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Suicide bombings: What does the law actually say?

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Japanese Kamikaze pilots. Planes were used to target US military ships towards the end of WWII.

Perhaps surprisingly, carrying out suicide attacks in certain circumstances is not illegal per se. They can, and have been, used legitimately as weapons attacking military targets. In World War Two, Japanese Kamikaze pilots, for example, turned their planes into flying bombs to target American military ships and in so doing were using legitimate means to attack legitimate targets under international humanitarian law (IHL).

However, the ways in which suicide attacks are perpetrated today are usually entirely contrary to the rules and regulations of IHL and human rights law. It should be noted that IHL governs the conduct of hostilities, and though whether the fact that a conflict is international or non-international in nature changes the exact responsibilities of the parties involved, some common protections exist, as will be shown below. Human rights law, on the other hand, applies universally, regardless of whether a country is experiencing armed conflict.

Today suicide bombers all too often target civilians or civilian objects. And even when they do target military targets, such as army patrols, civilians are often disproportionally those who feel the biggest impacts of the blast.

AOAV records the harm caused by explosive weapons, including suicide attacks. These weapons cause death and destruction to civilians across the globe, with Iraq and Nigeria being the most affected countries. In 2013, AOAV recorded suicide attacks in 19 different countries, and of the total casualties 75% were civilians. There were an average of 31 people killed and injured in each attack involving suicide attacks.

In January and February of this year, AOAV recorded 3,828 civilians as being killed and injured by IED attacks. Of these, 2,082 were reported as being caused by attacks involving suicide bombs. An average of 35 people were killed and injured in each attack, compared to an average of nine where other activation methods, such as victim-activated, timed, and remote detonation, were used.

Non-state armed actors are increasingly using children and the mentally impaired as suicide bombers, something that is entirely contrary to international humanitarian law and human rights law, and is a practice that needs be condemned in the strongest sense.

So what does the law actually say about the practice of suicide bombing, and using – for example – children as suicide bombers?

Suicide attacks themselves are not illegal

Internationally, no legal rule exists which states that suicide attacks are illegal. Theoretically a suicide attack can meet all the requirements needed for it to remain legal under international humanitarian law. Suicide attacks, for instance, would be considered legal if that use of force distinguished between civilians and combatants, and in so doing targeted only combatants. As such they can, theoretically, be proportionate.

But, the majority of suicide bombings that we see today in the likes of Pakistan, Iraq and Nigeria are neither proportional nor targeted at combatants – and as such they violate numerous international rules.

Deliberately targeting civilians

One of the fundamental principles of IHL is the prohibition of the targeting of civilians.

Targeting civilians as opposed to military targets is – needless to say – entirely contrary to IHL. Yet many suicide attacks in recent years have targeted civilians in locations that are undeniably civilian in nature. Markets, places of worship and schools are inherently civilian locations. And yet time and again they are targeted by suicide bombs.

Terror_Strikes_Israeli_Civilians_in_Southern_Israel

The aftermath of a suicide attack on a bus in Israel in 2011.

The indiscriminate and disproportionate nature of suicide attacks

While, theoretically, it is possible that suicide attackers can target purely military personnel or objects, causing no civilian harm, in practice this is rarely the case. Since 2011, AOAV recorded 951 suicide bombings around the world. Just a quarter of these (271) resulted in zero civilian casualties. It was more common for a suicide attack to cause 25 or more civilian casualties (296 such attacks).

Knowingly carrying out indiscriminate attacks can – as such – constitute a war crime. Suicide attacks often also breach the obligation that attacks need be proportionate, as they cause disproportionate loss to civilian life.

While it is difficult to demonstrate on a case by case basis that an attack has failed to meet these fundamental tenets of IHL, the pattern of evidence over recent years suggests that it is rare for a suicide attack to not cause high levels of civilian harm.

Suicide bombers often commit perfidy

Perfidy, or pretending to be a civilian, in order to kill or wound is also unlawful under IHL. Suicide bombers nearly always pretend to be civilian in order to perpetrate attacks, and in so doing commit perfidy.

Those ordering the commission of suicide attacks could be guilty of war crimes or crimes against humanity

Under the principle of command responsibility, those ordering the commission of war crimes or crimes against humanity can also be held criminally responsible for their commission. Suicide bombs, in certain situations, could be held to be both war crimes and crimes against humanity.

Where there is a superior-subordinate relationship where superior has ‘effective control’ over the subordinate, those ordering suicide bombers could be held to be individually criminally responsible for their commission.

Using children as suicide bombers is contrary to their protection under IHL and human rights

Under both IHL and human rights law, children are protected from being used in hostilities when under the age of 15 years. Under human rights law, this increases to 18-years-old.

Under IHL both states and non-state actors are prohibited from recruiting children under the age of 15 for use in armed conflict. This applies whether a conflict is international or not, and is considered to be customary international law.

Human rights law, which applies regardless of whether an armed conflict is occurring or not, adds an additional layer of protection for children. The Convention on the Rights of the Child (CRC), the most widely ratified convention in the world, sets 15 as the minimum age for recruitment or participation in armed conflict. The Optional Protocol to the CRC on the involvement of children in armed conflict raises this age to 18, and applies equally to states and no-state armed groups. Governments are also obliged, under this protocol, to “take all feasible measures to prevent such recruitment and use, including the adoption of legal measures to prohibit and criminalise such practices.”

Car_bombing,_Baghdad

A car bombing in Baghdad causes destruction.

The use of children as suicide bombers, as seen in Afghanistan, Nigeria, Syria and Iraq, is entirely contrary to both the IHL and human rights laws prohibiting the use of children in armed conflict.

The challenges of prosecution
Although laws exist prohibiting the methods and means in which suicide attacks are often carried out, there is a challenge that exists in the application of the law. Clearly there can be no recourse to justice against the bomber when an attack is successfully carried out. There are examples of those who have failed to carry out a suicide bombing being successfully prosecuted domestically, such as Richard Reid ‘the shoe bomber’ and Umar Farouk Abdulmutallab ‘the underwear bomber,’ but such examples are the exception. And while individuals have been arrested for allegedly masterminding and orchestrating suicide attacks in countries including Israel and Pakistan, no prosecutions have taken place at the international level under the remit of IHL.

While there have been instances where those using child soldiers have been charged and successfully prosecuted, the same cannot be said specifically regarding the use of children to perpetrate suicide bombs.

Legal provisions

Protocol I additional to the Geneva Conventions of 12 August 1949

Article 37. Prohibition of Perfidy

1. It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law application in armed conflict, with the intent to betray that confidence, shall constitute perfidy. The following acts are examples of perfidy:

(c) The feigning of civilian, non-combatant status;

Article 48. Basic Rule

In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.

Article 51. Protection of the Civilian Population

2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited;

4. Indiscriminate attacks are prohibited.

Rome Statute of the International Criminal Court 1998

Article 7. Crimes against humanity

1. …’crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder;

Article 8. War Crimes

1. For the purposes of this Statute, ‘war crime’ means:

(e)(ix) Killing or wounding treacherously a combatant adversary;

Article 3, common to the Geneva Conventions of 1949

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘ hors de combat ‘ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

Legal provisions relating to child suicide bombers

Protocol I additional to the Geneva Conventions of 12 August 1949

Article 77. Protection of Children

1. The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces

Protocol II additional to the Geneva Conventions of 12 August 1949

Article 4. Fundamental Guarantees

3. Children shall be provided with the car and aid they require, and in particular:

(c) Children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities;

Convention on the Rights of the Child 1989

Article 38.

2. States Parties shall refrain from recruiting any person who has not attained the age of 15 years into their armed forces.

Rome Statute of the International Criminal Court 1998

Article 8. War Crimes

2. For the purposes of this Statute, ‘war crime’ means:

(b)(xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.

(e)(vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate in hostilities;

Worst Forms of Child Labor Convention 1999 (No. 182)

Article 3

The term the worst forms of child labour comprises…forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict;

2000 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict

Article 1

States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities.

Article 4

1. Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.

2. State Parties shall take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalise such practices.

To read more about AOAV’s research into IEDs and suicide attacks, please click here.

For more information please contact Jane Hunter, jhunter@aoav.org.uk, @jhunteraoav.