Alessandro Consonni (Italy)
The implementation strategy challenges in counter-terrorism
The legal framework on terrorism and counter-terrorism is quite disorganized, starting with the fact that, while it is true that a notion of terrorism could be found in customary law, there is no universally accepted definition of this crime. Sure enough, although the UN General Assembly has set up several committees throughout recent history, the International Community has never been able to draw up a comprehensive convention on international terrorism up, due to a lack of agreement among member states on basic definitions. It is incorrect, however, to assert that this phenomenon is unregulated because, on the contrary, there are multiple conventions concerning specific terrorist activities such as the 1970 Convention for the suppression of unlawful seizure of aircraft, the 1971 Convention for the suppression of unlawful acts against the safety of civil aviation, the 1977 European Convention on the suppression of terrorism, the 1979 UN International Convention against the taking of hostages, the 1988 Convention for the suppression of unlawful acts against the safety of maritime navigation, the 1997 International Convention for the suppression of terrorist bombings as well as the 2005 International Convention for the suppression of acts of nuclear terrorism. Furthermore, since the aftermath of the 9/11 attack on the Twin Towers, the law on terrorism and counter-terrorism has continued to evolve, especially thanks to UN Security Council Resolutions.
Having said that, this fragmented scenario - which most of the time overlaps the concepts of armed conflict and terrorism - produces the paradoxical result of constraining international humanitarian law (IHL) during armed confrontations. There is the bad habit of states to consider any act of violence by a non‑state armed group in an armed conflict as an act of terrorism, and therefore necessarily unlawful, even when the act in question is not in fact prohibited under IHL. In the same way, the school of thought that points out how the exceptional threat posed by non‑state armed groups - designated as terrorists - requires an exceptional response, is gaining the upper hand. The prevention of terrorist financing is, without a shadow of a doubt, a key element of international counter-terrorism but provisions such as those enshrined in the UNSC Resolution 1373 (2001) make it tougher for international organizations to assist and protect innocent victims of these atrocities. So doing, indeed, organizations are unable to transfer money to certain areas, forcing them to use unregulated methods - outside formal banking systems therefore with high risks -, such as the Hawala system.
The International Community, as a whole, has to rediscover the paramount importance of the Four Geneva Conventions and their additional protocols. They are a balanced body of law that permits of neutralizing and overcoming the enemy while always preserving high standards of humanity. It is necessary to unravel doubts and dispel a few myths, IHL applicability would not lead to the impunity of terrorists, it just sets out a baseline of humanity. As a matter of fact, even if IHL does not define terrorism, there is more than one provision that clearly prohibits acts of terrorism such as article 33 of the Geneva Convention IV, article 51.2 of Additional Protocol I, or articles 4 and 13.2 of Additional Protocol II. In a world where terrorists ruthlessly attack civilians, staying human is always the best response.