The balance between criminal law and international humanitarian law in terrorism cases

Intervention at the 10th ECLAN Conference, 26 April 2016 in Brussels

by Vaios KOUTROULIS (*)

On April 8 2016, in Anderlecht, the Belgian police arrested five people linked to the 22nd March bombings in the airport and metro station of Brussels. Among them was Mohamed Abrini who has admitted that he was one of the three persons that were filmed by security cameras in the Brussels airport. Among the persons arrested was also Osama Kareym, who is suspected to have taken part in the bombing on the Brussels subway. Both are also linked to the 13 November Paris attacks.

Can these participants in the 22nd March bombings in the airport and metro station of Brussels be criminally persecuted for terrorist crimes before Belgian courts?

In principle, the answer seems to be a straightforward YES.
The object of my presentation is to show that the question is much more complicated than it may appear at first sight.
This complication stems from the Belgian Criminal Code.
Indeed, in the section relating to terrorist offences of the Belgian Criminal Code, the penultimate article (article 141bis) excludes from the scope of application of the section the activities of armed forces in times of armed conflict as defined and regulated by international humanitarian law (IHL).

The origin of this article, which is a saving clause, is the last preambular paragraph of the Council Framework Decision of 13 June 2002 on combatting terrorism which reads as follows:
“Actions by armed forces during periods of armed conflict, which are governed by international humanitarian law within the meaning of these terms under that law, and, inasmuch as they are governed by other rules of international law, actions by the armed forces of a State in the exercise of their official duties are not governed by this Framework Decision”.

This provision is reflected in several international conventions relating to the prohibition of terrorist acts.[1] As it is clear from the text of this article, the scope of application of the terrorist offences is defined / determined by the rules of IHL. So, under Belgian criminal law, IHL and terrorist offences are mutually exclusive legal regimes. Thus, in order to correctly appreciate which acts may be criminally prosecuted under Belgian law as terrorist acts, we need to go through the definition of the relevant IHL concepts.

I will make three points with respect to this provision, and this rule of mutual exclusion.

  1. First, I will briefly discuss the IHL notions of “armed forces” and “armed conflict” in order to give a clearer idea of what is excluded from the definition of terrorist offence.
  2. Second, I will briefly discuss how the savings clause has been applied in Belgian case-law
  3. Third, I will explain the purpose, la raison d’être, of the clause and why it is important to maintain it.

A. What is not a terrorist offence?

Actions by armed forces during periods of armed conflict, which are governed by international humanitarian law
Armed forces = both armed forces of a State, of an international organisation or of a non-State actor.

The argument is sometimes raised that the concept of “armed forces” should be limited only to State armed forces, in other words, that only activities by State armed forces are excluded from the scope of application of terrorist offences, while those of non-State actors are not. This interpretation is not supported by the text of the provision.

According to the ICRC, customary IHL defines armed forces as follows:
“The armed forces of a party to the conflict consist of all organized armed forces, groups and units which are under a command responsible to that party for the conduct of its subordinates.” (rule 4, source art. 43 AP I)
Armed forces of a State are quite clear to identify = regular forces of States (membership regulated by domestic law; members of irregular groups belonging to a party to the conflict)

Armed forces of a rebel group, a non-State actor are more difficult to identify.
Again according to the ICRC, “In non-international armed conflict, organized armed groups constitute the armed forces of a non-State party to the conflict and consist only of individuals whose continuous combat function it is to take a direct part in hostilities.” (ICRC, Interpretative guidance on DPH, 2009)

  • Continuous combat function requires a lasting integration into an organised armed group acting as the armed force of a non-State party to an armed conflict;
  • Individuals whose function involves the preparation, execution, command of acts or operations amounting to direct participation in hostilities have a continuous combat function;
  • Individuals recruited, trained and equipped by a group to continuously and directly participate in hostilities have a CCF;
  • Recruiters, trainers, financiers, propagandists may continuously contribute to the general war effort of a non-State party but are not members of the armed forces of the group, unless their activities amount to DPH[2].
  1. Armed conflict = both international and non-international

IAC: conflict between states or between a State and an intl org.
NIAC: conflict between State and rebel group or between two or more rebel groups.
Two conditions: intensity of hostilities[3] and organisation of the parties[4].

Another factor that may come into play in determining whether an armed conflict exists relates to the geographical scope of application of an armed conflict. This is interesting since there have been some very extensive interpretations relating to the geographical scope of application of armed conflict that have been suggested. I am referring to the concept of the “global war on terror” put forth by the United States. According to this view, an armed conflict against a terrorist group basically knows no boundaries and exists wherever the terrorist is found. This theory has been invoked by the United States in order to allow them to invoke IHL as a justification for drone strikes against terrorists around the world. However, the drawback of such an extensive reading of IHL is that is the armed conflict follows the terrorist, then any act committed by him/her anywhere in the world will be considered as committed in the context of an armed conflict and therefore will not be qualified as a terrorist offence…

B. How have the Belgian Courts applied the saving clause in art. 141bis?

The answer is simple: very restrictively.
The defendants’ lawyers have invoked the clause in some cases but Belgian Courts have been up to now very reluctant in applying it. This has resulted in some very problematic interpretations of IHL concepts, since in order for the judges to reject the clause, they have interpreted the notions of “armed forces” and “armed conflict” very restrictively.

Thus, for example, in a case concerning the death of a Belgian national in Iraq in the context of an attack against the US armed forces present in Iraqi territory[5]. The relevant period was from January 2004 to November 2005. The 2008 judgment by the first instance tribunal[6] considered that there was no armed conflict in Iraq during the period in question. This classification was clearly unsupported by the facts in question, since even the US recognised that they were involved in an armed conflict and a belligerent occupation at least for the first months of the relevant period.

Another example, in a more recent case, deals with Sharia4Belgium, a group founded in 2010 having played an active role in the departure of combatants in Syria in order to join armed groups Jahbat Al-Nusra and Majlis Shura Al Mujahidin (affiliated with Al-Qaeda).

In the First instance judgment, handed down in 2015[7], the Tribunal held that there was an armed conflict in Syria to which the groups in question was involved. It also clarified that the armed conflict did not extend to Belgium. The consequence of that was that, in any case, the saving clause could not be invoked for acts which took place in Belgium. However, turning to the notion of “armed forces” the Tribunal refused to recognise that the two groups in question are “armed forces” within the meaning of IHL. This goes against the classification of the UN Commission of Enquiry on Syria. It also goes against well-established IHL rules. Indeed, the Tribunal, in order to reject to the two groups their character as “armed forces” defines “armed forces” very restrictively and imposes the respect of many conditions for a group to be classified as an “armed force”, conditions which have no legal basis in IHL.[8]

C. Why does the saving clause exist and why should it be maintained?

The reason for the saving clause is the recognition of the specificity of IHL as the legal regime which is best adapted in dealing with situations of armed conflict.

The need to preserve this specificity.

Firstly, IHL has its own list of crimes (war crimes) => the fact that an act does not constitute a terrorist offence does not mean that it is not a crime under international and national law or that its authors will remain unpunished.
Terrorism as a method of warfare is prohibited under IHL, both in international and non-international conflicts (Art. 33 4th GC; art. 51§2 AP I; art. 4§2(d) and 13§2 AP II).
It is also a war crime (ICTR Statute; SCSL Statute).

Secondly, the difficulty in finding common ground with respect to a definition of terrorism in international law, entails the risk of abuse of the notion of terrorism. This risk is particularly high in situations of armed conflict, especially in NIACs since the government always considers that the rebels are terrorists.

NOTES

[1] 1997 International Convention for the suppression of terrorist bombings, art. 19§2:
“The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, and the activities undertaken by military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.”
2005 International Convention for the Suppression of Acts of Nuclear Terrorism, art. 4§2:
“The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law are not governed by this Convention, and the activities undertaken by military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.”
2005 Council of Europe Convention on the Prevention of Terrorism, art. 26 §5:
“The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention, and the activities undertaken by military forces of a Party in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention. »
1979 International Convention against the Taking of Hostages, art 12
“In so far as the Geneva Conventions of 1949 for the protection of war victims or the Protocols Additional to those Conventions are applicable to a particular act of hostage-taking, and in so far as States parties to this Convention are bound under those conventions to prosecute or hand over the hostage-taker, the present Convention shall not apply to an act of hostage-taking committed in the course of armed conflicts as defined in the Geneva Conventions of 1949 and the Protocls thereto (including IACs of AP I)”
1999, International Convention for the suppression of the Financing of Terrorism, art. 2:

  1. Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out:

(…)
(b) Anyotheractintendedtocausedeathorseriousbodilyinjurytoacivilian,orto any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.
[2] DPH condition – direct causation = one causal step between activity and the harm to the adversary:

  • although recruitment and training of personnel is crucial to the military capacity of a party to the conflict, the causal link with the harm inflicted on the adversary will generally remain indirect. Only where persons are specifically recruited and trained for the execution of a predetermined hostile act can such activities be regarded as an integral part of that act and thus as DPH.
  • General war effort and war sustaining activities (design, production, shipment of weapons, propaganda, financial support) are not DPH.
  • Purchase, smuggling of the components of an explosive device, assembly of the device, storage of the device are connected with the resulting harm but are not DPH; only planting and detonating the device are DPH.
  • General preparatory acts do not constitute DPH: purchase, roduction, smuggling, hiding of weapons, general recruitment and training of personnel, financial administrative or political support.

[3] For the intensity of the conflict, these factors include ‘the number, duration and intensity of individual confrontations; the type of weapons and other military equipment used; the number and calibre of munitions fired; the number of persons and type of forces partaking in the fighting; the number of casualties; the extent of material destruction; and the number of civilians fleeing combat zones. The involvement of the UN Security Council may also be a reflection of the intensity of a conflict’; ICTY, Haradinaj 2008 Trial Judgment, supra note 26, para. 49. For further references, see ICTY, Boškoski and Tarčulovski 2008 Trial Judgment, supra note 26, paras. 177-178.
[4] As to the organisation of the parties, relevant for dissident armed groups, the indicative factors identified by the ICTY, include ‘the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of headquarters; the fact that the group controls a certain territory; the ability of the group to gain access to weapons, other military equipment, recruits and military training; its ability to plan, coordinate and carry out military operations, including troop movements and logistics; its ability to define a unified military strategy and use military tactics; and its ability to speak with one voice and negotiate and conclude agreements such as cease-fire or peace accords’; ICTY, Haradinaj 2008 Trial Judgment, supra note 26, para. 60. For further references, see ICTY, Boškoski and Tarčulovski 2008 Trial Judgment, supra note 26, paras. 199-203.
[5] Case of the “fillières iraquiennes”, Muriel Degauque.
[6] Tribunal correctionnel de Bruxelles, 10 janvier 2008.
[7] Tribunal correctionnel d’Anvers, 11 février 2015.
[8] Such as the obligation to respect rules of IHL.

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