Not Only a Matter of Lex Specialis: IHL, the European Union and Its Two Definitions of Terrorism

These times of foreign fighters who travel from Europe to Iraq and Syria have revived the debate on how the definition of terrorism relates to armed conflict. The recent judgment of the EU first instance judicial body, the General Court, in the Tamil Tigers case highlights that different approaches are possible even within a single polity, the European Union. This post discusses the underlying rationale and the implications of the decision’s conclusion on the relationship between terrorism and armed conflict, which appears to have gone unnoticed in legal circles. Other relevant findings of the Court (for instance, the validity of a judgment of an Indian court as a basis for the listing of the group) will not be addressed here.

The EU has been one of the main supporters of current Article 3 of the Draft Comprehensive Convention on International Terrorism (former article 18), according to which the definition of terrorism excludes ‘international law applicable in armed conflict, in particular those rules applicable to acts lawful under international humanitarian law’ (paragraph 4). To advance the present version of the convention, the EU has signed partnership agreements with Iraq and South Korea that include reciprocal agreement to support it. As is well known, Article 3 is the main cause of deadlock in the negotiations. It is not by chance that the United Nations Security Council has been operating for years without a definition of terrorism.

Despite its support for Draft Article 3, the EU itself is not alien to the tensions preventing the provision’s adoption. The recent judgment of the General Court has demonstrated that, even within the EU, the relationship between IHL and terrorism is unsettled. For the sake of discussion, I will assume that the EU is bound by customary IHL in the exercise of its competences, which implies inter alia a duty to interpret EU law in accordance with customary IHL (as AG Mengozzi claimed in Diakité, paras. 23-27).

The General Court recognised that the EU operates under two distinct definitions of terrorism applicable respectively in two main policy fields: the Area of Freedom, Security and Justice and the Common Foreign and Security Policy. The substantial difference between the two definitions lies precisely in their relationship with IHL: whereas the former excludes acts committed in armed conflict, the latter does not make such a separation.

The applicable law consists of a framework decision and a common position. On the one hand, Framework Decision 2002/475/JHA, adopted to harmonise EU Member States’ definitions of terrorism (in the policy field of the Area of Freedom, Security and Justice), contains the following statement in its preamble:

 [A]ctions by armed forces during periods of armed conflict, which are governed by international humanitarian law within the meaning of these terms under that law, and inasmuch as they are governed by other rules of international law, actions by the armed forces of a State in the exercise of their official duties are not governed by this Framework Decision.

In simple terms, according to the Framework Decision, terrorism and IHL are two mutually exclusive branches for the purposes of European criminal law.

On the other hand, Article 1(3) of Common Position (CP) 2001/931/CFSP (governing the Common Foreign and Security Policy) does not refer at all to IHL when it defines terrorism for the elaboration of the so-called ‘1373’ anti-terror blacklist. A consequence has been some controversial listing decisions, such as those concerning the Colombian FARC or the People’s Mojahedin Organisation of Iran. In specific instances, it was not easy to understand—from a strictly legal perspective—why some organisations had not been listed for years whereas others were already on the list. This was the case for Hezbollah until its military branch was blacklisted on 25 July 2013 (see here), especially if we compare it with the presence of (the whole of) Hamas since 2003. The EU Counter-Terrorism Coordinator has made it clear that listing an organisation depends on a combination of legal and policy factors (here).

In 2006, the decision was made to blacklist the Tamil Tigers, a party to a non-international armed conflict (NIAC) against Sri Lanka until their military defeat in 2009. From a policy perspective, this decision had a severe impact on mediation efforts and humanitarian engagement by both parties to the conflict, as admitted by an internal report from the EU diplomatic body, the European External Action Service (see here on pages 22-23).

The General Court held that the listing of the Tamil Tigers was legal on substantive grounds; however, it annulled it on procedural grounds. In upholding the substantive legality of the listing, the Court reasoned that nothing in international law prevents considering terrorism both as a war crime and as a distinct offence under international law (see in particular paragraphs 58-67). The Court found support in diverse legal sources: UNSC Resolution 1373, IHL (mentioning inter alia article 33 of the 4^th Geneva Convention and article 4(2) of Additional Protocol II) and Article 2(1)(b) of the 1999 International Convention for the suppression of the financing of terrorism (which applies to terrorist acts in the context of a NIAC).

I will only make three brief remarks. First, contrary to what the General Court’s reasoning seems to suggest, UNSC Resolution 1373 did not settle the relationship between terrorism and IHL. The fact that the UN body refers to the suppression of ‘the financing and preparation of any acts of terrorism’ (as quoted by the GC) is, in my view, a poor and dangerous legal basis on which to rest a definitive finding that terrorism can exist within an armed conflict (dangerous insofar as it finds support in such a controversial UNSC Resolution). Indeed, the opposite is true: it is up to UN Member States to determine what constitutes terrorism for the purposes of freezing assets addressed to finance terrorist acts. At best, the Court could have said that Resolution 1373 did not prohibit defining terrorism as existing within armed conflicts.

Second, and more importantly, the Court did not assess whether the principle of neutrality in the conduct of hostilities could have been undermined by the listing of only of the Tamil Tigers and not Sri Lanka. At most, the judgment stated the following in paragraph 71:

In any event, even if the Democratic Socialist Republic of Sri-Lanka were to have committed acts which are liable to give rise to criticism and be the basis for an action of the European Union, it should be noted that the principle of equal treatment must be reconciled with the principle of legality, according to which no one may rely, to his own benefit, on an unlawful act committed in favour of another. (emphasis added)

This rather cursory statement is not surprising considering the defective arguments presented by the Tamil Tiger’s legal counsel (invoking a principle of ‘non-interference’ in NIAC by third states) and the legal framework under which the Court made its findings.

The latter aspect is particularly important. The General Court did not have in mind the overall ‘systemic’ relationship between terrorism and IHL, but the more restrictive field of the adoption of preventive measures against terrorist financing under EU law. Thus, it seems that the Court considered Article 1(3) CP 2001/931 CFSP as a kind of lex specialis applicable only to financial measures in the context of CFSP. In this context, the Court accepted that, when adopting that definition, EU member states meeting in 2001 in the European Council intentionally avoided any reference to IHL: lex non distinguitur nos non distinguere debemus.

This leads to my final remark. The resulting dichotomy in the EU legal framework is only a reflection of the confusing international lex lata on terrorism, made of patchwork definitions that sometimes overlap with IHL, or are even contradictory with it, as Professor Sassòli argued here. This state of matters is to be regretted. Be that as it may, it is now up to EU institutions to implement SC Resolution 2178 in a way that does not impair compliance with IHL. In this regard, the definition of Framework Decision 2002/475/JHA offers a good reference point.

[Addendum: please note that pending before the ECJ is a reference for a preliminary ruling in another Tamil Tigers case, basically raising similar legal questions: see here]