San Diego International Law Journal


Emanual Gross

Library of Congress Authority File


Document Type



This Article will examine the current status of the international law of war with respect to terrorist organizations and their operatives. The central argument of this article is that international humanitarian law is unable to cope with the reality of international terrorism. The basic definitions of "combatant" and "civilian" are not suitable within the context of the age of terrorism. In the past, combatants were presumed to be either a member of a state, or in the alternative, freedom fighters expressing an idea of resistance against a colonial occupation. Terrorist organizations and their members are not freedom fighters, but rather, are members of extreme organizations that aim to force a new order on the countries of the world. Therefore, because terrorists are neither combatants nor civilians, the international law of war must recognize a third category of "illegal combatants," which will equip states with appropriate tools for fighting terrorism. Part II of this article will discuss the definition of "terrorism" in international law. First, I will set out the various -- failed -- attempts made by authors of international law to reach an agreed definition of the term "terrorism." Second, I will discuss the definition of "terrorism" as it exists under the national laws of several countries, and will analyze ways in which those definitions can help shape a universally agreeable definition. Finally, this section will discuss the Rome Statute, which set up the International Criminal Court ("ICC"), and why the "crime of terrorism" was not included within the ICC's jurisdiction. Part III will discuss, in detail, the fundamental principle of international law -- the principle of war -- specifically, the distinction between combatants and civilians. I will examine how this principle relates to international humanitarian law, which recognizes only two categories, civilians and combatants. Further, I will discuss the significance of this categorization with respect to terrorist organizations and the ability of states to harm terrorists. The second part of this section will set out the principle of proportionality, which provides that the military benefit must be balanced against the damage that might be caused to the civilian population, and the difficulty in applying the principle of proportionality in the context of the war against terror. Part IV will discuss the issue of the status of terrorists in international law. Because their position is not regulated explicitly, this section will examine whether it is possible to include them under one or other of the currently existing categories, combatants or civilians. To this end, this section will set out each of the categories (or sub-categories), the protections that they afford, and the conditions that must be met in order for them to apply. Next, this section will examine whether terrorists meet the necessary conditions with respect to each category, and whether it would even be appropriate to grant them the defenses they would be entitled to if they did qualify under those categories. Part V will focus on the Supreme Court ruling in Israel in the targeted killing case, as a test case that demonstrates the deficiencies of international law with respect to a democratic country's fight against terror organizations. I will analyze the Court's holding itself, as well as set out its failure which both embody and emphasize the incompatibility of the rules of international humanitarian law to the war on international terrorism. Finally, Part VI will focus on a proposed third category -- illegal combatants. First, because this category has not yet been recognized in international law, this section will discuss both its definition and overall significance. Second, this section will analyze the Red Cross' position with respect to recognizing illegal combatants as a third category and the development of humanitarian law so as to adapt to modern warfare against terrorism. Finally, this section will set out countries that have recognized this category in their legal systems, and will analyze the way in which the category has been defined.