at all times.
There is no need for specific laws and regulations to fight terror. The Geneva Conventions, especially Common Article 3, does not undermine the counterterrorism effort. These Conventions were created right after World War II. They were aware of the military needs as much as the humanitarian protection, and abuses that could happen when these regulations are not respected.
Humanitarian law and human rights were not created in time of peace and political stability. On the contrary, their raison d’être was to create a legal framework to respond effectively to most serious crises. Human rights are not superfluous, and cannot be ignored in harsh times, even when some of them may be suspended in cases of emergency. On the contrary, it is the ground for an effective response to threats against international peace and security.
The transition to peace in countries ravaged by armed conflicts characterized by the use of terrorism and other illegal methods of warfare shall be made with full compliance of human rights, such as:
- An independent ombudsman or other channel for complaining with enough legal enforcement to examine complaints from civilians against police or military officers;
- Monitor the police and military force from recruitment requirements to everyday bureaucratic activities, and assure participation of the entire population in the recruitment;
- Disciplinary regulations, human rights training and codes of conduct;
- Recording interrogations and hearings, allowing a lawyer to be present when the person is accused of crimes, in National or International Law;
- Promulgate national laws according to international human rights legal framework;
- National laws promoting equality and affirmative action to minorities;
- Fair, fast and accessible judicial and prosecution systems;
- Creation of executive agencies to promote equality and human rights;
- Respect equality and human rights in all government policies, from economic fomentation to youth participation in debates of polemic law propositions.
In conclusion, we affirm that IHL is the core value for the maintenance of international peace and security, and for combating terrorism and other threats to the stability of a country (Human Rights are likely to be respected in States where the rule of law prevails, because there is a sustainable peace. However, if a State is so weak that it cannot maintain the rule of law for the benefit of its citizens, and peace is threatened, IHL is the set of rules that will guide the conduct of all operations against the spoilers of the peace process).
11. STATE SOVEREIGNTY: A SHIELD OR A TARGET?
The international cooperation between intelligence agencies and efforts by Governments, exposed in the previous Chapters, are not always smooth. The Pakistani Government, for instance, strongly disapproved the operation carried out in Pakistan, without its knowledge or consent, by the United States Special Forces in May 2011, which resulted in the death of Osama Bin Laden (ABC News, May 02, 2011, ).
Islamabad declared that operation Geronimo carried out in May 2011 in a walled compound to kill or capture the man sought for a decade for terrorist acts and support to terrorist groups, is a clear violation of its territory and sovereignty. There were also complaints about attacks using drones and other actions without previous communication.
In July 2011, the US Congress received the information that Osama Bin Laden lived a long time in Abbottabad, near the main Pakistani Military Academy, and resolved to suspend a military aid of US$ 800 million to Pakistan. Tensions also arose after Admiral Mike Mullen declared that Pakistanese security forces have killed the journalist Syed Saleem Shahzad, after he published that extremist persons had been recruited by the Pakistan Army (RESENHA, Jul 10, 2011, ).
The relations between countries, as stated in the UN Charter, Article 2, are founded in the Principle of Equal Sovereignty of States, in order to maintain international peace and security, develop friendly relations among countries, cooperate in international level to solve economic, social, intellectual or humanitarian problems, and harmonize the efforts of nations towards common ends.
Nevertheless, certain actors of contemporaneous warfare are not bound to UN Principles, for example in Asymmetrical conflicts, where one or more parties are not recognized as international legal persons (rebels, militia, revolutionaries, dissident soldiers, guerilla, liberation fighters) where there is no clear front, with territories that are totally controlled by one of the parties, and combatants engage in conflict with no compliance with, or even knowledge of, International Humanitarian Law or Law of Armed Conflicts.
In Asymmetrical Warfare, the parties are not equal in structure, strength, logistics, methods and technology. In Non International Armed Conflicts, the disproportionality is caused by military resources available only to States, mainly the financial support of taxes paid by its citizens.
Nowadays other warring actors are available in the theater of operations, like warlords, drug traffickers, criminal organizations and terrorist groups, or a mixture of them (Ex: guerilleros that have also become drug traffickers in order to maintain their operations, and criminal organizations may use terror to gain the attention of the media). All these groups have economic achievement when operating in a feeble State, because they spend less money in bribes, security and disguising.
Since there is no front, nor international legal persons in both sides, the Asymmetrical Warfare may be conducted in more than one country, and they may be opposing the party or supporting it, creating an Internationalized Armed Conflict, very easy to be found, and very difficult to be proved.
The Asymmetrical Warfare is mainly the use of means and strategies of combat in order to explore their qualities (Positive Asymmetry) or the weaknesses of the enemy (Negative Asymmetry) (GRANGE, David. Asymmetric Warfare: Old Method, New Concern. ). But the main difference between the parties is the speed in battle.
The strong and more capable party in a Conflict wants a quick victory, because the maintenance of a high technology war structure is very expensive, and a prolonged war may become unpopular among their citizens. The weaker party, on the contrary, gains with a slow combat. By detecting the mistakes of the enemy and attacking specific points, they cause demoralization and win with less combat capability.
Non-State actors, not by coincidence, usually choose to carry their operations in unfavorable terrain and conditions (jungle, mountain and desert are the favorite ones) in order to slow conventional State troops and make their support more expensive. Also, they attack new and inexperienced troops and by surprise (through ambushes and sabotages).
It has already been exposed that Guerrilla Warfare is a legal method of combat in IHL. Besides, if a group does not have, or does not want to use, a dialogue channel or by any other means a political participation in that country, it is reasonable that they take in arms to oppose the Government.
The illicit conduct arises for non State actors, like terrorists, concerning both the jus ad bellum and the jus in bello, in the cases exemplified below.
When a terrorist makes known he has religious, ideological or moral reasons to hold weapons against the government, he implicitly affirms that he is beyond International Humanitarian Law. Thus, he believes he does not need to obey IHL rules, because his objectives are too important for them to be limited, even by humanitarian principles. The jus ad bellum used to fight is unsustainable, no matter against whom.
About jus in bello, when they take up arms in an urban environment, among the civilian population, they are taking shelter within Protected Persons in the Law of Armed Conflicts. This conduct is considered a Perfidy, and may be considered a Crime in International Law. Other examples of Perfidy commonly committed in modern warfare are the kidnappings and assassination of members of sanitary services, humanitarian relief organizations and journalists.
The terrorist warfare is even more devious, because they do not just disguise among the civilian population, but they also attack sensitive targets of this population, causing widespread t
error with the purpose to decrease the police power of the government, which makes the citizens oppose the government.
The police power is an important part of the sovereignty of a State, necessary to enforce law and order by legal sanctions, inducements, physical means and coercion, in order to guarantee the health and safety of their citizens.
In other words, diminishing the police power is an attempt against the sovereignty of a Nation, so the terrorist attack is a blow to the existence of a Nation, and a crime in International Law, as exposed previously.
When a country has terrorists (or other non State actors in international law) on its territory, acting outside the rules of International Humanitarian Law, and they are able to conduct their operations, there are two possibilities: the State is supporting the terrorist group, or is unable to deal with it.
In both cases, the international community must intervene when the State cannot deal with the terrorists alone, in order to restore and maintain the sovereignty of the Nation, and protect the civilian population. In these cases, it is unlikely that diplomacy will work, because the groups won’t dialogue, and there is no viable negotiation when the group has economic and logistical advantages by maintaining a fragile State
Combating the Good Combat - How to fight Terrorism with a Peacekeeping Mission Page 14
