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Political and military terror may be used both in times of war and peace for the purpose of social control or military action. International humanitarian law sets limits on the use of force in international and non-international armed conflict. These rules cover open conflict situations as well as military occupation and campaigns against insurrection when fighting escalates beyond the threshold of riots and sporadic and isolated acts of violence. ▸ International armed conflict ▸ Non-international armed conflict ▸ Occupied territory
Terror in Armed Conflict
In armed conflict, methods of warfare and acts or threats of violence—the primary purpose of which is to spread terror among the civilian population—are prohibited by humanitarian law. Such acts include indiscriminate bombardment, attacks against the civilian population or civilian objects, persecutions, acts of violence designed to spread terror among the population, acts of terrorism, pillage, rape, arbitrary arrests and extrajudicial executions, hostage taking and enforced disappearances, and ethnic cleansing that forcibly displaces the civilian population. Reprisals against civilians and their property are prohibited (GCIV Art. 33; API Art. 51; APII Arts. 4, 13). Thus, suicide attacks against civilian objectives are a prohibited means of warfare.
Terror as a method of warfare is used in situations of total war where the military objective is to crush the enemy and prevent resistance from the population. Terror is also used where military occupation, insurrection, or lack of balance or symmetry between conflicting parties makes direct military confrontation difficult. Terror is used by both governmental armed forces and non-state armed groups.
In situations of foreign military occupation, even when active hostilities have ended, terror may be used to weaken the morale of the opposing party’s population or to contest the authority of the occupying power.
In addition to absolute prohibition of terror, humanitarian law specifies that weakening the morale of the population is not a legitimate military objective. It also stresses that terror cannot be justified by the behavior of the enemy. In cases where a warring party chooses not to respect humanitarian law, the opposing party is not released from its obligation to respect humanitarian law. Retaliations on civilians remain always prohibited. Such acts constitute war crimes or crimes against humanity according to humanitarian law and to the statute of the International Criminal Court. ▸ Humanitarian law ▸ Methods of warfare
Terror in Situations of Insurrection
States’ armed forces often use terror when fighting insurrection. In such situations, governments usually refuse to acknowledge the existence of an armed conflict. Rather, they maintain that they are fighting terrorist or criminal activities and insist that humanitarian law does not apply to their use of force or their treatment of opposing combatants.
According to IHL, qualification of a conflict is not a sovereign decision left to State parties to a conflict, but an independent process that obeys objective definitions and criteria set out in the Geneva Conventions and their Additional Protocols for international and non-international armed conflicts. ▸ International armed conflict ▸ Non-international armed conflict
Terror in Other Situations
With regard to acts that do not reach the threshold of an armed conflict such as riots, demonstrations, disturbance of public order, and internal strife, some rules limit the capacity of governments to use coercive measures as well as police and armed forces to defend or reestablish public order. These rules can be found in fundamental guarantees such as the one provided for by non-derogable international human rights provisions and the principles of Common Article 3 to the four Geneva Conventions. ▸ Fundamental guarantees ▸ Internal disturbances and tensions ▸ Public order ▸ Situations and persons not expressly covered by humanitarian law
The use of terror as a means of warfare constitutes a war crime and a crime against humanity. This was confirmed in the study on the rules of customary international humanitarian law published by the ICRC in 2005 (customary IHL study). Rule 2 of the customary IHL study, which is applicable in both international and non-international armed conflicts, recalls that “acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.” Perpetrators, as well as those who have ordered such crimes, may be held criminally responsible and prosecuted. ▸ International Criminal Court ▸ War crimes/Crimes against humanity
▸ Attacks ▸ Combatants ▸ Duty of commanders ▸ Ethnic cleansing ▸ Internal disturbances and tensions ▸ International armed conflict ▸ International Criminal Court ▸ International humanitarian law ▸ Methods (and means) of warfare ▸ Military objectives ▸ Non-international armed conflict ▸ Occupied territory ▸ Population displacement ▸ Public order ▸ Responsibility ▸ War ▸ War crimes/Crimes against humanity
In the Milošević Case (Dragomir) (12 November 2009, para. 32), the ICTY Appeals Chamber held that the crime of terror can comprise attacks or threats of attacks against the civilian population, in the sense that it does not limit the possible consequences of such attacks to death or serious injuries among the victims. By doing this, the Chamber enshrined the definition of terror entailed in international customary law; see Rule 2 of the customary IHL study above.
The Chamber further noted that “the mens rea of the crime of terror consists of the intent to make the civilian population or individual civilians not taking direct part in hostilities the object of the acts of violence or threats thereof, and of the specific intent to spread terror among the civilian population” (para. 37).