Is terror a crime or an act of war?

TERRORIST attacks in Paris killed 129 people on November 13. On the same day, a roadside bombing in Baghdad murdered 26 and on the day before those attacks, 43 people were killed by suicide bombers in Beirut.

Treating the recent terrorist attacks in the shadow of the Eiffel Tower as acts of war may not necessarily be the best answer in terms of international law, the writer argues.

A Russian jet crashed over the Sinai Peninsula last month, killing 224 people. The Islamic State (IS) claimed responsibility. Pope Francis warned that a "piecemeal" third world war may have begun with the current spate of massacres and destruction.

"France is at war," declared French President François Hollande after the attacks on Paris. He called on the US and Russia to join a global coalition to destroy IS and announced a wave of measures to combat terrorism in France.

United Nations secretary-general Ban Ki-moon said any response to the co-ordinated terrorist attacks in France must respect human rights and be based in law.

These events raise the question: "Is terrorism a crime or an act of war?" Terrorism is defined as the use of politically motivated violence against civilians to intimidate or cause fear. Is it a war when the aggressor is a nonstate attacker? Are terrorists criminals or combatants? A war on terrorism raises very complex legal issues.

Historically, the US treated terrorism committed by people not acting for a nation-state as crimes to be dealt with by domestic law enforcement authorities. In 2009, Nigerian Umar Farouk Abdulmutallab took a flight from Amsterdam to Detroit. Before it landed, he allegedly attempted to set off an explosive device. He was arrested by police and charged by US federal prosecutors with terrorism-related criminal counts.

Senators called for him to be charged as an enemy combatant under the law of armed conflict rather than as a criminal suspect. This change, if implemented, would have had significant consequences.

As a combatant, Abdulmutallab could be interrogated without the protections provided to a criminal suspect during questioning, such as the right to have a lawyer present. He was eventually charged as a criminal under the anti-terrorism laws.

IN TERMS of international law, in an armed conflict, enemy fighters may be targeted and killed in situations not permitted in peace and they may also be held without trial. Many important human rights protections may be derogated from in an armed conflict. Prof Mary Ellen O’Connell of the University of Notre Dame’s law school in the US believes we should understand what constitutes "armed conflict" in international law to make an appropriate choice of law that prevails in peace and the law that may be applied during an armed conflict.

This choice is governed by international law. It is not a matter of policy or discretion. To determine whether a state of armed conflict exists, the facts need to be established. In 2005, the International Law Association’s use of force committee produced a report on the meaning of armed conflict. The committee found no widely accepted definition of in it any treaty, but it confirmed that at least two characteristics are found in all armed conflict: the existence of organised armed groups, engaged in fighting of some intensity.

In the absence of these characteristics, states may not, in terms of international law, simply declare that a situation is or is not armed conflict based on policy preferences.

O’Connell says the level of intensity of the fighting is open to subjective assessment and situations of violence may wax and wane, leading to grey areas in which situations are not clearly armed conflict.

The Geneva Conventions apply in cases of "armed conflict which may arise between two or more of the high contracting parties". This means the conventions, which form a large part of law of armed conflict, apply mainly when states are involved. Whether a terrorist attack rises to the level of nations fighting may depend on the level of involvement, if any, of a harbouring state.

If the conflict does not rise to the level of international armed conflict, then, as a matter of law, very few of the Geneva Conventions would apply.

O’Connell argues that an isolated terrorist attack — regardless of how serious the consequences — is not an armed conflict. She rightly concedes that although terrorism is generally a crime, in some circumstances it may be carried out so continuously as to be equivalent to an armed conflict.

This does not mean states are left defenceless against terrorism.

Peacetime criminal law and law enforcement methods permit the use of lethal force and provide for the punishment of terrorism. Law enforcement authorities may use lethal force, but only when absolutely necessary. O’Connell argues that law enforcement methods are far more successful in stopping terrorist groups than military force.

After attacks by al-Qaeda on US targets in 1993, 1998 and 2000, the US used criminal law and law enforcement measures to investigate, extradite and try people linked to them. Former president Ronald Reagan justified the treatment of terrorists as criminals because to "grant combatant status to irregular forces … would endanger civilians among whom terrorists and other irregulars attempt to conceal themselves".

WHEN it became a party to the 1977 additional protocols to the 1949 Geneva Conventions, the British government stated: "It is the understanding of the UK that the term ‘armed conflict’ of itself and in its context denotes a situation of a kind which is not constituted by the commission of ordinary crimes including acts of terrorism whether concerted or in isolation."

France made a similar statement on becoming a party to the protocol.

The privileges available in an armed conflict include an expanded right to kill; to detain without trial, and to search and seize cargo of foreign-flagged vessels.

O’Connell argues that the Bush administration never developed a persuasive argument as to why the US could use force on the basis of self-defence far from the location of those legally responsible for the 9/11 attacks. Since terrorists are known to move from country to country, what does self-defence mean in respect of the sovereignty of a country in which terrorists happen to operate from. O’Connell argues that the right to use force in self-defence applies to interstate uses of force.

The law of self-defence was designed to allow a state to take necessary action against another state responsible for attacking it. It is not designed for responding to the violent criminal actions of individuals or groups.

Force in self-defence may be carried out on the territory of a state responsible for a major armed attack ordered by the state or state-controlled group that carried it out.

After the recent terrorist attacks, are France, Lebanon and Iraq in an armed conflict with a terrorist organisation? Have the attacks been of an intensity to justify Hollande’s declaration of war? If so, what are the legal parameters of this war? Will the escalation of military intervention defeat terrorism or fuel it?

O’Connell argues that terrorists seek to undermine lawful institutions, sow chaos and discord, and foment hatred and violence. Upholding lawful institutions, holding on to legal and moral principles in the face of such challenges, is not only the right thing to do – it is in itself a form of success against terrorism that can also lead to the demise of terrorist groups. After years of the war against terror with no end in sight, maybe it is time to try a new approach.

• Xaso is an attorney at ENSafrica in Johannesburg. The views expressed are her own and do not constitute legal advice