The past decades have seen an increasing number of intra-State wars unfold. The claim of anti-State ‘terrorism’ has increasingly become a license for States to take unilateral actions. Thus, determining which legal norms delimit the State’s military power and regulate the conduct of warring parties is of ultimate importance. Although the legal test for the applicability of international humanitarian law to non-international armed conflict (NIAC) has largely been settled – by the second Additional Protocol to the Geneva Conventions, and supplemented by international tribunals as declaratory of customary international humanitarian law – terrorism has often thwarted established legal determination, invariably rendered more difficult by the obscurity of facts on the ground. This article argues that by subjectively classifying a situation as ‘terrorism’, a State does not set aside the question of the applicability of existing international law. In fact, the impact that terrorism ultimately has on the legal assessment is minimal, if any.
The author examines the impact that terrorism has had on the legal establishment of a NIAC. When is there a NIAC (triggering the application of IHL) as opposed to frequent commission of terrorist acts met by acts of ‘counter-terrorism’ (a matter for domestic law enforcement)? The author considers that confusion arises because of a lack of understanding of the role of terrorism in establishing NIAC.