This article is part of AOAV’s report, Understanding the rising cult of the suicide bomber, to read the whole report, please see here. To see the other sections of the report, please go here.
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. The Japanese kamikaze pilots who turned their planes into flying bombs to target American military ships 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.
As this report demonstrates, suicide bombings predominantly target civilians or civilian objects. Even when they do target military targets, such as army patrols, civilians are often disproportionally those who feel the biggest impacts of the blast. Furthermore, 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.
What international law says about SIEDs
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. However, the vast majority of suicide bombings are neither proportional nor targeted at combatants – and as such they violate numerous international rules.
One of the fundamental principles of IHL is the prohibition of the targeting of civilians, as set out both the Geneva Conventions. Targeting civilians as opposed to military targets is therefore entirely prohibited within IHL. Yet many suicide attacks in recent years have targeted civilians in locations that are undeniably civilian in nature.
Although it is theoretically possible that suicide attackers can target only military personnel or objects, in practice this is rarely the case. Knowingly carrying out indiscriminate attacks can – as such – constitute a war crime, as per the Rome Statute of the International Criminal Court. Suicide attacks often also breach the obligation that attacks need be proportionate, as they cause disproportionate loss to civilian life. Whilst 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.
Moreover, contrary to the prohibitions set out in Article 3 of the Geneva Convention, suicide bombers often target civilians based on their religion. This has been particularly evident with the rise of IS, which has purposely targeted gatherings of Shia Muslims and other religious groups in Iraq, Syria, and Afghanistan.
Perfidy, or pretending to be a civilian, in order to kill or wound is also unlawful under IHL, as stated by Article 37 of the Geneva Convention. This clearly applies to suicide bombings, as suicide bombers nearly always pretend to be civilian in order to perpetrate attacks, and in so doing commit perfidy.
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.
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.
This research was undertaken with assistance from the NATO Counter-IED Centre of Excellence.
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