The IHL has properly addressed terrorism by condensing the serious violation against children into six categories which are killing and maiming, sexual violence, recruitment and use, denial of humanitarian access, abduction and attacks on schools and hospitals.
As it is stated under Article 7 of the Rome Statute which created the ICC, any individual or group that carries out a “widespread or systematic attack directed against any civilian population” commits “crimes against humanity” and may be prosecuted before the Court. Argument have been made that there is no existing international judicial organ that would prosecute which automatically exempts ICC from having jurisdiction to conduct trial of an alleged suspect in the case of terrorism. This in another sense means that in a situation where a national court did not prosecute or extradite an alleged person, no court will take responsibility of jurisdiction. Going by the meaning of Article 7, only war crimes which constitute of crime against humanity lies in the function of the court to prosecute when the national courts have been exhausted (meaning court of last resort for war crime). However, it crystal clear that terrorism employs diverse means with no single unified definition and with no one way pattern and must be treated or considered a one type of crime. This can be a good reason why, for example, in the case of Nigerian Boko haram, the alleged sponsors have not been prosecuted in ICC and ever since the inception of this court in 2002, no case of terrorism has been tried. This calls for the amendment of the Rome Statute of ICC or the creation of a new court that terrorism will be its core jurisdiction. This research will not talk delve into why ICC lack jurisdiction but according to the letters of the Rome Statue that founded ICC coupled with its governing documents, terrorism is out of its jurisdiction.
It is in this regards that States have strengthen their function in respect to protecting their children via the development of legislations, strong policies and legal activities against proliferation of terrorist.
4.3. PROTECTION OF THE NATURAL ENVIRONMENT IN ARMED CONFLICT
The first body of law to consider in an analysis of the protection of the environment during armed conflict is international humanitarian law (IHL). The relevant provisions of IHL treaty law for the protection of the environment during armed conflict can be divided into three main categories:
1. Those that directly address the issue of environmental protection, the general,
2. Principle of IHL that are applicable to environmental protection, and
3. The provisions that can be considered to provide indirect protection to the environment during times of conflict.
4.3.1. Provisions Specifically aimed at Protecting the Environment During Armed Conflict
1. Additional Protocol 1 to The 1949 Geneva Conventions, Article 35(3) and Article 55(1) (1977)
It is very important to treat terrorism regarding the protection of civilian populations and the environment as a germane issue to tackle. Growing environmental ruin through terrorism, as well as concern over military tactics employed during counter-terrorism needs the application of the two provisions in Additional Protocol 1 that explicitly addressed environmental harm.
Article 35 concerns basic rules regarding the means and methods of warfare. Paragraph 3 stipulates that ‘’it is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread long-term and serve damage to the natural environment.
Moreover, the article further provides specific protection for the environment within the context of the protection granted to civilian objects. It also explicitly prohibits attacks on the environment by way of reprisals.
2. UN Convention on the Prohibition of Military or Any Other Use of Environmental Modification Techniques ( ENMOD) (1976)
The ENMOD Convention was established as a reaction to the military tactics employed by the United States during the Viet Nam War. These included plans for large-scale environmental modification techniques that had the ability to turn the environment into a weapon, for instance by provoking earthquakes, tsunamis, or changes in whether patterns- what some commentators have called it ‘’geophysical warfare.’’ The Convention was also a reaction to the use of large quantities of chemical defoliants (death, cancer and other illness, mutations, and birth defects) and long term environmental contamination, as well as very significant destruction of forests and wildlife.
ENMODs objective was to prohibit the use of environmental modification techniques as a means of warfare.
Article (1) requires that ‘’each state party to this convention undertakes not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or several effects as the means of destruction, damage or injury to any other state party.” Hence, while the Additional Protocol 1 aim to protect the natural environment per se, ENMOD prohibits the use of techniques that turn the environment into a ‘’weapon.’’ Although (Unite Nations Environment Programme) UNEP helped convene the negotiations that led to the ENMOD Convention, it has not had a systematic role in monitoring its implementation and enforcement.
Use of depleted uranium 45 munitions and other recently developed weapons, this being stated in article 36 of additional protocol 1 to the Geneva Conventions, which is binding on168 states and requires them to ensure that any new weapon, or means or method of warfare, does not contravene existing rules of international law. IHL also prohibits weapons and means or methods of warfare that cause superfluous injury or unnecessary suffering, or having indiscriminate effects or cause widespread, long-term and severe damage to the natural environment
4.4. Protection Of Journalists And News Media Personnel In Armed Conflict
Every journalist killed or neutralized by terror is an observer less of the human condition. Every attack distorts reality by creating a climate of fear and censorship.189
One of the greatest threats to freedom of expression around the world is the violence committed against journalists practicing their profession in conflict situations. An alarming number of journalists have been targeted or killed when reporting about terrorism. Journalist venturing into war zone who seeks to cover in the conflict areas places themselves at risk of injury or death by their acts. Journalists have long assumed a special importance in terrorism news. In armed conflict, journalists are among a precious few remaining actors capable of exposing illegality.191 Journalists want to be as close as possible to the events, while, the parties of an armed conflict or a terror situation often see the unpleasant truth exposed by journalist as a threat leading to cruel treatment to journalist. But the media cannot be considered a legitimate target, even if they are being used for propaganda purposes, unless they are being exploited to instigate grave breaches of humanitarian law. Journalists and media personnel also benefit from precautionary measures such as the principle of proportionality and the obligation to give advance warning. Geneva Conventions and additional protocol 1 both of which regulate international armed conflicts offer some protections for journalists during times of armed conflict.
Journalists, media professionals and associated staff play an essential role in informing the public and the international community. This is all the more so in situations of armed conflict, where access to information may be difficult. They witness what is happening on the ground, gather and disseminate information about events and can help identify serious violations of human rights and international humanitarian law. The term journalist, according to a 1975 draft United Nations convention, is defined as;
The word journalist shall mean any correspondent, report, photographer, and their technical film, radio and television assistants who are ordinarily engaged in any of these activities as their principal occupation’’. Thus, the term ‘’journalist’’ encompasses ‘’all representatives of the media, namely all those engaged in the collection, processing and dissemination of news and information including cameramen and photographers, as well as support staff as drivers and interpreters.
The work of journalists in armed conflict can be dangerous. Journalist and crew members who cover armed conflict run risks. They are exposed to the dangers arising from military operations; they can become the victims of battlefield hostilities. According to Hassan Shaaban, head of the Center for the Legal Protection of Journalists in Iraq, told Human Rights Watch (HRW) that, “Terrorists are systematically targeting journalists.” Some have even been facing another form of threat from the government security agencies when he added that the government is not even protecting them. There properties are sometimes seized; some are arrested for covering issues that are politically motivated in relations to terrorism. The environment is hostile to them; both the terrorist and even the government may consider them unwanted witnesses and went to obstruct their mission. The protection of journalists in armed conflict is therefore of vital importance in order to ensure their safety as well as the freedom of information. Journalists during their professional conduct are subjected to the special protection i.e. as civilian. Journalist has to be treated as a civilian as long as he does not act to the contrary, i.e. actively engages in combat actions. For example, every person loses its protection as civilian by arming oneself. However, journalists and their accompanying team can also become victims of arbitrary acts of violence, such as murder, arrest, torture, disappearance, carried out by terrorist or security forces or by non-state armed actors in the country where journalist are working.
The independent journalist has to be strictly distinguished from the war correspondent, who is a member of one of the conflict parties or who accompanies their military units. The power of media reportage in times of armed conflict was affirmed by the International Criminal Tribunal for the Former Yugoslavia, in the Brdanin and Talic case.
In the instance, the Appeals Chamber affirmed that:
…..Journalists reporting on conflict areas play a vital role in bringing to the attention of the international community the horrors and realities of the conflict… indeed…. It was the brave efforts and reporting of journalists in the former Yugoslavia that, in part, contributed to the establishment of the tribunal.
The scope of IHL is to spare persons not or no longer taking a direct part in hostilities from undue harm resulting from an armed conflict. Therefore, the instrument of IHL makes no statements on journalist’s freedom of action or speech. They do not grant the right to enter a territory without the consent of the authority controlling it. They do however set the grounds for their legal protection whenever they find themselves in a context of an armed conflict.
4.4.1. HISTORICAL DEVELOPMENT OF INTERNATIONAL LAW PROTECTING JOURNALISTS
The Recognition was being given to journalists in various international humanitarian instruments; the emergence of new international bodies like the United Nations also provided arenas for journalists to campaign for greater international recognition. Indeed, the League of Nations convened a Conference of Press Experts in 1927, adopting a number of resolutions regarding issues such as the treatment of foreign journalists and the provision of identify cards for journalists as a means of preventing violence against journalist. 197 None of these resolutions were adopted by member States at the time. However, important protections regarding journalists were adopted by States when included in the 1949 Geneva Conventions.
The first laws of armed conflict to provide special protection for journalists were included in the 1863 Lieber code. It provided that;
Citizens who accompany an army for whatever purpose, such as settlers, editors, or reporters of journals, or contractors, if captured, may be made prisoners of war, and be detained as such.
When international laws on the law of armed conflict were being debated in The Hague, a provision regarding journalists was included in Article 13, and was reiterated in the 1907 Hague Regulations concerning the Laws and Custom of War on land, annexed to the fourth Hague Convention of 1907. Article 13 of the regulations provides that;
Individuals who follow an army without directly belonging to it, such as newspaper correspondents and reporters are entitled, in case of capture, to treatment on par with that extended to prisoners-of-war, on the condition that they are in possession of suitable accreditation- a certificate from the military authorities of the army which they were accompanying.
This provision was included in the 1929 Geneva Convention relative to the treatment of prisoners of war, in Article 81. With the update of Geneva conventions following the World War II, the provision regarding correspondents was retained and expanded. Geneva Convention III relative to the Treatment of Prisoners of War, Article 4A provides that:
Prisoners of war, in the sense of the present convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy….(4) persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.201
Thus, war correspondents are to be afforded prisoner of war status and treatment as an expansion of The Hague protections and those of the 1929 Geneva Convention. However, the provision relates only to the protection of journalists who are embedded with a military unit, and thus permitted to accompany that unit. Journalists in war zones on their own recognizance i.e. not authorized or accredited with an armed forces unit receive no special protection under the Conventions, beyond those protections already afforded to civilians under the fourth Geneva Convention.
4.5. THE PROTECTION OF JOURNALISTS AS CIVILIANS
When the laws of war were re-examined in the 1970s, the special position of journalists in times of armed conflict was reaffirmed. Under article 79 of Additional Protocol I, journalists engaged in dangerous professional missions in areas of armed conflict shall be considered as civilians within the meaning of article 50, paragraph 1 provisioned that they take no action adversely affecting their status as civilians. The commentary to the protocols notes the importance of protecting journalists that
The circumstances of armed conflict expose journalists exercising their profession in such a situation to dangers which often exceed the level of danger normally encountered by civilians. In some cases, the risks are even similar to the dangers encountered by members of the armed forces, although they do not belong to the armed forces. Therefore, special rules are required for journalists who are imperiled by their professional duties in the context of armed conflict.
Finally, Journalists engaged in dangerous professional missions in areas of terrorism shall be considered as civilians within the meaning of article 50. They shall be protected as such under the Conventions and this protocol, provided that take no action adversely affecting their status as civilians, and without prejudice to the right of war correspondents accredited to the armed forces to the status provided for in article 4 (A) (4) of the third Convention. They may obtain an identity card similar to the model in Annex 11 of this protocol. This card, which shall be issued by the government, of the State of which the journalist is a national or in whose territory he resides or in which the news medium employing him is located shall attest to his status as a journalist.
4.6 PROTECTION OF MEDICAL UNITS, MEDICAL PERSONNEL AND RELIGIOUS PERSONNEL
Articles 12-15 of the 1977 protocols supplement the existing rules on the protection of medical units and civilian medical and religious personnel. In this respect, the first point of interest is how these categories are defined in the protocol. Medical unit can be defined as;
establishments and other units, whether military or civilian, organised for medical purposes, namely the search for, collection, transportation, diagnosis or treatment – including first-aid treatment of the wounded, sick and shipwrecked, or for the prevention of disease. The term includes, for example, hospitals and other similar units, blood transfusion centres, preventive medical centres and institutes, medical depots and the medical and pharmaceutical stores of such units. Medical units may be fixed or mobile, permanent or temporary. 206
Medical personnel on the other hand, as defined in Article 8 (c), are ‘those persons assigned, by a party to the conflict, exclusively to the medical purposes enumerated under sub-paragraph (e) or to the administration of medical units or to the operation or administration of medical transports. Such assignments may be either permanent or temporary’. Article 8 (c) lists three categories of persons who are included under the term in any event:
(I) Medical personnel of a party to the conflict, whether military or civilian, including those described in the first and second Conventions, and those assigned to civil defence organizations;
(II) Medical personnel of National Red Cross, Red Crescent and Red Lion and Sun Societies and other national voluntary aid societies duly recognized and authorized by a party to the conflict;
(III) Medical personnel of medical units or medical transport described in article 9, paragraph
The units or transports indicated under (iii) are those units or transport which have been made available to a party to the conflict for humanitarian purposes’ by a neutral state or aid society of such a state or by an impartial international humanitarian organization.
Furthermore, Religious Personnel can be defined to be;
Military or civilian persons, such as chaplains or Imams, who are exclusively engaged in the work of their ministry and attached;
(i) to the armed forces of a party to the conflict;
(ii) to medical units or medical transports of a party to the conflict;
(iii) to medical units or medical transport described in article 9, paragraph 2; or
(iv) to civil defence organizations of a party to the conflict.
Additional Protocol I is a supplement of the Geneva Convention, it fortifies the protection for unbiased war medical care, it gives details into medical-care provision to mental-health issues. It maintains that the condition that the status of medical personnel, transports, and units—even so-called civilian medical personnel—be centered on the recognition and authorization of a party to the conflict. It also forbids convicting of medical personnel carrying out medical duties in line with ethics of the job. The Additional Protocol expressly recognizes that certain acts committed against medical personnel, units, and transports may constitute grave breaches.
Some countries that have not agreed with Additional Protocol I includes Israel, Pakistan, Somalia, Turkey, and the United States. They have claimed it does not reflect good law or sound policy. It is believed that it supports terrorism. However as it was said earlier, IHL protects those involved in medical care and the means they use to do so. Unfortunately, some States in terrorist controlled regions have been attacking health care givers and there facilities, for example, according to physicians for Human Rights, it had documented 313 attacks on medical facilities and the deaths of 679 medical personnel in Syria since protests against the regime of Bashar al-Assad began in March 2011 until the end of August 2015. It was added that “Syrian government forces have been responsible for more than 90% of these attacks which constitutes a war crime.” So many health facilities have been destroyed leaving victims deprived of medical care with the life of medical personnel at danger. Drugs are now even unavailable to administer to victims due to the cut and destruction of production plants. Over 469 Syrian health care workers have been imprisoned by the Assad government and accused of terrorism for giving medical cares to victims. At present, doctors are exiting: in fact, more than 15,000 Syrian doctors have run away to overseas because they are now vulnerable to risk. Also, during the recent Palestinian-Israeli conflict, Israel has been harshly criticized for its strikes on Gaza’s hospitals.
With regards to IHL, States thereby must and have come into a point of understanding that it is important to place medical care for the wounded and sick above any form of conflict. IHL expressly made it known that injured fighters, even terrorists, must not be denied medical care. More so, medical units that are used to commit, and perpetrate activities outside humanitarian function, will lose it protection.
Article 15 states and elaborates the principle that civilian medical and religious personnel ‘shall be respected and protected. It further restates and emphasizes the obligations of occupying power responsibilities under article 56 of the fourth Convention and call for this power to give civilian medical personnel in occupied territories every support to assist them to carry out to the best of their ability, their humanitarian tasks. It is understandable that the said power may not, on the contrary, oblige them to act in a way which is not compatible with their humanitarian mission.
4.6. PROTECTION OF THE WOUNDED, SICK AND SHIP WRECKED
“Members of the armed forces and other persons who are at sea and who are wounded, sick or ship-wrecked shall be respected and protected in all circumstance.”
It is very rare to find warfare on the sea involving terrorists which means protection ascribed to wounded and sick victims of arms conflict on sea as regards terrorism would not be delved into.
The core existence of Geneva Convention was to care for enemy forces but a question stands to be answered; is it proper to protect people that are responsible for extreme violence and bloodshed witnessed every day in terrorist controlled States?
Protecting a suspected terrorist injured and sick is the right thing to do. All human beings irrespective of their race, ideology, religion, status or gender deserves right to live ones they pose no any sort of danger any more. Having guns or bomb tied round the waist of a seriously wounded terrorist, such person may not be considered to be protected till he has no such deadly objects on him or her with the presence of security agencies to watch him or her. They are to be given unbiased attention they deserve, by the opposition force or the regime at opposition. Medical personnel are to respect them.
Dzhokhar Tsarnaev who master-minded the Boston Marathon attack was seriously injured. The spirit of the core value of IHL was displayed in his case. He was moved to Federal medical detention center for treatment. His death would have actually pleased a lot of victims that were affected directly or indirectly but the truth is that a lot of useful information would have died with him and no lesson would have been learnt from the tragedy. IHL has it in its principle to allow fair trial, conviction and necessary punishment to be given to any guilty terrorist but it is never to be in the hands of people or medical expects to deny a victim the required medical treatment based on prejudice since a victim’s legal and political consequence to his action is not in their hands; or government combatants to put judicial verdict of death on a wounded or injured terrorist with no threat any more from him.
4.6. PROTECTION OF PRISONERS OF WAR
The International Committee of the Red Cross (ICRC) declared the Geneva Conventions to be the “bedrock of principles and rules that must guide the conduct of hostilities and the treatment of persons who have fallen into the hands of a party to an armed conflict.
No terrorist group is a signatory to or in line with the support of the Geneva Conventions and the treaties to laws of war. Also, it is obvious that Hamas, Hezbollah, and followers of the global Al-Qaeda network despise both the essence and the undertone of international treaties and Convention considered to ameliorate the brutality of war. Bloody attacks in New York, Jerusalem, Bali, Madrid, and Beslan are testament to the fact that these groups seek out to exterminate members of the public instead of taking them as prisoners. Furthermore, when Islamist terrorists do seize captives, inhumaneness as opposed to protection of their life seems, by all accounts, to be the standard.
According to the criterions that spelt out who should be a prisoner of war by Hague and Geneva Conventions, it says:
a. that of being commanded by a person responsible for his subordinates.
b. that of having a fixed distinctive sign recognizable at a distance.
c. that of carrying arms openly.
d. that of conducting their operations in accordance with the laws and customs of war.
Al-Qaida attacked US, not Afghanistan, meaning that they would have been ascribed the POW status if they fought as soldiers of Afghanistan. The Commanders of this terrorist group do not accept responsibility of the operations of their members in their deadly acts. They have methods that are secretly executed, there members do conceal bombs and explosives to carry out actions disastrous. They have no regard for the rules of war. This is also applicable to the Taliban leaders funding terrorism. They do not conduct their operations in accordance with the laws and customs of war. No symbols to identify them as team from distance. Total neglect of respect for human lives coloured with brutal ideologies. This stripes them off the status of the POW.
Irrespective of all this barbaric nature of these groups, they deserve to be treated humanely. Reports have shown that, in Iraq, the U.S. trained Special Forces torture and behead ISIS prisoners. On 21 January, the Iraq authorities executed 26 terrorist prisoners less than a week after UN Secretary-General Ban Ki-moon urged the Iraqi authorities to impose a moratorium on executions. It has been known that the Iraq government are not ready to treat any alleged terrorist as a POW and its seen in the words of Prime Minister Nuri al-Maliki when he said that his government did “not believe that the rights of someone who kills people must be respected”.
The aims of Al-Qaida have to do with the elimination of the influence of American in Muslim States, cutting off the existence of Israel and setting up its Caliphates again. There ideas may not be legitimate or relevant but there exist a moral duty to preserve life and apply the basic level of humanity to treatment towards them. In particular, they are not to be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest. The Geneva Convention orchestrates this idea of human dignity. The Convention outlaws attacks directed towards innocent civilians. Almost all terrorist groups solely attack civilians. They may be denied status of POW but they should be liable to detention. There are also constraints on transferring inhabitants of occupied territory out of such territory. Geneva Convention III classed terrorists as unlawful combatant but the Guantanamo Bay prisoners are treated not according to the principles of the Convention. Normally, as POW, Geneva Convention prohibits interrogation but allows POW to give their names, rank, age and number. To know who is an unlawful combatant or a lawful combatant, it lies in the hands of the court to decide and US has applied this part of the Convention by allowing the tribunal at Guantanamo Bay to determine a prisoners’ status. It is this decision that would reveal if a suspect would be released or sent back to his country.
Through the advisory service on International Humanitarian Law, the ICRC encourages states to adopt national legislation for the implementation and application of humanitarian law at the national level. ICRC legal experts at its headquarters in Geneva and in the field provide states with technical assistance, for example, on legislation to prosecute war criminals such as terrorists or protect the Red Cross and Red Crescent emblems, although, States have the primary responsibility for the teaching of humanitarian law. Over the years, the ICRC has developed a considerable expertise in that field and its delegates often give course especially to armed security forces, state employees and diplomats as well as civilians in general. In these activities, the ICRC whenever possible cooperates with the local Red Cross and Red Crescent societies as indeed with the international federation of Red Cross and Red Crescent societies.