Prosecutor v. The Islamic State? A New Kind of Article 48 Violation


The arrest by Australian authorities of fifteen IS loyalists who planned to conduct a public beheading in Sydney is now the largest security operation in that nation’s history.  It highlights the danger posed by home-grown militants who return to their nations of origin ready to further their extremist message by writing it in the blood of their home country’s civilians.

While Australia appears to have sought remedy through its own criminal system for these attacks by charging at least one arrestee with preparing for a terrorist act (conspiracy), the question remains as to whether such an act, if perpetrated under the orders of IS’ military commanders, would constitute a violation of Article 48 of Geneva Protocol I, which provides:

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.

(emphasis added)

Although the United States has not ratified Protocol I and thus is not a state party, it has long recognized a number of Protocol I provisions as customary, including several specific Protocol I articles (including Article 48) and general principles related to the protections of the civilian population from the conduct of hostilities.

As noted by the International Criminal Tribunal for the former Yugoslavia (ICTY) in Prosecutor v. Kordić & Čerkez

prohibited attacks are those launched deliberately against civilians or civilian objects in the course of an armed conflict and are not justified by military necessity. They must have caused deaths and/or serious bodily injuries within the civilian population or extensive damage to civilian objects.  Such attacks are in direct contravention of the prohibitions expressly recognised in international law including the relevant provisions of Additional Protocol I.

While the recent plot in Australia arguably fell short of meeting the standard in Kordić because no actual injury to civilians occurred, it met all of the other defined elements.  A successful attack resulting in civilian death or serious bodily injury would have easily met the Kordić  standard.

Further, General Assembly Resolution 2444, unanimously adopted in 1968 by the General Assembly, provides:

(a) That the right of the parties to a conflict to adopt means or injuring the enemy is not unlimited;

(b) That it is prohibited to launch attacks against the civilian populations as such;

(c) That distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible.

If future attacks resembling the Australian attempt are successful, they will likely subject any IS commanders responsible for ordering or encouraging them to War Crimes Tribunals — in addition to any war crimes those commanders are currently perpetrating in Iraq and the Levant.  Such terrorist attacks upon civilians, if ordered by an insurgent group, necessarily violate the law of war.

Alhough IS Commanders may attempt to argue that they never signed on to either Geneva Additional Protocol I or General Assembly Resolution 2444, Kordić,  read together with cases such as Kadic v. Karadzic, would stand for the premise that “certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals.”  As customary international law, IS’ attacks on civilians under either the Protocol or the Resolution constitute flagrant violations of the law of war.

Should attacks on civilians by IS members returning from abroad on orders in furtherance of the IS cause constitute war crimes on the part of the IS commanders issuing the orders?  Please provide your opinion in the comments below.

Update (9/22/2014):  In a measure confirming their intent to perpetrate civilian attacks, IS commanders have issued orders through their spokesman, Abu Muhammad al-Adnani, for IS “followers” to attack civilians in nations which have joined the coalition that opposes IS.  
Further Update (12/18/2014):  In a measure that may or may not confirm their intent to encourage attacks on civilians, Man Haron Monis, a Sunni gunman, held employees and patrons at a Lindt Chocolat Café hostage, killing two hostages before losing his life.  Australian Prime Minister Tony Abbott has confirmed that Monis identified with IS.
Related Readings:

Matt Siegel, “Australian PM says police raids follow IS linked beheading plot,” Reuters (Sep 18, 2014 10:25am).

Peter Trute, “Intelligence showed beheadings in Sydney were planned: Tony Abbott,” Illawara Mercury (Sep 18, 2014).

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) art. 48, 8 June 1977, 16 I.L.M. 1391, 1125 U.N.T.S. 3.

First Lieutenant Melissa J. Epstein, USMC & Chief Warrant Officer Three Richard Butler, U.S. Army (Ret.), The Customary Origins and Elements of Select Conduct of Hostilities Charges Before the International Criminal Tribunal for the Former Yugoslavia : A Potential Model for Use by Military Commissions, 179 Mil. L. Rev. 68, 83-84 (2004).

G.A. Res. 2444, U.N. GAOR, 23rd Session, Supp. No. 18 U.N.Doc. A/7218 (1968).

Kadic v. Karadzic, 70 F.3d 232, 239 (2d Cir. 1995), cert. denied, 518 U.S. 1005 (1996).

Yara Bayoumy, “Islamic State urges attacks on U.S., French citizens, taunts Obama,” Reuters (Sep 22, 2014).

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