‘sectoral’ anti-terrorism treaties addressing specific types of violence, such as hijacking, hostage taking, bombings and so on. These treaties have enabled terrorism to be prosecuted as sectoral crimes under national law. In addition, where terrorist violence qualifies as war crimes, crimes against humanity,[5] genocide or torture, it is open to states to prosecute terrorism as international crimes.

In condemning terrorism as unjustifiable, some states have persistently objected that violence in pursuit of just causes (such as self-determination) does not constitute terrorism; or even that a just cause justifies all means. In debates about defining terrorism, disagreement over the exceptions to any definition has run deeper than disagreement about the core elements of a definition itself.[6] Even where violence is regarded as ‘terrorism’, the assertion that terrorism is unjustifiable does not preclude the idea that some acts of terrorism are at least excusable under criminal law. [7] In the absence of a definition of terrorism, it remains difficult to distinguish lawful from unlawful political violence at the international level. Paradoxically, it is precisely this disagreement about the circumstances in which violence is considered justifiable that is hindering the ongoing international search for a definition.

The wider and more comprehensive a definition of terrorism, the more likely that some acts of terrorism may be justifiable or excusable. While the ‘inner core’ of terrorism, such as indiscriminate attacks on civilians, is very difficult ever to justify, the ‘outer core’ of terrorism – such as acts that would not be contrary to international humanitarian law (IHL) if committed by state forces[8] – is more susceptible to justification. Justifying political violence is necessarily a profoundly difficult ethical, political and legal enterprise, given the grave consequences for human life and safety involved. Yet agreement on defining and prohibiting terrorism can only ever be reached if it is clearly and normatively distinguished from lawful and morally acceptable political violence.

In approaching this problem, the first part of this article outlines the purported causes of terrorism advanced in the United Nations (UN) General Assembly, and the contrary views of states on whether these causes ought to justify or excuse terrorist violence: particularly violence arising out of the assertion of international legal claims of self-determination or national liberation against colonial powers. In attempting to resolve this fundamental disagreement between states, this article then distinguishes self-determination violence permitted under IHL from terrorism, and argues for the extension of IHL as an appropriate normative framework for all self-determination struggles. The equal application of IHL to self-determination movements would help to depoliticise attempts to define international terrorism, since it would relocate this central controversy in the debate about terrorism to a more appropriate field of legal regulation. Similarly, excluding internal rebel violence, through the application of combatant immunity, would assist in differentiating terrorist violence from more justifiable forms of political violence and thus defuse a further political barrier to an international definition of terrorism.

The second part examines how a limited range of justifications for any new international crime of terrorism could be accommodated by individual defences in international criminal law (including self-defence, and duress/necessity). It then proposes that non-state group actors accused of terrorist crimes should be entitled to plead ‘circumstances precluding wrongfulness’, drawn analogously from the law of state responsibility. While a narrow class of terrorist acts may be excused by individual or group defences, some acts considered justifiable may still fall outside the scope of defences. To maintain the law’s legitimacy, the final part argues that some crimes of terrorism could be regarded as ‘illegal but justifiable’ (or at least, excusable) in stringently limited, objectively verifiable circumstances, possibly under the rubric of a ‘collective defence of human rights’. Proper consideration of the potential exceptions to, and excuses and justifications for, terrorist violence is essential before agreement can be reached on defining ‘terrorism’, as such, as an international crime.

II. Common Justifications for Terrorism

(a) UN General Assembly’s study of causes

The first concerted effort to address terrorism in the UN came in response to the killing of Israeli athletes at the Munich Olympics in September 1972, and earlier attacks at an Israeli airport and on a Soviet diplomat in New York.[9] With the UN Security Council polarised by Cold War politics, the General Assembly initiated a study of the ‘underlying causes’ of terrorism, said to include ‘misery, frustration, grievance and despair’ and which ‘cause some people to sacrifice human lives, including their own, to effect radical changes’. The title of this General Assembly agenda item does not assert that all terrorist acts are caused by such factors, but implies that those factors underlie at least some terrorist acts. Resolution 3034 (XXVII) of 1972 emphasised ‘the underlying causes which give rise to’ terrorist violence rather than the definition or prohibition of terrorism. It urged states to find ‘just and peaceful solutions’ to those causes and reaffirmed:

the inalienable right to self-determination and independence of all peoples under colonial and racist regimes and other forms of alien domination and upholds the legitimacy of their struggle, in particular the struggle of national liberation movements in accordance with the principles and purposes of the Charter and the relevant resolutions of the organs of the United Nations …[10]

The resolution does not expressly provide that terrorism is justified in pursuit of national liberation or self-determination. However, by affirming the legitimacy of those struggles, it impliedly excludes such violence from being regarded as terrorism. In addition, the resolution condemned only state, rather than non-state, terrorism.[11]

(i) Identification and significance of causes

In the Ad Hoc Committee established by the resolution, most states agreed that it was important to address the causes of terrorism, but disagreed on identifying and evaluating their significance. A broad range of causes was suggested, including: capitalism, neo-colonialism, racism, aggression, foreign occupation, injustice, inequality, subjugation, oppression, exploitation, discrimination, interference or intervention, subversion, disruption of development and political destabilisation.[12] Some believed that ‘state terrorism’ was the principal cause of individual terrorism, a form of ‘reciprocity’ by the people against oppressive politics, economic inequality and social trouble.[13] The most detailed classification of causes was submitted by non-aligned states in 1979, which divided causes into ‘political’ and ‘economic and social’ ones.[14] Others suggested adding state connivance with fascist or Zionist groups.[15]

In contrast, other states believed the list was a partial and subjective pre-judgment of the causes, and unresponsive to complex, dynamic links between terrorism and its causes.[16] Some maintained that the causes involved a myriad of factors outside the competence of the Ad Hoc Committee, lawyers and diplomats, including scientific, social, economic, political, psychological, psychiatric or genetic causes.[17] Others suggested that the causes were already being addressed by UN organs and by existing normative frameworks,[18] and argued that addressing terrorism should not depend on resolving all underlying injustices.[19]

In evaluating the significance of causes, some states asserted that those waging just or legitimate struggles were entitled to use any means, as a matter of last resort.[20] Other states opposed this permissive view, arguing that the end does not justify the means;[21] and that some acts, particularly violence against civilians, are so heinous that they are never justified.[22] Some analogously reasoned that just as IHL limits the permissible means of state violence in armed conflict, so too must individuals and liberation movements accept humanitarian constraints.[23]

The debate in the Ad Hoc Committee occurred at a transitional moment in the evolution of IHL. The adoption of the 1977 Protocols took place between the Committee’s first meeting in 1973 and its last meeting in 1979. As a result, the debate shifted after the recognition and internationalisation of self-determination movements in Protocol I.[24] States that accepted Protocol I regarded qualifying liberation movements as subject to the limits on permissible means and methods of warfare imposed by IHL, legally distinguishing such movements from terrorist groups [25] by extending combatant immunity and prisoner of war (POW) status to them and thus decriminalising liberation violence carried out in compliance with IHL.

Any terror-type activity by those movements could henceforth be treated as breaches of IHL.[26] Far from legitimising or encouraging terrorism, this recognition imposed duties on liberation movements to observe IHL in armed conflicts. If national liberation groups could not lawfully target civilians in armed conflict, it became very difficult to see how civilians could be regarded as lawful targets in peacetime. The implications for states that did not accept Protocol I are explored further below.

(b) UN General Assembly’s response to causes

Following the Ad Hoc Committee’s final report in 1979, resolutions in the 1970s and 1980s urged states and UN organs to eliminate progressively ‘the causes underlying international terrorism’,[27] particularly colonialism, racism, ‘mass and flagrant violations of human rights and fundamental freedoms’, alien occupation or domination, and foreign occupation.[28] Some resolutions before 1991 also stated that nothing in those resolutions

could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter of the United Nations, of peoples forcibly deprived of that right … particularly peoples under colonial and racist regimes and foreign occupation or other forms of colonial domination, nor, in accordance with the principles of the Charter and in conformity with the above-mentioned [1970] Declaration, the right of these peoples to struggle [legitimately] to this end and to seek and receive support …[29]

At first glance, this provision implicitly excludes acts in pursuit of ‘just’ causes from being regarded as terrorism, although the nature of the right to ‘struggle’ is ambiguous. This provision has often been interpreted as creating a national liberation exception from the international prohibition on terrorism.[30]

However, the no-prejudice clause is not devoid of limitations. The resolutions state that the ‘right’ to struggle for self-determination is derived from – and must be exercised in accordance with – the Charter and the 1970 Declaration.[31] Resolution 3034 (XXVII) itself provided that measures against terrorism must be ‘in accordance with the principles and purposes of the Charter’ and relevant UN resolutions.[32]

These limitations are significant and are often glossed over. Respect for human rights is a basic purpose, or ‘paramount object’,[33] of the UN in article 1 of the Charter, which self-determination movements, as para-statal entities,[34] must act ‘in accordance’ with. Some resolutions also require movements to struggle ‘legitimately’ for self-determination,[35] indicating limits on the permissible means of struggle.

In determining these limits, it is necessary to look at the right of self-determination, the law on the use of force, human rights law, and IHL. While there is a right of self-determination in the Charter, human rights treaties, and the 1970 Declaration (reflecting custom), none of those instruments explicitly specifies whether (a) force may be used to achieve self-determination, or (b) what kinds of force may be used by those fighting for it. If there is no ad bellum right to use force to secure self-determination, then any use of force by such movements may be criminalised as terrorism – as politically motivated violence designed to compel or intimidate – even if targets are strictly limited to military objectives.

(c) Jus Ad Bellum: self-determination movements

Despite the near-completion of decolonisation, the issue is not obsolete,[36] given controversial denials of the right (in the narrow external sense) in Palestine, Western Sahara and Tibet. There are also numerous claims of internal self-determination on the basis of ethnic or other group identity. During decolonisation, developing and socialist states, and some writers, believed that ‘peoples’ were entitled to use force to achieve self-determination, whereas western states denied any right to use force.[37] The Charter does not authorise the use of force for decolonisation,[38] and UN resolutions recognise the legitimacy of liberation struggles, but do not specify permissible means.

A legal compromise is reflected in the 1970 Declaration, which refers merely to the ‘actions’ and ‘resistance’ of movements against forcible denials of self-determination by states.[39] States must refrain from forcibly denying the right, and in resisting forcible denial: peoples ‘are entitled to seek and to receive support’ from third states, not including sending military forces.[40] Consequently, liberation movements have no legal right to use force to secure self-determination, but they do not breach international law by using force (defensively) against its forcible denial.[41]

Recourse to force by self-determination movements is treated differently than recourse to force in ‘ordinary’ civil wars, in which international law is silent on any right of rebels to use force against a government. Where recourse to force against denial of self-determination is permitted, the repressive state necessarily loses its entitlement to criminalise such uses of force.[42] Otherwise, national criminalisation would frustrate the entitlements of self-determination movements under international law. An international crime of terrorism must, therefore, carefully exclude lawful uses of force.

(d) Jus in Bello: self-determination movements

Regardless of whether self-determination movements are entitled to use to force, IHL applies equally to all participants in an armed conflict on humanitarian grounds. Parties to Protocol I recognise self-determination struggles as international armed conflicts.[43] As such, the forces of parties to such conflicts may qualify as combatants (under more relaxed conditions of combatancy recognising the needs of guerilla warfare[44]), and enjoy immunity for lawful acts of war.[45] Combatants cannot be characterised as terrorists for acts compliant with IHL; Protocol I thus decriminalises conduct formerly regarded as terrorist. In such circumstances, liberation forces must comply with the detailed provisions of IHL, including prohibitions on terrorist-type acts against non-combatants and those out of combat, and the restrictions on permissible means and methods of war.[46]

States not party to Protocol I may continue to treat national liberation struggles as non-international armed conflicts.[47] Thus Israel commonly regards the killing of its soldiers in the Palestinian Occupied Territories as terrorism.[48] There is also a view that even states parties to Protocol I may so treat liberation struggles where the state does not recognise the liberation movement, since interpretation of article 1(4) is within the subjective discretion of the relevant state.[49] That view is doubtful, since article 1(4) refers to the objective right of self-determination ‘as enshrined’ in the UN Charter, which does not make recognition dependent on the subjective agreement of the affected state. Further, article 96(3) of Protocol I enables authorities representing peoples to lodge undertakings to apply the Geneva Conventions and Protocol with the depositary (Switzerland), which triggers the application of the treaties.

While many of the protective provisions of Protocol I have entered customary law, article 1(4) – which ‘internationalises’ self-determination struggles – has not, being seldom applied in practice and possessing a largely agitational or rhetorical value.[50] It has, however, influenced state practice,[51] and may be emerging as custom.[52] The more relaxed conditions of combatancy in article 44 of Protocol I were traditionally regarded as only applying in occupied territories, or against colonial powers,[53] but recent practice suggests an extension to secessionist movements,[54] encompassing internal, rather than purely external, self-determination causes.

The non-applicability of Protocol I to some self-determination conflicts has contradictory implications. On one hand, it frees liberation forces from the detailed IHL constraints governing international conflicts, and subjects them only to the more spartan rules of common article 3 of the 1949 Geneva Conventions and, where applicable, Protocol II.[55] On the other hand, it permits states to deny combatant status to liberation forces and to treat them as criminals,[56] including as ‘terrorists’. In the absence of combatant immunity, such persons could fall within an international crime of terrorism, defined as politically motivated, coercive or intimidatory violence.

The differential treatment of similarly situated liberation movements undermines the consistency and coherence of IHL, and would frustrate the equal application of an international terrorism offence. There is thus some intellectual force in the claims of some states that the struggle for self-determination must be differentiated from terrorism. Dealing with liberation violence within the framework of IHL would assist in depoliticising and defining terrorism.[57] Until there is universal ratification of Protocol I, or article 1(4) enters into customary law, or key states such as Israel ratify it, there is little hope of dissipating the force of those objections.

States are naturally ‘reluctant to accept a form of international legislation which might eventually undermine their own power structure’.[58] Yet denial of combatant status to movements resisting the forcible denial of self-determination implicates international law in oppression. The right of self-determination is of fundamental international concern, given its erga omnes character.[59] Yet under the guise of non-intervention in the affairs of states not party to Protocol I, international law protects oppressive regimes from popular destabilisation, preferring state sovereignty over more reasonable claims of popular sovereignty.

If international law takes self-determination seriously, it must impede human rights law to allow states to criminalise – as terrorists – those who forcibly resist its denial, and to deny them recognition as combatants. International agreement on defining terrorism must be conditioned on the exclusion of legitimate liberation movements from the scope of terrorism, by the full application of Protocol I.

(e) Human rights limits on permissible means

In armed conflict, IHL applies as lex specialis in determining if a violation of the right to life is arbitrary and therefore unlawful.[60] Lawful killings in IHL are not arbitrary deprivations of life, and Protocol I establishes the conditions under which national liberation violence is justified. In contrast, self-determination violence is not justified by IHL in conflicts where Protocol I does not apply (thus precluding combatant immunity), or where an armed conflict does not exist and IHL is inapplicable. The question now is whether liberation violence not governed by Protocol I may ever be justified.

In the absence of primary rules of self-determination authorising violence in these situations, human rights law must be examined. Paradoxically, terrorism violates human rights but human rights are a major justification for it.[61] Terrorists may assert that violence is the only means to secure self-determination and thus killings are not arbitrary, but legitimate restrictions on the right to life, designed to achieve a more valuable objective. There is thus a conflict of two norms of equal (jus cogens) status.

There is nothing theoretically novel about this conflict. The internal limitations of human rights constrain the permissible means of pursuing rights-based causes. Common article 5 of the International Covenant on Civil and Political Rights (ICCPR) [62] and the International Covenant on Economic, Social and Cultural Rights (ICESCR)[63] states that nothing in those treaties

may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for [in those treaties] …[64]

Those treaties do not expressly permit liberation movements to violate human rights in a generic or specific manner to secure self-determination – even if only combatants are targeted – and in a series of resolutions, the UN Commission on Human Rights has declared that terrorism can never be justified ‘as a means to promote and protect human rights’.[65] Nonetheless, where Protocol I does not apply, attacks by liberation forces that are limited to military objectives may be more justifiable than those that instrumentally kill civilians.

Where rights conflict, balancing the relative importance of competing rights is an essential function of human rights law. Restricting certain rights is permissible to secure other rights;[66] particular ends justify certain (but not any) means. What matters is whether the means protect a sufficiently important end to make those means proportionate.[67] As Ignatieff observes, ‘human rights are not an ethic of quietism’,[68] and some killing is justified: in self-defence; in combat; and for certain kinds of law enforcement.[69] In such cases, the threat posed by the person justifies their killing, but randomly targeting civilians is ruled out. Human rights law forbids using the lives of one group of people instrumentally to secure the happiness (or ideology) of another;[70] ‘people should always be treated as ends in themselves and never merely as means’.[71]

On that basis, it is difficult to accept that the right of self-determination outweighs the right to life of (non-threatening) non-combatants. Nothing in human rights law suggests that all other rights may be sacrificed on the altar of self-determination. That argument would only make sense if all other rights depended on attaining self-determination, yet most rights can be enjoyed outside one’s ‘people’: an homogenising concept, which itself is open to rights-based challenges.[72] Whereas self-determination presupposes life, life does not presuppose self-determination.

Even states may not use unlimited means in self-defence[73] and certain forms of violence are always impermissible under IHL.[74] As Judge Higgins wrote in the Israel Wall Advisory Opinion, the absolute nature of IHL obligations is

the bedrock of humanitarian law, and those engaged in conflict have always known that it is the price of our hopes for the future that they must, whatever the provocation, fight ‘with one hand behind their back’ and act in accordance with international law.[75]

If the preservation of the state is one of the highest international values, it would be curious if other causes justified more extreme measures than those permitted in defence of the state. Self-determination is designed to achieve statehood, so it is not so exceptional that it warrants the conferral of rights superior to those of states. Given the para-statal personality of self-determination movements, their use of force is fundamentally defensive, exercised against foreign domination. As a defensive right, any action taken must be both necessary and proportionate, and the deliberate killing of civilians will rarely qualify; it may also infringe the self-determination of others.[76]

Rodin takes the more radical view that the state right of self-defence (and by analogy, violent self-determination) sometimes may not even justify killing combatants. The tendency of escalation in war means that the suffering caused by recourse to defensive force often outweighs the value of the right sought.[77] Most wars are not genocidal and merely replace the political order, and ‘populations can, and frequently do, survive the destruction of their state’s sovereignty’.[78] Self-defence may cause more harm than accepting occupation (particularly after ‘bloodless invasion’).[79]

Self-defence may also be inconsistent with international peace and security: collective defence of Czechoslovakia against the 1968 Soviet invasion would have risked global nuclear catastrophe.[80] There is a danger in positing state sovereignty and self-determination as ultimate moral values in the international order. Although the common life is important, it is not a ‘source of value independent of its value for individual persons’.[81] These provocative arguments are appealing, but demanding pacifism from invaded states (or suppressed ‘peoples’) encourages aggression, since it eliminates the broader deterrence of violence that ensues from defensive rights.

Whatever the merits of those views, the use of atrocious means often subverts or destroys the good end sought.[82] Whereas Fanon and Sartre find personal liberation in liberation violence,[83] a practitioner of liberation, Nehru, wrote: ‘Bad and immoral means often defeat the end in view’.[84] Even Marcuse argued that some forms of violence can never be justified ‘because they negate the very end for which the revolution is a means’, including ‘arbitrary violence, cruelty, and indiscriminate terror’.[85] As Berlin puts it:

Most revolutionaries believe, covertly or overtly, that in order to create the ideal world eggs must be broken, otherwise one cannot obtain the omelette. Eggs are certainly broken – never more violently or ubiquitously than in our times – but the omelette is far to seek, it recedes into an infinite distance.[86]

Revolutionary restraint is necessary for moral self-respect.[87] Otherwise, all that is left is ‘the darker and more paradoxical thought that, if one can defeat evil only by becoming evil, then it is impossible to defeat evil’.[88]

(f) Other politically just causes: rebellion

An early and persistent justification for terrorism is that violent resistance, rebellion, or revolution is justifiable against an unjust or oppressive regime.[89] Such acts are manifestations of internal self-determination and purport to justify violating the rights of others.[90] Theories of revolution and rebellion are ancient and varied, from Greece and Rome to natural law, the Enlightenment, liberalism and human rights. Even deferential and hierarchical systems, such as Confucianism, feudalism and some religions, have justified violent regime change in extreme circumstances.

Much of the vast literature on rebellion and revolution focuses on the existence of the right and the preconditions of its exercise, usually in a particular national order, political system, or philosophical tradition. Comparatively less has been said about the status of the right in international law, and the permissible means of exercising it. The most sweeping consequentialist claims assert that just causes justify all means. Classic revolutions, such as the French and American, often involved ‘terrorist’ methods.[91]

Both the jus ad bellum and jus in bello aspects are relevant to justifications for terrorism. If there is no right to rebel, then every internal use of violence against a state is unlawful and subject to national (and potentially international) criminalisation as ‘terrorism’: even if violence is limited to military objectives. If there is a right to rebel (legalising certain ad bellum acts of internal violence), then the contours of permissible means and methods of violence (in bello) must be carefully drawn, so that terrorist acts are distinguished from lawful acts of belligerency.

(i) The right to rebel in international law

a. Jus ad bellum: internal violence: The existence of an international legal right to resist, or rebel against, tyranny or oppression is doubtful. Certainly a ‘right of revolution against oppressive regimes is central to the Western democratic tradition’,[92] and is also common in other political systems. As Arendt notes, many modern political communities were founded on violence and thus originated in crime.[93] Yet a shared principle in some domestic orders does not imply the existence of a similar international right. There is no binding treaty right to rebel against oppressive regimes. At best there is a preambular reference in the Universal Declaration of Human Rights (UDHR),[94] which states:

Whereas it is essential, if man is not to be compelled to have recourse, as a last resource, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law …

A drafting proposal, endorsed by the UN Commission on Human Rights, to refer to a ‘right’ of resistance was not accepted:

When a Government, group, or individual seriously or systematically tramples the fundamental human rights and freedoms, individuals and peoples have the right to resist oppression and tyranny.[95]

Nonetheless, Honoré argues that the UDHR preamble implies that subjects have political rights against their governments.[96] While it does not recognise a formal legal right to rebel, ‘neither is it a purely informal right grounded in the conventional morality of the international community’.[97] Instead, ‘[i]t possesses an intermediate, semi-formal status’, premised on human dignity and international political norms.[98]

The factual recognition in the UDHR preamble that rebellion may flow from oppression does not, however, imply that a right of rebellion exists. The exclusion of reference to a ‘right’ during the drafting, the lack of reference to such a right in the 1966 covenants, and the preambular status of the provision in a non-binding Declaration weigh against the existence of a right. Only peaceful rights of political participation are expressly mentioned in the ICCPR.[99] While states occasionally exhort citizens of repressive states to ‘rise up’ against their leaders (consider United States Presidential incitement of Kurds and ‘Marsh Arabs’ against Saddam Hussein’s Iraq), such statements are typically framed as political positions, not as a legal right to rebel.

In addition, there are no correlative duties on affected states not to suppress or criminalise legitimate rebellions,[100] nor duties on third states to assist legitimate rebellions,[101] or even to shield rebels from extradition for political crimes.[102] The duty on third states not to intervene in civil wars is not designed to recognise a right of rebellion,[103] so much as to defer to a matter within domestic jurisdiction:[104] the freedom of peoples to determine their own political status through internal self-determination.[105]

b. Jus in bello: internal violence: It is unnecessary to determine the existence of a right to rebel to discuss the limits on violence when it occurs.[106] The jus in bello of internal violence bears on justifications for terrorism in important ways. In non-international conflicts, the application of common article 3 of the 1949 Geneva Conventions does not affect the legal status of parties.[107] Similarly, Protocol II does not affect ‘the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity …’.[108]

Accordingly, rebels in civil wars do not enjoy international legal personality or recognition as combatants, unless the state recognises their belligerency,[109] informally applies IHL, or where, in exceptional cases, there exist agreements between non-state[110] parties in a conflict where the state has dissolved.[111] The conditions of combatancy for irregular forces in international armed conflicts[112] do not apply in non-international conflicts and there is no combatant immunity for non-state forces.[113] Protocol II contains no conditions of combatancy.[114] Similarly, in internal violence below an armed conflict (such as internal disturbances and tensions, riots, isolated and sporadic acts of violence and other acts of a similar nature),[115] there is no combatant immunity. In practice, rebels may enjoy a partial immunity in relation to third states, although this is conditional since it may be withdrawn on political grounds.[116]

States may consequently treat violence by non-state forces as crimes under national law,[117] including violence directed solely and proportionately against military objectives,[118] and even if such forces carry arms openly, wear identifying symbols, and informally respect IHL. Thus Turkey does not recognise an armed conflict in Kurdistan, [119] nor has Russia recognised internal conflicts in Chechnya. The only legitimate rebellion is a successful one.[120] While the question of whether violence constitutes an internal armed conflict triggering IHL is an objective one, even where Protocol II applies it is still open to the affected state to treat rebels as criminals.

One concession is that Protocol II urges authorities at the end of hostilities to ‘endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict’.[121] Similarly, if belligerents do not commit war crimes, ‘it is in the spirit of the [Geneva] Convention that trials and executions for treason should be reduced to an indispensable minimum required by the necessities of the situation’.[122] Although prosecution is permitted, it is often impractical or unwise.[123] In practice, some states have conferred de facto recognition on non-state groups which generally comply with IHL, and third states commonly do not regard insurgents as criminals.[124] However, for rebels, discretionary treatment is little legal comfort.

c. Implications of jus ad bellum and jus in bello: The striking feature of non-international armed conflicts, and situations of lesser internal violence, is the discretion enjoyed by states to criminalise both recourse to force, and the conduct of hostilities, by non-state forces. Unless non-state armed forces in internal conflicts – including those where Protocol II does not apply[125] – are excluded from an international crime of terrorism, there is an acute danger of internationally legitimising state repression of internal dissidence. If terrorism is politically motivated, coercive or intimidatory violence, then those who rebel against oppressive regimes may be prosecuted as terrorists – even if they target only military objectives.

The limited regulation of non-international conflicts is based on non-intervention in domestic jurisdiction,[126] particularly where a state interest as vital as political authority is at stake. Yet human rights law interferes with the freedom of states to act arbitrarily towards those in their power, narrowing the reserved domain of domestic jurisdiction.[127] Where oppressive states seriously violate human rights, the treaty-based, ‘soft’ machinery of human rights protection and supervision may fail to secure basic rights. In the absence of an effective, binding enforcement system, or UN Security Council intervention, violent rebellion – as collective self-help – may be the only means of terminating rights abuses.

Honoré elegantly proposes a right to rebel as a secondary right arising as a remedy against large-scale and sustained violations of primary rights.[128] Rebellion is the right of oppressed or exploited individuals to use violence to change the government, structures or policies of society.[129] In its absence, human rights remain rhetorical or aspirational.[130] Serious and sustained state oppression dissolves the social bonds between the state and its subjects, and as a result, ‘it is no longer open to the state to define the conditions in which subjects may lawfully use force’.[131] The state may be attacked as long as rebels respect ‘the same restraints as they would be bound to observe if the rebellion were a war between states’.[132] This position has intuitive appeal and reflects the view of Lauterpacht, writing of the political offence exception to extradition, that the:

international community was no longer a society for the mutual protection of governments. A revolution might be a crime against the established state, but it was no longer a crime against the international community. So long as international society did not effectively guarantee the rights of men against arbitrariness and oppression by governments, it could not oblige states to treat subversive activities … as a crime.[133]

Were a right to rebel based on human rights standards accepted, it would jeopardise the realisation of human rights to allow serious state violators to criminalise the recourse to force by internal rebels. The objection that a right to rebel revives a subjective doctrine of just war is no more persuasive than directing the same objection at the right of self-defence, itself a vestige of just war. Like self-defence, a right to rebel is a fundamentally defensive right, exercisable only when legal preconditions are satisfied; instead of an armed attack, the serious violation of human rights.

The difficulty lies in determining when a rebellion is ‘justifiable’. For Honoré, a state’s breach of duty must be ‘weighty, crucial and severe’, such as ‘sustained disinterest or contempt’ or continued discrimination, oppression or exploitation that renders life intolerable.[134] Since rebellion may entail widespread violence, it must only be considered in extreme circumstances, and not if other remedies are available in a reasonable period.[135] The likely consequences of action must also be weighed. Despite the legal (rights-based) standards involved, such determinations still invite subjective appreciation of when the right to rebel arises; and when it may be denied. Such determinations are generally more subjective than verifying if an armed attack has occurred.

Regardless of its justifiability, where a rebellion generates an armed conflict, it would thwart the realisation of human rights to criminalise the conduct of hostilities (such as violent resistance against military or official targets, which complies with IHL); and even forcibly to repress rebellions. There is a powerful argument that rebel violence against an oppressive state, while respecting IHL constraints, should be lawfully justified in international law – by conferring combatant immunity – rather than merely excused at the level of mitigation in sentencing.

To avoid the problem of distinguishing just from unjust causes during combat, combatant immunity could be conferred on any rebel forces – progressive or reactionary – as long as they comply with IHL and its conditions of combatancy, transplanted from Protocol I. Internal conflicts would then mirror international ones, in which, for humanitarian reasons, the lawfulness or justice of recourse to force does not affect the lawfulness of a combatant’s participation in hostilities.[136]

Objections include that such an extension would legitimise violent non-state groups (including terrorists), by conferring international recognition on them,[137] and privatise war.[138] It would also interfere in domestic jurisdiction, beyond the limited interventions of common article 3 of the 1949 Geneva Conventions and Protocol II. Some of these objections are similar to those raised against the adoption of Protocol I.[139] Recognition implies loss of control over territory and private violence, and a degree of governmental failure, and states are reluctant to relinquish their sovereign authority to identify and penalise ‘terrorists’.[140]

Yet IHL is designed to serve neutral humanitarian purposes, not to confer political legitimacy or recognition on participants in conflict: just as recognising the combatant immunity of an aggressor state’s forces does not legitimise their cause. Further, recognising that non-state actors have rights and duties under IHL does not make them full subjects of international law, or give them legal personality equivalent to states. Conferring combatant immunity simply ensures that there is greater incentive for non-state groups to admit and respect IHL’s constraints on violence. This does not privatise war, but pragmatically concedes that private groups already fight wars, and will continue to do so, even if they are denied combatancy. It is better to regulate private violence internationally, to minimise harm in conflict, than to leave it to sovereign discretion.

To ensure civilian protection, rebels would have to comply with the conditions of combatancy, and would be liable for perfidy or other IHL breaches, although in practice it may be difficult to distinguish terrorist groups from resistance and guerilla groups, which sometimes use terrorist tactics.[141] Rebels would require a minimum degree of organisation to enjoy combatant status, since ‘structure is necessary for the activation and implementation of international norms’.[142] Loosening the conditions of combatancy further (such as permitting perfidy) would jeopardise civilian protection, by reducing the distinction between combatants and non-combatants.[143]

For instance, the French resistance woman in 1944 who, dressed in civilian clothes and concealing a revolver, cycled up to a German officer in a Paris street and shot him in the head,[144] necessarily renders all French civilians suspect, and invites drastic retaliation. Yet it is such ‘freedom fighters’ that the European Union (EU) Council sought to exclude from the scope of terrorism under the 2002 EU Framework Decision, in a draft statement excluding ‘the conduct of those who have acted in the interest of preserving or restoring … democratic values … as was notably the case in some Member States during the Second World War’.[145] Were this reasoning adopted in IHL, it would analogously justify the commission of war crimes in pursuit of just causes: a position rejected by the international community in armed conflicts. Many guerillas in the Second World War would not have complied with the more relaxed conditions of combatancy in Protocol I. While the EU’s statement was not part of the legal text as adopted, it nonetheless signals political unease about criminalising (as terrorism) the conduct of freedom fighters similar to those in Europe during the war. What is unclear is whether the EU believes that such conduct should not be regarded as criminal at all, in which case it would seem to lend support to a further liberalisation of the relaxed conditions of combatancy in Protocol I.

Paradoxically, the EU’s position is not dissimilar to the exclusion of liberation violence from the anti-terrorism treaties of the Arab League, Organization of the Islamic Conference and the African Union: even though such an exemption is the main sticking-point between these organisations and western states in the negotiation of a comprehensive anti-terrorism treaty within the UN since 2000. The EU’s lack of empathy for similarly situated ‘freedom fighters’ resuscitates the persistent adage that ‘one person’s freedom fighter is another person’s terrorist’.

d. ‘Non-innocent’ civilians: Even if IHL is fully extended to civil wars and all liberation movements, a different justification for terrorism rests on a challenge to IHL norms of distinction. On one view, some non-combatants are not ‘innocent’ and therefore become legitimate targets of violence:[146] not only police officers or government officials who enforce and implement the policies of an oppressive government, but Israeli settlers in the Palestinian Occupied Territories, pied-noirs in Algeria, or white South Africans during apartheid. These cases involve unlawful occupations or gravely unlawful acts under international law. Foreign settlers may be seen as instruments or beneficiaries of the state’s unlawfulness. As Fanon writes:

The appearance of the settler has meant … the death of the aboriginal society, cultural lethargy, and the petrification of individuals. For the native, life can only spring up again out of the rotting corpse of the settler.[147]

The argument for ‘non-innocence’ (or ‘half-innocence’)[148] is most persuasive for voluntary settlers with knowledge of the international unlawfulness (regardless of domestic legality). Children of settlers ought also be excluded, since they may have no choice but to follow their parents, and their minority may preclude informed choice.

On one hand, law sometimes prohibits violence but accepts it as morally excusable: ‘when the victim is Hitler-like in character, we are likely to praise the assassin’s work’.[149] Assassinations of oppressive politicians, which avoid innocent casualties, are distinguishable from random murders of innocents:[150] ‘who would say that he commits a crime who assassinates a tyrant?’[151] Courts have even recognised assassinations as proportionate political acts exempt from extradition.[152] While settlers are not oppressive politicians,[153] they are voluntary, knowing agents of oppression, displacing and impoverishing local populations. The protection of civilians in general does not disappear if the targeting of such a limited class is accepted, just as the targeting of oppressive officials does not endanger ordinary citizens.[154]

Yet the argument for killing ‘non-innocent’ civilians is still unacceptable. The killing of combatants in armed conflict is justified because soldiers are militarily dangerous to an adversary.[155] Civilian munitions workers are lawful targets for the related reason that they are incidental casualties of lawful attacks on military targets (munitions factories).[156] Violence against combatants aims to disable them so they can no longer keep fighting.[157] In contrast, neither police officers[158] nor settlers are militarily harmful, although some may be if they engage in hostilities and hence lose their civilian immunity.[159]

The argument for targeting settlers rests on a different argument about their moral or legal culpability,[160] not their military threat.[161] But allowing settlers to be killed for moral, political or legal wrongdoing is little more than vigilante justice. Punishment is a judicial function, requiring procedural fairness, and not easily given over to summary justice.[162] Extra-judicially evaluating immunity, or guilt, by standards of morality, or suspected illegality, renders civilian protection highly subjective.

Even in ideal cases of ‘just assassination’ as Hitler,[163] assassins are entitled to moral respect, but can still be prosecuted. This is because combatants are objectively harmful, but ‘the unjust or oppressive character of the official’s activities is a matter of political judgment’.[164] IHL provides objective criteria of combatancy that identify harmful people in conflicts. While there are likewise human rights standards by which to measure the conduct of officials or settlers, such judgments entail a margin of appreciation far exceeding that involved in factually identifying a combatant.

Even more tenuous than the argument for killing settlers is Al-Qaeda’s view that Americans, by being Americans, are responsible for the acts of the United States, or for sustaining its power.[165] The views of Al-Qaeda reflect a crude doctrine of collective responsibility, where (democratic) state action is mechanically imputed to all of its citizens. Such a view not only disavows the autonomy of individuals, but it is also politically punitive; it threatens a whole people, regardless of the individual harmfulness of its members.[166] Likewise, the targeting of UN or humanitarian personnel, for supposed complicity in nourishing the United States occupation of Iraq,[167] embodies a world-view that ultimately exposes every individual to terrorist harm: whether on account of their occupation, political beliefs, religious affiliation, nationality, or otherwise.

Another extreme challenge to IHL comes from those like Sheik Ahmed Yassin, who stated: ‘The Jews attack and kill our civilians – we will kill theirs’.[168] Similar claims have been made by Chechen groups.[169] Arguments for retributive killings draw no moral distinction between intended and unintended killings of non-combatants, and embody a simplistic rejection of the doctrine of double effect. Incidental civilian casualties from proportionate military operations are a tolerated cost of war, but deliberately killing non-combatants – even in reprisal – is unlawful.[170]

Arguments for retributive killings are, however, nourished by the overwhelming preponderance of civilian casualties relative to military casualties in modern conflicts, including in recent conflicts in Kosovo, Afghanistan and Iraq.[171] High-altitude air warfare minimises military losses amongst the armed forces of technologically superior states, but may inflict high incidental civilian casualties.[172] The high rate of civilian casualties may suggest that judgments about military necessity have become overly protective of military forces (which are prepared to assume too few risks) and under-protective of non-combatants (who are too readily accepted as ‘collateral damage’). If this lack of proportionality is a cause of high civilian casualties, then it may encourage terrorists to claim that their targeting of civilians is not so morally different from states that kill civilians too casually.

III. Criminal Law Defences to Terrorism

In the absence of any positive right to rebel against oppressive states, including by self-determination movements falling outside Protocol I, international criminal defences assume importance in accommodating claims of justification for terrorism. For serious crimes, a fair trial requires the availability of defences,[173] which recognise that ‘the presumption of free will is displaced’ in some circumstances.[174] There is little evidence in state practice that absolute or strict liability attaches to terrorism,[175] and as such, the full range of defences is available. Sectoral treaties do not abolish defences, and most domestic terrorism laws also do not exclude them.[176]

Just as defences are available to comparably grave charges such as genocide, war crimes or crimes against humanity, so too should defences be available to terrorism. While criminalisation expresses international disapproval of terrorism, defences moderate the law’s harshness in morally exceptional cases, and allow a more refined and calibrated response to claims of justification.[177] Not all terrorism is the same, and it follows that the criminal law cannot treat all terrorist acts in the same way. The motive behind terrorism is relevant to evaluating criminal responsibility.[178]

The scope of defences in international criminal law was historically ill-defined.[179] Defences were not recognised in the Nuremberg Charter, although the Nuremberg Tribunal permitted superior orders in mitigation,[180] and alibi and innocence as complete defences.[181] The International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) Statutes do not mention defences,[182] and exclude official position as a defence or mitigating factor, but allow superior orders in mitigation.[183] The Rules of Procedure and Evidence of those tribunals, however, allow ‘any special defence’ to be pleaded.[184]

The 1998 Rome Statute explicitly affirms grounds excluding criminal responsibility, including: (a) mental disease or defect; (b) intoxication; (c) self-defence; (d) duress; and (e) other grounds deriving from international law and general principles of law.[185] Official capacity is excluded as a defence or a mitigating factor.[186] Self-defence and duress/necessity are the defences most relevant to terrorist acts.

Civil law systems commonly distinguish between defences as justifications or excuses,[187] and there is revived interest in the distinction in the common law.[188] It is unclear if international law so distinguishes,[189] although in the 1998 Rome Statute, the words ‘a person shall not be criminally responsible’ characterise defences as excuses.[190] Both justifications and excuses are rational explanations for wrongdoing,[191] and both may produce an acquittal. The difference lies in the greater moral stigma attaching to excused conduct, where wrongfulness is admitted,[192] but responsibility is wholly or partially refused.[193] In contrast, a justification is a positive liberty to perform an otherwise unlawful act;[194] responsibility is accepted but wrongfulness denied.[195]

(a) Self-defence

Is terrorism ever justified in self-defence, or defence of another? Self-defence is a general principle of criminal law.[196] The 1998 Rome Statute excludes criminal responsibility where:

The person acts reasonably to defend himself or herself or another person … against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person …[197]

In the case of war crimes, a person may also act reasonably to defend property that is essential for the survival of the person or another person, or property that is essential for accomplishing a military mission.[198]

In addition to requirements of an imminent and unlawful attack, and proportionality, Cassese suggests that the law requires two further conditions: there is no other way of preventing the offence (otherwise known as a requirement of necessity,[199] and encompassing a duty to retreat or avoid conflict[200]); and the conduct of the aggressor is not caused by the person acting in self-defence.[201] The individual right of self-defence is distinct from the right of national self-defence exercised by states or state-like entities.[202] Indeed the Rome Statute stipulates that a person engaged in defensive military operations is not automatically absolved of criminal responsibility,[203] and the ICTY has found that such operations do not justify violations of IHL.[204]

Because self-defence aims to protect ‘the legitimate interest a person has in their own continued survival and bodily integrity’,[205] acts in self-defence are motivated by self-preservation, rather than by political aims, or coercive or intimidatory purposes. While killing an attacker may incidentally satisfy a political goal (if, for instance, the attacker is an agent of state policy), an act remains defensive as long as it is a reasonable and proportionate response to imminent, unlawful force. For this reason, attacks on innocent civilians can never be defensive, since such persons are not responsible for threatening imminent unlawful force. Less still are indiscriminate attacks on civilians justified by self-defence, because the lack of discrimination must fail the proportionality test.

Self-defence does not confer a licence to use violence in a strategic way in protest at a generalised policy of state oppression. Where an oppressive government threatens imminent and internationally unlawful force, affected individuals may exercise self-defence against the state agents or officials implementing the policy, such as the police, security services, or paramilitaries. Examples include self-defence by a detainee against an official threatening torture, enslavement, or prolonged unlawful detention;[206] or where a civilian threatened with rape wounds a soldier.[207]

However, it would be disproportionate to use lethal force against a person depriving another of the right to vote or freedom of expression,[208] or to protect property.[209] In allowing defence of property essential to survival or to accomplishing a military mission, the drafters of the Rome Statute reached a ‘disturbing compromise’,[210] which may violate jus cogens and contradict IHL.[211] In practice, threats to property will seldom have imminent lethal consequences, since alternative means of survival will often be available, and thus killing to protect such property would seldom be proportionate. Exceptional cases may, however, arise, such as threats to destroy or steal food in situations of starvation or scorched earth policies. On the other hand, it is difficult to see any rational justification for classifying defence of property essential to a military mission as self-defence, since such conduct falls within the primary rules of IHL on the conduct of military operations and would, in appropriate cases, attract the ordinary application of combatant immunity.

The requirement of imminence also precludes self-defence against state officials who order, but who do not personally implement, oppressive policies. While such action might fall within a more general right to rebel, only an expanded (or preventive) right of self-defence would authorise violence against such persons.

May individuals act pre-emptively in self-defence? There is little international case law on the point, but some national courts permit pre-emption. In the English case of Beckford, it was held that ‘a man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike’.[212] The rationale is that a person’s vital interests cannot be protected if the person is required ‘to wait until the first blow was struck’.[213]

Yet the attack must still be imminent, not merely anticipated or predicted at some point in the future. Pre-emptive ‘self-defence’ against state oppression would rarely be justified, unless a potential victim knew, with a reasonable certainty, the identity and intention of a potential attacker. Thus if a police officer was ordered to exterminate an ethnic group, and accepted those orders, members of the group may be justified in pre-emptively killing that police officer. The killing would thus be defensive, not terrorist, even though it has a political aspect. Other cases might include pre-emptive actions in defence of others, such as harm to public property intended to prevent one state using internationally unlawful force against another state.[214]

(b) Duress/necessity

In the UN General Assembly’s Ad Hoc Committee, some states asserted that terrorism is the inevitable or logical outcome of underlying causes.[215] The implication is that it is unfair to punish desperate acts of necessity. In contrast, many states objected that terrorism is not an automatic consequence of even legitimate grievances,[216] emphasising the choice involved in using terrorism over other means,[217] or even in the absence of oppression.[218]

There is evidently no strict criminal law causation between terrorism and injustice[219] and some empirical research even suggests that stable democracies are the most frequent victims of terrorism and both perpetrators and victims are from those states.[220] Many resolutions acknowledge this in indicating merely that causes ‘may’ give rise to terrorism. Even non-aligned states observed that examining the causes of terrorism was ‘not in any way intended to justify’ it,[221] and no resolution after 1991 has asserted that the causes of terrorism justify it. The dissipation of the ‘exception’[222] after the Cold War allowed the Assembly to make progress in later resolutions.

International criminal law supports political contentions that terrorism will rarely be justified by necessity or duress. The defences of duress and necessity are often conflated as categories and there remains conceptual ambiguity about the distinction.[223] Generally, duress refers to compulsion by human threats, whereas necessity involves emergencies arising from natural forces or objective circumstances.[224] Necessity is broader than duress,[225] which it encompasses; an act performed under duress is performed out of necessity.

The trend in international criminal law is to combine duress and necessity as a single defence. The 1998 Rome Statute excuses responsibility where conduct:

has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person’s control.[226]

In addition to the requirements of an imminent serious threat and proportionality, Cassese adds that there must also be no other ‘adequate means of averting such evil’ (this includes a duty to retreat or to reasonably seek escape[227]) and ‘the situation leading to duress or necessity must not have been voluntarily brought about by the person concerned’.[228] Threats to property are insufficient.[229]

(i) A limited defence to terrorism?

In civil law systems, duress is usually a complete defence.[230] In contrast, the defence is often not available at common law for serious crimes such as treason, murder or attempted murder, and is only relevant in mitigation.[231] In Erdemovic (Appeals), the ICTY followed the common law approach and, by a narrow three to two majority, rejected the defence for war crimes or crimes against humanity that involve the killing of innocents.[232] The traditional rationale is a policy interest in preventing the killing of innocents, even in extreme circumstances of survival. Killing innocents to save oneself is regarded a greater harm than that it avoids, and there is no ‘absolute or unqualified necessity to preserve one’s life’.[233] Self-sacrifice is expected of an ‘ordinary man of reasonable fortitude’.[234]

While Erdemovic (Appeals) would exclude a plea of necessity to a terrorist killing, lesser terrorist acts might be excused. For example, English cases have found that the defence is available to persons who hijacked aircraft to escape from imminent threats of death or serious injury, by reason of persecution in Iraq or Afghanistan.[235] The United Nations High Commissioner for Refugees (UNHCR) likewise believes that defences of duress and self-defence are relevant in applying the refugee exclusion clauses to hijackers.[236] In the Iraq war, there have been a number of reports of people being coerced, beaten, drugged or tricked by insurgents into attempting suicide bombings against United States forces or the Iraqi authorities.[237]

An important limitation on duress is that the person must not intend to cause greater harm than that sought to be avoided. Thus a trivial fear of persecution will not excuse endangering aircraft, while the killing of passengers will rarely be excused. Like hijacking, hostage-taking may be a necessary and proportionate response to an imminent threat and may be excused by duress. As soon as hostages are killed, however, the act is likely to become disproportionate.

Other terrorist-type offences are less likely to support a plea of duress. Whereas hijacking furnishes control over transport, facilitating escape from imminent peril, other terrorist acts are not so calibrated. Bombing government buildings, shooting randomly into a crowd, or exploding aircraft are far less likely to facilitate escape, though the possibility cannot be discounted in extreme circumstances.

While duress/necessity may be available for some sectoral crimes, its application to generic terrorism offences presents other problems. On one hand, if terrorism is defined by its intimidatory or coercive aims, irrespective of the underlying motive, then the defence would remain available, since coercing or intimidating others may supply a means of escape, or alleviate a peril. The defence would, however, be unavailable in the absence of an imminent peril, or where the coercion or intimidation aims not to alleviate peril, but to achieve some wider political, or other, objective.

On the other hand, if terrorism is defined by political motives, the preponderance of such motives will usually negate the basis of duress/necessity. In the above cases, aircraft were not hijacked for political reasons, in that the hijackers were not aiming to change government policies, or to advance a political cause. Rather, the reason for action was escape from persecution. If terrorism is defined by its political motives, the absence of a political motive deprives the act of its terrorist character.

In difficult cases, mixed motives may underlie an act: an intent to avoid imminent peril, coupled with broader political objectives. The concurrent presence of incidental political motives will not negate a genuine claim of duress, as long as the act is the only effective means of avoiding the peril. Conversely, where an act is committed predominantly for political motives, a claim of duress will likely fail.

(ii) A complete defence to terrorism?

The 1998 Rome Statute departs from Erdemovic (Appeals), since it excuses responsibility and is not limited to mitigation.[238] This position was criticised for undermining deterrence,[239] but it recognises that in extreme cases, ordinary concepts of reasonableness may not apply.[240] Criminal law should not require heroism and it may not always be more harmful to kill an innocent.[241] As Judges Ninian Stephen and Antonio Cassese argued in dissent in Erdemovic (Appeals), sometimes refusing to kill will save neither the innocent nor the refuser, so there is no real choice between self-preservation and self-sacrifice.[242]

A different situation is where killing one innocent will save two or more lives.[243] The problem with the ‘lesser evil’ is the ‘danger of citizens trying to justify all manner of conduct by reference to overall good effects’.[244] Yet in some cases ‘the autonomy of everyone simply cannot be protected’ and difficult choices must be made.[245] Clear cases do not require choosing one innocent victim from among others;[246] in other cases, a fair procedure for choosing the victim may be the least bad alternative.

The 1998 Rome Statute does not exclude duress/necessity for even the most serious international crimes. If it is available as a complete defence,[247] it must be limited by strict conditions. Where the killing of innocents is involved, the defence will be strictly construed and difficult to prove, and relevant factors include whether the crime would be committed in any case by someone else, so that self-sacrifice is futile.[248] This realist position acknowledges that ‘criminal liability and punishment are inefficacious where a person is subject to such acute threats’.[249]

If duress/necessity may excuse the most serious international crimes, then it may potentially excuse some terrorist killings. Thus, if killing a hostage is the only means of saving a significantly larger number of innocent persons, there is a case for necessity. The graver the peril, the greater the range of acts that may be proportionate, notwithstanding incidental political motives. But as with self-defence, the indiscriminate violence often associated with terrorism will rarely, if ever, be proportionate, since such killings are unlikely to alleviate the peril. Often there will also be other means of redress available.

(iii) Widening the range of threats?

Less serious or generalised threats – such as political oppression or foreign occupation – are not sufficient grounds for claiming duress/necessity for killing innocents: there is no concept of ‘political necessity’.[250] The requirement of a threat of imminent death or bodily harm is restrictively interpreted as a threat of external physical violence. In IHL, a person charged with war crimes cannot plead ‘personal necessity relating to his own life or comfort, such as that he deprived a protected person of food to preserve his own life’, although this may be relevant in mitigation.[251] English courts have similarly held that admitting hunger or homelessness as an excuse for crime would open the door to ‘all kinds of lawlessness and disorder’.[252]

The privileging of freedom from physical violence (not other harms) reflects the dichotomy in human rights discourse between judicially protected rights (mainly civil and political rights, especially liberty and security of person), and those subject to progressive political realisation (social, economic and cultural rights, especially food and shelter). It also reflects western legal thinking about culpability, which underestimates the material and ideological handicaps that constrain the choices of the poor and powerless.[253]

Less spectacular affronts to bodily integrity – hunger, poverty, violations of economic, social and cultural rights – are not considered worthy of protection by the defence of duress/necessity. This contrasts with situations arising outside the effective reach of a state’s jurisdiction – such as starvation on the high seas – where necessity may still be available.[254] Within society, however, it is assumed that remedies for those ills lie in the realm of politics, policy choices and welfare programs.

Yet a minimum level of welfare cannot be assumed in less wealthy or benevolent societies, especially where a state fails to prevent hunger or homelessness, for reasons of ideology, discrimination, or incapacity. The greater the physical deprivation caused by poverty or hunger, the stronger the basis for necessity becomes. So much has been gradually recognised even in a developed state such as England:

Probably it is now the law that if the taking or the entry was necessary to prevent death or serious injury through starvation or cold there would be a defence of duress of circumstances; but if it were merely to prevent hunger, or the discomforts of cold or homelessness, there would be no defence.[255]

Even so, it is a conceptual leap from excusing theft or burglary due to hunger to excusing the terrorist killing of innocents; such acts would normally be disproportionate. But the possibility cannot be ruled out in societies experiencing extreme hardship. For example, persons who, during a famine, and to avoid starvation, kill the driver of a government truck transporting food elsewhere, might plead duress/necessity. Similarly, villagers who kill a local mayor, to signal to a repressive or negligent government that food aid is urgently required, might plead the defence.[256]

In the first case, if terrorism is defined objectively as the killing of public officials, regardless of motive, then the defence may excuse terrorism. In the second case, if terrorism is defined subjectively as violence for coercive or intimidatory aims, then the defence also excuses terrorism. Even if terrorism is defined as politically motivated violence, then the second example, involving a political statement about government responsibility for food distribution, might still be excusable. The second example illustrates the earlier point that terrorist acts with mixed motives (political and self-preserving) may still be excusable, depending on the balance of motives.

The important point is that emergency situations with incidental political aspects may sometimes justify killing innocents, but wider moral or political agendas cannot.[257] There is the greatest danger in arguing that the pursuit of abstract rights, not involving threats to life or limb, excuses the killing of innocents. Berlin illustrates the perversity of this instrumental reasoning:

To cause pain, to kill, to torture are in general rightly condemned; but if these things are done not for my personal benefit but for an ism – socialism, nationalism, fascism, communism, fanatically held religious belief, or progress, or the fulfilment of the laws of history – then they are in order.[258]

(iv) Attenuating ‘imminence’?

A further question is whether the standard of ‘imminent’ serious threats to life or limb is satisfactory. If imminence is regarded as wider than an immediate threat, then terrorism against an oppressive state, which potentially causes future, unspecified, but not immediate harm, may be excused. In the Einsatzgruppen Case, it was held that a peril need not be as imminent as a loaded gun pointed at a person’s head for the defence to be available.[259] The threat must simply be ‘imminent, real and inevitable’.[260]

What is less clear is how far beyond such a concrete threat the idea of imminence extends. In cases involving cannibalism by shipwrecked persons adrift on the high seas,[261] starvation was not as immediate a threat as a loaded gun: after all, a rescue ship might have sailed by at any moment. There is always room for doubt, so the question is one of probability. National courts have held that an imminent threat need not be immediate,[262] and may occur in the future,[263] although remote threats of future harm are insufficient. Persons under compulsion must first resort to protection of the law,[264] but this may be no comfort where the state itself is the source of the threat. As stated in Abdul-Hussein:

if Anne Frank had stolen a car to escape from Amsterdam and been charged with theft, the tenets of English law would not, in our judgment, have denied her a defence of duress of circumstances, on the ground that she should have waited for the Gestapo’s knock on the door.[265]

The less imminent the threat, the more an act assumes a pre-emptive character and loses its basis in necessity. At the same time, the requirement of imminence cannot be so narrowly drawn as to destine an individual to certain death. Acts of a terrorist nature committed to avoid a vaguely anticipated threat – such as that arising from hostile but generalised political statements directed against a social group, falling short of incitement to an international crime – would seldom be excused by necessity.

(v) An individual defence

A final constraint is that necessity does not excuse a person who voluntarily and knowingly joins a group that intends to violate IHL [266] or international criminal law. The person must have knowledge of the nature of the group, and an awareness of the risk of compulsion, although it is not necessarily to foresee the particular crime.[267] In an English case, duress was not a defence to a robbery committed due to the Irish Republican Army (IRA) threats because the defendant had freely and knowingly joined the IRA.[268] The law is similar on the defence of superior orders, which cannot excuse a person who ‘voluntarily and consciously joined’ a criminal organisation like the Gestapo.[269]

Thus persons who voluntarily and knowingly join an unlawful terrorist group cannot plead necessity or superior orders, since such persons have elected to place themselves at risk of criminal compulsion. The fairness of this exclusion depends on the proper identification of groups as criminal, and accordingly, consideration of defences available to group actors is now necessary.

IV. Circumstances Precluding Group Responsibility

The counterpart of the international criminal law of defences is consideration of the pleas available to group actors accused of terrorism. Whereas international criminal law supplies defences to individual liability for terrorism, there is a normative gap in relation to defences available to group actors. Since the early 1990s, the international community, through the UN Security Council, has designated certain groups as terrorist, outlawing them and authorising the freezing or confiscation of their assets. The international legal personality of these entities has been denied, since they have been regarded as passive objects of regulation, without any procedural entitlements.[270]

The denial of legal agency to group actors in the international legal system contrasts with the rights of states under the law of state responsibility. A state may plead circumstances precluding the wrongfulness of a breach of an international obligation. Yet the ILC’s Articles on State Responsibility are silent on the responsibility of non-state entities, noting merely that they are ‘without prejudice’ to the responsibility of international organisations (art 57) or individuals (art 58) under international law. The responsibility of other entities – whether corporations or non-government, charitable or civil society organisations – is not contemplated. This is true of international law historically[271] and it is ‘doubtful whether any general regime of responsibility has developed to cover’ such groups.[272] Moreover,

The Security Council often addresses recommendations or demands to opposition, insurgent, or rebel groups – but without implying that these have separate personality in international law. Any international responsibility of members of such groups is probably limited to breaches of applicable international humanitarian law or even of national law, rather than general international law.[273]

As Higgins observes, ‘individuals are extremely handicapped in international law from the procedural point of view’[274] and the fiction, under the diplomatic protection model, that an injury to a national is assimilable to an injury to their state is unrealistic for entities falsely proscribed as terrorist. Some other remedy is necessary to protect entities or individuals from arbitrary interference with their privacy, home, honour and reputation,[275] resulting from erroneous proscription. The marginalisation of UN treaty bodies in the ‘war on terror’[276] makes this all the more necessary.

Proceeding by analogy, it is arguable that at least some of the circumstances precluding wrongfulness under the law of state responsibility should be available to entities proscribed as terrorist under international law. Of particular relevance are self-defence (art 21) and necessity (art 25). These defences might be raised where groups breach the international obligation, affirmed in the practice of the UN General Assembly and the Security Council, not to engage in terrorist activity.[277]

It is difficult to see why non-state actors should not be entitled to similar equitable dispensations as states in situations where they are being held responsible for international wrongs. This is not to treat non-state groups as international legal persons equivalent to states.[278] As the ICJ stated in Reparations for Injuries, ‘[t]he subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends on the needs of the community’.[279]

A group actor is,[280] like a state, ‘capable of possessing international rights and duties’ and has the ‘capacity to maintain its rights by bringing international claims’.[281] The degree of participation of group actors depends ‘on the particular area of the international legal system concerned and the activity and involvement of entities in that area’.[282] For entities proscribed as terrorist, the serious personal and financial consequences of proscription give rise to an expectation that those affected are entitled to a fair and transparent procedure before their vital interests are impaired.

(a) Self-defence

ILC article 21 precludes the wrongfulness of a lawful act of self-defence in conformity with the UN Charter. Self-defence does not preclude the wrongfulness of conduct contrary to IHL and non-derogable human rights provisions.[283] As stated in the Nuclear Weapons Advisory Opinion, customary IHL is ‘intransgressible’.[284] Acts of self-defence must respect any rules of ‘total restraint’ applying in armed conflict, as well as satisfying customary requirements of necessity and proportionality.[285]

National self-defence has historically been thought of only as a right of states, or of para-statal entities such as self-determination movements forcibly denied their rights, and as a Charter right it can only be claimed by states.[286] Yet on ethical grounds, Rodin questions ‘why the right to use collective violence should be limited to States’, and does not also extend to other human communities that ‘do not coincide with the boundaries of States’[287] (nor even with the boundaries of self-determination units).

State practice does not furnish a principled answer, because it is in the interests of states to limit the right to use violence to themselves; this is also true of the Charter system of collective security, which is an expression of an international community constructed primarily by states and usually in their interests. The issue is important because non-state violence is often characterised as terrorist, especially where it is below an armed conflict, and even if humanitarian restraint is exercised.

Restricting the use of force to states is usually justified because the state embodies ‘a genuine community capable of exercising a form of collective autonomy’.[288] But the legal fiction of a homogeneous ‘people’ expressing self-determination is exploded by a cursory examination of the many other communities that attract an individual’s allegiance: religious, ethnic, social or political. It is ‘difficult to see why such groups should be denied an analogous right to defend their integrity with force’.[289] (Consider violent state persecution of ethnic or religious groups, as in Kosovo, to which civil society groups respond in ‘self-defence’.) The nation is but one expression of identity deserving protection, if necessary by force.

Further, the traditional objective criteria of statehood – political independence, territorial control, and a permanent population[290] – are morally ‘empty’,[291] or embody the peculiar morality of realpolitik: ‘The only test is internal naked power’.[292] States need not be coextensive with self-determination units, and the people’s sovereignty has not yet displaced the sovereign’s sovereignty.[293] As such, it is hard to appreciate the moral basis on which to privilege the use of force by states over other social units.

Limiting the right to use force to states might be defended because a state monopoly limits the spread of international violence. Certainly, there is pragmatic appeal in preventing the privatisation of violence, and the entrenchment of communal fragmentation or tribalism by force. The field of lawful violence is limited to less than 200 states, rather than encompassing many thousands of group actors. Too much diversity, if imposed by force, is objectionable on public order grounds.

Yet the opposite might equally be true: too little diversity, backed up by force, is also dangerous; if not more so. By concentrating the authority to use force in states, the destructive potential of violence is vastly magnified, since states often command greater resources and organisational capacities than other communities. Violence may occur less often, but it may cause greater harm. A group right of self-defence may help deter the abuse of power by states. Groups will act defensively when attacked anyway, so it is better to decriminalise and structure their use of force.

At present, international law considers the use of force by non-state actors (outside armed conflict) largely as an internal affair, subject to basic human rights obligations. There is no right to collective ‘self-defence’ by sub-state communities. Yet if terrorism is internationally criminalised, international law can no longer ignore claims to self-defence by non-state groups, since group self-defence may be a vital justification for violence characterised as terrorist. The same is true of acts of group self-defence that occur across a frontier, below the level of armed attack. A legal system that confers duties without rights will struggle to maintain legitimacy, particularly given the limited application of individual criminal defences.

Group self-defence is conceptually closer to individual self-defence than national self-defence, since requiring an ‘armed attack’ on a non-state community as a precondition of self-defence sets the threshold too high. For example, a state policy of genocide, or violent persecution, against an ethnic group may not amount to a conventional, military ‘armed attack’, yet it is clearly serious enough to trigger group self-defence. Whether conduct is necessary in self-defence should be based on a strict and objective assessment, leaving no room for discretion by the group itself, just as these requirements apply to state actors.[294] Collective group self-defence might also be admitted, where a group requests assistance from other groups (domestic or international), particularly given the failure of states to fulfil obligations to prevent genocide,[295] or to prevent mass human rights violations through the UN Security Council.

(b) Necessity: knowing the law

ILC article 25 provides that necessity may not be invoked by a state unless it (a) ‘is the only means for the State to safeguard an essential interest against a grave and imminent peril’ and (b) it ‘does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole’.[296] Necessity may not be invoked if the international obligation excludes it, or the state has contributed to the situation of necessity.[297] While the ‘existence and limits’ of the plea have been controversial, on balance it is considered available.[298]

A claim of necessity precludes wrongfulness and is thus a justification.[299] It is subject to stringent conditions due to its exceptional nature. Whether an act is justified ‘depends on all the circumstances, and cannot be prejudged’.[300] The peril must be ‘objectively established and not merely apprehended as possible’ or ‘contingent’, and it must be ‘imminent in the sense of proximate’.[301] There must be no lawful means available to avert the danger, and any action taken must be strictly necessary.[302] The state’s interest must objectively outweigh other competing considerations.[303]

Similar ethical considerations apply to the plea of necessity by non-state communities as apply to self-defence. It is possible to conceive of grave and imminent perils to the essential interests of other human communities, particularly peril caused by states. State decision-making, about whether an act is required to safeguard an essential interest, is no more valid than corresponding decisions by groups. States do not always represent the interests of their populations, and smaller social units may be more responsive to the essential interests of their members.

On the other hand, the problems of recognition and representativeness of non-state groups are well known,[304] and caution against a simple extension of necessity to non-state groups. Less structured groups may have fewer lines of accountability and restraint in decision-making, although the same may be true of authoritarian states. Further, non-state actors may not be constrained by the tradition of Westphalian ethics[305] and strategies of containment and deterrence which shape state conduct.

If it were admitted, a group defence of necessity would seldom justify the killing of innocents to avert imminent danger. The dictum that ‘necessity knows no law’[306] is not part of the modern law, which is circumscribed by strict legal conditions. In particular, a breach of a norm of jus cogens remains wrongful and unjustifiable.[307] As Lauterpacht notes, necessity ‘has been invoked as justifying all the horrors of war, the sacrifice of human life, and the destruction of property and devastation of territory’.[308] The intentional targeting of civilians is very hard to justify and requires ‘a substantial case that it is highly likely to prevent worse horrors’,[309] and there is always a danger of ‘moral monstrosities threatened by unbounded consequentialism’.[310]

Further, necessity ‘is not intended to cover conduct which is in principle regulated by the primary obligations’.[311] Importantly, IHL expressly excludes reliance on military necessity,[312] including forbidding reprisals against protected persons,[313] which would now render area (or ‘terror’) bombing, as in the Second World War, unlawful.[314] However, reprisals remain controversial,[315] and some states continue to assert that a belligerent may violate IHL in proportion to an initial severe violation of IHL by another belligerent, to compel the violator to terminate the unlawful conduct.

Moreover, in the Nuclear Weapons Advisory Opinion, the ICJ found that, under the law of self-defence, the use of nuclear weapons might not be unlawful in an extreme case where the survival of a state is at risk.[316] If the use of nuclear weapons by states is not always unlawful, then their similar use against civilians by non-state groups might analogously be justified where the group’s survival is at risk. However, the ICJ did not clarify whether IHL norms, including on reprisals and proportionality, could be breached (such as permitting the targeting of non-military objectives), or if pre-emptive nuclear strikes to ensure a state’s survival are permitted.[317]

The ICJ further did not explain whether the ‘survival’ of a state referred to the physical survival of the state’s inhabitants, or whether it also refers to its political survival. If ‘survival’ refers merely to maintaining political independence or territorial integrity, it is difficult to see how the destruction and irradiation of enemy civilians, territory and environment, and future generations, is justified simply to preserve a local government over a foreign one. Despite the importance of a state’s political survival and the values it sustains,[318] the common life is not a ‘source of value independent of its value for individual persons’,[319] or as important as their survival.[320]

(i) Terror of necessity: suicide bombing

In conflicts beneath an armed conflict, where IHL does not apply, or it applies but liberation forces are unrecognised,[321] necessity may preclude the responsibility of non-state groups. Honderich defends Palestinian terrorism against Israel as a moral right – ‘terrorism for humanity’ – as the only effective means for freeing Palestinians from Israeli domination.[322] A right of self-determination is meaningless without a remedy, and terrorism is thought justifiable where it has a decent probability of achieving its ends at a cost that makes it worth it.[323] Honderich relies on analogies with the deliberate killing of innocents by western states in the naval blockade of Germany in the First World War, and by terror and atomic bombing in the Second World War.[324]

While Israel is not party to Protocol I, Palestinian attacks on Israeli soldiers, which may be treated as terrorism under domestic law, are plainly of a different moral order than Palestinian attacks on Israeli non-combatants. On the other hand, the ‘necessity’ argument for Palestinian terrorism against civilians fails for at least five reasons. First, Palestinians do not face a ‘grave and imminent peril’ of the kind envisaged as necessity. The weight of opinion holds that Palestinians suffer from an oppressive Israeli military occupation, unlawful Israeli settlements, economic privations, and serious rights violations. A denial of self-determination is the denial of a peremptory norm. But Palestinians are not experiencing genocide, extermination, or a threat to their survival as grave as that anticipated by the law of necessity. Foreign occupation is an insufficient threat, and is, moreover, dealt with by the primary rules of IHL, although the absence of reciprocity as a constraint in situations of occupation may encourage more radical, exceptional responses to breaches of IHL by the Occupier.

Second, permitting the deliberate targeting of Israeli civilians would impair a countervailing essential interest of both Israel and the international community as a whole: the right to life of innocent civilians. Deliberately killing Israelis is a means disproportionate to the peril it seeks to alleviate. Third, killing civilians is too remote from the political end sought, since terrorist acts have steeled Israel’s will and have often increased, not reduced, Israeli domination of Palestinian lives.[325] Due to the political, security and religious motives underpinning Israel’s persistent claim to Palestine, Israel responds to terrorism with excessive and escalating violence of its own. This is a difficult question of political judgment; Israel’s withdrawal from Gaza in 2005 might be seen as a tangible gain from decades of Palestinian terrorism; contrarily, Israel’s construction of a ‘security’ barrier in the West Bank, its continued expansion of unlawful settlements there, and its retreat from promises made in the Oslo Accords indicate that terrorism has not far advanced the Palestinian cause.

Fourth, unlike states, which monopolise national political decision-making, it is not clear that terrorists express the will of the Palestinian people. Fragmentation and factionalism make it difficult to identify clear lines of Palestinian political authority. Some terrorist attacks are launched by secret militant groups outside political or civilian control. Other attacks derive from extreme religious justifications of self-sacrifice and martyrdom, rather than from the political goal of self-determination. Finally, it is not obvious that alternatives to suicide bombing – including the faltering but not extinct peace process – have been exhausted. Suicide bombing to improve one’s bargaining position may be strategic, but it is not of necessity.

Arguments for suicide bombing rely on a fundamental objection to the asymmetry of power between states and non-state actors. Terrorism is considered the only effective weapon[326] available to the weak and disempowered, who cannot hope to win by regular methods against modern, well-resourced, militarised states.[327] There is intuitive appeal to this view, which assumes that power disparity is unfair and that the law should redistribute power. There is also a policy argument that terrorism minimises violence, where liberation forces tactically choose not to escalate a dispute into an armed conflict, and instead employ low-intensity terrorist methods, although it is rarely possible to predict the level of violence that is likely to ensue.[328]

Yet it is difficult to see why the fact of unequal resources triggers entitlement to use irregular methods, to even up the odds. Nothing in IHL presupposes equality of power between adversaries (as opposed to procedural ‘fair play’[329]). Conflict is intimately founded on achieving superiority of power, and to manipulate IHL to equalise power differences is simply unrealistic. There would no longer be any incentive for states to comply with IHL, and any exceptions accorded to liberation movements would be reciprocally resorted to by states.

Further, equalising power might perversely prolong conflict and make it more destructive, since evenly matched forces may fight for longer. Focusing on asymmetry of power also conceals the extent to which tactics and strategy (such as lawful guerilla warfare) can challenge superior power. The objections to targeting ‘non-innocent’ civilians were described earlier. Allowing new methods of violence would also widen the sphere of violence, without sufficient justification.

Finally, analogies with naval blockade, or terror and atomic bombing, are anachronistic. Starving an enemy population, as in the First World War, or indiscriminately area bombing or atomic bombing civilians, as in the Second World War, are no longer acceptable means of warfare. Because such means are forbidden by the primary rules of IHL, necessity is not available as a circumstance precluding the wrongfulness of such acts. Such analogies are also flawed, because at the time, terror and atomic bombing were justified more by arguments about targeting legitimate military objectives, and/or reprisals, than by arguments of necessity.

Even if necessity-based arguments for terror and atomic bombing are considered, such arguments fail. Such methods were used later in the war – after the ‘supreme emergency’ had passed – not to ensure Nazi or Japanese defeat, or even to prevent genocide – but merely to improve speed and price (in Allied lives saved) of victory.[330] It is also difficult to appreciate how killing German civilians, to undermine morale, was related to the end of a Nazi defeat, since it may have contrarily steeled the German will to resist[331] (although exterminating a population inevitably defeats it).

At the same time, unless divine or natural law is accepted, an absolute prohibition on killing innocents is difficult to defend, since it embodies a poor sense of proportion if refusing to kill some innocents leads to the killing of many more.[332] Despite the danger of ‘moral monstrosities threatened by unbounded consequentialism’,[333] it is ‘paradoxical to justify fighting a bloody war by saying Hitler must be defeated, and then to accept absolute restrictions which may mean the war is followed by Hitler’s victory’.[334] It is clear that states have often vacillated between the desirability of absolute moral prohibitions on certain types of violence and the necessity of exceptions, often justified by consequentialist reasoning. Yet, if terror bombing was not justified by necessity in the extreme case of Nazi aggression, the justification for Palestinian suicide bombing is even less convincing, given the lesser seriousness of the Israeli threat.[335]

V. ‘Illegal but Justifiable’ Terrorism

While there is broad support for the view that political violence is sometimes justified, there remains disagreement on when it is justified. Insisting on non-violence in the face of chronic injustices ‘can be tantamount to confirmation and reinforcement of those injustices’.[336] From the foregoing analysis, individual criminal defences and group defences seldom justify or excuse terrorist acts, due to stringent requirements of imminence and proportionality. Further, there is no combatant immunity for internal rebels or unrecognised self-determination forces, nor in situations of internal dissent below an armed conflict. The question now is whether there is some other way of accommodating reasonable arguments for ‘terrorist’ violence.

One method is to regard terrorist acts as ‘illegal but justifiable’, where they are collectively committed in defence of fundamental human rights against an oppressive state. Recognising such a plea is preferable to attenuating the strict conditions of existing defences to accommodate justifiable terrorist claims. Treating certain terrorist acts as criminal but justifiable is also less ambitious than developing a positive international right to rebel, or extending combatant immunity to rebels and unrecognised liberation forces. Regarding conduct as ‘wrongful but excused’ also strengthens the normative pull of international law.[337]

The NATO bombing of Kosovo has been defended as a case of humanitarian necessity, justifying a breach of the prohibition on the use of force.[338] Morality-based, equitable exceptions to legal rules, ‘in unforeseeable and extraordinarily grave circumstances’,[339] ensure the law’s legitimacy, and hence encourage compliance with it.[340] The legal effect of considering an act illegal but justifiable is mitigation of sanctions, rather than exculpation,[341] although political amnesties may be a necessary response in exceptional cases.[342] The justifiability of an act may be determined by the ‘global jury’ of UN organs.[343] That the doctrine is open to abuse is not fatal, just as abuse of self-defence does not render that right untenable.[344]

In UN General Assembly debates in the 1970s, there was some support for the view that terrorism is sometimes illegal but justifiable. Some states suggested that ‘terrorism directed at democratic regimes where institutional means of redress existed’ should be distinguished from ‘popular upsurge against oppressive regimes’.[345] On this view, ‘although terrorism was never justified, resort to violence was particularly inadmissible in democratic societies’.[346] The implication was that rebellion against oppressive regimes is less ‘inadmissible’ than violence against a democracy. Further, some states noted that while motive is irrelevant to the commission of a crime, it may be a mitigating factor determining punishment.[347]

The foremost difficulty in accepting the idea of ‘illegal but justifiable’ terrorism is ascertaining the criteria for distinguishing oppressive regimes from democratic (or rights-respecting) ones,[348] particularly given the variation in degree of both oppression and democracy, and subjective differences of perception.[349] Thus, in Tehran Hostages, Judge Tarazi argued in dissent that in weighing Iran’s responsibility for the United States embassy occupation, factors that should be taken into account included popular dissatisfaction with links between the Shah of Iran and ‘the exigencies of American worldwide and Middle-East strategy’, ‘the context of the revolution’, and its ‘break with a past condemned as oppressive’.[350]

In spite of the subjectivity of ‘oppression’, international human rights law, coupled with the law of the Charter, supplies a minimum legal framework of evaluation for international organs, although the degree of oppression justifying resistance remains a matter of appreciation in a particular case. It is also possible to draw on debates about the right of rebellion, and humanitarian intervention,[351] which have grappled with the same basic problem of when rights abuses are serious enough to warrant action. At a minimum, serious, repeated and sustained violations of fundamental rights are necessary,[352] even if violations are limited to ‘systematic disenfranchisement of minorities’.[353]

A second criterion, advanced in the Ad Hoc Committee, is the availability of effective means of peaceful redress, which must be exhausted before terrorism is justifiable.[354] This condition minimises non-state violence by regarding it as a remedy of last resort, consistent with the regulation of force in international law generally. Exhaustion of remedies is an established juridical standard in other branches of law, such as regional human rights systems,[355] and in diplomatic protection claims.[356]

While it is easier to determine whether legal mechanisms are exhausted (ie has a final decision been made? Is appeal futile?), the exhaustion of non-legal redress is more difficult to discern. For example, to resort prematurely to violence might be unjustified while a peace process is underway, but consider the sporadic Middle East peace process: at what point is it safe to judge that the process is exhausted?

This leads to a further problem in evaluating claims of justification: who genuinely represents a non-state group, entitled to make judgments about the resort to violence? With states, this is (usually) clear, since the lines of political authority are neatly drawn (except in civil conflicts where there are problems of recognition). For a valid claim of self-determination, there must be a body representative of the ‘people’,[357] a ‘radically indeterminate’ term[358] only partially clarified by the practice of recognition by the relevant regional organisation and UN organs.[359]

Non-state groups are frequently riven by competing factions claiming to represent the group: consider fragmented loyalties amongst Palestinians, or competition between the ANC and Inkatha under apartheid. As Ashrawi says of suicide bombings: ‘Nobody gave Hamas or Jihad the mandate to carry out these actions in the name of the Palestinians.’[360] The problem is accentuated where well-organised movements assume trappings of political authority (control of territory and a population, and structures of governance), yet are not widely supported by the people they claim to represent: consider the Tamil Tigers, or the IRA.

Who speaks or acts in the name of whole groups of people is fundamental to the problem of terrorism. It is commonly small, radicalised sub-groups of larger populations experiencing oppression that resort to indiscriminate violence. Participatory decision-making is rarely, if ever, part of the process leading to terrorism, and clandestine, militarised operations are a hallmark of terrorist groups. While participatory politics may not always produce restraint, it is likely to generate more restraint on random killings than an absence of participation altogether.

It must be noted, however, that some groups regarded as terrorist by the international community have been popularly elected by their own constituents. For example, in mid-2005, Hezbollah and the more moderate Amal organisation won all 23 seats in southern Lebanon in the first general election after the withdrawal of Syrian forces.[361] While this may be perceived as popular endorsement of terrorism, many voters supported Hezbollah as a defensive militant group against any future Israeli incursions into Lebanon. Over time, it is possible that Hezbollah’s participation in regular political processes may help to civilise its methods. Such a view underlies moves by some western states to negotiate with Hamas after it won Palestinian elections in early 2006. In another example, an opinion poll by the British Ministry of Defence found that 65 per cent of Iraqis believed suicide attacks against British and American troops were justified.[362]

A defensible theory of justification for terrorist acts requires further conditions to be met. Logically, if the justification for violence is resistance to oppression, then the purpose of any terrorist acts must be to replace oppression with freedom, rights violations with rights protection, and tyranny with democracy.[363] Thus an important measure of the legitimacy of terrorist violence must be the lawful end to which it is directed. The defence does not justify special interest terrorism, nor terrorism that pursues objectives other than core legal values such as self-determination and human rights (thus excluding reactionary assassinations of democratic leaders or peace-makers). To the extent that violent groups make excessive or unreasonable claims, out of proportion to the cause, accommodation of such demands cannot be expected.

Cumulatively satisfying the four foregoing conditions (serious rights violations; exhaustion of alternatives; representativeness; and a rights-based end) is still not adequate to justify terrorism. Unless all means are admitted, any theory of justifiable terrorism must construct outer limits on the permissible means and targets of violence. Ignatieff argues that liberation violence, below an armed conflict, must analogously follow IHL on civilian immunity.[364] Yet the problem of non-innocent civilians was discussed earlier. In that light, Honoré argues that, while generally observing IHL, rebels may also target the state and responsible officials.[365] Indiscriminate attacks on non-governmental civilians would always be prohibited, and proportionality, as a general principle of law, must be respected.

Where violence satisfies the foregoing five conditions, it could be considered ‘illegal but justifiable’, perhaps under the umbrella of a ‘collective defence of human rights’. The five conditions provide clear, narrow, and prospective criteria for internationally evaluating the moral or political justifiability of terrorism, even if they fall short of a formula for legality.[366] While such a defence may be open to abuse, it is less open to abuse than the alternative of legalising violence (by establishing a positive right to rebel, or conferring combatant immunity on rebels), and no more open to abuse than existing rights such as self-defence.[367] In extreme cases of oppression, individuals are likely to resort to violence even if violence is absolutely prohibited. As such, this defence provides a fairer and more flexible mechanism for structuring the international response to reasonable claims.

VI. Conclusion

Unless absolute liability is imposed for terrorism, sometimes acts commonly regarded as terrorism may be justifiable, or at least excusable: ‘in exceptional circumstances that which is commonly held to be wrong is found on reflection not to be wrong’.[368] Political violence is committed for a wide range of reasons, and the law’s legitimacy depends on its capacity to differentiate between morally different reasons for action. IHL is an appropriate normative framework for dealing with self-determination claims and internal rebellions that cross the threshold of an armed conflict, effectively decriminalising non-state violence that otherwise complies with the laws of war.

Outside armed conflict, the law of international criminal defences (self-defence, and duress/necessity), and the circumstances precluding the wrongfulness of group actors (drawn analogously from the law of state responsibility) may excuse a limited range of ostensibly ‘terrorist’ conduct. However, some acts widely considered justifiable by the international community may still fall outside the scope of these defences. To maintain the law’s legitimacy and fairness, limited acts of ‘terrorism’, in collective defence of human rights, could be regarded as ‘illegal but justifiable’. This would recognise that in the absence of collective international enforcement of human rights, it may be necessary to licence remedial violence by victims themselves.[369]


[∗] BA (Hons) LLB (Hons) (Syd) DPhil (Oxon); Lecturer, Faculty of Law, University of New South Wales, Sydney, Australia: email: b.saul@unsw.edu.au.

[**] T Lawrence, Seven Pillars of Wisdom: Complete 1922 Oxford Text (2004) 8.

[1] Measures to eliminate international terrorism: GA Res 49/60 (1994), annexed Declaration on Measures to Eliminate International Terrorism, [3]; GA Res 50/53 (1995) [2]; GA Res 51/210 (1996) [2]; GA Res 52/165 (1997) [2]; GA Res 53/108 (1999) [2]; GA Res 54/110 (2000) [2]; GA Res 55/158 (2001) [2]; GA Res 56/88 (2002) [2]; GA Res 57/27 (2003) [2]; GA Res 58/81 (2004) [2]; SC Res 1566 (2004) [3]; International Convention for the Suppression of Terrorist Bombings, (15 December 1997) 2149 UNTS 284, art 5; International Convention for the Suppression of the Financing of Terrorism, (9 December 1999) 2178 UNTS 229, art 6.

[2] R Higgins, ‘The General International Law of Terrorism’ in R Higgins and M Flory (eds), Terrorism and International Law (1997) 13, 13-14; G Guillaume, ‘Terrorism and International Law’, Grotius Lecture, British Institute of International and Comparative Law, London, 13 Nov 2003, 6; R Friedlander, ‘Terrorism’, in R Bernhardt (ed), Encyclopaedia of PIL (Vol 4, 2000) 845; B Saul, ‘Attempts to Define “Terrorism” in International Law’ (2005) 52 Netherlands International Law Review 57.

[3] A Cassese, International Criminal Law (2003), 120-31; A Cassese, ‘Terrorism is Also Disrupting Some Crucial Legal Categories of International Law’ (2001) 12 European Journal of International Law 993, 994.

[4] See below n 26.

[5] See eg J Fry, ‘Terrorism as a Crime against Humanity and Genocide: The Backdoor to Universal Jurisdiction’ (2003) 7 UCLA Journal of International Law and Foreign Affairs 169; Cassese (2001) above n 3, 994-95; H Duffy, ‘Responding to Sep 11: The Framework of International Law’, (2001) 4 Interrights; D Brown, ‘Holding Armed Rebel Groups and Terrorist Organisations Accountable’, Abo Akademi University Institute for Human Rights, (2002) 40-42 <www.abo.fi/instut/imr/norfa/duncan.pdf>.

[6] Cassese (2003) above n 3, 121.

[7] See text below n 175-183 for the differences between justifications and excuses in criminal law.

[8] C Greenwood, ‘Terrorism and Humanitarian Law: The Debate over Additional Protocol I’ (1989) 19 Israel Yearbook on Human Rights 187, 189.

[9] A Sofaer, ‘Terrorism and the Law’ (1986) Foreign Affairs 901, 903; J Murphy, ‘United Nations Proposals on the Control and Repression of Terrorism’ in M C Bassiouni (ed), International Terrorism and Political Crimes (1975) 496.

[10] Measures to Prevent International Terrorism: GA Res 3034, (XXVII) (1972) [3]; GA Res 31/102, (1976) [3]; GA Res 32/147, (1977) [3]; GA Res 34/145, (1979) preamble; GA Res 36/109, (1981) preamble; GA Res 38/130, (1983) preamble; GA Res 40/61, (1985) preamble; GA Res 42/159, (1987) preamble; GA Res 44/29, (1989) preamble; GA Res 46/51, (1991) preamble.

[11] GA Res 3034, (XXVII) above n 10, [4]; GA Res 31/102, above n 10, [4]; GA Res 32/147, above n 10, [4]; GA Res 34/145, above n 10, [4].

[12] Ad Hoc Committee Report, UN GAOR, 28th Sess, Supp 28, UN Doc A/9028, 8, 26 (1973),; Ad Hoc Committee Report UN GAOR (34th Sess), Supp 39, UN Doc A/34/39, (1979), 12, 38; see also P Wilkinson, Terrorism and the Liberal State (1977) 37-38.

[13] Ad Hoc Committee Report (1973), above n 12, 15, [49].

[14] Ad Hoc Committee Report (1979), above n 12, 20-21, [69] (Algeria, Barbados, India, Iran, Nigeria, Panama, Syria, Tunisia, Venezuela, Yugoslavia, Zaire, Zambia).

[15] Ibid 21, [70].

[16] Ibid 21, [71].

[17] Ad Hoc Committee Report (1973), above n 12, 15, [48]; Ad Hoc Committee Report, UN GAOR (32nd Sess), Supp 37, UN Doc A/32/37, (1977), 14-15, [13] (Sweden); Ad Hoc Committee Report (1979), ibid 11, [36]; 18, [63]-[65].

[18] Ad Hoc Committee Report (1973), ibid 14-15, [46]; Ad Hoc Committee Report (1977), ibid 13, [9] (Uruguay); 24, [23] (US); Ad Hoc Committee Report (1979), ibid 11, [36].

[19] Ad Hoc Committee Report (1977), ibid 22, [16] (Italy); 24, [23] (US).

[20] Ad Hoc Committee Report (1973), above n 12, 7, [22]; 8, [24]; 14, [45]; 15, [49]; Ad Hoc Committee Report (1977), ibid 35, [35] (Tanzania); Ad Hoc Committee Report (1979), above n 12, 10, [30]; 25, [87].

[21] Ad Hoc Committee Report (1979), ibid 9, [29]; Ad Hoc Committee Report (1977), ibid 16-17, [3] (Austria).

[22] Ad Hoc Committee Report (1973), above n 12, 8, [23]; 14, [44]; Ad Hoc Committee Report (1977), ibid 13, [8] (Uruguay); 21, [11] (Canada); 24, [21] (US); 36, [41] (UK); Ad Hoc Committee Report (1979), ibid 8, [24]; 9, [29]; 10, [31].

[23] Ad Hoc Committee Report (1973), ibid 7-8, [23]; 14, [45]; Ad Hoc Committee Report (1977), ibid 16-17, [3] (Austria); 24, [21] (US); 33, [28] (UK); Ad Hoc Committee Report (1979), ibid 7, [24]; 10, [31]; 25, [89].

[24] Protocol I, art 1(4) provides that international armed conflicts include: ‘armed conflicts in which peoples are fighting against racist regimes in the exercise of their right of self-determination, as enshrined in the’ UN Charter and the 1970 Declaration; see further below part A(3).

[25] Ad Hoc Committee Report (1979), above n 12, 10, [30].

[26] See eg 1949 Fourth Geneva Convention, art 33(1) (prohibiting ‘all measures … of terrorism’); 1977 Protocol I, art 51(2) and 1977 Protocol II, art 13(2) (prohibiting ‘acts or threats of violence the primary purpose of which is to spread terror among the civilian population’); 1977 Protocol II, art 4(2)(d) (prohibiting ‘acts of terrorism’); see also 1923 Hague Draft Rules Concerning the Control of Wireless Telegraphy in Time of War and Air Warfare, in (1923) 17 American Journal of International Law Supp 245; 1994 International Criminal Tribunal for Rwanda (ICTR) Statute, art 4(2)(d); 2000 Statute of the Special Court for Sierra Leone (annexed to UNSC Res 1315 (2000)), art 3(d). In the Galic Case, ICTY-98-29-T (5 Dec 2003), the International Criminal Tribunal for the former Yugoslavia (ICTY) found that the prohibition in art 51(2) of 1977 Protocol I gives rise to individual criminal liability as an implicit grave breach of Protocol I.

[27] Measures to prevent international terrorism which endangers or takes innocent human lives or jeopardizes fundamental freedoms and study of the underlying causes of those forms of terrorism and acts of violence which lie in misery, frustration, grievance and despair and which cause some people to sacrifice human lives, including their own, in an attempt to effect radical changes: GA Res 34/145 (1979), [6]; GA Res 38/130 (1983), [2]; GA Res 40/61 (1985), [9]; GA Res 42/159 (1987), [8]; GA Res 44/29 (1989), [6].

[28] GA Res 40/61 (1985), above n 27, [9]; GA Res 42/159 (1987), above n 27, [8]; GA Res 44/29 (1989), above n 27, [6]; GA Res 46/51 (1991), above n 27, [6].

[29] Measures to prevent international terrorism which endangers or takes innocent human lives or jeopardizes fundamental freedoms and study of the underlying causes of those forms of terrorism and acts of violence which lie in misery, frustration, grievance and despair and which cause some people to sacrifice human lives, including their own, in an attempt to effect radical changes: (a) Report of the Secretary-General; (b) Convening, under the auspices of the United Nations, of an international conference to define terrorism and to differentiate it from the struggle of peoples for national liberation: GA Res 42/159 (1987), [14]; [GA Res 44/29 (1989), [17]; GA Res 46/51 (1991), [15].

[30] J Dugard, ‘Terrorism and International Law: Consensus at Last?’, in E Yakpo and T Boumedra (eds), Liber Amicorum Judge Mohammed Bedjaoui (1999) 159, 164; P Van Krieken, Terrorism and the International Legal Order (2002) 223; M Halberstam, ‘The Evolution of the United Nations Position on Terrorism: From Exempting National Liberation Movements to Criminalizing Terrorism Wherever and by Whomever Committed’ (2003) 41 Columbia Journal of Transnational Law 573, 577; A Cassese, Terrorism, Politics and Law: The Achille Lauro Affairs (1989) 7-8; R Marauhn, ‘Terrorism: Addendum’, in R Bernhardt (ed), Encyclopaedia of PIL (Vol 4, 2000) 849, 850; J Lambert, Terrorism and Hostages in International Law (1990) 31.

[31] GA Res 42/159 (1987), above n 29, [14]; [GA Res 44/29 (1989), above n 29, [17]; GA Res 46/51 (1991), above n 29, [15].

[32] GA Res 3034 (XXVII) (1972), above n 10, [3]; GA Res 31/102 (1976), above n 10, [3]; GA Res 32/147 (1977), above n 10, [3]; GA Res 34/145 (1979), preamble, above n 10; GA Res 36/109 (1981), preamble, above n 10; GA Res 38/130 (1983), preamble, above n 10; GA Res 40/61 (1985), preamble, above n 10; GA Res 42/159 (1987), preamble, above n 10; GA Res 44/29 (1989), preamble, above n 10; GA Res 46/51 (1991), preamble, above n 10.

[33] H Lauterpacht (ed), Oppenheim’s International Law: vol I (8th ed, 1955) 742.

[34] I Brownlie, Principles of Public International Law (5th ed, 1998) 63.

[35] GA Res 44/29 (1989), above n 10, [17]; GA Res 46/51 (1991), above n 10, [15].

[36] I Detter, The Law of War (2nd ed, 2000) 33. There are 16 remaining non-self governing territories: ‘UN Decolonization Panel calls for Cooperation with Visiting Missions’, UN News Service, New York, 3 June 2003.

[37] A Cassese, Self-Determination of Peoples (1996) 151-52.

[38] J Dugard, ‘Towards the Definition of International Terrorism’ (1973-1974) 67 American Journal of International Law Proc 94, 97.

[39] Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, GA Res 2625, Annex 25 UN GAOR, Supp (No 28), UN Doc A/5217, (1970), 121 [5]; Brownlie, above n 34, 602; Cassese, above n 37, 153-54, 200; J Crawford, ‘The Right of Self-Determination in International Law: Its Development and Future’ in P Alston (ed), Peoples’ Rights (2001) 7, 42.

[40] 1970 Declaration, above n 39, [8]: ‘Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country’; Cassese, above n 39, 152, 199-200.

[41] Cassese, ibid, 151, 153, 198.

[42] See Detter, above n 36, 102.

[43] Protocol I, art 1(4); see Detter, above n 36, 51-53; see also above n 24 and 25 and accompanying text.

[44] Protocol I, art 44(3).

[45] L Green, The Contemporary Law of Armed Conflict (2nd ed, 2000) 64.

[46] E Chadwick, Self-Determination, Terrorism and the International Humanitarian Law of Armed Conflict (1996) 2, 6-9, 204-206.

[47] Green, above n 45, 64.

[48] A Hass, ‘Who in Israel knows or cares?’ Haaretz, 18 June 2003.

[49] Green, above n 45, 64. In practice, the UN has accepted the determination of regional organisations.

[50] Cassese, above n 37, 203-204.

[51] C Greenwood, ‘Scope of Application of Humanitarian Law’ in D Fleck (ed), The Handbook of Humanitarian Law in Armed Conflicts (2004) 39, 43.

[52] L Green, ‘Terrorism and Armed Conflict: The Plea and the Verdict’ (1989) 19 Israel Yearbook of Human Rights 131, 136.

[53] Green, above n 45, 111; K Ipsen, ‘Combatants and Non-combatants’ in Fleck (ed), above n 51, 65, 77.

[54] Greenwood, above n 51, 42-43.

[55] 1977 Protocol II provides detailed rules regulating internal armed conflicts (excluding those covered by Protocol I) between state armed forces and ‘dissident armed forces or other organized armed groups’ under responsible command, which exercise such control over a part of a state’s territory as to enable them to carry out sustained and concerted military operations and to implement the rules of Protocol II: art 1(1). It does not apply to ‘situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature’: art 1(2).

[56] Green, above n 45, 64. Protocol I, art 96(3) allows the representatives of a ‘people’ in an international armed conflict under art 1(4) to declare adherence to, and thereby bring into force, the 1949 Geneva Conventions and 1977 Protocol. A letter of 21 June 1989 from the Palestine Liberation Organisation (PLO) committed Palestine to the conventions, but Switzerland informed states on 13 September 1989 that it was unable to decide if the letter was an instrument of accession, due to international uncertainty about the existence of the state of Palestine. The existence of a Palestinian people is, however, ‘no longer in issue’: The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion), [2004] ICJ Rep 131, [118] (quoting exchange of letters between PLO President Arafat and Israeli Prime Minister Rabin of 9 September 1993, and the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip of 28 September 1995, preamble and arts III(1) and (2), XXII(2)).

[57] Chadwick, above n 46, 204.

[58] A Cassese, International Law in a Divided World (1994) 92.

[59] Israel Wall Advisory Opinion, above n 56, [88], [155]-[56]; East Timor Case (Portugal v Australia) [1995] ICJ Rep 102, [29].

[60] Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Rep 226, [24]-[25].

[61] M Ignatieff, ‘Human Rights, the Laws of War, and Terrorism’ (2002) 69 Social Research 1137, 1146.

[62] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

[63] International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1976).

[64] See also Universal Declaration of Human Rights, GA Res 217A (1948) art 30.

[65] See preambles to: Human Rights and Terrorism: United Nations Commission on Human Rights (UNHCR) Res 1996/47; 1997/42; 1998/47; 1999/27; 2000/30; 2001/37; 2002/35; 2003/37; and UNSubComHR res 2001/18; 2002/24.

[66] J Raz, The Morality of Freedom (1986) 425.

[67] D Rodin, War and Self-Defense (2002) 126.

[68] Ignatieff, above n 61, 1151.

[69] See eg European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 2(2); US Manual for Courts Martial 1951, 197(b).

[70] R Dworkin, ‘Terror and the Attack on Civil Liberties’, New York Review of Books, 6 November 2003; J Fitzpatrick, ‘Speaking Law to Power: The War against Terrorism and Human Rights’ (2003) 14 European Journal of International Law 241, 243.

[71] J Glover, Humanity: A Moral History of the Twentieth Century (1999) 85.

[72] Rodin, above n 67, 158-160.

[73] J Norton Moore, ‘The Need for an International Convention’ in MC Bassiouni (ed), Legal Responses to International Terrorism (1988) 437, 438.

[74] J Rawls, A Theory of Justice (1972) 379; J Paust, ‘The Human Right to Participate in Armed Revolution and Related Forms of Social Violence’ (1983) 32 Emory Law Journal 545, 578.

[75] Israel Wall Advisory Opinion above n 56, (separate opinion of Judge Higgins), [14].

[76] Ignatieff, above n 61, 1149; Ad Hoc Committee Report (1977), above n 17, 16, [2] (Austria).

[77] Rodin, above n 67, 10-11, 138-39.

[78] Ibid 124, 140, 147.

[79] Ibid 131-32.

[80] Ibid 117, 131.

[81] Ibid 143.

[82] Ibid 65-66.

[83] See F Fanon, The Wretched of the Earth (trans C Farrington, 1963).

[84] J Nehru, Jawaharlal Nehru: An Autobiography (1989) 549.

[85] H Marcuse, ‘Ethics and Revolution’, in E Kent (ed), Revolution and the Rule of Law (1971) 46, 53.

[86] I Berlin, The First and the Last (1999) 57.

[87] M Walzer, Just and Unjust Wars (3rd ed, 2000) 206.

[88] Rodin, above n 67, 67.

[89] See eg T Honoré, ‘The Right to Rebel’ (1988) 8 Oxford Journal of Legal Studies 34; L Kutner, ‘A Philosophical Perspective on Rebellion’, in Bassiouni (ed), above n 9, 51; N Strickler, ‘Anti-History and Terrorism: A Philosophical Dimension’, in Bassiouni (ed), ibid 47; A Khan, ‘A Legal Theory of Revolutions’ (1987) 5 Boston University International Law Journal 1; R Schwartz, ‘Chaos, Oppression, and Rebellion: The Use of Self-Help to Secure Individual Rights under International Law’ (1994) 12 Boston University International Law Journal 255; T Franck and N Rodley, ‘Legitimacy and Legal Rights of Revolutionary Movements’ (1970) 45 New York University Law Review 679; C King, ‘Revolutionary War, Guerilla Warfare, and International Law’ (1972) 4 Case Western Reserve Journal of International Law 91; B Röling, ‘The Legal Status of Rebels and Rebellion’ (1976) 13 Journal of Peace Research 149; W O’Brien, ‘The Jus in Bello in Revolutionary War and Counterinsurgency’ (1978) 18 Virginia Journal of International Law 193; G Sorel, Reflections on Violence (trans T Hulme, 1941); Paust, above n 74; J Paust, ‘Aggression against Authority: The Crime of Oppression, Politicide and Other Crimes against Human Rights’ (1986) 18 Case Western Reserve Journal of International Law 283.

[90] Ignatieff, above n 61, 1151.

[91] J Tierney, ‘Terror at Home: The American Revolution and Irregular Warfare’ (1977) 12 Stanford Journal of International Studies 1; V Johnson, ‘The Declaration of the Rights of Man and of Citizens of 1789, the Reign of Terror, and the Revolutionary Tribunal of Paris’ (1990) 13 Boston College International and Comparative Law Review 1.

[92] G Fox and G Nolte, ‘Intolerant Democracies’, in G Fox and B Roth (eds), Democratic Governance and International Law (2000) 389, 432. Eg, art 20(4) of Germany’s Basic Law (Grundgesetz) recognises a right of resistance, as a last resort, against attempts to overturn the constitutional order.

[93] H Arendt, On Revolution (1990) 20.

[94] Universal Declaration of Human Rights, GA Res 217A (1948).

[95] UN Economic and Social Council (ECOSOC) (6th Sess), Supp No 1, Report of the UN Commission on Human Rights, 17 December 1947, 19.

[96] Honoré, above n 89, 43; Paust, above n 74, 560.

[97] Honoré, above n 89, 43.

[98] Ibid 43.

[99] Eg ICCPR arts 18-19, 21-22, 25.

[100] Crawford, above n 39, 48-49 (states are entitled to forcibly suppress rebellions); C Gray, International Law and the Use of Force (2000) 57 (states may request foreign assistance in suppressing rebellions); see also J Novogrod, ‘Internal Strife, Self-Determination, and World Order’, in Bassiouni (ed), above n 9, 98, 103. Where a rebellion reaches the level of a civil war, third states may no longer assist the government: Crawford, above n 39, 41; Gray, above n 100, 57; W Werner, ‘Self-Determination and Civil War’ (2001) 6 Journal of Conflict and Security Law 171, 190.

[101] Nicaragua v United States (Merits) [1986] ICJ Rep 14, 108-109, [206]-[209] (no right of third states to intervene in aid of the moral or political values of a rebellion); see also Protocol II, art 3(2).

[102] The availability of the political offence exception to extradition is a question of national (and bilateral treaty) law rather than international law: I Stanbrook and C Stanbrook, Extradition Law and Practice (2nd ed, 2000) 65; cf I Shearer, Extradition in International Law (1971) 22. The 1951 Refugee Convention requires only that a person not be returned to political persecution, not to prosecution. While many national courts uphold an exception for political offences, it commonly applies to any political offenders, regardless of the justifiability of their cause: see eg Schtraks v Israel [1964] AC 556, 583 (Lord Reid); Quinn v Robinson [1986] USCA9 291; 783 F.2d 776 (9th Cir, 1986).

[103] Cf Q Wright, ‘Subversive Intervention’ (1960) 54 American Journal of International Law 521, 529.

[104] G Draper, ‘Wars of National Liberation and War Criminality’ in M Howard (ed), Restraints on War (1979), 135, 141; Green, above n 45, 317.

[105] ICCPR (1966) art 1(1); ICESCR (1966) art 1(1).

[106] Prohibitions on terrorism in non-international armed conflicts were noted above n 20.

[107] 1949 Geneva Conventions, common art 3: Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (12 August 1949), 75 UNTS 31 (Geneva Convention I); Convention for the Amelioration of the condition of the Wounded and Sick and Shipwrecked Members of Armed Forces at Sea (12 August 1949), 75 UNTS 85 (Geneva Convention II); Convention Relative to the Treatment of Prisoners of War (12 August 1949), 75 UNTS 135 (Geneva Convention III); Convention Relative to the Protection of Civilian Persons in Time of War (12 August 1949), 75 UNTS 287 (Geneva Convention IV).

[108] Protocol Additional to the Geneva Conventions (12 August 1949) and Relating to the Protection of Victims of Non-International Armed Conflicts (8 June 1977), 1125 UNTS 609 (Protocol II), art 3(1); Green, above n 45, 322; see generally A Cassese, ‘The Status of Rebels under the 1977 Geneva Protocol on Non-International Armed Conflicts’ (1981) 30 International & Comparative Law Quarterly 416.

[109] A Cassese, International Law (2001) 343; Brownlie, above n 34, 63; Green, above n 45, 317-18.

[110] In Tadic (Interlocutory Appeal) ICTY-94-1 (2 October 1995) [106], the ICTY noted the trend of states since the Spanish Civil War and in the Nigerian civil war ‘to withhold recognition of belligerency but, at the same time, extend to the conflict the bulk of the body of legal rules concerning conflicts between States’.

[111] Eg in Galic, the ICTY held that an agreement between the Republic of Bosnia-Herzegovina, the Serbian Democratic Party, and the Croatian Democratic Community to apply certain IHL provisions was binding as if it were an international treaty: Galic ICTY-98-29-T (5 Dec 2003), [20]-[25]. Capacity to enter into treaty relations does not, however, necessarily imply full international legal personality.

[112] 1907 Hague Regulations, art 1; 1949 First Geneva Convention, art 13; 1949 Second Geneva Convention, art 13; 1949 Third Geneva Convention, art 4; 1977 Protocol I, arts 43(2) and 44(3).

[113] Cassese, above n 109, 343.

[114] Cf Detter, above n 36, 146 (criteria in the 1949 Geneva Conventions or Protocol I apply by analogy).

[115] Protocol II, art 1(2).

[116] A Dahl, ‘The Legal Status of the Opposition Fighter in Internal Armed Conflict’ (2004) 3-4 Revue de Droit Militaire et Droit de la Guerre 137.

[117] H Lauterpacht (ed), Oppenheim’s International Law: vol II (8th ed, 1955) 210-12; Green, above n 45, 60, 318; Cassese, above n 109, 343; Draper, above n 104, 141.

[118] Protocol II, art 6 does, however, establish minimum procedural guarantees in criminal cases.

[119] S Cayci, ‘Countering Terrorism and International Law: The Turkish Experience’, in M Schmitt and G Beruto (eds), Terrorism and International Law: Challenges and Responses (2003) 137, 141.

[120] A Orford, ‘The Destiny of International Law’ (2004) 17 Leiden Journal of International Law 441, 459.

[121] Protocol II, art 6(5).

[122] Lauterpacht, above n 117, 211; see also T Franck and B Lockwood, ‘Preliminary Thoughts towards an International Convention on Terrorism’ (1974) 68 American Journal of International Law 69, 88.

[123] J Brierly, The Outlook for International Law (1944) 52.

[124] N Ronzitti, ‘The Law of the Sea and the Use of Force against Terrorist Activities’ in N Ronzitti (ed), Maritime Terrorism and International Law (1990) 1, 3.

[125] Although ‘Many provisions of this Protocol can now be regarded as declaratory of existing rules or as having crystallised emerging rules of customary law or else as having been strongly instrumental in their evolution as general principles’: Tadic (Interlocutory Appeal) ICTY-94-1 (2 October 1995), [117].

[126] Green, above n 45, 137.

[127] M Reisman, ‘Sovereignty and Human Rights in Contemporary International Law’ (1990) 84 American Journal of International Law 866; Brownlie, above n 34, 557.

[128] Honoré, above n 89, 38.

[129] Ibid 36.

[130] Ibid 34, 38.

[131] Ibid 53-54.

[132] Ibid 54.

[133] (1954) I International Law Commission Yearbook 141.

[134] Honoré, above n 89, 48, 51.

[135] Ibid 38, 54.

[136] Lauterpacht, above n 117, 218.

[137] Chadwick, above n 46, 8; A Clapham, Human Rights in the Private Sphere (1996) 112, 116; see also A Roberts, ‘Counter-Terrorism, Armed Force and the Laws of War’ (2002) 44 Survival 7.

[138] G Abi-Saab, ‘The Proper Role of International Law in Combating Terrorism’ (2002) 1 Chinese Journal of International Law 305, 308.

[139] See eg A Sofaer, ‘Terrorism and the Law’ (1986) Foreign Affairs 901, 912; T Franck and S Senecal, ‘Porfiry’s Proposition: Legitimacy and Terrorism’ (1987) 20 Vanderbilt Journal of Transnational Law 195, 204-06; Chadwick, above n 46, 207-08; Wilkinson, above n 12, 234.

[140] Chadwick, above n 46, 9, 11; Clapham, above n 137, 113.

[141] Detter, above n 36, 145.

[142] Cassese, above n 58, 93; see also B Larschan, ‘Legal Aspects to the Control of Transnational Terrorism: An Overview’ (1986) 13 Ohio Northern University Law Review 117, 148.

[143] Detter, above n 36, 144.

[144] J Henley, ‘You can’t know how wonderful it was to finally battle in the daylight’, The Guardian (21 August 2004).

[145] EU Council, Outcome of Proceedings of 6 Dec 2001, Statement No 2, Council Doc 14845/1/02, 15. Ultimately, the Draft Statement was not incorporated into the text of the Framework Decision, nor was it formally issued as an interpretive instrument. Such statements have not been accepted as binding interpretations of EU legislation: Antonissen, (C-292/89) [1991] EUECJ C-292/89; [1991] ECR I-745; S Peers, ‘EU Responses to Terrorism’ (2003) 52 International & Comparative Law Quarterly 227, 236.

[146] Ignatieff, above n 61, 1147; see also M Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror (2004); Franck and Lockwood, above n 122, 80.

[147] Fanon, above n 83, 93.

[148] T Honderich, After the Terror (2003) 159.

[149] Walzer, above n 87, 199; Honoré, above n 89, 37; see eg Australian Associated Press, ‘Hitler’s would-be assassin receives belated honours’ Sydney Morning Herald (16 May 2003).

[150] Walzer, above n 87, 198-99.

[151] Cicero, ‘No Fellowship with Tyrants’, in W Laqueur, The Terrorism Reader (1979) 16.

[152] See eg Watin v Ministère Public Federal, Swiss Fed Trib (1964), 72 ILR 614, 617: an attempt on the life of French President de Gaulle by a French national would be proportionate ‘[w]here the person aimed at practically embodies the political system of the State so that it might be thought that his disappearance will entail a change in that system’. In IHL, however, the assassination of an enemy head of state is forbidden, unless he or she is also the uniformed commander-in-chief: Green, above n 45, 145. But POW detention is permitted to recognise the danger posed to an adversary: Lauterpacht, above n 117, 352.

[153] Walzer, above n 87, 199.

[154] Ibid 200.

[155] Ibid 145. Although as Rodin, above n 67, 127-28, observes: ‘soldiers fighting a defensive war are permitted to use violence against persons who pose no imminent threat to anyone. For instance, they may kill enemy soldiers who are marching, eating, sleeping, and so on, as well as uniformed support staff such as lorry drivers, cooks, and administrators.’ One might also wonder whether, in an age of modern air warfare, a foot soldier is really a threat to a high-altitude bomber.

[156] See also 1923 Hague Draft Rules, art 24(2); Walzer, above n 87, 145-46.

[157] Lauterpacht, above n 117, 338.

[158] Eg French gendarmes in Algeria, who were attacked by an Algerian political group, were considered ‘unarmed’, ‘peaceful’, ‘civilian’ and ‘non-belligerent’ persons: see Zaouche Tahar, Abdi Arezkli and Ouakli Rabah, Court of Appeal of Brussels, 7 June 1960, (1960) 75 J Trib 467, affirmed by the Cour de Cassation, 22 July 1960, Pasicrisie I, 1263 and in a subsequent advisory opinion by the Court of Appeal of Brussels, 10 November 1960, Doss 26.463 E and 26.464 E.

[159] In practice, distinguishing civilian settlers from militarised settlers may be difficult, as in the Palestinian Occupied Territories, where settlers frequently carry military weapons for self-protection: see eg Military Prosecutor v Jab’r et al, Ramallah /4041/81, (1987) 6 SJMC 259.

[160] Honderich, above n 148, 159.

[161] Rodin, above n 67, 84.

[162] Consider the many extrajudicial executions of suspected informers by Palestinian militants: eg S Goldenberg, ‘“Collaborator” shot dead as jet strikes’ Sydney Morning Herald (16 July 2002).

[163] Walzer, above n 87, 203; see also Franck and Senecal, above n 139, 196.

[164] Walzer, above n 87, 200. One might wonder, however, whether a foot soldier is objectively more threatening than, for instance, the head of Stalin’s secret police.

[165] See eg Osama bin Laden, ‘Letter to America’ Observer Worldwide (24 November 2002).

[166] See Walzer, above n 87, 193, 200.

[167] E MacAskill, ‘Aid agency quits Afghanistan over security fears’ The Guardian (29 July 2004); ‘Iraqi militants slaughter 12 hostages’ Sydney Morning Herald (1 September 2004).

[168] P McGeough,Inside the mind of a suicide bomber’ Sydney Morning Herald (13 April 2002).

[169] J Steele, ‘Bombers’ justification: Russians are killing our children, so we are here to kill yours’, The Guardian (6 September 2004).

[170] See eg 1949 Geneva Conventions, common art 3; 1949 Fourth Geneva Convention, arts 27, 147; Protocol I, arts 51, 75, 85; Protocol II, arts 4, 13.

[171] In the Iraq war between 2003 and 2005, non-combatant deaths are credibly estimated at about 30,000, compared with just over 2,000 coalition military deaths, 6,000 Iraqi military deaths, and an unknown number of Iraqi insurgent deaths: see eg Iraq Body Count and Oxford Research Group.

[172] I Primoratz, ‘State Terrorism and Counter-terrorism’ in I Primoratz (ed), Terrorism: The Philosophical Issues (2004) 113, 124.

[173] G Knoops, Defences in Contemporary International Criminal Law (2001) 9.

[174] A Ashworth, Principles of Criminal Law (3rd ed, 1999) 27.

[175] C Van den Wyngaert, ‘The Political Offence Exception to Extradition’ (1989) 19 Israel Yearbook of Human Rights 297, 302.

[176] Ibid.

[177] Franck and Senecal, above n 139, 201, 210-15.

[178] L Kutner, ‘Constructive Notice: A Proposal to End International Terrorism’ (1974) 19 New York Law Forum 325, 349.

[179] V Morris and M Scharf, The International Criminal Tribunal for Rwanda: vol I (1998), 272-83; Cassese (2003), above n 3, 146; see generally P Okowa, ‘Defences in the Jurisprudence of International Tribunals’, in G Goodwin-Gill and S Talmon (eds), The Reality of International Law (1999) 389.

[180] K Kittichaisaree, International Criminal Law (2001) 258.

[181] Morris and Scharf, above n 179, 272-83.

[182] Kittchaisaree, above n 180, 258.

[183] ICTY Statute, art 7; ICTR Statute, art 6.

[184] ICTY and ICTR Rules of Evidence and Procedure, rule 67; see Kittchaisaree, above n 180, 258.

[185] Rome Statute of the International Criminal Court (17 July 1998), 2002 ATS 15, art 31.

[186] Ibid art 27.

[187] Cassese (2003), above n 3, 219, 222.

[188] J Smith, Smith and Hogan: Criminal Law (10th ed, 2002), 210-11; J Gardner, ‘The Gist of Excuses’ (1997) 1 Buffalo Criminal Law Review 575; H Hart, ‘Legal Responsibility and Excuses’, in M Corrado (ed), Justification and Excuse in the Criminal Law (1994) 31; G Williams, ‘The Theory of Excuses’ [1982] Criminal Law Review 732.

[189] Cassese (2003), above n 3, 221.

[190] Knoops, above n 173, 29-30. In practice, cases have not yet arisen where the legal consequences of the distinction are relevant: see Cassese, above n 3, 220-22; Smith, above n 188, 210.

[191] J Gardner, ‘In Defence of Defences’, in P Asp et al (eds), Flores Juris et Legum (2002) 13.

[192] Smith, above n 188, 210.

[193] G Fletcher, Rethinking Criminal Law (1978) 759; Knoops, above n 173, 29; Cassese (2003), above n 3, 220-22: examples of excuses include mental disease; intoxication; mistake of fact; mistake of law; duress; and physical compulsion.

[194] Rodin, above n 67, 29; Cassese, above n 3, 219-21: examples of justifications include the lawful punishment of enemy civilians or combatants; lawful belligerent reprisals; and self-defence.

[195] Fletcher, above n 193, 759; Knoops, above n 173, 29.

[196] Kordić and Čerkez, ICTY-95-14/2 (26 February 2001) [449].

[197] In the case of war crimes, a person may also act reasonably to defend property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission: 1998 Rome Statute, art 31(1)(c). The European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 2(2)(a), recognises the defence of any person from unlawful violence, where ‘absolutely necessary’, as a justification for deprivation of life.

[198] 1998 Rome Statute, art 31(1)(c).

[199] Rodin, above n 67, 40-41: indeed, the earlier requirement of imminence derives from necessity.

[200] Ashworth, above n 174, 146; Rodin, above n 67, 40.

[201] Cassese (2003), above n 3, 222.

[202] Ibid 223.

[203] 1998 Rome Statute, art 31(1)(c); see also Carl D O’Neal, US Court of Military Appeals, 18 February 1966, 16 USCMA 33; 36 CMR 189, 196 (self-defence is not available to a person engaging in mutual combat).

[204] Kordić and Čerkez, ICTY-95-14/2 (26 February 2001), [452].

[205] Rodin, above n 67, 30.

[206] Ibid 48; see eg C Banham, ‘Guantanamo escape may be justified: Kirby’, Sydney Morning Herald (13 November 2003).

[207] Cassese (2003), above n 3, 222-23.

[208] Rodin, above n 67, 48.

[209] Ibid 44: other means of redress are available in relation to property, which are not available in the case of death or serious personal injury.

[210] W Schabas, An Introduction to the International Criminal Court (2002) 90.

[211] E David, Principes de droit des conflits armés (2nd ed, 1999) 693.

[212] Beckford v R [1987] UKPC 1; [1988] AC 130, 144; see Ashworth, above n 174, 147-48.

[213] Ashworth, ibid 148.

[214] See eg Australian Associated Press, ‘Opera House graffiti “an act of self defence”’, Sydney Morning Herald (29 July 2004) (anti-Iraq war protesters painted a ‘No War’ slogan on the Sydney Opera House); R Norton-Taylor and S Hall, ‘Lawyers do battle over war advice’ The Guardian (10 March 2004) (Greenpeace activists chained themselves to tanks at a UK military facility, to prevent the Iraq war, and were charged with aggravated trespass).

[215] Ad Hoc Committee Report (1973), above n 12, 6, [17]; 13, [42]; Ad Hoc Committee Report (1977), above n 20, 35, [36] (Tanzania); Ad Hoc Committee Report (1979), above n 12, 9, [28]; 11, [35]; 13, [42]; 24, [81], [86].

[216] Ad Hoc Committee Report (1979), above n 12, 23, [78]; 22, [75].

[217] Ibid 9, [29]; 23, [78]; 24, [81].

[218] Ibid 22, [75]; 23, [78].

[219] Wilkinson, above n 12, 36; A Dershowitz, Why Terrorism Works (2002) 25; A Cassese, Terrorism, Politics and Law (1989) 137.

[220] W Eubank and L Weinberg, ‘Terrorism and Democracy: Perpetrators and Victims’ (2001) 13 Terrorism and Political Violence 155.

[221] Ad Hoc Committee Report (1979), above n 12, 22, [72].

[222] Cassese (2003), above n 3, 124.

[223] Ashworth, above n 174, 153, 230; see J Horder, ‘Self-Defence, Necessity and Duress: Understanding the Relationship’ (1998) XI Canadian Journal of Law and Jurisprudence 143; M Bayles, ‘Reconceptualizing Necessity and Duress’, in Corrado (ed), above n 188, 492; A Brudner, ‘A Theory of Necessity’ (1987) 7 Oxford Journal of Legal Studies 339.

[224] Knoops, above n 173, 13; Cassese (2003), above n 3, 242; Ashworth, above n 174, 227.

[225] Cassese (2003), above n 3, 243.

[226] 1998 Rome Statute, art 31(1)(d).

[227] Amnesty International, ‘The Quest for International Justice: Defining the Crimes and Defences for the International Criminal Court’ (1 February 1997), AI INDEX: IOR 40/006/1997.

[228] Cassese (2003) above n 3, 242. The Canadian courts require that there be ‘no reasonable opportunity for an alternative course of action that does not involve a breach of the law’: Perka (1984) 13 DLR (4th) 1.

[229] Ashworth, above n 174, 228; Smith, above n 188, 257; DPP v Lynch [1975] UKHL 5; [1975] AC 653, 687.

[230] Knoops, above n 173, 13. The American Model Penal Code also proposes duress as a defence to all crimes, including homicide: MPC §2.09, Explanatory Note, 374-75.

[231] See eg Howe [1986] UKHL 4; [1987] AC 417; Gotts [1992] 2 AC 412; Abbott v R [1977] AC 755; Dudley v Stephens (1884) 14 QBD 273; see also Smith, above n 188, 252; A Reed, ‘Duress and Provocation as Excuses to Murder: Salutary Lessons from Recent Anglo-American Jurisprudence’ (1997) 6 Journal of Transnational Law and Policy 51.

[232] Erdemovic (Appeals), IT-96-22 (7 October 1997) [19]; R Ehrenreich Brooks, ‘Law in the Heart of Darkness: Atrocity and Duress’ (2003) 43 Virginia Journal of International Law 861.

[233] Dudley v Stephens (1884) 14 QBD 273, 287.

[234] Smith, above n 188, 255; Howe [1986] UKHL 4; [1987] 1 All ER 771, 779-81.

[235] Respectively: R v Abdul-Hussein [1998] CA (Crim Div), Crim LR 570; R v Safi [2003] EWCA Crim 1809; US v Tiede, Criminal Case 78-001 (US Crt for Berlin) (1980) 19 ILM 179.

[236] UNHCR, Guidelines on International Protection: Application of the Exclusion Clauses (4 September 2003) HCR/GIP/03/05, [22]; UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention (1992) [159]-[61]; J Hathaway, The Law of Refugee Status (1991) 218, 221. See eg R v Moussa Membar [1983] Crt App (Crim Div) Crim L Rev 618 (aircraft hijackers to London from Tanzania were not returned due to fear of persecution).

[237] ‘Forced to be a suicide bomber: captured man’ Sydney Morning Herald (19 September 2005).

[238] 1998 Rome Statute, art 31(1)(d); Cassese (2003), above n 3, 251; see also text to n 207.

[239] Amnesty International, above n 227, [3.2.3].

[240] Ehrenreich Brooks, above n 232, 869-73.

[241] Cassese (2003), above n 3, 247; Smith, above n 188, 255-56; Ehrenreich Brooks, above n 232, 880.

[242] Erdemovic (Appeals), IT-96-22 (7 October 1997) (Separate and Dissenting Opinion of Judge Cassese), [43]-[44] and (Separate and Dissenting Opinion of Judge Stephen), [54]. Such cases of ‘forced choice’ typically involve a military instruction to shoot a civilian which, if refused, would likely result in the objector being shot along with the civilian.

[243] Ashworth, above n 174, 153 (as where a person frozen in fear in a sinking ship blocks an escape route).

[244] Ibid.

[245] Ibid 154.

[246] Ibid.

[247] See also Ohlendorf and Others (Einsatzgruppen Case) (1953) 15 Ann Dig 656 (duress was a defence to killing innocents).

[248] Cassese (2003), above n 3, 250.

[249] Ashworth, above n 174, 233.

[250] Brown, above n 5, 38.

[251] Green, above n 45, 305.

[252] Southwark London Borough v Williams [1971] 2 All ER 175, 179 (Lord Denning).

[253] B Hudson, ‘Punishing the Poor’ in A Duff et al (eds), Penal Theory and Practice (1994) 302.

[254] Dudley v Stephens (1884) 14 QBD 273; US v Holmes, 26 F Cas 360 (1842).

[255] Smith, above n 188, 169.

[256] Consider Stalin’s forced famine in the Ukraine in the early 1930s, in which five million died: R Conquest, The Great Terror (1971) 45-46.

[257] Horder, above n 223, 156.

[258] Berlin, above n 86, 57.

[259] Ohlendorf and Others (Einsatzgruppen Case) (1953) 15 Ann Dig 656, 480.

[260] Ibid.

[261] See eg Dudley v Stephens (1884) 14 QBD 273; Holmes, above n 254.

[262] Abdul-Hussein [1998] EWCA Crim 3528; [1999] Crim LR 570; cf Hurst [1995] 1 Cr App Rep 82, 93; see also Ashworth, above n 174, 229; Smith, above n 188, 259.

[263] Smith, ibid 258.

[264] Ibid.

[265] Abdul-Hussein [1998] EWCA Crim 3528; [1999] Crim LR 570, 254.

[266] Cassese (2003), above n 3, 245; Ohlendorf and Others (Einsatzgruppen Case) (1953) 15 Ann Dig 656, 91; Amnesty International, above n 227, [3.2.3]; see also Sharp [1987] QB 853 (Lane LCJ); Shepherd (1988) 86 Cr App R 47.

[267] Heath [2000] Crim LR 109.

[268] Fitzpatrick [1977] NI 20.

[269] Sipo-Brussels Case, Brussels Crt Martial, 1519.

[270] Fitzpatrick, above n 70, 260-64; E Miller, ‘The Use of Targeted Sanctions in the Fight against International Terrorism: What about Human Rights?’ (2003) 97 American Society of International Law Proceedings 46, 46, 49-50; N Krisch, ‘The Rise and Fall of Collective Security: Terrorism, US Hegemony, and the Plight of the Security Council’ in C Walter et al (eds), Terrorism as a Challenge for National and International Law (2004) 879; Abdirisak Aden v Commission, Case T-306/01, 10 December 2002.

[271] R McCorquodale, ‘The Individual and the International Legal System’ in M Evans (ed), International Law (2003) 299, 306.

[272] J Crawford and S Olleson, ‘The Nature and Forms of International Responsibility’, in Evans (ed), ibid 445, 447.

[273] Ibid.

[274] R Higgins, Problems and Processes (2003) 51.

[275] ICCPR (1966) art 17.

[276] Fitzpatrick, above n 70, 260-63.

[277] See Measures to Prevent International Terrorism which Endangers or Takes Innocent Human Lives or Jeopardises Fundamental Freedoms, and Study of the Underlying Causes of those Forms of Terrorism and Acts of Violence which Lie in Misery, Frustration, Grievance and Despair and which Cause Some People to Sacrifice Human Lives, Including Their Own, in an Attempt to Effect Radical Changes: GA Res 3034 (XXVII) (18 December 1972); GA Res 32/147 (1977), pmbl; 34/145 (1979), pmbl, [7]; GA Res 38/130 (1983), [4] (by consensus); GA Res 40/61 (1985), [6]; GA Res 42/159 (1987), [4], [5(a)]; GA Res 44/29 (1989), [3], [4(a)]; GA Res 46/51 (1991), [3], [4(a)]; GA Res 49/60 (1994), [4], [5(a)]; GA Res 51/210 (1996), [5]; GA Res 52/165 (1997), [5]; GA Res 53/108 (1999), [5]; GA Res 54/110 (2000), [5]; GA Res 55/158 (2001), [5]; 56/88 (2002), [5]; GA Res 57/27 (2003), [5]; GA Res 58/81 (2004), [5]; preambles to SC Res 748 (1992); SC Res 1189 (1998); SC Res 1373 (2001).

[278] Indeed, some modification of the concepts applicable to states may, however, be necessary in transposing circumstances precluding wrongfulness to non-state entities.

[279] Reparation for Injuries (Advisory Opinion) [1949] ICJ Rep 174, 178-79.

[280] McCorquodale, above n 271, 302.

[281] Reparation for Injuries (Advisory Opinion) [1949] ICJ Rep 174.

[282] McCorquodale, above n 271, 303.

[283] Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Rep 226, [25].

[284] Ibid [79].

[285] Ibid [41]; Nicaragua v United States (Merits) [1986] ICJ Rep 14, [176], [194]; J Gardam, ‘Proportionality and Force in International Law’ (1993) 87 American Journal of International Law 391.

[286] Cassese, above n 37, 197.

[287] Rodin, above n 67, 160, 158.

[288] Ibid 160.

[289] Ibid.

[290] Montevideo Convention on Rights and Duties of States (inter-American) (26 December 1933) 165 UNTS 19 art 1.

[291] Rodin, above n 67, 119.

[292] Reisman, above n 127, 874.

[293] Ibid 869.

[294] Nicaragua v United States (Merits) [1986] ICJ Rep 14, [242].

[295] Convention on the Prevention and Punishment of the Crime of Genocide (9 December 1948) 78 UNTS 277, art 1; consider failures in Rwanda and Bosnia in the 1990s, and Cambodia in the late 1970s; see eg S Power, A Problem from Hell: America and the Age of Genocide (2003); P Gourevitch, We Wish to Inform You that Tomorrow We Will be Killed with Our Families: Stories (1999).

[296] See also Gabčíkovo-Nagymaros Project (Hungary v Slovakia) [1997] ICJ Rep 7, [50]-[51] (those conditions reflect custom).

[297] ILC Articles on State Responsibility (2001) art 25(2)(a)-(b).

[298] J Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Texts and Commentaries (2002) 182-183; cf Brownlie, above n 34, 468.

[299] Cf Lauterpacht, above n 33, 298 (there is no state right of self-preservation; necessity is only an excuse).

[300] ILC Commentary, above n 297, 183.

[301] Ibid 183-84. A long-term peril is imminent as soon as it is established that the realisation of the peril is certain and inevitable: Gabčíkovo-Nagymaros Project (Hungary v Slovakia) [1997] ICJ Rep 7, 42, [54].

[302] ILC Commentary, above n 297, 184.

[303] Ibid.

[304] See below, part D.

[305] C Gearty, ‘Terrorism and Human Rights’ (paper presented at European Society of International Law Conference, Florence, 13-15 May 2004).

[306] Von Bethmann-Hollweg, 4 August 1914, in (1916) III Jahrbuch des Voelkerrechts 728.

[307] ILC Articles on State Responsibility (2001) art 26.

[308] Lauterpacht, above n 117, 208-09.

[309] Glover, above n 71, 85.

[310] Horder, above n 223, 156; see generally J Taurek, ‘Should the Numbers Count?’ (1977) 6 Philosophy and Public Affairs 293; P Pettit, ‘Consequentialism and Respect for Persons’ (1989) 100 Ethics 116.

[311] ILC Commentary, above n 297, 185.

[312] Ibid; Green, above n 45, 305; Morris and Scharf, above n 179, 279.

[313] Fourth Geneva Convention (1949) 33; Protocol I, arts 20, 51; Green, above n 45, 352-53; Kupreškić, ICTY-95-16 (14 January 2000), 533; Cassese, above n 109, 341.

[314] Cf Green, above n 45, 353. For ethical arguments against area bombing in the Second World War, see Walzer, above n 87, 255-63.

[315] Detter, above n 36, 299-303.

[316] Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Rep 226, [97].

[317] Cassese, above n 109, 337.

[318] B Williams, Morality (1972) 36.

[319] Rodin, above n 67, 143.

[320] Williams, above n 318, 35; cf Walzer, above n 87, 254, who believes that ‘the survival and freedom of political communities .are the highest values of international society’.

[321] Although like the argument about ‘non-innocent civilians’ discussed above, the argument for suicide bombing also challenges the foundations of IHL itself.

[322] Honderich, above n 148, 151, 170.

[323] Ibid 184-85.

[324] Ibid 162.

[325] Wilkinson, above n 12, 186.

[326] Y Alexander, ‘Democracy and Terrorism: Threats and Responses’ (1996) 26 Israel Yearbook of Human Rights 253, 257; Larschan, above n 142, 121; cf Wilkinson, above n 12, 50-51; Lambert, above n 30, 24.

[327] Ignatieff, above n 61, 1150; C Card, ‘Making War on Terrorism in Response to 9/11’ in J Sterba (ed), Terrorism and International Justice (2003) 171, 174; Lambert, above n 30, 31; Guillaume, above n 2, 2; Alexander, above n 326, 264; Walzer, above n 87, 197.

[328] See eg R Young, ‘Political Terrorism as a Weapon of the Politically Powerless’ in Primoratz (ed), above n 172, 55, 61.

[329] T Meron, ‘The Humanization of Humanitarian Law’ (2000) 94 American Journal of International Law 239, 240.

[330] Walzer, above n 87, 261, 263-68; Glover, above n 71, 83, 89-112; F Taylor, Dresden (2004) 403. Walzer distinguishes area bombing earlier in the war as justified by necessity, when it was the only offensive weapon available to Britain to avert the evil of a Nazi victory.

[331] Glover, above n 71, 75. Further, in a secret police state, political authority does not depend so much on civilian support; Hitler fought on regardless of German morale, until the Soviets reached Berlin.

[332] Ibid 109. After 11 September 2001, the US President ordered hijacked aircraft to be shot down: O Burkeman, ‘Panic and delay wrecked 9/11 response’ The Guardian (18 June 2004).

[333] Horder, above n 223, 156.

[334] Glover, above n 71, 85.

[335] Although in the past, senior Israeli leaders have advocated mass expulsion, or even extermination, of Palestinians: see B Saul, ‘A Just Peace, Not Just Any Peace: In Defence of Hanan Ashrawi’, Palestinian Initiative for the Promotion of Global Dialogue & Democracy, Ramallah, October 2003.

[336] M Reisman, ‘Private Armies in a Global War System: Prologue to Decision’ (1973) 14 Vanderbilt Journal of International Law 1, 32-33; see also Ignatieff, above n 61, 1149.

[337] V Lowe, ‘Precluding Wrongfulness or Responsibility: A Plea for Excuses’ (1999) 10 European Journal of International Law 405.

[338] Independent International Commission on Kosovo, Kosovo Report: Conflict, International Response, Lessons Learned (2000). Humanitarian intervention is not a plea of necessity, as circumstance precluding wrongfulness under the law of state of responsibility, but a purported exception to the primary rules on the use of force: ILC Commentary, above n 297, 185-86.

[339] T Franck, Recourse to Force (2002) 185.

[340] Ibid 178; 175, 177, 185, 197, 190.

[341] Ibid 179.

[342] The availability of amnesties under international law is not considered here, but see B Saul, Defining Terrorism in International Law (forthcoming 2006) ch 2.

[343] Ibid 186.

[344] Ibid 185.

[345] Ad Hoc Committee Report (1979), above n 12, 23-24, [80]; 19-20, [67].

[346] Ibid 23-24, [80].

[347] Ibid 7-8, [24].

[348] Honoré, above n 89, 48.

[349] M C Bassiouni, ‘A Policy-Oriented Inquiry into the Different Forms and Manifestations of “International Terrorism”’ in M C Bassiouni (ed), Legal Responses to International Terrorism (1988) xv, xxxii.

[350] Tehran Hostages (Merits) Case [1980] ICJ Rep 3, [62]-[63] (opinion of Tarazi J), although such ‘links do not in any way justify the occupation’.

[351] S Chesterman, Just War or Just Peace? (2002) 229-32, distils the conditions of intervention from the literature, including: (1) severe and immediate rights abuses; (2) no realistic peaceful alternative; (3) collective action must have failed; (4) action must be limited to what is necessary to prevent further violations; (5) the actor must be relatively disinterested, acting predominantly for humanitarian objectives.

[352] Ignatieff, above n 61, 1156; B Palmer, ‘Codification of Terrorism as an International Crime’ in Bassiouni (ed), above n 349, 507, 512-13; M C Bassiouni, ‘Criminological Policy’ in A Evans and J Murphy (eds), Legal Aspects of International Terrorism (1979) 523, 530; Bassiouni, above n 349, xlv; Franck and Lockwood, above n 122, 88.

[353] Ignatieff, above n 61, 1155.

[354] Ad Hoc Committee Report (1979), above n 12, 19-20, [67]; see also Walzer, above n 87, 204; Ignatieff, above n 61, 1153, 1156; Bassiouni, above n 349, xxxi; M C Bassiouni, ‘Methodological Options for International Legal Control of Terrorism’ in Bassiouni (ed), above n 9, 485, 491; Palmer, above n 352, 512-13.

[355] The European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 35(1); ACHR (1969) art 46(1)(a).

[356] Interhandel Case [1959] ICJ Rep 6, 26-27; Ambatielos Arbitration (1956) 12 RIAA 83; Finnish Ships Arbitration (1934) 3 RIAA 1479, 1535; Panevezys-Saldutiskis Railway Case (1939) PCIJ Ser A/B, No 76; El Oro Mining and Railway Co Case (1931) 5 RIAA 191; Brownlie, above n 34, 496-506.

[357] Cassese, above n 37, 146-47.

[358] Crawford, above n 39, 18.

[359] Cassese, above n 58, 94.

[360] H Ashrawi, Transcript of Interview on ABC TV (Australia) Foreign Correspondent (16 September 2003).

[361] ‘Hezbollah sweeps to victory in south Lebanon’ Sydney Morning Herald (7 June 2005).

[362] S Shrader, ‘Zarqawi's terrorism goes worldwide, says US’ Sydney Morning Herald (24 October 2005).

[363] Ignatieff, above n 61, 1151.

[364] Ibid 1153; Honoré, above n 89, 54.

[365] Honoré, ibid.

[366] Chesterman, above n 351, 232 (referring to the conditions of humanitarian intervention).

[367] Palmer, above n 352, 512-13.

[368] Cicero, above n 151, 16.

[369] T Franck, The Power of Legitimacy Among Nations (1990) 70.


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