Leiden Policy Recommendations on
Counter-terrorism and International Law
Nico Schrijver and Larissa van den Herik

1 April 2010

Introduction
1.

This set of policy recommendations emanates from a consultative process which was

concluded on 1 April 2010. Its basic aims are to address the challenges that combating
international terrorism poses to international law and to contribute to the international debate
on selected contemporary issues in the struggle against international terrorism. It involved
approximately thirty experts from a variety of professional and geographical backgrounds,
taking part in their personal capacity.

2.

The process started with the Oud-Poelgeest conference, which was convened on 10 to

13 April 2007 by the Grotius Centre for International Legal Studies of Leiden University and
Campus The Hague. This conference of eminent persons at the Oud-Poelgeest estate, close to
the city of Leiden, was organized with the full support of the Netherlands Ministry of Foreign
Affairs. The 2007 conference resulted in a report addressing a variety of challenges to current
international law resulting from the struggle against terrorism and providing suggestions for a
follow-up process.1 The report addressed the need to agree on a definition of terrorism; the
use of force in self-defence against terrorist acts; the interrelationship between human rights
1

The final report of the Poelgeest Seminar was submitted to parliament by minister Verhagen of Foreign Affairs
by letter of 25 June 2007, parliamentary document 27 925 nr. 255; the report was also published in the
Netherlands International Law Review, vol. 54 (2007), no. 3, pp. 571-587.

1

law and international humanitarian law; the need for closer cooperation between states in
criminal matters; the issue of law enforcement in fragile states; and the need for a preventive
and integrated approach.

3.

A follow-up project was launched in 2008 with a three-fold focus. First, it examined

questions relating to law enforcement and criminal justice outside the context of armed
conflict and the need to improve international cooperation in the investigation and
prosecution of terrorist acts. Secondly, it studied operations that include the transboundary
use of force, and in particular the use of force in self-defence against non-state actors. Once
armed force is used, the question regarding the applicability of international humanitarian law
arises including its relationship to human rights law. The third object of study concerned the
specific relationship between international humanitarian law and human rights law. Three
working groups were established, with two co-chairs each. The co-chairs were respectively
Anton du Plessis and Michael Newton (working group 1), Andrea Bianchi and Sir Michael
Wood (working group 2), and Helen Duffy and Jelena Pejic (working group 3). A list of
participating experts can be found in annex 1. The project was coordinated by Nico Schrijver
and Larissa van den Herik of the Grotius Centre of Leiden University.

4.

On 1 April 2010, the combined recommendations resulting from the three working

groups were offered to the Netherlands Minister of Foreign Affairs, Maxime Verhagen. As
stated above, this set of interrelated and policy-relevant recommendations is the product of a
group process. The recommendations are not attributable to any particular expert. They do
not necessarily reflect the individual views of all experts. The individual experts concentrated
their efforts on the work of their own respective groups and endorsed the specific
recommendations of their own group only. The background papers, to be published in an
edited volume, contain further pertinent recommendations of the individual authors of the
respective working groups.

5.

These recommendations aim to contribute to the debate on the role of international

law in countering terrorism. They provide expert perspectives on areas in which greater
consensus needs to be pursued.

2

Part I

Improving International Cooperation in the Investigation & Prosecution of
Terrorist Acts
AIM AND SCOPE OF THE POLICY RECOMMENDATIONS
6.

Improving inter-state cooperation in the investigation and prosecution of terrorist acts

is vital for a well functioning universal criminal justice approach towards terrorism. States
must work towards comprehensive implementation of the relevant international and regional
counter-terrorism legal instruments and compliance with relevant UN Security Council
resolutions. Terrorist cases involve complex intersections of human rights principles,
executive discretion, national security interests, and the larger imperatives of human security.
Justice is a moral imperative in its own right, but is also an essential obligation for
governments that seek to preserve human dignity and strengthen the social contract with their
citizenry.

7.

Contemporary terrorist acts often implicate the citizens of one state, but may involve

the complicity of nationals of other nations, or assistance in the form of funding and training
originating from outside sovereign boundaries. The need for enhanced international criminal
justice cooperation in terrorist cases is therefore a vital component of any effective and
sustainable global response to terrorism. The discussions largely avoided reference to the
body of norms regulating the conduct of hostilities or consideration of the possible
enforcement of the jus in bello using forums or principles derived from international
humanitarian law. In light of international obligations, however, the improvement of regional
and bilateral mechanisms that facilitate domestic criminal and civil justice enforcement
efforts is the sine qua non of progress towards an integrated system that promotes fair and
human rights-compliant criminal justice responses to terrorism. These recommendations are
aimed at developing workable and pragmatic approaches and suggestions.

3

SUFFICIENCY OF THE EXISTING FRAMEWORK
8.

Despite the challenges in reaching a comprehensive multilateral definition of

terrorism, the existing framework of multilateral instruments provides sufficient legal basis
for domestic prosecution of terrorist crimes (defined in the 16 UN instruments and relevant
regional counter-terrorism instruments) and international cooperation. The importance of
domestic prosecutions and international cooperation is highlighted by the fact that there
currently exists no international forum for prosecuting acts of terrorism2 and it is unlikely,
and undesirable, that the Rome Statute of the International Criminal Court will be amended to
include terrorism as a specifically articulated crime. Domestic states should cooperate to
eradicate terrorism to the fullest extent possible based on the unequivocal condemnation of
all acts, methods, and practices of terrorism as criminal and unjustifiable committed wherever
and by whoever.

STRENGTHEN THE DOMESTIC CAPACITY FOR INVESTIGATION AND PROSECUTION OF
TERRORIST CASES
9.

Effective international cooperation requires respect for human rights. Criminal justice

response to terrorism (which includes the investigation, prosecution, and adjudication of
terrorist crimes) forms the cornerstone of any sustainable counter-terrorism effort that
respects the principles of the rule of law, human rights, and due process. The recent record
demonstrates that the reliance on extrajudicial methods has undermined respect for and
protection of human rights. In particular, the extrajudicial transfer of terrorist suspects
(known as extraordinary rendition) has become emblematic of this problem. The disregard
for fundamental human rights norms also has the demonstrable effect of undermining
international cooperation in the struggle against suspected terrorists, as well as eroding the
available channels for assisting investigations and prosecutions related to transnational
terrorist acts, particularly those that cross regional boundaries. The absence of an effective
and efficient regime for international cooperation can result in frustration among law
enforcement and security officials that in turn leads to human rights violations. This is
particularly important when dealing with fragile states.

2

The Working Group recognizes the limited mandate of the Lebanon Tribunal that may include prosecution of
terrorist acts.

4

10.

For the purposes of international cooperation, there is no compelling need for

renewed diplomatic efforts to be expended on developing new multilateral instruments. There
is an existing network of bilateral and multilateral treaties as well as domestic law that is
sufficient for criminalization and effective and efficient international cooperation, especially
in counter-terrorism.

11.

The central challenge, however, is the lack of adoption, ratification, accession, and

most significantly, implementation of the existing instruments and mechanisms. There are
striking gaps across regions in state practice in this regard, and there is a need for increased
domestic criminal justice capability as part of an overarching and integrated development
agenda in order to achieve the goals of the respective multilateral instruments.

12.

In

addition,

widespread,

consistent,

and

appropriately

defined

domestic

criminalization of terrorist acts will facilitate effective international cooperation. This would
enhance the ability of states to comply with their obligations to “prosecute or extradite” as
mandated by the international and regional counter-terrorism regimes. There is a pressing
need for more states to embed prohibitions on terrorist acts within their domestic legislation
along with comprehensive cooperative regimes. Extensive reliance on special anti-terrorism
legislation that creates extended administrative detention regimes should be avoided.

REINFORCED

DOMESTIC

SYSTEMS

DEPEND

ON

IMPROVED

AND

APPROPRIATE

INTERNATIONAL COOPERATION
13.

Despite discernible islands of cooperation, the overall cooperative regime is being

implemented in an uneven manner. There is a need across all regions for legislation which
adopts a more flexible approach to international cooperation in criminal matters. On the
operational level, a strengthened and knowledgeable central authority is essential to
improving international cooperation. At present, the proliferation of multiple central
authorities with overlapping mandates hinders effective international and inter-agency
cooperation. In addition, the poor quality and clarity of many requests for international
assistance is a critical barrier to effective cooperation. In this regard, there are available tools
that are, at present, underutilized. One specific example is the UNODC Mutual Legal
Assistance Request writer tool.

5

14.

The default approach by which many domestic bureaucracies and regulations

commingle the extradition regime with that applicable to information sharing and evidence
gathering must be reevaluated and redesigned. The principles and restrictions that govern
extradition practice have been inappropriately (and unnecessarily) fused into the practice of
mutual legal assistance, with the predictable effect of hindering investigations and the free
flow of information. This is a radical but much needed shift because of the deeply ingrained
habits of approaching extradition and evidence gathering as nearly identical processes with
the same procedural requirements and the same need for protections. The practice must be
reframed to approach evidence gathering as a distinct process which should move much more
rapidly and be effectively synthesized into ongoing investigations.

15.

One key approach to improving international cooperation is to dramatically expand

the establishment of national joint investigation teams which has the collateral benefit of
eliminating the barriers to information sharing that are commonly encountered when
information has been derived through intelligence channels and classified as such by
domestic authorities. Such joint investigative teams should be interdisciplinary and operated
on the basis of agreed upon procedures and practices. An additional benefit of this approach
is to integrate prosecutorial expertise in a more visible and vibrant role at an earlier stage.

SHARING SENSITIVE INFORMATION
16.

The transnational character of modern terrorism means that intelligence and law

enforcement agencies must increasingly share information with their foreign counterparts.
This cooperation often involves working with states that have few domestic human rights
safeguards, or, worse still, with foreign intelligence agencies that have long histories of
involvement in systematic human rights violations. States should ensure that national
intelligence services have clear guidance and appropriate oversight mechanisms that do not
hinder the free flow of timely intelligence among nations. Information should be declassified
and disseminated as rapidly as possible when needed to disrupt terrorist operations.

17.

In addition, the roles and responsibilities of intelligence officials and law enforcement

authorities should be clearly defined. There are processes that can and should be replicated
across domestic jurisdictions that provide workable methods for protecting sources and

6

methods, while still complying with the human rights of defendants facing trial for specific
acts.

THE IMPORTANCE OF REGIONAL ORGANIZATIONS
18.

Regional organizations play an important role in promoting cooperation and

information sharing in counter-terrorism matters. They also facilitate capacity building to
states in various areas of counter-terrorism, including intelligence gathering, financial
cooperation, and mutual legal assistance. Informal mechanisms often provide the impetus and
opportunity for improved cooperation. Regional organizations are an irreplaceable venue for
establishing and enforcing the legal and procedural frameworks for counter-terrorism
cooperation. Regional mechanisms supplement but do not replace the framework of
cooperation from international multilateral instruments and UN channels.

19.

Terrorist organizations have become adept at exploiting regional animosities and

finding the rifts in bilateral relations to conduct operations. Regional organizations can play
the decisive role in building trust between national actors that leads to more effective and
timely cooperation that can produce notable improvements in the common effort to prevent
and/or punish terrorist acts.

20.

Successful practices of regional organizations, such as the European Arrest Warrant

and EUROJUST should inform practices in other regions. One key lesson from EUROJUST
and the European Arrest Warrant is that mutual trust is the cornerstone of more efficient and
streamlined cooperation procedures. In particular, building mutual trust contributes to more
effective international cooperation such as the elimination of barriers created by dual
criminality, transnational recognition of search warrants, and wider recognition of asset
freezing and confiscation orders.

INCREASED USE OF MULTIDISCIPLINARY FUSION CENTRES
21.

Multidisciplinary fusion centres are a critical tool to facilitate the earlier involvement

of prosecutorial expertise in terrorism investigations. Integration of experts from a number of
nations and professional disciplines would also provide an integrated forum for enhancing
international cooperation in relation to fragile states. States should reexamine their national
7

laws in this regard to ensure that progress can be made in assisting transregional
investigations. Multidisciplinary fusion centres can also provide available staff and integrated
operational framework for rapid movement into areas affected by terrorist acts following a
request by the sovereign government.

INTERNATIONAL COOPERATION IN COUNTERING THE FINANCING OF TERRORISM
22.

Stemming the flow of terrorist finances is a crucial component of the fight against

terrorism. Following the flow of terrorist finances may lead to invaluable information that can
assist investigators in uncovering terrorist activities. The financing of terrorism was an early
target of the international effort to combat terrorism. Security Council resolutions 1267 and
1373 were designed to promote international co-operation in the pursuit and freezing of
assets believed to be connected with terrorists or terrorist organisations. Legislation to
implement those resolutions has been the subject of numerous challenges, especially in
relation to the due process concerns associated with the 1267 regime. On the other hand, the
Convention on the Suppression of the Financing of Terrorism does provide another important
tool in the fight against terrorist financing. It requires States Parties to implement specific
measures, including innovative asset freezing and confiscation regimes.

23.

Global implementation of this regime is inconsistent. For example, many EU states

have not implemented some of the basic measures to give effect to these obligations. For
example, an EU – US Agreement on mutual legal assistance which includes important
provisions on access to bank accounts is not in force. At the regional level, a number of states
have not signed and ratified the 2005 Warsaw Convention on Money Laundering and
Terrorist Financing. Under the Warsaw Convention, States Parties are required to ‘co-operate
to the widest extent possible under their domestic law with those Parties which request the
execution of measures equivalent to confiscation leading to the deprivation of property,
which are not criminal sanctions, in so far as such measures are ordered by a judicial
authority of the requesting Party in relation to a criminal offence’.

24.

There should be a greater emphasis on non-conviction based forfeiture of assets. This

does not imply agreement with the expanded use of the Security Council resolution 1267
regime. On the contrary, in keeping with the earlier focus on the protection of fundamental
human rights, a revitalized regime for freezing and/or confiscation of the proceeds or
8

instrumentalities of terrorist crimes should be based on direct enforcement with judicial
oversight and safeguards designed to prevent misuse of the regime for politicized purposes.

25.

Unlike criminal forfeiture, which requires a criminal trial and conviction, civil

forfeiture is an action in rem against the asset itself, not the individual. The World Bank,
under its Stolen Asset Recovery (StAR) initiative, produced a “Good Practices Guide” for
non-conviction based asset forfeiture which encourages those states which do not already
provide for such forfeiture to introduce the necessary measures. In addition, widespread
ratification of the Warsaw Convention noted above could create more opportunities to
enforce civil confiscation orders in other countries.

26.

EU states should seek a new agreement with the United States on the processing and

transfer of financial messaging data. The interdiction of funding streams is a vital tool in
protecting society and preserving human rights. Tracking the flow of terrorist financing is
also an essential component of many successful prosecutions and hence must be a high
priority for the future of transnational cooperative efforts.

SPECIFIC POLICY RECOMMENDATIONS
1.)

Effective and sustainable transnational cooperation to prevent or counter terrorist
acts should respect human rights and due process standards.

2.)

There is no compelling need for new multilateral international cooperation
treaties. There is, however, an urgent need for increased ratification and
implementation of existing agreements.

3.)

More states should criminalize the terrorist acts defined by the relevant
multilateral and regional treaties in order to eliminate existing barriers to their
obligation to prosecute or extradite terrorist suspects.

4.)

Proliferation of national Central Authorities with overlapping mandates and
unclear authority should be avoided.

5.)

As distinct from the policy and practice applicable to extradition, the practice of
mutual legal assistance must be reframed to ensure timely and flexible
international cooperation.

9

6.)

National intelligence agencies should have clear guidance and oversight
mechanisms that appropriately complement the roles and responsibilities of law
enforcement authorities.

7.)

Regional organizations have an irreplaceable role supporting the development of
policy and practice on international cooperation, and should be used when
possible to build capacity in domestic judicial and investigative systems.

8.)

Multidisciplinary fusion centres should be used where possible as an integrated
forum to enhance international cooperation and provide specialized prosecutorial
expertise at an early point in investigations.

9.)

States should increase their ability to interdict the flow of terrorist financing, and
in particular should expand the processes available for non-conviction based
forfeitures of assets under judicial oversight.

10

Part II

The Use of Force against Terrorists
27.

As stated in the conclusions of Part I, terrorism should be primarily dealt with at the

level of national criminal justice systems. Force should be used only as a last resort.
AIM AND SCOPE OF THE POLICY RECOMMENDATIONS
28.

There is no need for new rules of general international law to deal with the use of

force in relation to international terrorism. The framework laid down in the UN Charter is the
cornerstone of the international legal regime on the use of force and states are deeply
committed to it. However, the Charter is not a static instrument and needs to be interpreted in
the light of contemporary practice and taking states’ expectations into account. States are
encouraged to express their views promptly and openly, in all available fora, on the legality
(or lack thereof) of any instance in which force is used. This will contribute to establishing or
consolidating international consensus over the applicable rules.

29.

The aim of the following policy recommendations is twofold. On the one hand, they

aim at clarifying the state of international law on the use of force against terrorists against the
backdrop of recent practice. On the other, they intend to highlight areas in which greater
consensus needs to be pursued at the international level. The recommendations focus on the
issues most relevant to the use of force against terrorists, ranging from the role of the Security
Council and the notion of armed attack, to the requirements for the exercise of self-defence
and, particularly, of anticipatory self-defence. Finally due heed is paid to the specific issue of
the use of force against terrorist groups operating from the territory of fragile states.

USE OF FORCE AS MEASURE OF LAST RESORT
30.

All efforts should be made to exhaust means other than force to prevent and repress

terrorist activities. States and the Security Council should give priority, wherever possible, to
law enforcement measures and recognise that the use of force is a measure of last resort, to be
employed only where absolutely necessary.

11

31.

Article 2(4) of the Charter prohibits states from using force, or threatening to do so,

against the territorial integrity or political independence of any state or in any other manner
inconsistent with the Purposes of the United Nations. This core provision of contemporary
international law bans coercive military action by a state against another state, meaning any
such action on the latter’s territory, and in some circumstances action against its assets
abroad. This prohibition includes coercive military action against other states as a response to
terrorist acts. The two exceptions to this prohibition are: (a) Security Council authorization
for a state to use force, and (b) the use of force in self-defence in response to an armed attack,
or an imminent threat thereof, in accordance with Article 51 of the Charter.

32.

It should be emphasised that states considering the use of force against terrorists must

take due account of the exceptional nature of military action on foreign territory. The
territorial state’s consent to military action is required, except where the territorial state is
unable or unwilling itself to deal with the terrorist attacks.

33.

In any use of military force states must comply with applicable rules of international

humanitarian law and human rights law.

THE ROLE OF THE SECURITY COUNCIL
34.

According to the UN Charter, the Security Council has primary responsibility for the

maintenance of international peace and security. States should consider enhancing the
Security Council’s role in respect of the use of force against terrorists, so as to develop
multilateral approaches to the matter wherever possible. This is best done case-by-case, not
by way of a general declaration in a resolution or Presidential statement.

35.

Security Council authorisation under Chapter VII is legally necessary for the

deployment of force against terrorists in another state without that state’s consent, except
when the requirements for self-defence are met; even in the case of self-defence the Council
has a role under the Charter.

36.

Security Council endorsement should be seen as politically desirable, even in cases of

self-defence (and need not affect the right of self-defence). Measures taken with Security
12

Council endorsement will have stronger domestic and international support, and for that
reason should be more effective than if taken without such endorsement. A state
contemplating the use of force in self-defence against terrorists should therefore normally
first go to the Security Council, except when there is no time, or where the Security Council
is manifestly unable to act. Any action taken in self-defence has to be notified to the Security
Council and appropriate justification, in light of all relevant circumstances, should be
provided.

37.

Regional and sub-regional organizations, such as NATO, the African Union and

ECOWAS, when playing a role in respect of the use of force against terrorist groups, should
not undermine the Security Council’s primary responsibility under the Charter.

ARMED ATTACK
38.

The recognition in Article 51 of the inherent right of individual or collective self-

defence in the event of an armed attack makes no reference to the source of the armed attack.
It is now well accepted that attacks by non-state actors, even when not acting on behalf of a
state, can trigger a state’s right of individual and collective (upon request of the victim state)
self-defence. A state that is the victim of an armed attack by terrorists may thus take action
against those non-state actors operating from another state, although the scope of that
response will depend upon a variety of factors and requirements discussed below.

39.

Article 51 does not include a scale requirement for an armed attack, and there is

disagreement on the existence and contours of such a requirement in the case of an attack by
one state on another. In the case of an attack by terrorists that is not attributable to a state,
Article 51 should be read to require that the attack be large-scale in order to trigger the right
of self-defence; in assessing the scale, account may be taken of a series of attacks emanating
from the same territory and the same terrorist group. The heightened threshold stems from the
critical role of the state(s) on whose territory terrorists operate and the primary responsibility
of such state(s) for the prevention and suppression of such acts. It recognizes that such a state
or states would be affected by the force used in self-defence and ensures that self-defence and
the consequences for that state or states that flow from a military response are not triggered
too soon.

13

SELF-DEFENCE REQUIREMENTS
40.

A state exercising self-defence must respect the limits of necessity and

proportionality. Both conditions are fully applicable to self-defence against terrorist attacks
emanating from the territory of another state. Where the terrorist attacks emanate from more
than one state those conditions must be assessed in relation to each state.

41.

The use of force in self-defence is justified only when force is necessary to bring an

attack to an end, or to avert an imminent attack (under the conditions discussed below). Force
is not necessary, for example, if the terrorist acts can be dealt with by measures of law
enforcement.

42.

The requirement of necessity must first be assessed in the light of the actions of the

state from the territory of which the terrorist acts emanate. Where a state is itself supporting
or encouraging the actions of terrorists on its territory, it may well be unwilling to avert or
repel the attack and action in self-defence may be necessary. Self-defence may also be
necessary if the armed attack cannot be repelled or averted by the territorial state. States
relying on self-defence therefore must show that the territorial state’s action is not effective in
countering the terrorist threat. Whether this is the case depends on circumstances such as the
nature and gravity of the threat, including the territorial state’s attitude vis-à-vis the group
operating on its territory. Being an inherent right to repel or avert attacks, self-defence does
not require that armed attacks by terrorists be attributable to the territorial state under the
rules of state responsibility.

43.

In order to be proportionate, measures of self-defence must be limited to what is

required to repel or avert the armed attack. Proportionality in this sense requires states
regularly to monitor on-going measures of self-defence and ensure that they remain defensive
in character. This may entail limitations on the intensity and duration of force employed and
on the theatre and target of operations. In particular, it will normally mean that measures of
self-defence against suspected terrorists must be directed primarily against the terrorist
groups responsible for the armed attack in question or their facilities. Only in exceptional
circumstances will self-defence justify the use of force against the armed forces or facilities
of the territorial state, for example, in circumstances where the territorial state is supporting
suspected terrorists, as in Afghanistan in 2001.
14

44.

Unnecessary or disproportionate use of force cannot be justified as a measure of self-

defence under international law. As the application of both factors is heavily fact-dependent,
states using force in self-defence should be prepared to make publicly available information
and data that will support the necessity and proportionality of their conduct. International law
does not prevent third states from scrutinising the necessity and proportionality of selfdefence operations or from requesting further evidence.

ANTICIPATORY SELF-DEFENCE
45.

States have a right of self-defence against a threatened attack, but only if the attack is

imminent and if the armed action in self-defence is necessary to avert the attack and is
proportionate to it. Action to avert a threatened attack is best termed anticipatory self-defence
and must be distinguished from the use of so-called ‘pre-emptive’ or ‘preventive’ force
before a threat has crystallized, which could only be lawful if authorized by the Security
Council.

46.

Whether an attack may be regarded as imminent falls to be assessed by reference to

the immediacy of the attack, its nature, and gravity. There must be a reasonable and objective
basis for concluding that an attack will be launched, while bearing in mind that terrorists
typically rely on the unpredictability of attacks in order to spread terror among civilians.
Armed force may be used only when it is anticipated that delay would result in an inability by
the threatened state effectively to avert the attack.

47.

As indicated above, it is only exceptionally that the threatened state may take armed

action in self-defence against a non-state actor in the territory of another state without first
seeking the consent of that state. It will thus be only in the most compelling emergency that
there will be necessity for the threatened state itself to take military action before an attack is
launched.

48.

Any use of force in anticipatory self-defence should be justified publicly by reference

to the evidence available to the state concerned; the facts do not speak for themselves, and the
state should explain, as fully as it is able to do, the nature of the threat and the necessity for
anticipatory military action.
15

USE OF FORCE AND FRAGILE STATES
49.

The rules on the use of force, set out above, apply equally to non-state actors

launching cross-border attacks from a failed state (a state without a functioning government),
or from a failing state (a state with a particularly weak government).

50.

Even the complete absence of a government does not per se lead to a loss of

statehood. Instead, state practice suggests that a fragile state will generally continue to exist
as a state under international law over a considerable time. The territory and the population of
that state will continue to be protected by the prohibition of the use of force. It follows that
the use of force on the territory of a failed or failing state carried out by another state requires
legal justification. In the absence of a Security Council authorization under Chapter VII of
the UN Charter, the right to self-defence is the only possible legal basis for another state to
respond forcibly to a non-state armed attack emanating from a failed or (absent consent)
failing state.

51.

A fragile state lacks an organ to express its consent to the use of force carried out by

another state on the former state’s territory. Conversely, the expression of such consent is
conceivable in the case of a failing state. State practice suggests that even a government
unable to deal with the non-state actors in its own territory can express an internationally
valid consent, unless such government lacks international recognition. A failing state unable
to avert or halt a non-state armed attack ought to consent to forcible action by other states to
act in its place. If it does not do so, action may be taken in self-defence .

52.

In the case of a fragile state and, where its government is unable to deal with the non-

state actors, in the case of a failing state, the non-state armed attack cannot be attributed to
the state. Nor will the state necessarily incur responsibility for a failure to exercise due
diligence to prevent the armed attack. This does not, however, exclude the victim state’s right
to self-defence because this right can be exercised against non-state armed attacks and does
not presuppose the territorial state’s responsibility for internationally wrongful conduct.

16

Part III
Intersection Between International Human Rights Law and International
Humanitarian Law in the Fight against Terrorism
AIM AND SCOPE OF THE POLICY RECOMMENDATIONS
53.

States are obliged to take effective measures to prevent terrorist acts and to protect the

human rights of their citizens. In so doing, states must act consistently with their obligations
under international law, including international human rights law (IHRL) and international
humanitarian law (IHL). This injunction recognizes that upholding human rights and
protecting the public from terrorist acts are not antithetical, but complementary
responsibilities of states. The legitimacy of any measure taken by states to combat terrorism
will depend upon compliance with the full range of applicable international law.

54.

As pointed out in the Poelgeest Report there is no single answer to the question of

which legal regime – human rights law or international humanitarian law – applies in the
fight against terrorism. The applicable legal regime and the necessary concurrent application
of several legal regimes can only be determined on a case-by-case basis. While the
relationship between IHRL and IHL remains an evolving issue, every effort should be made
by human rights and humanitarian law experts, whether belonging to governments,
international organizations, non-governmental organizations or other actors to get better
acquainted with each others’ legal and policy perspectives, as well as with the realities of the
application of the different bodies of law on the ground.

55.

The aim of the recommendations in this Part is to highlight several areas central to

defining the relationship between human rights and humanitarian law as a matter of law,
policy and practice. The topics are grouped around three headings related to the applicability
of the two bodies of law, their interplay on certain specific issues and their interface with
other legal frameworks. The recommendations strive to restate existing law on some issues,
to provide a reading of what developments in the law might be in others, and to suggest
topics for further discussion and follow up by experts and policy-makers at the international

17

level on yet others. The recommendations do not purport to address the broad array of IHRL
or IHL issues raised by the fight against terrorism.

SECTION 1: APPLICABILITY OF IHRL AND IHL

APPLICABILITY OF INTERNATIONAL HUMAN RIGHTS LAW
56.

International human rights law applies at all times and is the body of international law

most commonly applicable to counter-terrorist activity, whether at home or abroad. The
application of human rights law in situations of armed conflict, alongside IHL, is now beyond
reasonable debate.

57.

The Human Rights Committee, the European Court of Human Rights and the former

European Commission on Human Rights, as well as the Inter-American Commission on
Human Rights have all found their respective instruments to apply extraterritorially, even in
situations of armed conflict. Clearly, the fact that a state acts beyond its borders does not give
rise to the applicability of the full range of positive human rights obligations binding on a
state within its own territory. However, obligations do arise in respect of, and commensurate
with, the exercise of the state’s authority and control abroad. Where the state exercises direct
control over individuals, IHRL is in principle applicable. This is of course distinct from the
question of the interplay between IHRL and IHL addressed below.

58.

An issue on which greater consideration is due is the derogability of human rights

treaty obligations by states engaged in military operations in the territory of a third state,
whether individually or collectively. Consideration should be given to whether extraterritorial
derogability is or should be possible by an intervening state. This issue remains unresolved
both in law and practice and should be the subject of further expert debate at the international
level.

APPLICABILITY OF INTERNATIONAL HUMANITARIAN LAW
59.

Acts of terrorism in themselves do not automatically amount to “armed conflict”. The

majority of terrorist acts that take place around the world fall outside armed conflict and

18

should be dealt with under a law enforcement paradigm. This means that the applicable legal
regimes are domestic law, human rights law and international criminal law.

60.

The threshold for the application of international humanitarian law (IHL) is the

existence of an armed conflict or occupation. It is thus necessary to exercise particular rigor
in classifying a situation as an armed conflict so as not to extend IHL application to situations
that, objectively, do not amount to armed conflict and where the exclusive application of
human rights law is warranted.

61.

While international armed conflict involves hostilities between states only, it is more

difficult to determine when the threshold of non-international armed conflict under Common
Article 3 to the 1949 Geneva Conventions has been reached. A Common Article 3 conflict is
one waged between one or more states and one or more organised non-state armed groups or
between such groups themselves. It is generally accepted that there are two basic criteria for
determining that a situation of violence may be classified as a Common Article 3 conflict: the
intensity of the violence involved and the level of organisation of the non-state party to such a
conflict.

62.

In so far as intensity of violence is concerned, it would include protracted violence

meaning that acts are not perpetrated in isolation but as part of an ongoing campaign. It is
immaterial whether the acts of violence perpetrated may or may not be characterised as
terrorist in nature. With regard to the organisation of the non-state party, an organised group
would, inter alia, require a command structure and a leadership with a capacity to exert
authority over its members.

63.

It is possible for an armed conflict involving non-state actors to extend to the territory

of more than one state, without necessarily qualifying as an international armed conflict.
Such “transnational” armed conflicts would be subject to IHL applicable to non-international
armed conflicts. This will, however, depend on whether, within any particular state, the
factual conditions are met for an armed conflict to exist. The application of IHL in one
country does not mean that there is a global armed conflict and law enforcement will remain
the principal means of dealing with acts of terrorism in countries / places where the armed
conflict threshold has not been crossed.

19

SECTION 2: INTERPLAY OF IHRL AND IHL ON SPECIFIC ISSUES RELATED
TO THE PROTECTION OF PERSONS
64.

Where IHRL and IHL are both applicable, they should, where possible, be interpreted

harmoniously. A harmonious approach to interpretation is possible where both bodies of rules
have parallel purposes and principles that enable apparent conflicts to be resolved through
consistent interpretation. The substantive coherence between the content of IHRL and IHL is
extensive, notably in relation to the treatment of persons, fair trial and accountability.

65.

However, the complexity of harmonious interpretation must also be recognised. The

operation of the lex specialis rule is relevant when there are norms of IHL directed to the
particular situation that are at variance with those of IHRL, which arises most obviously in
relation to rules on the right to life and detention in armed conflict. A context sensitive
application of IHRL and a human rights informed application of IHL may not lead to greatly
divergent standards on the vast majority of issues.

66.

Attention should be paid to ensuring that all those charged with the implementation of

IHRL and IHL understand and apply the relevant bodies of law. Emphasis should be placed
on the duties of states to provide guidelines to those on the ground to clarify applicable law,
including the inter-relationship of IHRL and IHL in relation to particular situations and
norms.

67.

Human rights courts and treaty bodies have become increasingly engaged in the

adjudication or assessment of human rights violations arising in armed conflict, providing
victims with the prospect of a remedy, which may otherwise be elusive. However, these
bodies have not always had due regard to IHL in their determinations of human rights issues
in armed conflict situations.

68.

Accountability for crimes committed in the name of counter-terrorism should be seen

as a legal imperative under IHRL and IHL, not a policy alternative. Investigation of serious
violations of either IHRL or IHL should be thorough and independent in line with established
international standards. The right to reparation of victims of terrorism or of victims of
violations committed in the name of fighting international terrorism should be recognised.

20

TREATMENT AND PROCEDURAL GUARANTEES FOR PERSONS DETAINED IN THE FIGHT
AGAINST TERRORISM

69.

Torture or cruel, inhuman or degrading treatment or punishment are absolutely

prohibited by both international human rights and international humanitarian law. Calibrating
standards of treatment to different categories of detainees, based on the reasons or
circumstances of their detention is clearly unlawful. Every effort must be made to ensure that
the prohibition of torture or cruel, inhuman and degrading treatment is observed in all places
of detention and that persons responsible for possible violations are held to account. “Ticking
time-bomb” scenarios do not afford any exception to the prohibition of torture or cruel,
inhuman or degrading treatment and should be categorically rejected.

70.

Interrogation methods must be in conformity with the prohibition of torture or cruel,

inhuman and degrading treatment and must be constantly reviewed to ensure that these
prohibitions are respected in practice. While certain forms of treatment (such as mutilation,
rape, electric shocks, etc.) per se amount to torture or cruel, inhuman and degrading treatment
and are prohibited at all times, it is not possible to draw up finite lists of authorised
interrogation methods.

71.

Under international law, the use of statements and other evidence obtained by torture

or cruel, inhuman and degrading treatment must be excluded from any criminal or other
judicial proceedings, except in cases specifically provided for in Article 15 of the Convention
against Torture.

72.

While humanitarian and human rights law are essentially the same as regards fair trial

rights, procedural safeguards for persons detained for posing a serious security threat differ
depending on whether detention is governed by international humanitarian or human rights
law. The latter mandates court supervision of any type of detention, including security
detention, a requirement that may be derogated from only in the exceptional circumstances of
a public emergency threatening the life of the nation. There is also a growing body of opinion
according to which court supervision of detention can never be derogated from.

73.

Humanitarian law deals with a different reality in which there might not be a

functioning court system, in which detainee numbers might be significant and in which there
21

may be a range of other obstacles to judicial review arising from the battlefield context. Thus,
IHL in international armed conflict provides for review of internment based on imperative
reasons of security (POW detention is excluded), either by a court or administrative board.
There are in certain circumstances particular challenges in implementing procedural
safeguards for internment in non-international armed conflicts, which constitute the majority
of armed conflicts today. This is an issue which merits further discussion at the international
level and, if possible, the elaboration of specific rules or guidelines. In the interim, existing
principles and safeguards, such as those proposed by the ICRC in 2005,3 may be relied on as
minimum standards of due process in any type of detention for security reasons.

74.

A significant subset of non-international armed conflicts are those in which a coalition

of states detains nationals of a “host” state in its territory. The legal and practical problems
involved in ensuring procedural safeguards in this type of detention are considerable and as
yet not fully understood or explored.

THE USE OF LETHAL FORCE IN THE FIGHT AGAINST TERRORISM
75.

The issue of whether the use of lethal force against a person suspected of acts of

terrorism is lawful depends on two separate questions: a) whether use of force in a territory
which is not under the jurisdiction of the state whose agents employ the force violates the
affected state’s territorial integrity, and b) whether it involves an arbitrary deprivation of life
of the targeted person.

76.

Whether use of lethal force against a person is lawful may be judged according to two

legal regimes: the law enforcement regime, governed by international human rights law, and
rules on the conduct of hostilities governed by the law of armed conflict. IHL is lex specialis,
which applies only when there is an ongoing armed conflict and the targeting has a nexus to
the hostilities connected with that conflict.

3

See J. Pejic, ‘Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict
and Other Situations of Violence’, International Review of the Red Cross, Vol. 87, No. 858, June 2005. It was
published as Annex 1 to an ICRC Report on ‘International Humanitarian Law and the Challenges of
Contemporary Armed Conflicts’ presented to the 30th International Conference of the Red Cross and Red
Crescent held in Geneva in 2007 and reflects the ICRC’s institutional position. See
http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/p0892/$File/ICRC_002_0892.PDF.

22

77.

Under the law enforcement regime governed by human rights law, a person may be

targeted only when use of lethal force is absolutely necessary to protect others from unlawful
violence. This is generally taken to mean that the unlawful violence is imminent, leaving no
room or time for the employment of non-lethal methods of law enforcement. In IHL the use
of lethal force is regulated by rules on the conduct of hostilities, which include provisions on
the protection of civilians against direct attack unless and for such time as they take a direct
part in hostilities.

TRANSFER OF PERSONS IN THE FIGHT AGAINST TERRORISM
78.

Human rights, refugee law, and humanitarian law protect individuals when they are

transferred from the custody of one state to another. A minimum baseline standard which
should be applied as regards transfers pertains to: threshold principles, substantive guarantees
of non-refoulement and procedural guarantees. At least two threshold principles should be
observed. The first is that formal procedures for transfer, such as extradition or deportation,
may not be intentionally bypassed, and the second is that the transferring state should have a
valid legal basis for apprehending the individual in contemplation of transfer.

79.

It is generally accepted that there may be no transfers to a real risk: of torture or cruel,

inhuman or degrading treatment; of persecution; of enforced disappearance; or of arbitrary
deprivation of life.

80.

The relevant procedural guarantees include the ability of the affected person to

challenge the basis for his or her apprehension/detention and his or her ability to challenge
transfer based on the grounds provided for in international law. Procedural safeguards also
include a person’s ability to challenge transfer before it takes place, before an independent
decision-maker. Resort to diplomatic assurances can never per se obviate the risk of serious
violations referred to above. Where diplomatic assurances are used, as one element in the
assessment of risk, they should be accompanied by rigorous safeguards such as judicial
review and effective post-return monitoring by the transferring state.

81.

The legal, practical and policy implications relating to the transfer of persons in the

fight against terrorism are believed to require further expert discussion at the international
level.
23

SECTION 3: INTERSECTIONS WITH OTHER LEGAL FRAMEWORKS

OBLIGATIONS REGARDING PEACE AND SECURITY AND THE PROTECTION OF PERSONS
82.

Problems have arisen for the application of IHRL and IHL in relation to Security

Council resolutions and their implementation. Examples include issues relating to the
detention of persons and the freezing of assets.

83.

States have a responsibility to implement Security Council resolutions. In the exercise

of their discretion in the choice of methods of implementation, they should ensure conformity
with human rights, international humanitarian law and other relevant bodies of international
law. Lack of accountability for violations of IHRL and IHL arising in the implementation of
counter-terrorism resolutions leads to a denial of access to justice for victims and should be
avoided.

84.

The Security Council cannot authorize violations of human rights and IHL norms that

rise to the level of jus cogens. The Security Council should, moreover, take full account of
the UN’s own Global Counter-Terrorism Strategy, which centres the protection and
promotion of human rights as an integral part of any effective and sustainable counterterrorism approach. Where Security Council resolutions are unclear, there should be a
presumption that the Security Council does not intend that actions taken pursuant to its
resolutions should violate international human rights and international humanitarian law.

85.

The Security Council should avoid placing states in situations where their obligations

regarding peace and security and under IHRL and IHL cannot be simultaneously respected.
The human rights impact of all draft counter-terrorism resolutions should be thoroughly
considered. Consideration should also be given to on-going monitoring and conducting
human rights impact assessments of all counter-terrorism resolutions.

86.

The relationship between states’ obligations regarding international peace and

security and states’ obligations for the protection of persons deserves further attention by
experts at the international level.

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TERRORISM AND CRIMINAL JUSTICE
87.

Acts of violence carried out in the context of an international or non-international

armed conflict are governed by the rules of international humanitarian law and should remain
excluded from the notion of international terrorism under the criminal justice regime.
Deliberate attacks against civilians and civilian objects are considered war crimes under
international humanitarian law; consequently, the perpetrators of these acts may be
prosecuted in domestic and international courts.

88.

Consistent efforts should be made to ensure that legislation enacted to criminalise acts

of terrorism in a State’s domestic jurisdiction respects the non-derogable principle nullum
crimen sine lege (the principle of legality). Counter-terrorism legislation should not
jeopardize the rights to freedom of expression and association nor unduly restrict the due
process rights of those accused of committing acts of terrorism.

89.

Violations of fundamental human rights such as the right not to be subject to torture

or other forms of ill treatment may hamper the criminal prosecution of suspected terrorists
and have a negative impact on international cooperation in criminal matters. States must
abide by the fundamental principles of due process in the collection of evidence in order to
preserve the integrity of the judicial process and ensure successful domestic prosecution and
inter-state cooperation.

25

Annex 1
List of Participating Experts

Group 1: Improving international cooperation in the investigation & prosecution of
terrorist acts
-

Anton Du Plessis (South Africa) - Co-chair
Prof. Mike Newton (US) – Co-chair
Prof. Elies Van Sliedregt, Klaas Rozemond and Vincent Glerum (The Netherlands)
Joanne Mariner (Human Rights Watch)
Judge Kimberly Prost (Canada)
Martin Polaine (UK) and Arvinder Sambei (UK)
Ranganath Manthripragada (US)
Martin Ewi (OPCW)
Tim Daniel (UK)

Group 2: The use of force against terrorists
-

Prof. Andrea Bianchi (Italy) - Co-chair
Michael Wood (UK) - Co-chair
Prof. Steven Ratner (US)
Prof. Elizabeth Wilmshurst (UK)
Prof. Christian Tams (Germany)
Prof. Claus Kress (Germany)

Group 3: Intersection Between IHRL and IHL in the Fight against Terrorism
-

Helen Duffy (Interights, UK) - Co-chair
Jelena Pejic (ICRC) - Co-chair
Prof. Robert K. Goldman (US)
Prof. David Kretzmer (Israel)
Charles Garraway (UK)
Prof. Claudia Martin (Argentina)
Prof. Margaret Satterthwaite (US)
Prof. Karima Bennoune (US)

Observing experts participating on 30 and 31 March 2010
-

Prof. Tiyanjana Maluwa (Pennsylvania State University, US)
Mr. Marten Zwanenburg (Ministry of Defence, The Netherlands)
Ms. Liesbeth Lijnzaad (Ministry of Foreign Affairs, The Netherlands)
Ms. Mireille Hector (Ministry of Foreign Affairs, The Netherlands)
Mr. Fateh Azzam (OHCHR)
Prof. Theo van Boven (Maastricht University, The Netherlands)
Mr. Jean-Paul Laborde (Department of Political Affairs, UN)
Ms. Joan Donoghue (State Department, US)

Project Leaders
-

Dr. Larissa van den Herik (Grotius Centre, Leiden University)
Prof. Nico Schrijver (Grotius Centre, Leiden University)

26