XXIII. Commentary-Terrorism and the Problem of Different Legal Regimes: Daniel Helle

• Author: Daniel Helle
• Pages: 375

The multi-faceted nature of 'terrorism' along with the lack of a commonly agreed understanding of the term gives rise to numerous questions on how the problems should be tackled. Such questions include determining whether additional or different norms may be necessary (including deciding which acts should be considered as international crimes) and how to combat terrorism while respecting the requirements imposed by existing law.

The following observations essentially relate to the relationship between different legal regimes, in particular international human rights law, international humanitarian law (IHL) and international criminal law.2 All three, but 1. Daniel Helle is the Deputy Head of the ICRC Delegation to the United Nations.

2. When discussing the relationship between IHL and international criminal law, I think of 'international criminal law instruments' as encompassing those conventions which have been specifically aimed at preventing and repressing terrorism. I do not wish to label the Geneva Conventions or their Additional Protocols as 'international criminal law instruments,' in spite of the fact that these conventions contain obligations on all state parties to prosecute or extradite persons suspected of having committed 'grave breaches,' several of which can cover terrorist acts. This is because the primary aim of IHL instruments is to highlight the rights and obligations of the parties to a conflict; whereas the regulation of how cases of nonimplementation should be dealt with is treated on a separate, 'second' level.

   also other branches of international law, are relevant when addressing various aspects of 'terrorism.' While they share the common aim of seeking to protect human dignity and security, each have their strengths and weaknesses, and thus should be reserved to address the areas for which they are most suited.

   The concurrent application of different legal regimes in any given situation is normally an advantage, notably because it helps ensure that various manifestations of terrorism can be addressed, taking into account who has committed the act (was it a private individual, a member of a party to an armed conflict, a representative of a state); who the act was committed against (a civilian, a member of the armed forces); and the related question of the context in which the act was committed (was it committed during an armed conflict or in 'peace-time').

   In some cases, such a concurrence may help prevent the occurrence of 'gaps' in the...