Practice Relating to Rule 2. Violence Aimed at Spreading Terror among the Civilian Population

Geneva Convention IV
Article 33 of the 1949 Geneva Convention IV provides: “[A]ll measures of intimidation or of terrorism are prohibited.” 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 33.
Additional Protocol I
Article 51(2) of the 1977 Additional Protocol I prohibits “acts or threats of violence the primary purpose of which is to spread terror among the civilian population”. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 51(2). Article 51 was adopted by 77 votes in favour, one against and 16 abstentions. CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 163.
Additional Protocol II
Article 4(2)(d) of the 1977 Additional Protocol II prohibits “acts of terrorism” against all persons who do not take a direct part or who have ceased to take part in hostilities. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 8 June 1977, Article 4(2)(d). Article 4 was adopted by consensus. CDDH, Official Records, Vol. VII, CDDH/SR.50, 3 June 1977, p. 90.
Additional Protocol II
Article 13(2) of the 1977 Additional Protocol II prohibits “acts or threats of violence the primary purpose of which is to spread terror among the civilian population”. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 8 June 1977, Article 13(2). Article 13 was adopted by consensus. CDDH, Official Records, Vol. VII, CDDH/SR.52, 6 June 1977, p. 134.
Statute of the Special Court for Sierra Leone
Article 3 of the 2002 Statute of the Special Court for Sierra Leone provides: “The Special Court shall have the power to prosecute persons who committed or ordered the commission of serious violations … of [the 1977 Additional Protocol II]. The violations shall include: … (d) Acts of terrorism.” 
Statute of the Special Court for Sierra Leone, annexed to the 2002 Agreement on the Special Court for Sierra Leone, Freetown, 16 January 2002, annexed to Letter dated 6 March 2002 from the UN Secretary-General to the President of the UN Security Council, UN Doc. S/2002/246, 8 March 2002, p. 29, Article 3.
Threats to commit acts of terrorism are covered by Article 3(h). 
Statute of the Special Court for Sierra Leone, annexed to the 2002 Agreement on the Special Court for Sierra Leone, Freetown, 16 January 2002, annexed to Letter dated 6 March 2002 from the UN Secretary-General to the President of the UN Security Council, UN Doc. S/2002/246, 8 March 2002, p. 29, Article 3(h).
Report of the Commission on Responsibility
Based on several documents supplying evidence of outrages committed during the First World War, the 1919 Report of the Commission on Responsibility lists violations of the laws and customs of war which should be subject to criminal prosecution, including “systematic terror”. 
Report submitted to the Preliminary Conference of Versailles by the Commission on Responsibility of the Authors of the War and on Enforcement of Penalties, Versailles, 29 March 1919.
Hague Rules of Air Warfare
Article 22 of the 1923 Hague Rules of Air Warfare prohibits “any air bombardment for the purpose of terrorizing the civil population or destroying or damaging private property without military character or injuring non-combatants”. 
Rules concerning the Control of Wireless Telegraphy in Time of War and Air Warfare, Part II, drafted by a Commission of Jurists, The Hague, December 1922–February 1923, Article 22.
ILA Draft Convention for the Protection of Civilian Populations against New Engines of War
Article 4 of the 1938 ILA Draft Convention for the Protection of Civilian Populations against New Engines of War provides: “Aerial bombardment for the purpose of terrorising the civilian population is expressly prohibited.” 
Draft Convention for the Protection of Civilian Populations against New Engines of War, adopted by the International Law Association, Fortieth Conference, Amsterdam, 29 August–2 September 1938, Article 4.
New Delhi Draft Rules
Article 6 of the 1956 New Delhi Draft Rules states: “Attacks directed against the civilian population, as such, whether with the object of terrorizing it or for any other reason, are prohibited.” 
Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War, drafted by the International Committee of the Red Cross, September 1956, submitted to governments for their consideration on behalf of the 19th International Conference of the Red Cross, New Delhi, 28 October–7 November, Res. XIII, Article 6.
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 6 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that hostilities be conducted in accordance with Article 51(2) of the 1977 Additional Protocol I. 
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 6.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.5 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that hostilities be conducted in accordance with Article 51(2) of the 1977 Additional Protocol I. 
Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, § 2.5.
ICTR Statute
Article 4(d) of the 1994 ICTR Statute provides that the Tribunal shall have jurisdiction over violations of the 1977 Additional Protocol II, including acts of terrorism. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, adopted by the UN Security Council, Res. 955, 8 November 1994, as amended by Res. 1165, 30 April 1998, and by Res. 1329, 30 November 2000, Article 4(d).
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Pursuant to Article 20(f)(iv) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind, “acts of terrorism” committed in non-international armed conflict constitute war crimes. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, UN Doc. A/51/10, 1996, Article 20(f)(iv).
The commentary states that this Article covers violations of Article 4(2)(d) of the 1977 Additional Protocol II and should be understood as having the same meaning and scope of application. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, UN Doc. A/51/10, 1996, Commentary on Article 20(f)(iv).
Argentina
Argentina’s Law of War Manual (1989) states that “acts which aim to terrorize the [civilian] population” are prohibited. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 7.08.
Australia
Australia’s Defence Force Manual (1994) states: “Acts or threats of violence primarily intended to spread terror among the civilian population are prohibited.” 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 531; see also Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 955(b).
The manual also states: “Offensive support or strike operations against the civilian population for the sole purpose of terrorising the civilian population [are] prohibited.” 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 554.
Australia
Australia’s LOAC Manual (2006) states:
5.21 Civilians. Civilians must be protected from the dangers of military operations. They must not be the object of attack nor of acts or threats of violence which are intended to create terror …
Protection of civilians and civilian objects
5.35 … Acts or threats of violence primarily intended to spread terror among the civilian population are prohibited …
Terrorisation of civilian population
5.59 Offensive support or strike operations against the civilian population for the sole purpose of terrorising the civilian population is prohibited. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 5.21, 5.35 and 5.59; see also § 9.18.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Teaching Manual for Soldiers states that it is prohibited to intimidate or terrorize the civilian population. 
Belgium, Droit de la Guerre, Dossier d’Instruction pour Soldat, à l’attention des officiers instructeurs, JS3, Etat-Major Général, Forces Armées belges, undated, p. 14.
Belgium
Belgium’s Law of War Manual (1983) states that aerial bombardment aimed at terrorizing the civilian population is prohibited. 
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 31.
Benin
Benin’s Military Manual (1995) includes a prohibition to “terrorize the civilian population through acts or threats of violence”. 
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule III, p. 12.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states: “Acts or threats of violence, the primary purpose of which is to spread terror among the civilian population, are prohibited.” 
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 16; see also pp. 32, 41, 81 and 94.
Cameroon
Cameroon’s Instructor’s Manual (1992) prohibits terrorizing the civilian population. 
Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 150.
Cameroon
Cameroon’s Instructor’s Manual (2006), under the heading “Civilian Victims of Armed Conflict”, lists “terrorizing the [civilian] population” as an example of “conduct that is prohibited and remains contrary to the law of armed conflict and international humanitarian law during all military operations, whether in offence or in defence”. 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 60, § 252; see also p. 86, § 342 and p. 230, § 542.
Canada
Canada’s LOAC Manual (1999) states: “Acts or threats of violence, the primary purpose of which is to spread terror among the civilian population, are prohibited.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 4-4, § 32; see also p. 6-4, § 40.
The manual repeats this prohibition with respect to non-international armed conflicts in particular. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-5, § 37.
Canada
Canada’s LOAC Manual (2001) states in its chapter on targeting: “Acts or threats of violence, the primary purpose of which is to spread terror among the civilian population, are prohibited.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 423.
In its chapter on non-international armed conflicts, the manual contains the same prohibition. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1720.
In its chapter on land warfare, the manual further states:
Acts or threats of violence, the primary purpose of which is to spread terror among the civilian population, are prohibited. The protection of civilians is a fundamental principle of the LOAC. A campaign of threats or violence designed to terrorize the civilian population is simply not acceptable under any circumstances, even where the civilian population exhibits a hostile attitude toward the presence of the CF [Canadian Forces]. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 617.
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 3 (Instruction for non-commissioned officers studying for the level 1 and 2 certificates and for future officers of the criminal police): “The following prohibitions must be respected: … terrorizing the civilian population by acts or threats of violence”. 
Central African Republic, Le Droit de la Guerre, Fascicule No. 3: Formation pour l’obtention du Brevet d’Armes No. 1, du Brevet d’Armes No. 2 et le stage d’Officier de Police Judiciaire (OPJ), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter III, Section 1.
Colombia
Colombia’s Basic Military Manual (1995) provides that the civilian population shall not be terrorized. 
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 30.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book IV (Instruction of heads of division and company commanders):
Chapter 3. Protection
I. Persons entitled to protection
… Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.
Chapter 4. Methods and means of warfare
I.2.8. Terrorism exerted on the civilian population
Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. The protection of civilians is a fundamental principle of IHL. A campaign of threats or violence aimed at terrorizing the civilian population is not acceptable, whatever the circumstances, even if the civilian population has a hostile attitude towards the presence of the armed forces. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 31, 45 and 50.
Croatia
Croatia’s LOAC Compendium (1991) lists terror among the prohibited methods of warfare. 
Croatia, Compendium “Law of Armed Conflicts”, Republic of Croatia, Ministry of Defence, 1991, p. 40.
Ecuador
Ecuador’s Naval Manual (1989) states: “The civilian population as such, as well as individual civilians, may not be the object of attack or of threats or acts of intentional terrorization.” 
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 11.3.
The manual also states that “bombardment for the sole purpose of attacking and terrorizing the civilian population” constitutes a war crime. 
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 6.2.5.
France
France’s LOAC Summary Note (1992) prohibits the use of acts or threats of violence in order to spread terror among the civilian population. 
France, Fiche de Synthèse sur les Règles Applicables dans les Conflits Armés, Note No. 432/DEF/EMA/OL.2/NP, Général de Corps d’Armée Voinot (pour l’Amiral Lanxade, Chef d’Etat-major des Armées), 1992, § 4.1; see also Fiche didactique relative au droit des conflits armés, Directive of the Ministry of Defence, 4 January 2000, annexed to the Directive No. 147 of the Ministry of Defence of 4 January 2000, p. 2.
Germany
Germany’s Military Manual (1992) states that “measures of intimidation or of terrorism” are prohibited. 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 507; see also ZDv 15/1, Humanitäres Völkerrecht in bewaffneten Konflikten – Grundsätze, DSK VV230120023, Bundesministerium der Verteidigung, June 1996, § 403.
Hungary
Hungary’s Military Manual (1992) lists “terror” among the prohibited methods of warfare. 
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 64.
Ireland
Ireland’s Basic LOAC Guide (2005) states: “Attacks or threats of violence intended to terrorise the civilian population are also prohibited.” 
Ireland, Basic Guide to the Law of Armed Conflict, TP/TRG/01-2005, Director of Defence Forces Training, Department of Defence, July 2005, p. 10.
Kenya
Kenya’s LOAC Manual (1997) states that it is forbidden “to spread terror among the civilian population through acts or threats of violence”. 
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 4, p. 2, § g.
Mexico
Mexico’s Army and Air Force Manual (2009) states that the 1977 Additional Protocol I “contains a special section on the protection of the civilian population, which … , among other things, … prohibits ‘[a]cts or threats of violence the primary purpose of which is to spread terror among the civilian population’”. 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 292.
Netherlands
The Military Manual (1993) of the Netherlands states:
Acts or threats of violence whose primary aim is to terrorize the civilian population are prohibited. As a result, so-called terror bombardment as well as any other form of terror attack is prohibited. Threatening therewith is also prohibited. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. V-4, § 4.
The manual repeats this rule with respect to non-international armed conflicts in particular. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. XI-6.
Netherlands
The Military Manual (2005) of the Netherlands states:
Acts of violence or the threat of violence, the main feature of which is to instil fear in the civilian population, are prohibited. What is known as terror bombardment, and any other terror attack, is thus prohibited.
It is also prohibited to threaten with terror attacks. The prohibition is clearly a reaction to the many terror bombardments in the Second World War. It is often claimed, in justification of such bombardments, that they served to break the resistance of the civilian population. Apart from whether a reliable means is chosen, customary law recognizes that military operations should be limited to weakening the military capacity of the adversary. The Iraqi SCUD rocket attacks on Israel in 1991, during the second Gulf War, must also be considered as terror attacks. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0514.
In its chapter on non-international armed conflict, the manual states: “Acts of terror … are prohibited.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1039.
In its chapter on non-international armed conflict, the manual also states:
It is expressly prohibited to carry out the following acts against the civilian population or individual civilians, wounded, sick or prisoners:
- acts of terror
- threatening anyone with the above-mentioned acts or treatment. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1051.
New Zealand
New Zealand’s Military Manual (1992) prohibits “acts or threats of violence the primary purpose of which is to spread terror among the civilian population”. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 517(1).
The manual repeats this prohibition with respect to non-international armed conflicts in particular. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1819.
Nigeria
Nigeria’s Manual on the Laws of War states: “Terror attacks directed mainly against the civilian population are forbidden.” 
Nigeria, The Laws of War, by Lt. Col. L. Ode PSC, Nigerian Army, Lagos, undated, § 20.
Peru
Peru’s IHL Manual (2004) states: “Acts or threats of violence, the primary purpose of which is to spread terror among the civilian population, are prohibited.” 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 27.d.(4); see also § 172.a.
Peru
Peru’s IHL and Human Rights Manual (2010), under the heading “Principles for the conduct of operations in international armed conflict applying international humanitarian law”, states: “Acts or threats of violence whose main purpose is to spread terror among the civilian population are prohibited.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 28(d)(4), p. 238.
The manual further states: “Air bombardment in order to spread terror among the civilian population … is prohibited.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 163(a), p. 343.
Russian Federation
The Russian Federation’s Military Manual (1990) considers that “the use of terror against the local population” is a prohibited method of warfare. 
Russian Federation, Instructions on the Application of the Rules of International Humanitarian Law by the Armed Forces of the USSR, Appendix to Order of the USSR Defence Minister No. 75, 1990, § 5(n).
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states: “The prohibited methods of warfare include … terrorizing the civilian population.” 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 7.
With regard to internal armed conflict, the Regulations further states: “Acts or threats of violence the primary purpose of which is to spread terror among the civilian population shall be prohibited.” 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 84; see also § 81.
Sierra Leone
Sierra Leone’s Instructor Manual (2007) provides: “Don’t terrorize [civilians].” 
Sierra Leone, The Law of Armed Conflict. Instructor Manual for the Republic of Sierra Leone Armed Forces (RSLAF), Armed Forces Education Centre, September 2007, p. 36.
Spain
Spain’s LOAC Manual (1996) prohibits acts or threats of violence which have as a primary objective the spreading of terror among the civilian population. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, División de Operaciones, 18 March 1996, Vol. I, §§ 2.3.b.(3) and 3.3.b.(7).
Spain
Spain’s LOAC Manual (2007) states: “Acts or threats of violence for the primary purpose of spreading terror among the civilian population are prohibited.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 2.3.b.(3); see also §§ 3.3.b.(7) and 5.4.7.
The manual also states:
Combatants, whether lawful or unlawful, who employ methods of warfare that involve threatening or committing acts of violence against the civilian population or civilian objects in an indiscriminate manner, with a view to spreading terror, are war criminals and subject to prosecution under criminal law if captured. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 7.3.a.(8).(d)
Sweden
Sweden’s IHL Manual (1991) states that terror attacks are prohibited, that is, “attacks deliberately aimed at causing heavy losses and creating fear among the civilian population”. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 3.2.1.5, p. 44.
Switzerland
Switzerland’s Basic Military Manual (1991) states:
It is prohibited to commit acts of violence or to threaten violence with the primary aim of spreading terror among the civilian population. The threat of nuclear attack against urban centres is contrary to the Additional Protocols. 
Switzerland, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Article 27(2) and commentary.
Togo
Togo’s Military Manual (1996) prohibits acts or threats of violence which aim to terrorize the civilian population. 
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule III, p. 12.
Ukraine
Ukraine’s IHL Manual (2004) states:
1.3.2. The following methods of warfare shall be prohibited:
- spreading terror among the civilian population.
1.8.5. Serious violations of international humanitarian law directed against people include:
- acts of terror. 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, §§ 1.3.2 and 1.8.5.
The manual further states that in non-international armed conflict “acts of terrorism” against “persons taking no active part in hostilities” are prohibited. 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.4.10.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states: “Acts or threats of violence, the primary purpose of which is to spread terror among the civilian population are prohibited.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.21.
In its chapter on internal armed conflict, the manual further states: “Attacks aimed at terrorizing civilians are prohibited.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.8.
United States of America
The US Air Force Pamphlet (1976) states: “Acts or threats of violence which have the primary object of spreading terror among the civilian population are prohibited.” 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 5-3(a)(1)(a).
United States of America
The US Naval Handbook (1995) states: “The civilian population as such, as well as individual civilians, may not be the object of attack or of threats or acts of intentional terrorization.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 11.3.
The Handbook also states that carrying out a “bombardment, the sole purpose of which is to attack and terrorize the civilian population” is an example of a war crime. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 6.2.5
United States of America
The US Manual for Military Commissions (2007), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
TERRORISM.
a. Text. “Any person subject to this chapter who intentionally kills or inflicts great bodily harm on one or more protected persons, or intentionally engages in an act that evinces a wanton disregard for human life, in a manner calculated to influence or affect the conduct of government or civilian population by intimidation or coercion, or to retaliate against government conduct, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”
b. Elements.
(1) The accused intentionally killed or inflicted great bodily harm on one or more protected persons or engaged in an act that evinced a wanton disregard for human life;
(2) The accused did so in a manner calculated to influence or affect the conduct of government or civilian population by intimidation or coercion, or to retaliate against government conduct; and
(3) The killing, harm or wanton disregard for human life took place in the context of and was associated with armed conflict.
c. Comment.
(1) This offense includes the concept of causing death or bodily harm, even if indirectly.
(2) The requirement that the conduct be wrongful for this crime necessitates that the conduct establishing this offense not constitute an attack against a lawful military objective undertaken by military forces of a State in the exercise of their official duties.
d. Maximum Punishment. Death, if the death of any person occurs as a result of the terrorist act. Otherwise, confinement for life.
PROVIDING MATERIAL SUPPORT FOR TERRORISM.
a. Text. “Any person subject to this chapter who provides material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, an act of terrorism (as set forth in paragraph (24)), or who intentionally provides material support or resources to an international terrorist organization engaged in hostilities against the United States, knowing that such organization has engaged or engages in terrorism (as so set forth), shall be punished as a military commission under this chapter may direct.”
b. Elements. The elements of this offense can be met either by meeting (i) all of the elements in A, or (ii) all of the elements in B, or (iii) all of the elements in both A and B:
A. (1) The accused provided material support or resources to be used in preparation for, or in carrying out, an act of terrorism (as set forth in paragraph (24));
(2) The accused knew or intended that the material support or resources were to be used for those purposes; and
(3) The conduct took place in the context of and was associated with an armed conflict.
or
B. (1) The accused provided material support or resources to an international terrorist organization engaged in hostilities against the United States;
(2) The accused intended to provide such material support or resources to such an international terrorist organization;
(3) The accused knew that such organization has engaged or engages in terrorism; and
(4) The conduct took place in the context of and was associated with an armed conflict.
c. Definition. “Material support or resources” means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (one or more individuals who may be or include oneself), and transportation, except medicine or religious materials.
d. Maximum Punishment. Confinement for life. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part IV, § 6(24) and (25), pp. IV-17 and IV-18.
United States of America
The US Naval Handbook (2007) states: “Bombardment for the sole purpose of terrorizing the civilian population is prohibited.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 8.3; see also § 8.9.1.2.
The Handbook also states that examples of war crimes that could be considered as grave breaches of the 1949 Geneva Conventions include carrying out a “bombardment, the sole purpose of which is to attack and terrorize the civilian population”. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.2.6(6).
United States of America
The US Manual for Military Commissions (2010), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
(24) TERRORISM.
a. Text. “Any person subject to this chapter who intentionally kills or inflicts great bodily harm on one or more protected persons, or intentionally engages in an act that evinces a wanton disregard for human life, in a manner calculated to influence or affect the conduct of government or civilian population by intimidation or coercion, or to retaliate against government conduct, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”
b. Elements.
(1) The accused intentionally killed or inflicted great bodily harm on one or more protected persons or engaged in an act that evinced a wanton disregard for human life;
(2) The accused did so in a manner calculated to influence or affect the conduct of government or civilian population by intimidation or coercion, or to retaliate against government conduct; and
(3) The killing, harm or wanton disregard for human life took place in the context of and was associated with hostilities.
c. Comment.
(1) This offense includes the concept of causing death or bodily harm, even if indirectly.
(2) The requirement that the conduct be wrongful for this crime necessitates that the conduct establishing this offense not constitute an attack against a lawful military objective undertaken by military forces of a State in the exercise of their official duties
d. Maximum Punishment. Death, if the death of any person occurs as a result of the terrorist act. Otherwise, confinement for life.
(25) PROVIDING MATERIAL SUPPORT FOR TERRORISM.
a. Text. “Any person subject to this chapter who provides material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, an act of terrorism (as set forth in paragraph (24) of this section), or who intentionally provides material support or resources to an international terrorist organization engaged in hostilities against the United States, knowing that such organization has engaged or engages in terrorism (as so set forth), shall be punished as a military commission under this chapter may direct.”
b. Elements. The elements of this offense can be met either by meeting (i) all of the elements in A, or (ii) all of the elements in B, or (iii) all of the elements in both A and B:
A. (1) The accused provided material support or resources to be used in preparation for, or in carrying out, an act of terrorism (as set forth in paragraph (24));
(2) The accused knew or intended that the material support or resources were to be used for those purposes; and
(3) The conduct took place in the context of and was associated with hostilities.
B. (1) The accused provided material support or resources to an international terrorist organization engaged in hostilities against the United States;
(2) The accused intended to provide such material support or resources to such an international terrorist organization;
(3) The accused knew that such organization has engaged or engages in terrorism; and
(4) The conduct took place in the context of and was associated with hostilities.
c. Definition. “Material support or resources” means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (one or more individuals who may be or include oneself), and transportation, except medicine or religious materials.
d. Maximum punishment. Confinement for life. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, § 5(24) and (25), pp. IV-19 and IV-20.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states: “It is particularly prohibited to attack the civilian population with the aim of terrorizing it.” 
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 67(2).
Afghanistan
Afghanistan’s Law on Combating the Financing of Terrorism (2004) states:
Article 3. Financing of Terrorism
1. Any person commits the offence of financing terrorism [if he or she] by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds and property, or tries to provide or collect funds and property, or provides or tries to provide financial or other services with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out:
(b) any … act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or abstain from [carrying out] any act. 
Afghanistan, Law on Combating the Financing of Terrorism, 2004, Article 3(1)(b).
Australia
Australia’s War Crimes Act (1945) considers “any war crime within the meaning of the instrument of appointment of the Board of Inquiry [set up to investigate war crimes committed by enemy subjects]” as a war crime, including “murder and massacres – systematic terrorism”. 
Australia, War Crimes Act, 1945, Section 3.
Bangladesh
Under Bangladesh’s International Crimes (Tribunal) Act (1973), the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime. 
Bangladesh, International Crimes (Tribunal) Act, 1973, Section 3(2)(e).
Bosnia and Herzegovina
Under the Federation of Bosnia and Herzegovina’s Criminal Code (1998), “the application of measures of intimidation and terror” against civilians is a war crime. 
Bosnia and Herzegovina, Federation, Criminal Code, 1998, Article 154(1).
The Republika Srpska’s Criminal Code (2000) contains the same provision. 
Bosnia and Herzegovina, Republika Srpska, Criminal Code, 2000, Article 433(1).
Bosnia and Herzegovina
Bosnia and Herzegovina’s Criminal Code (2003) states that, in time of war, armed conflict or occupation, ordering or committing the “application of measures of intimidation or terror” against civilians, in violation of international law, constitutes a war crime. 
Bosnia and Herzegovina, Criminal Code, 2003, Article 173(1)(e).
Central African Republic
The Central African Republic’s Penal Code (2010) states:
Shall be punished with forced labour for a minimum period of ten years and a fine, all persons having by any means, directly or indirectly, illegally and deliberately, provided or collected funds with the intention that they be used or the knowledge that they will be used, wholly or in part, with a view to committing:
b) Any other act intended to kill or seriously wound a civilian or any other person taking no active part in hostilities in the context of an armed conflict; when the act, by its nature or context, aims to intimidate the population or to coerce a Government or an international organization to accomplish or refrain from accomplishing a given act. 
Central African Republic, Penal Code, 2010, Article 322(b).
The Code also states: “The same sentences are applicable to all persons who: Organize the commission of one of the offences mentioned in article 322 [above quoted] or give others the order to do so.” 
Central African Republic, Penal Code, 2010, Article 323(a).
Chad
Chad’s Law on the Suppression of Terrorist Acts (2015) states:
Article 14: The death penalty shall be applied to anyone who, either individually or in cooperation with others, commits any act or threat which may cause death, endanger physical integrity, or cause injury or material damage, damage to natural resources, to the environment or to cultural heritage, and is intended to … :
a) intimidate the population, provoke a situation of terror, or compel the government and/or a national or international organization to do or abstain from doing any act, to adopt or abandon a particular standpoint, or to act according to certain principles;
Article 16: The death penalty shall be applied to anyone who, to attain the objectives outlined in paragraph a of Article 14 above:
a) provides and/or uses weapons and war material;
b) provides and/or uses micro-organisms or any other biological agents including, in particular, viruses, bacteria, fungi or toxins;
c) provides and/or uses chemical, psychological, radioactive or hypnotizing agents;
d) engages in hostage-taking.
Article 19: The offences referred to in paragraphs a, b and c of Article 16 above are established even in case of an officially declared war. 
Chad, Law on the Suppression of Terrorist Acts, 2015, Articles 14(a), 16 and 19.
China
China’s Law Governing the Trial of War Criminals (1946) provides that “planned slaughter, murder or other terrorist action” constitutes a war crime. 
China, Law Governing the Trial of War Criminals, 1946, Article 3(1).
Colombia
Colombia’s Penal Code (2000) imposes a criminal sanction on “anyone who, during an armed conflict, carries out or orders the carrying out of … acts or threats of violence whose primary purpose is to terrorize the civilian population”. 
Colombia, Penal Code, 2000, Article 144.
Côte d’Ivoire
Under Côte d’Ivoire’s Penal Code (1981), as amended in 1998, organizing, ordering or carrying out, in time of war or occupation, “measures of terror” against the civilian population constitutes a “crime against the civilian population”. 
Côte d’Ivoire, Penal Code, 1981, as amended in 1998, Article 138(5).
Croatia
Under Croatia’s Criminal Code (1997), “the imposition of measures of intimidation and terror” against the civilian population is a war crime. 
Croatia, Criminal Code, 1997, Article 158(1).
Croatia
Croatia’s Criminal Code (1997), as amended in 2006, states that a war crime is committed by whoever “violates the rules of international law in times of war, armed conflict or occupation and orders [or commits] … measures of intimidation or terror” against the civilian population. 
Croatia, Criminal Code, 1997, as amended in June 2006, Article 158(1).
Czech Republic
The Czech Republic’s Criminal Code (1961), as amended in 1999, punishes anyone who during war “terrorizes defenceless civilians with violence or the threat of violence”.  
Czech Republic, Criminal Code, 1961, as amended in 1999, Article 263(a)(1).
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Ethiopia
Under Ethiopia’s Penal Code (1957), it is a punishable offence to organize, order or engage in “measures of intimidation or terror” against the civilian population, in time of war, armed conflict or occupation. 
Ethiopia, Penal Code, 1957, Article 282(g).
Ethiopia’s Criminal Code (2004) states:
Article 270.- War Crimes against the Civilian Population.
Whoever, in time of war, armed conflict or occupation organizes, orders or engages in, against the civilian population and in violation of the rules of public international law and of international humanitarian conventions:
(g) measures of intimidation or terror …
is punishable with rigorous imprisonment from five years to twenty-five years, or, in more serious cases, with life imprisonment or death. 
Ethiopia, Criminal Code, 2004, Article 270.
Ethiopia’s Criminal Code of 2004 repealed the Penal Code of 1957.
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Article 33 of the Geneva Convention IV, and any “minor breach” of the 1977 Additional Protocol I, including violations of Article 51(2), as well as any “contravention” of the 1977 Additional Protocol II, including violations of Articles 4(2)(d) and 13(2), are punishable offences. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Lithuania
Under Lithuania’s Criminal Code (1961), as amended in 1998, “the use of intimidation and terror” in time of war, armed conflict or occupation is a war crime. 
Lithuania, Criminal Code, 1961 as amended in 1998, Article 336.
Netherlands
The Definition of War Crimes Decree (1946) of the Netherlands includes “systematic terrorism” in its list of war crimes. 
Netherlands, Definition of War Crimes Decree, 1946, Article 1.
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … [and in] the two additional protocols to these Conventions … is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108.
Rwanda
Rwanda’s Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes (2003) provides:
Article: 8
A war crime is one of the following acts, committed during armed conflicts against persons or property protected under the Geneva Conventions of 12 August 1949 and their Additional Protocols I and II of 8 June 1977:
8° taking of hostages and their subjection to acts of terrorism;
Article: 9
Shall be punished by one of the following penalties any person having committed one of the war crimes provided for in Article 8 of this law:
2° imprisonment for ten (10) to twenty (20) years where he has committed a crime provided for in point 6°, 7°, 8°, 10° or 12° of Article 8 of this law;
Article: 10
“War crime” shall also mean any of the following acts committed in armed conflicts:
7° acts of violence designed to inspire or instil terror in the population in whole or in part;
Article: 11
Anyone who commits one of the war crimes provided for in Article 10 of this law shall be punished by the following penalties:
3° imprisonment for five (5) to ten (10) years, where he has committed a crime provided for in point 2° or 7° of Article 10 of this law. 
Rwanda, Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes, 2003, Articles 8–11.
Serbia
Serbia’s Criminal Code (2005) states that ordering or “applying intimidation and terror measures” against the civilian population, in violation of international law, constitutes a war crime. 
Serbia, Criminal Code, 2005, Article 372(1).
Slovakia
Slovakia’s Criminal Code (1961), as amended, punishes anyone who during war “terrorizes defenceless civilians with violence or the threat of violence”. 
Slovakia, Criminal Code, 1961, as amended, Article 263(a)(1).
Slovenia
Under Slovenia’s Penal Code (1994), the imposition of measures of “intimidation [and] terrorism” against the civilian population is a war crime. 
Slovenia, Penal Code, 1994, Article 374(1).
Spain
Spain’s Penal Code (1995) punishes anyone who, during an armed conflict, makes the civilian population the object of “acts or threats of violence whose primary purpose is to terrorize them”. 
Spain, Penal Code, 1995, Article 611(1).
Sri Lanka
Sri Lanka’s Emergency (Prevention and Prohibition of Terrorism and Specified Terrorist Activities) Regulations (2006) states:
6. No person or groups of persons either incorporated or unincorporated including an organization, shall either individually or as a group or groups or through other persons engage in:–
(a) terrorism, or
(b) any specified terrorist activity, or
(c) any other activity in furtherance of any act of terrorism or specified terrorist activity committed by any person, group or groups of persons.
20. For the purposes of these regulations, –
“terrorism” means any unlawful conduct which –
(c) intimidates a civilian population or a group thereof, …
and which unlawful conduct is aimed at or is committed with the object of threatening or endangering the sovereignty or territorial integrity of the Democratic Socialist Republic of Sri Lanka or that of any other recognized sovereign State, or any other political or governmental change, or compelling the government of the Democratic Socialist Republic of Sri Lanka to do or abstain from doing any act, and includes any other unlawful activity which advocates or propagates such unlawful conduct. 
Sri Lanka, Emergency (Prevention and Prohibition of Terrorism and Specified Terrorist Activities) Regulations, 2006, Sections 6 and 20(c).
Switzerland
Switzerland’s Penal Code (1937), taking into account amendments entered into force up to 2011, states under the title “Felonies and misdemeanours against public peace”:
Art. 260quinquies
1 Any person who collects or provides funds with a view to financing a violent crime that is intended to intimidate the public or to coerce a State or international organization into carrying out or not carrying out an act shall be liable to a custodial sentence not exceeding five years or to a monetary penalty.
4 Paragraph 1 does not apply if the financing is intended to support acts that do not violate the rules of international law applicable to armed conflicts. 
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Article 260quinquies (1) and (4).
United States of America
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
§ 950v. Crimes triable by military commissions
“ …
“ (b) OFFENSES. – The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(24) TERRORISM. – Any person subject to this chapter who intentionally kills or inflicts great bodily harm on one or more protected persons, or intentionally engages in an act that evinces a wanton disregard for human life, in a manner calculated to influence or affect the conduct of government or civilian population by intimidation or coercion, or to retaliate against government conduct, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.
“(25) Providing material support for terrorism. –
“(A) OFFENSE. – Any person subject to this chapter who provides material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, an act of terrorism (as set forth in paragraph (24)), or who intentionally provides material support or resources to an international terrorist organization engaged in hostilities against the United States, knowing that such organization has engaged or engages in terrorism (as so set forth), shall be punished as a military commission under this chapter may direct.
“(B) MATERIAL SUPPORT OR RESOURCES DEFINED. – In this paragraph, the term ‘material support or resources’ has the meaning given that term in section 2339A(b) of title 18. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, pp. 120 Stat. 2629 and 2630, § 950v(b)(24) and (25).
United States of America
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
§ 950t. Crimes triable by military commission
“The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(24) Terrorism.—Any person subject to this chapter who intentionally kills or inflicts great bodily harm on one or more protected persons, or intentionally engages in an act that evinces a wanton disregard for human life, in a manner calculated to influence or affect the conduct of government or civilian population by intimidation or coercion, or to retaliate against government conduct, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.
“(25) PROVIDING MATERIAL SUPPORT FOR TERRORISM.—
“(A) Offense.—Any person subject to this chapter who provides material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, an act of terrorism (as set forth in paragraph (24) of this section), or who intentionally provides material support or resources to an international terrorist organization engaged in hostilities against the United States, knowing that such organization has engaged or engages in terrorism (as so set forth), shall be punished as a military commission under this chapter may direct.
“(B) Material support of resources defined.—In this paragraph, the term ‘material support or resources’ has the meaning given that term in section 2339A(b) of title 18. 
United States, Military Commissions Act, 2009, § 950t(24) and (25).
The Act also states:
§ 950p. Definitions; construction of certain offenses; common circumstances
“(a) DEFINITIONS.—In this subchapter:
“ …
“(2) The term ‘protected person’ means any person entitled to protection under one or more of the Geneva Conventions, including civilians not taking an active part in hostilities … 
United States, Military Commissions Act, 2009, § 950p(a)(2).
Uruguay
Uruguay’s Law on Cooperation with the ICC (2006) states:
26.2. Persons and objects affected by the war crimes set out in the present provision are persons and objects which international law protects in international or internal armed conflict.
26.3. The following are war crimes:
37. … carrying out acts or threats with the objective to terrorize the civilian population. 
Uruguay, Law on Cooperation with the ICC, 2006, Articles 26.2 and 26.3.37.
Yugoslavia, Socialist Federal Republic of
Under the Socialist Federal Republic of Yugoslavia’s Penal Code (1976), as amended in 2001, “the taking of measures of intimidation and terror” against civilians is a war crime. 
Yugoslavia, Socialist Federal Republic of, Penal Code, 1976 as amended in 2001, Article 142(1).
Canada
In 2013, in the Benneth case, the Appeal Division of Canada’s Immigration and Refugee Board allowed an appeal against a decision considering a Nigerian national admissible to Canada. Regarding the definition of terrorism the Appeal Division stated:
70. As for … its understanding of the definition of terrorism the ID [Immigration Division] relied on both Supreme Court of Canada jurisprudence and the Criminal Code definition. The ID evidenced that it considered the teaching of the Supreme Court of Canada in Suresh v. Canada (MCI) [2002] S.C.J. No. 3 2002 SCCL wherein the court beginning at paragraph 96 held,
96 We are not persuaded, however, that the term “terrorism” is so unsettled that it cannot set the proper boundaries of legal adjudication. The recently negotiated International Convention for the Suppression of the Financing of Terrorism, GA Res. 54/109, December 9, 1999, approaches the definitional problem in two ways. First, it employs a functional definition in Article 2(1)(a), defining “terrorism” as “[a]n act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex”. The annex lists nine treaties that are commonly viewed as relating to terrorist acts, such as the Convention for the Suppression of the Unlawful Seizure of Aircraft, Can. T.S. 1972 No. 23, the Convention on the Physical Protection of Nuclear Material, 18 I.L.M. 1419, and the International Convention for the Suppression of Terrorist Bombings, 37 I.L.M. 249. Second, the Convention supplements this offence-based list with a stipulative definition of terrorism. Article 2(1)(b) defines “terrorism” as:
Any … act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.
98 In our view, it may safely be concluded, following the International Convention for the Suppression of the Financing of Terrorism, that “terrorism” in s. 19 of the Act includes any “act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act”. This definition catches the essence of what the world understands by “terrorism”. Particular cases on the fringes of terrorist activity will inevitably provoke disagreement. Parliament is not prevented from adopting more detailed or different definitions of terrorism. The issue here is whether the term as used in the Immigration Act is sufficiently certain to be workable, fair and constitutional. We believe that it is.
72. The ID summarized its understanding of what the Minister needed to prove in respect of terrorism as follows:
Again I agree with the Minister’s submission as to what needs to be proven. Serious criminal acts that cause death or serious bodily injury to a civilian or any other person not taking part in the hostilities or a situation of arm[ed] conflict and acts committed with the purpose [of] intimidating a population or to compel a government or an international organization to do or to abstain from doing something.
88. The respondent argues that the absence of “armed conflict” ruled out a finding of terrorism. He does so based on his interpretation of Suresh, arguing that such a finding depends on the two requirements identified therein (see above) and that
the Minister failed to produce any credible and corroborated evidence that[,] in the context of the situation in Nigeria, involving members of MASSOB [Movement for the Actualization of the Sovereign State of Biafra] and the Nigerian authorities, it could be described as an “armed conflict” as understood both in Canadian and international law.
Minister’s counsel did not directly address these submissions.
89. The respondent has set up a straw man argument when he asks whether there is any evidence that MASSOB has entered into armed conflict with the Nigerian Government. He has conflated the words used in Suresh and in the process excluded part of the definition making what is disjunctive, conjunctive. Minister’s counsel has not argued that MASSOB was in armed conflict with the Nigerian Government beyond arguing that there was evidence that MASSOB members had increasingly been taking up arms. The definition in Suresh does not require armed conflict to establish a terrorist act. Rather, it provides that in a situation of armed conflict a terrorist act can be committed against a person not taking an active part in it. Read correctly a terrorist act can be established in the absence of armed conflict, when the intended act of violence is directed at a civilian … when the purpose of the act of violence is intimidation of a population or to compel a government … to do or to abstain from something. 
Canada, Immigration and Refugee Board of Canada, Benneth case, Reasons and Decision, 7 January 2013, §§ 70, 72 and 88–89.
[footnotes in original omitted]
Colombia
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
The principle of distinction is complex and encompasses a number of treaty and customary norms applicable in internal armed conflicts, in addition to, in many cases, enjoying ius cogens status. These rules [include] … the prohibition to take actions the primary purpose of which is to cause terror among the civilian population. 
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment of 25 April 2007, pp. 84–86.
Italy
In its judgment in the Abdelaziz case (2007), Italy’s Supreme Court of Cassation stated:
[T]he wording and the “reasoning” of the international rules, which are aimed at defining the objectives of terrorism in an armed conflict, provide unambiguous interpretative arguments for saying that an act against a military objective must also be regarded as terrorism if the particular circumstances show beyond any doubt that serious harm to the life and physical well-being of the civilian population is inevitable, creating fear and panic amongst the local people. 
Italy, Supreme Court of Cassation, Abdelaziz case, Judgment, 17 January 2007, § 4.1.
Philippines
In its judgment in the Human Security Act case in 2007, the Philippine Supreme Court stated:
… aside from the 12 anti-terrorism conventions, are the Geneva Conventions and Protocols … The Geneva Conventions and Protocols are the core treaties of international humanitarian law (IHL). Though IHL applies to situations of armed conflict or during wartime, the idea that it “can provide guidance to the legal approach to terrorism in peacetime” was first broached by the long-time editor of the International Review of the Red Cross Hans-Peter Gasser as early as 1985 in a paper entitled “Prohibition of terrorist acts in international humanitarian law.”
The [Fourth] Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949, Article 33 provides, among others, that “Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.” … The 1977 Additional Protocol II Relating to the Protection of Victims of Non-International Armed Conflicts, Article 4, paragraph 2(d) prohibits “acts of terrorism.” [emphasis added by Court]
The authoritative international legal commentary on the latter says that such “prohibition of acts of terrorism with no further detail, covers not only acts directed against people, but also acts directed against installations which would cause victims as a side-effect.”
But it is the 1977 Additional Protocol I Relating to the Protection of Victims of International Armed Conflicts, Article 51, paragraph 2 and the identical Article 13, paragraph 2 of Protocol II which may be said to elaborate on the term “terrorism” and thus provide a core legal framework for a definition of terrorism. The said identical provisions for both international and non-international armed conflicts read as follows:
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. [emphasis added by Court]
The authoritative international legal commentary on the second sentence is instructive:
… the Conference wished to indicate that the prohibition covers acts intended to spread terror; there is no doubt that acts of violence related to a state of war almost always give rise to some degree of terror among the population and sometimes also among the armed forces. It also happens that attacks on armed forces are purposely conducted brutally in order to intimidate the enemy soldiers and persuade them to surrender. This is not the sort of terror envisaged here. This provision is intended to prohibit acts of violence the primary purpose of which is to spread terror among the civilian population without offering substantial military advantage. It is interesting to note that threats of such acts are also prohibited. This calls to mind some of the proclamations made in the past threatening the annihilation of civilian populations. [emphasis added by Court]
Not only has the Philippines ratified the four Geneva Conventions of August 12, 1949 in 1952, signed Protocol I in 1977 and acceded to Protocol II in 1986, the Supreme had also earlier ruled in the 1949 case of Kuroda vs. Jalandoni (83 Phil. 171) that “the rules and regulations of the Hague and Geneva conventions form part of and are wholly based on the generally accepted principles of international law… Such rules and principles, therefore, form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them.” …
In fact, the particular rule that “Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited” is established as a norm of customary international law applicable in both international and non-international armed conflicts. 
Philippines, Supreme Court, Human Security Act case, Judgment, 16 July 2007.
[emphasis added by Court]
Spain
In 2010, in the Couso case, the Criminal Chamber of Spain’s Supreme Court was called upon to decide an appeal in the case concerning the killing of a Spanish journalist in Baghdad on 8 April 2003 by troops of the United States of America. In deciding upon one of the issues raised in the appeal on breach of the law due to the failure to apply Article 611 of the Penal Code (1995), the Court noted:
2. Article 611 of the PC effectively punishes
“anyone who in the event of an armed conflict commits [any of the following acts], without prejudice to the penalty for the results of such acts, shall be punished with ten to fifteen years’ imprisonment:
1. … [M]akes the civilian population the object of … acts or threats of violence the primary purpose of which is to spread terror”. 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(II), Sexto, § 2, p. 11.
[emphasis in original]
The Court also referred to norms of IHL relevant to the case under review, including Article 51(2) of the 1977 Additional Protocol I. 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(II), Sexto, § 2, p. 14.
In deciding on the issue concerning breach of the law, the Court held:
The appealed decision declared the termination of the proceedings … as it considered that the “facts [of] the case did not constitute an offence” … [H]owever, the proceedings carried out do not permit sharing the conclusions of the first instance tribunal; rather, the facts [denounced] merit being subsumed under the cited penal provisions and the aforementioned norms of International Humanitarian Law. 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(II), Sexto, § 2, p. 16.
[emphasis in original]
The Court upheld the appeal against the order of 23 October 2009 by the Third Section of the Criminal Chamber of the Spanish National Court, which declared the termination of the proceedings, and held that “the proceedings must continue, and the outstanding preparatory enquiries must be undertaken, as well as any others arising from the clarification of the events under investigation.” 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section III, pp. 20–21.
Venezuela
In 2001, in the Ballestas case, the Colombian government requested the preventive detention and extradition of a Colombian citizen belonging to the armed group known as the Ejército de Liberación Nacional (National Liberation Army) for the crimes of rebellion, kidnapping, wrongful death, seizure and diversion of aircraft. The Chamber of Criminal Appeals of Venezuela’s Supreme Tribunal of Justice held:
It is a firm and incontrovertible fact that political armed struggle must be governed by the laws of war. As a result, attacks against innocent [people] or against private rights or the rights of individuals are absolutely unjustified, even where a political motive is claimed.
Thus: if such an attack against innocent [persons] and private rights is carried out with such a violence and malicious intent that it causes unnecessary suffering, havoc and terror, it would [constitute the offence of] indiscriminate terrorism, namely [those acts] that are not selective when choosing their targets and expressly target the innocent.
Terrorism, and particularly indiscriminate terrorism, ignores the requirements of Humanitarian … law; it endangers innocent human lives and many times destroys them … It is not based on a legitimate … political motive … [as] it is not a sound ideal of governance to threaten and even deliberately kill the innocent. Terrorism is not one of the political crimes meriting a benefit [such as the impossibility of granting extradition]. Such a benefit would go against [the interests of] justice, criminal law and the moral sense of people …
Terrorism takes many forms, as it can be committed through several means. One is the kidnapping [hijacking] of planes, which is one of the acts of which … José María Ballestas Tirado is accused in Colombia. Another is the kidnapping of persons, which is also one of the acts of which … José María Ballestas Tirado is criminally accused (“extortive kidnapping”) in Colombia …
The authors … or suspects of offences that can be, and are, classified as terrorism, must not be granted the right to asylum … when they are accused based on a solid [legal] basis of committing acts that not only disrupted the order of a given State, but that of all civilized nations. Solidarity must unite States in the rejection of this type of action. An international problem must have an international solution and, faced with the universalization of terrorism, it is an international duty to lend all the cooperation to this effect: it is indispensable for the application of Humanitarian law that States grant each other mutual legal assistance in criminal matters. 
Venezuela, Supreme Tribunal of Justice, Ballestas case, Judgment, 10 December 2001, pp. 9–10.
[emphasis in original]
In concluding on whether extradition can be granted, the tribunal held:
Article 271 of the Constitution establishes:
In no case can the extradition of foreigners be denied [when they are] responsible for committing the offences of … international organized crimes, acts against the public heritage of other States and against human rights. …
The Chamber, in compliance with the abovementioned constitutional provision, … grants the extradition of … José María Ballestas Tirado for the alleged commission of the ordinary offence of extortive kidnapping, which … also constitutes, in general, international organized crime, and terrorism in particular. 
Venezuela, Supreme Tribunal of Justice, Ballestas case, Judgment, 10 December 2001, p. 13.
[emphasis in original]
Botswana
On the basis of an interview with a retired army general, the Report on the Practice of Botswana states that the armed forces of Botswana would apply Article 13 of the 1977 Additional Protocol II in the event of a non-international armed conflict. 
Report on the Practice of Botswana, 1998, Interview with a retired army general, Answers to additional questions on Chapter 1.4.
Germany
In 2009, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) titled “Investigation of serious violations of international humanitarian law in the recent Gaza war”, Germany’s Federal Government wrote:
9. How does the Federal Government assess the firing of rockets at towns and villages in Southern Israel by armed Palestinian groups in Gaza under international law?
Which specific provisions of international humanitarian law were violated by the Palestinian side?
The Federal Government condemns any act of violence and all acts of hostilities directed against civilians, as well as acts of terror. … Using violence or threatening to use violence with the primary purpose of spreading terror amongst the civilian population … [is] prohibited. 
Germany, Lower House of Federal Parliament (Bundestag), Reply by the Federal Government to the Minor Interpellation by the Members Winfried Nachtwei, Kerstin Müller (Cologne), Jürgen Trittin, other Members and the Parliamentary Group BÜNDNIS 90/DIE GRÜNEN, BT-Drs. 16/12673, 20 April 2009, p. 4.
Israel
In a letter to the UN Secretary-General in 1991, Israel pointed out that SCUD missiles had been directed at civilians and that this method of “terror” by “intentional and unprovoked bombings” was a “flagrant breach of the norms of international law”.  
Israel, Letter dated 28 January 1991 to the UN Secretary-General, UN Doc. S/22160, 29 January 1991, p. 2.
Lebanon
The Report on the Practice of Lebanon refers to a 1996 report by the Ministry of Justice which stated that Israel had committed serious violations of the 1949 Geneva Conventions by terrorizing civilians. 
Report on the Practice of Lebanon, 1998, Chapter 1.4, referring to Report by the Lebanese Ministry of Justice on possibilities for legal action against Israel, 12 April 1996.
Mexico
At the CDDH, Mexico stated that it believed Article 46 of the draft Additional Protocol I (now Article 51) to be so essential that it “cannot be the subject of any reservations whatsoever since these would be inconsistent with the aim and purpose of Protocol I and undermine its basis”. 
Mexico, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 193.
Somalia
In 2011, in its report to the Human Rights Council, Somalia stated:
Somalia has not ratified AP II [1977 Additional Protocol II] and it is therefore not directly applicable to Somalia as a matter of treaty law. The Government is aware that many provisions of AP II represent customary IHL rules and therefore apply to the situation in Somalia. Such provisions include Article 4 providing guarantees to persons taking no active part in hostilities … due to the fact that these norms are reflected in Common Article 3 of the [1949] Geneva Conventions. 
Somalia, Report to the Human Rights Council, UN Doc. A/HRC/WG.6/11/SOM/1, 11 April 2011, § 75.
Switzerland
Switzerland’s ABC of International Humanitarian Law (2009) states: “Even in war not everything is allowed. Various means and methods are prohibited, including … spreading terror”. 
Switzerland, Federal Department of Foreign Affairs, ABC of International Humanitarian Law, 2009, p. 29.
The publication further states:
The concept of “terrorism” has not yet been defined in International law. International law, Human rights and international humanitarian law nonetheless do prohibit many terrorism related acts and activities. In fact, according to international humanitarian law, acts generally considered as acts of terrorism, such as strikes against the civilian population or Civilian Objects, indiscriminate attacks or hostage taking, are prohibited both in international and non-international armed conflict. Moreover, international humanitarian law explicitly prohibits acts or threats of violence the primary purpose of which is to spread terror among the civilian population. 
Switzerland, Federal Department of Foreign Affairs, ABC of International Humanitarian Law, 2009, p. 39.
[emphasis in original]
Switzerland
In 2010, in its Report on IHL and Current Armed Conflicts, Switzerland’s Federal Council stated:
3.3 Increasing use of guerrilla tactics…
The appearance of non-State actors technically inferior to their government adversaries has favoured the growth of guerrilla tactics. … With this in mind, the civilian population is of a twofold interest in the eyes [of the weaker of the adversaries], on one hand as a place of retreat and combat base, on the other hand as a target of attacks.
Even if the civilian population provides important support to the insurgents, it is nevertheless made the object of terrorist acts (direct attacks, pillage, hostage-taking) … under the guise of punitive actions, intimidation, propaganda or to incite ethnic or religious tensions. …
International humanitarian law in force treats these cases in a relatively complete manner, binding non-State and State actors alike. …
International humanitarian law also clearly prohibits attacks against the civilian population. This also applies to abductions, suicide attacks against markets, mosques or schools, as well as torture and other acts of terrorism. Only attacks against military objectives come within the framework of international humanitarian law, even if these take the form of suicide attacks. 
Switzerland, Federal Council, Report on IHL and Current Armed Conflicts, 17 September 2010, Section 3.3, pp. 11–12.
[footnotes in original omitted]
Switzerland
In 2012, Switzerland’s Federal Department of Foreign Affairs issued a press release entitled “Appeal by the Swiss authorities for compliance with international humanitarian law in Syria”, which stated:
International humanitarian law is applicable to non-international armed conflict.
4. International humanitarian law is applicable in non-international armed conflicts. All parties to the conflict are therefore obliged to respect its rules in all circumstances, including the rules protecting persons who are [not] or are no [longer] participating in the hostilities, as well as the rules relative to the means and methods of warfare.
Appeal to respect international rules
7. … Moreover, international humanitarian law proscribes the act of spreading terror among the civilian population. 
Switzerland, Federal Department of Foreign Affairs, “Appeal by the Swiss authorities for compliance with international humanitarian law in Syria”, Press Release, 15 November 2012.
United Kingdom of Great Britain and Northern Ireland
At the CDDH, the United Kingdom voted in favour of Article 46 of the draft Additional Protocol I (now Article 51), describing its first three paragraphs as containing a “valuable reaffirmation of existing customary rules of international law designed to protect civilians”. 
United Kingdom, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR. 41, 26 May 1977, p. 164, § 119.
United States of America
In 1987, the Deputy Legal Adviser of the US Department of State stated: “We support the principle that the civilian population as such, as well as individual citizens, not be the object of acts or threats of violence the primary purpose of which is to spread terror among them.” 
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American University Journal of International Law and Policy, Vol. 2, 1987, p. 426.
United States of America
In 1991, in response to an ICRC memorandum on the applicability of IHL in the Gulf region, the US Department of the Army pointed out that US practice was consistent with the prohibition on acts or threats of violence the main purpose of which was to spread terror among the civilian population. 
United States, Letter from the Department of the Army to the legal adviser of the US Army forces deployed in the Gulf region, 11 January 1991, § 8(J), Report on US Practice, 1997, Chapter 1.4.
United States of America
In 1994, in a document concerning human rights practices in Bosnia and Herzegovina, the US Department of State noted that the Bosnian Serb armed militia employed rape as a tool of war to terrorize and uproot populations. 
United States, Department of State, Bosnia-Herzegovina Human Rights Practice, 1993, 31 January 1994, p. 2.
UN General Assembly
In a resolution adopted in 1994 on the situation of human rights in the former Yugoslavia, the UN General Assembly condemned the “systematic terrorization and murder of non-combatants”. 
UN General Assembly, Res. 49/196, 23 December 1994, § 7, voting record: 150-0-14-21.
UN General Assembly
In a resolution adopted in 1998 on the situation of human rights in Kosovo, the UN General Assembly:
Gravely concerned about the systematic terrorization of ethnic Albanians, as demonstrated in the many reports, inter alia, of torture of ethnic Albanians, through indiscriminate and widespread shelling, mass forced displacement of civilians, summary executions and illegal detention of ethnic Albanian citizens of the Federal Republic of Yugoslavia (Serbia and Montenegro) by the police and the military. 
UN General Assembly, Res. 53/164, 9 December 1998, preamble, voting record: 122-3-34-26.
UN General Assembly
In a resolution adopted in 2005 on the peaceful settlement of the question of Palestine, the UN General Assembly:
Emphasizing the importance of the safety and well-being of all civilians in the whole Middle East region, and condemning all acts of violence and terror against civilians on both sides, including the suicide bombings [and] the extrajudicial executions …
8. Stresses the need for … the complete cessation of all acts of violence, including … acts of terror. 
UN General Assembly, Res. 60/39, 1 December 2005, preamble and § 8, voting record: 156-6-9-20.
UN General Assembly
In a resolution adopted in 2007 on the peaceful settlement of the question of Palestine, the UN General Assembly condemned “all acts of violence and terror against civilians on both sides” and stressed “the need for an immediate and complete cessation of all acts of violence, including … acts of terror”.  
UN General Assembly, Res. 62/83, 10 December 2007, preamble and § 10, voting record: 161-7-5-19.
UN Commission on Human Rights
In a resolution adopted in 1992 on the situation of human rights in the territory of the former Yugoslavia, the UN Commission on Human Rights:
Condemns also the indiscriminate shelling of cities and civilian areas, the systematic terrorization and murder of non-combatants, the destruction of vital services, the besieging of cities and the use of military force against civilian populations and relief operations by all sides, recognizing that the main responsibility lies with Serbian forces. 
UN Commission on Human Rights, Res. 1992/S-2/1, 1 December 1992, § 7, voting record: 45-1-1.
UN Commission on Human Rights
In a resolution adopted in 1993 on the situation of human rights in the territory of the former Yugoslavia, the UN Commission on Human Rights:
Condemns once again the indiscriminate shelling of cities and civilian areas, the systematic terrorization and murder of non-combatants, the destruction of vital services, the besieging of cities and the use of military force against civilian populations and relief operations by all sides, recognizing that the main responsibility lies with Serbian forces. 
UN Commission on Human Rights, Res. 1993/7, 23 February 1993, § 12, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 1994 on the situation of human rights in the territory of the former Yugoslavia, the UN Commission on Human Rights:
Denounces continued deliberate and unlawful attacks and uses of military force against civilians and other protected persons by all sides, recognizing that the primary though not the sole responsibility lies with the Serbian forces, and condemns particularly:
(b) The systematic terrorization and murder of civilians and non-combatants. 
UN Commission on Human Rights, Res. 1994/72, 9 March 1994, § 7(b), adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 1995 on the situation of human rights in the territory of the former Yugoslavia, the UN Commission on Human Rights:
Further condemns the indiscriminate shelling and besieging of cities and civilian areas, the systematic terrorization and murder of non-combatants, the destruction of vital services and the use of military force against civilian populations and relief operations, including the use of cluster and napalm bombs against civilian targets by Bosnian and Croatian Serb forces. 
UN Commission on Human Rights, Res. 1995/89, 8 March 1995, § 5, voting record: 44-0-7
UN Sub-Commission on Human Rights
In a resolution adopted in 1989 on the situation of human rights in El Salvador, the UN Sub-Commission on Human Rights stated that it was “alarmed by the intensification of activities to terrorize the population that are being carried out by the death squads composed of police and armed forces personnel operating in civilian clothing under the orders of senior officers”. 
UN Sub-Commission on Human Rights, Res. 1989/9, 31 August 1989, preamble.
UN Secretary-General
In 2000, in a report on the establishment of a Special Court for Sierra Leone, the UN Secretary-General stated: “Violations of … article 4 [of the 1977 Additional Protocol II] committed in an armed conflict not of an international character have long been considered customary international law.” 
UN Secretary-General, Report on the establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915, 4 October 2000, § 14.
UN Commission on Human Rights (Special Rapporteur)
In 1992, in a report on the situation of human rights in the former Yugoslavia, the Special Rapporteur of the UN Commission on Human Rights noted that the regular bombardment of cities such as Sarajevo or Bihać by Serb forces in Bosnia and Herzegovina was part of a tactic to terrorize the civilian population. 
UN Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in the Former Yugoslavia, Report, UN Doc. A/47/418 – S/24516, 3 September 1992, §§ 17 and 20.
UN Sub-Commission on Human Rights (Special Rapporteur)
In 2000, in a report on systematic rape, sexual slavery and slavery-like practices during armed conflict, the Special Rapporteur of the UN Sub-Commission on Human Rights stated: “The use of sexual violence is seen as an effective way to terrorize and demoralize members of the opposition, thereby forcing them to flee.” 
UN Sub-Commission on Human Rights, Special Rapporteur on Systematic Rape, Sexual Slavery and Slavery-like Practices during Wartime, Update to the final report, UN Doc. E/CN.4/Sub.2/2000/21, 6 June 2000, § 20.
UN High Commissioner for Human Rights
In 2000, in a report on systematic rape, sexual slavery and slavery-like practices during armed conflicts, the UN High Commissioner for Human Rights stated:
All kinds of sexual violence, including assault, rape, abuse and torture of women and children, have been used in a more or less systematic manner to terrorize civilians and destroy the social structure, family structure and pride of the enemy. 
UN High Commissioner for Human Rights, Report on systematic rape, sexual slavery and slavery-like practices during armed conflicts, UN Doc. E/CN.4/Sub.2/2000/20, 27 June 2000, p. 2, § 9.
Misión de Verificación de las Naciones Unidas en Guatemala
In 1995, in a report on the conflict in Guatemala, the Director of MINUGUA appealed to the Unidad Revolucionaria Nacional Guatemalteca (URNG) “to desist from all acts of intimidation against individuals, since such acts contribute to feelings of defencelessness and to impunity”. 
MINUGUA, Director, First report, UN Doc. A/49/856, 1 March 1995, Annex, § 195.
Organization for Security and Co-operation in Europe
In a report on the Kosovo conflict, covering the period from October 1998 to June 1999, the OSCE noted:
On the part of the Yugoslav and Serbian forces, their intent to apply mass killing as an instrument of terror, coercion or punishment against Kosovo Albanians was already in evidence in 1998, and was shockingly demonstrated by incidents in January 1999 (including the Racak mass killing) and beyond. Arbitrary killing of civilians was both a tactic in the campaign to expel Kosovo Albanians, and an objective in itself. 
OSCE, Kosovo/Kosova, as seen as told, An analysis of the human rights findings of the OSCE Kosovo Verification Mission, October 1998 to June 1999, OSCE, ODIHR, Warsaw, 1999, executive summary.
International Conference of the Red Cross and Red Crescent (1995)
The 26th International Conference of the Red Cross and Red Crescent in 1995 adopted a resolution on protection of the civilian population in period of armed conflict in which it expressed deep alarm at “the serious violations of international humanitarian law in internal as well as international armed conflicts constituted by acts or threats of violence the primary purpose of which is to spread terror among the civilian population”. 
26th International Conference of the Red Cross and Red Crescent, Geneva, 3–7 December 1995, Res. II, preamble.
International Criminal Tribunal for the former Yugoslavia
In the Ðukić case before the ICTY in 1996, the accused was charged with “shelling of civilian targets” in violation of the laws or customs of war for his role in the following acts:
From about May 1992 to about December 1995, in Sarajevo, Bosnian Serb military forces, on a widespread and systematic basis, deliberately or indiscriminately fired on civilian targets that were of no military significance in order to kill, injure, terrorise and demoralise the civilian population of Sarajevo. 
ICTY, Ðukić case, Initial Indictment, 29 February 1996, § 7, Count 2.
International Criminal Tribunal for the former Yugoslavia
In the Martić case before the ICTY in 1995, the accused was charged with “the unlawful rocket attack against the civilian population and individual civilians of Zagreb” in violation of the laws or customs of war. 
ICTY, Martić case, Initial Indictment, 25 July 1995, §§ 16 and 18, Counts II and IV.
In its review of the indictment in 1996, the ICTY Trial Chamber held that the attacks with Orkan rockets on the city of Zagreb in May 1995 were not designed to hit military targets but to terrorize the civilian population, stating: “These attacks were therefore contrary to the rules of customary and conventional international humanitarian law.” 
ICTY, Martić case, Review of the Indictment, 8 March 1996, § 31.
The Trial Chamber upheld all counts of the indictment. 
ICTY, Martić case, Review of the Indictment, 8 March 1996, Section III, Disposition.
International Criminal Tribunal for the former Yugoslavia
In the Karadžić and Mladić case before the ICTY in 1995, the indictment alleged that forces under the direction and control of the accused “unlawfully fired on civilian gatherings that were of no military significance in order to kill, terrorise and demoralise the Bosnian Muslim and Bosnian Croat civilian population”. 
ICTY, Karadžić and Mladić case, First Indictment, 24 July 1995, § 26.
It further alleged that throughout the siege of Sarajevo, “there has been a systematic campaign of deliberate targeting of civilians by snipers of the Bosnian Serb military and their agents. The sniping campaign has terrorised the civilian population of Sarajevo.” 
ICTY, Karadžić and Mladić case, First Indictment, 24 July 1995, § 44.
The accused were charged with “deliberate attack on the civilian population and individual civilians” in violation of the laws or customs of war for their role in these events. 
ICTY, Karadžić and Mladić case, First Indictment, 24 July 1995, § 36, Count 5 and § 45, Count 10.
In its review of the indictments in 1996, the ICTY Trial Chamber confirmed all counts. 
ICTY, Karadžić and Mladić case, Review of the Indictments, 11 July 1996, Section VII, Disposition.
International Criminal Tribunal for the former Yugoslavia
In the Galić case before the ICTY in 1998, the accused was charged with “unlawfully inflicting terror upon civilians as set forth in Article 51 of Additional Protocol I and Article 13 of Additional Protocol II to the Geneva Conventions of 1949” in violation of the laws or customs of war for having conducted “a protracted campaign of shelling and sniping upon civilian areas of Sarajevo and upon the civilian population, thereby inflicting terror and mental suffering upon its civilian population”. 
ICTY, Galić case, Initial Indictment, 24 April 1998, Count 1.
In its judgment in the Galić case in 2003, the majority of the ICTY Trial Chamber, based mainly on an analysis of Article 51(2) of the 1977 Additional Protocol I, stated regarding the charge of terror against the civilian population as a violation of the laws or customs of war:
130. Since all four Tadić conditions have … been satisfied, the Majority finds that serious violations of the second part of Article 51(2), and specifically the violations alleged in this case causing death or injury, entailed individual criminal responsibility in 1992. The Majority expresses no view as to whether the Tribunal also has jurisdiction over other forms of violation of the rule, such as the form consisting only of threats of violence, or the form comprising acts of violence not causing death or injury. This is not a question it has been called upon to decide.
138. The Majority is of the view that an offence constituted of acts of violence wilfully directed against the civilian population or individual civilians causing death or serious injury to body or health within the civilian population with the primary purpose of spreading terror among the civilian population – namely the crime of terror as a violation of the laws or customs of war – formed part of the law to which the Accused and his subordinates were subject to during the Indictment period. The Accused knew or should have known that this was so. Terror as a crime within international humanitarian law was made effective in this case by treaty law. The Tribunal has jurisdiction ratione materiae by way of Article 3 of the Statute. Whether the crime of terror also has a foundation in customary law is not a question which the Majority is required to answer. 
ICTY, Galić case, Judgment, 5 December 2003, §§ 130 and 138.
The Trial Chamber, by majority decision, convicted the accused of “acts of violence the primary purpose of which is to spread terror among the civilian population” as a violation of the laws or customs of war, and of crimes against humanity (“murder” and “inhumane acts – other than murder”). Two further charges of violations of the laws or customs of war (“attacks on civilians”) were dismissed, as the Trial Chamber considered them to be subsumed under the conviction for “acts of violence the primary purpose of which is to spread terror among the civilian population”. The accused was sentenced to 20 years’ imprisonment. 
ICTY, Galić case, Judgment, 5 December 2003, §§ 752 and 769, VI. Disposition.
In its judgment in the Galić case in 2006, the ICTY Appeals Chamber found regarding the customary law status of the prohibition, the criminalization and the elements of “acts of violence the primary purpose of which is to spread terror among the civilian population”:
86. … The Appeals Chamber … is satisfied that the prohibition of terror against the civilian population as enshrined in Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II, was part of customary law from the time of its inclusion in those treaties. The Appeals Chamber, by majority, Judge Schomburg dissenting, is further satisfied that a breach of the prohibition of terror against the civilian population gave rise to individual criminal responsibility pursuant to customary international law at the time of the commission of the offences for which [the accused] was convicted.
(a) The prohibition of terror against the civilian population in customary international law
87. In the present case, the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population was charged under Article 3 of the [1993 ICTY] Statute, on the basis of Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II … Article 51 of Additional Protocol I was adopted with 77 votes in favour, one against and 16 abstentions. Neither France, which voted against, nor the States that abstained from voting, expressed any concern as to the content of the prohibition contained in Article 51(2). The only concerns expressed were confined to paragraphs 4, 5, 7 and 8 of this Article. Article 13 of Additional protocol II, which incorporates the first three paragraphs of Article 51 of Additional Protocol I, was adopted by consensus. The purposes of Additional Protocols I and II, as expressly stated by the High Contracting Parties in the preambles to those treaties, were to “reaffirm and develop the provisions protecting the victims of armed conflicts” and “to ensure a better protection for the victims” of armed conflicts. Additional Protocol II, further, is considered to embody the “fundamental principles on protection for the civilian population”. Articles 51(2) of Additional Protocol I and 13(2) of Additional Protocol II, in essence, contribute to the purpose of those treaties. They do not contain new principles but rather codify in a unified manner the prohibition of attacks on the civilian population. The principles underlying the prohibition of attacks on civilians, namely the principles of distinction and protection, have a long-standing history in international humanitarian law. These principles incontrovertibly form the basic foundation of international humanitarian law and constitute “intransgressible principles of international customary law”. As the Appeals Chamber has held in previous decisions, the conventional prohibition on attack on civilians contained in Articles 51 of Additional Protocol I and 13 of Additional Protocol II constitutes customary international law. In so holding, the Appeals chamber has made no distinction within those articles as to the customary nature of each of their respective paragraphs. In light of the above, and considering that none of the States involved in the Diplomatic Conference leading to the adoption of both Protocols expressed any concern as to the first three paragraphs of Article 51 of Additional Protocol I, and as Article 13 of Additional Protocol II was adopted by consensus, the Appeals Chamber considers that, at a minimum, Article 51(1), (2) and (3) of Additional Protocol I and Article 13 of Additional Protocol II in its entirety constituted an affirmation of existing customary international law at the time of their adoption. The Appeals Chamber therefore affirms the finding of the Trial chamber that the prohibition of terror, as contained in the second sentences of both Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II, amounts to “a specific prohibition within the general (customary) prohibition of attack on civilians”.
88. The Appeals Chamber found further evidence that the prohibition of terror among the civilian population was part of customary international law from at least its inclusion in the second sentences of both Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II. The 1923 Hague Rules on Warfare prohibited “[a]ny air bombardment for the purpose of terrorizing the civil population or destroying or damaging private property without military character or injuring non-combatants”. Similarly, the 1938 Draft Convention for the Protection of Civilian Populations against New Engines of War expressly prohibited “[a]erial bombardment for the purpose of terrorising the civilian population”. Even more importantly, Article 33 of Geneva Convention IV, an expression of customary law Blaškić Appeal Judgement, § 145; Krnojelac Appeal Judgement, § 220; Čelebići Appeal Judgement, § 113; Report of the Secretary-General (1993), § 35], prohibits in clear terms “measures of intimidation or of terrorism” as a form of collective punishment, as they are “opposed to all principles based on humanity and justice”. Further, Article 6 of the 1956 New Delhi Draft Rules for protection of civilians states that “[a]ttacks directed against the civilian population, as such, whether with the object of terrorizing it or for any other reason, are prohibited.” More recently, Article 6 of the 1990 Turku Declaration of Minimum Humanitarian Standards envisaged that “[a]cts or threats of violence the primary purpose or foreseeable effect of which is to spread terror among the population are prohibited.”
89. Another indication of the customary international law nature of the prohibition of terror at the time of the events alleged in this case can be found in the number of States parties to Additional Protocol I and II by 1992. Also, references to official pronouncements of States and their military manuals further confirm the customary international nature of the prohibition. With respect to official pronouncements, the Appeals Chamber notes that the United States, a non-party to Additional Protocol I, expressed in 1987 through the deputy Legal Adviser to the US Department of State its support for the “principle that the civilian population as such, as well as individual citizens, not be the objects of acts or threats of violence the primary purpose of which is to spread terror amongst them”. Similarly, in 1991, in response to an inquiry of the ICRC as to the application of international humanitarian law in the Gulf region, the US Department of the Army pointed out that its troops were acting in respect of the prohibition of acts or threats of violence the main purpose of which was to spread terror among the civilian population. With respect to military manuals, the Appeals Chamber notes that a large number of countries have incorporated provisions prohibiting terror as a method of warfare, some of them in language similar to the prohibition set out in the Additional Protocols, or even verbatim.
90. In light of the foregoing, the Appeals Chamber finds that the prohibition of terror against the civilian population as enshrined in Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II clearly belonged to customary international law from at least the time of its inclusion in those treaties.
(b) The criminalisation of the prohibition of terror against the civilian population
91. The crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population was charged under Article 3 of the Statute. The conditions that must be fulfilled for a violation of international humanitarian law to be subject to Article 3 are (“Tadić conditions”):
i) the violation must constitute an infringement of a rule of international humanitarian law;
ii) the rule must be customary in nature or, if its belongs to treaty law, the required conditions must be met;
iii) the violation must be serious, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim. Thus, for instance, the fact that a combatant simply appropriating a loaf of bread in an occupied village would not amount to a “serious violation of international humanitarian law” although it may be regarded as falling foul of the basic principle laid down in Article 46, paragraph 1, of the Hague Regulations (and the corresponding rule of customary law) whereby “private property must be respected” by any army occupying an enemy territory;
iv) The violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.
92. Individual criminal responsibility under the fourth Tadić condition can be inferred from, inter alia, state practice indicating an intention to criminalise the prohibition, including statements by government officials and international organisations, as well as punishment of violations by national courts and military tribunals.
93. The first reference to terror against the civilian population as a war crime, as correctly noted by the Trial Chamber, is found in the 1919 Report of the Commission on responsibilities, created by the Peace Conference of Paris to inquire into breaches of the laws and customs of war committed by Germany and its allies in World War I. The Commission found evidence of the existence of “a system of terrorism carefully planned and carried out to the end”, stated that the belligerents employed “systematic terrorism”, and listed among the list of war crimes “systematic terrorism”. Although the few trials organised on that basis in Leipzig did not elaborate on the concept of “systematic terrorism”, this is nonetheless an indication that, in 1919, there was an intention to criminalise the deliberate infliction of terror upon the civilian population. Further, in 1945, Australia’s War Crimes Act referred to the work of the 1919 Commission on Responsibilities and included “systematic terrorism” in its list of war crimes.
94. With respect to national legislation, the Appeals Chamber notes that numerous States criminalise violations of international humanitarian law – encompassing the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population – within their jurisdiction. The Norwegian Military Penal Code of 1902, as amended [in 1981], provides that “[a]nyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in [the four Geneva Conventions and the two Additional Protocols of 1977] is liable to imprisonment.” The 1962 Geneva Conventions Act of Ireland, for example, provides that any “minor breach” of the Geneva Conventions, including violations of Article 33 of Geneva Convention IV, is a punishable offence.
95. The Appeals Chamber also notes that numerous States have incorporated provisions as to the criminalisation of terror against the civilian population as a method of warfare in a language similar to the prohibition set out in the Additional Protocols. The Criminal Codes of the Czech Republic and the Slovak Republic, for example, criminalise “terroris[ing] defenceless civilians with violence or the threat of violence”. Further, numerous States have incorporated provisions that criminalise terrorisation of civilians in time of war. The Penal Code of Côte d’Ivoire, for example, provides that measures of terror in time of war or occupation amount to a “crime against the civilian population”. The Penal Code of Ethiopia punishes anyone who organises, orders or engages in “measures of intimidation or terror” against the civilian population in time of war, armed conflict or occupation. During the relevant period, the Netherlands included “systematic terrorism” in its list of war crimes that carried criminal penalties.
96. The Appeals Chamber also notes the references by the Trial Chamber to the laws in force in the former Yugoslavia at the time of the commission of the offences charged, particularly Article 125 (”War Crime Against the Civilian Population”) in Chapter XI (“Criminal Offences Against Humanity and International Law”) of the 1960 Criminal Code of the Republic of Yugoslavia and the superseding Article 142 (”War Crime Against the Civilian Population”) in Chapter XVI (“Criminal Offences Against Humanity and International Law”) of the 1976 Criminal Code, both of which criminalise terror against the civilian population, and provisions of Yugoslavia’s 1988 “[Armed Forces] Regulations on the Application of International Laws of War”, which incorporated the provisions of Additional Protocol I, following Yugoslavia’s ratification of that treaty on 11 March 1977. Those provisions not only amount to further evidence of the customary nature of terror against the civilian population as a crime, but are also relevant to the assessment of the foreseeability and accessibility of that law to [the accused].
97. In addition to national legislation, the Appeals Chamber notes the conviction in 1997 by the Split County Court in Croatia for acts that occurred between March 1991 and January 1993, under, inter alia, Article 51 of Additional Protocol I and Article 13 of Additional Protocol II, including “a plan of terrorising and mistreating the civilians”, “open[ing] fire from infantry arms […] with only one goal to terrorise and expel the remaining civilians”, “open[ing] fire from howitzers, machine guns, automatic rifles, anti-aircraft missiles only to create the atmosphere of fear among the remaining farmers”, and “carrying out the orders of their commanders with the goal to terrorise and threaten with the demolishing of the Peruča dam”.
98. In light of the foregoing, the Appeals Chamber finds, by majority, Judge Schomburg dissenting, that customary international law imposed individual criminal liability for violations of the prohibition of terror against the civilian population as enshrined in Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II, from at least the period relevant to the Indictment.
3. The elements of the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population
101. Having found that the prohibition on terror against the civilian population in the Additional Protocols was declaratory of customary international law, the Appeals Chamber will base its analysis of the elements of the crime under consideration … on the definition found therein: “Acts or threats of violence the primary purpose of which is to spread terror among the civilian population.”
(a) Actus reus
102. The Appeals Chamber has already found that the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population falls within the general prohibition of attacks on civilians. The definition of terror of the civilian population uses the terms “acts or threats of violence” and not “attacks or threats of attacks”. However, the Appeals Chamber notes that Article 49(1) of Additional Protocol I defines “attacks” as “acts of violence”. Accordingly, the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population can comprise attacks or threats of attacks against the civilian population. The acts or threats of violence constitutive of the crime of terror shall not however be limited to direct attacks against civilians or treats thereof but may include indiscriminate or disproportionate attacks or threats thereof. The nature of the acts or threats of violence directed against the civilian population can vary; the primary concern, as explained below, is that those acts or threats of violence be committed with the specific intent to spread terror among the civilian population. Further, the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population is not a case in which an explosive device was planted outside of an ongoing military attack but rather a case of “extensive trauma and psychological damage” being caused by “attacks [which] were designed to keep the inhabitants in a constant state of terror”. Such extensive trauma and psychological damage form part of the acts or threats of violence.
(b) Mens rea and result requirement
103. As the Trial Chamber correctly noted, a plain reading of Article 51(2) of Additional Protocol I does not support a conclusion that the acts or threats of violence must have actually spread terror among the civilian population. Where a treaty provision is capable of sustaining more than one meaning, Article 31(1) of the 1969 Vienna Convention on the Law of Treaties directs that it shall be interpreted in accordance with its ordinary meaning in light of its object and purpose and in the context of the treaty. The object and purpose of Article 51(2) of Additional Protocol I is to confirm both the customary rule that civilians must enjoy general protection against the danger arising from hostilities and the customary prohibition against attacking civilians. The prohibition of acts or threats of violence would in that sense stem from the unconditional obligation not to target civilians for any reason, even military necessity. Further, pursuant to Article 32 of the 1969 Vienna Convention, recourse may be had to “supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31”. As noted by the Trial Chamber, the travaux préparatoires to Additional Protocol I clearly establish that there had been attempts among the delegations to replace the original wording from intent to spread terror among the civilian population to actual infliction of terror on the civilian population but that this proposed change was not accepted. As noted by the representative of France, the waging of war would almost automatically lead to the spreading of terror among the civilian population and the intent to spread terror is what had to be prohibited. In the report of its second session, the committee stated: “The prohibition of ‘acts or threats of violence which have the primary object of spreading terror’ is directed to intentional conduct specifically directed toward the spreading of terror and excludes terror which was not intended by a belligerent and terror that is merely an incidental effect of acts of warfare which have another primary object and are in all other respects lawful.”
104. In light of the foregoing, the Appeals Chamber finds that actual terrorisation of the civilian populations is not an element of the crime. The mens rea of the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population is composed of the specific intent to spread terror among the civilian population. Further, the Appeals Chamber finds that a plain reading of Article 51(2) suggests that the purpose of the unlawful acts or threats to commit such unlawful acts need not be the only purpose of the acts or threats of violence. The fact that other purposes may have coexisted simultaneously with the purpose of spreading terror among the civilian population would not disprove this charge, provided that the intent to spread terror among the civilian population was principal among the aims. Such intent can be inferred from the circumstances of the acts or threats, that is from their nature, manner, timing and duration. 
ICTY, Galić case, Judgment on Appeal, 30 November 2006, §§ 86–98 and 101–104.
The Appeals Chamber, by majority decision, therefore upheld the Trial Chamber’s verdict; it furthermore quashed its sentence of 20 years’ imprisonment and imposed a sentence of life imprisonment. 
ICTY, Galić case, Judgment on Appeal, 30 November 2006, XVIII. Disposition, p. 185.
In his Separate and Partially Dissenting Opinion, Judge Schomburg stated on the customary law status of the prohibition and the criminalization of “acts of violence the primary purpose of which is to spread terror among the civilian population”:
4. … [I]t is not possible to assert beyond reasonable doubt that the crime was indeed part of customary international law at the time of [the accused’s] criminal conduct.
7. It is generally accepted that the existence of customary law has primarily to be deducted from the practice and opinio juris of states. There can be no doubt – as explained in the Judgement – that the prohibition of acts and threats of violence the primary purpose of which is to spread terror among the civilian population, as set out in Article 51(2), 2nd Sentence of Additional Protocol I and Article 13(2), 2nd Sentence of Additional Protocol II, was part of customary international law. The violation of this prohibition by [the accused] clearly fulfilled the first three Tadić conditions. However, the core question of this case is whether the fourth Tadić condition was met as well, that is, whether the aforementioned prohibition was penalized, thus attaching individual criminal responsibility to [the accused].
8. The Judgement comes to the conclusion that the fourth Tadić condition was satisfied, stating “that numerous states criminalise violations of international humanitarian law – encompassing the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population – within their jurisdiction” and “that numerous States have incorporated provisions as to the criminalisation of terror against the civilian population as a method of warfare in a language similar to the prohibition set out in the Additional Protocols.” Upon further analysis, it is questionable whether these claims are accurate. Indeed, the temporal point of departure when determining whether there was state practice must be the time period relevant to the Indictment, which charged [the accused] for acts committed between 1992 and 1994.
9. Ireland, mentioned in paragraph 94 of the Judgement, only penalized violations of the Additional Protocols in 1998. The reference to Ireland’s Geneva Convention Act of 1962 is thus misguided. Equally, Bangladesh’s International Crimes (Tribunal) Act of 1973 … does not mention the Additional Protocols.
10. The Appeals Chamber was thus only able to establish with certainty that just an extraordinarily limited number of states at the time relevant to the indictment had penalized terrorization against a civilian population in a manner corresponding to the prohibition of the Additional Protocols, these being Côte d’Ivoire, the then Czechoslovakia, Ethiopia, the Netherlands, Norway and Switzerland. It is doubtful whether this can be viewed as evidence of “extensive and virtually uniform” state practice on this matter. Moreover, one must consider that Norway’s Penal code only generally refers to breaches of the Additional Protocols, thus raising the question of nullum crimen sine lege certa. The same concern applies to Switzerland’s Military Penal Code. The Netherlands later even repealed the relevant provision when implementing the ICC Statute in national law, i.e. after the relevant time period (lex mitior).
11. Furthermore, it must be considered that many states did not choose to pass legislation in this respect, even though they had legislation penalizing attacks on civilians. Examples are the United States, the United Kingdom, Australia, Germany, Italy and Belgium.
12. In any event, it is not sufficient to simply refer to a “continuing trend of nations criminalising terror as a method of warfare” when this trend, if it can be identified as such, is of no relevance to the time period in which [the accused’s] criminal conduct falls.
13. The Judgement’s references to the Yugoslav laws before 1992 must also be viewed in context. Significantly, it must be kept in mind that the Criminal Codes of 1960, 1964 and 1976 penalized the “application of intimidating measures and terror”, with no change in the 1990 Code, and that there was no change specifically addressing Yugoslavia’s ratification of Additional Protocols I and II in 1979. Contrary to the references in footnote 304 of the Judgement, the 1988 Regulations on the Application of International Laws of War in the Armed Forces of the SFRY do not add anything new as the part on “Criminal Responsibility for War Crimes and Other Serious Violations of the Law of War” merely refers back to the Criminal Code.
14. Furthermore, it is doubtful whether the arguments relating to the 1919 report of the Commission on Responsibilities presented in paragraph 93 of the Judgement withstand careful scrutiny. The citations (which were also employed in the Trial Judgement) are taken out of context: When reading the original text in the 1948 work by the U.N. War Crimes Commission, one could ask whether the 1919 Commission was not just making a broader statement without actually coining legal definitions:
In particular, the Commission established the fact that multiple violations of the rights of combatants, of the rights of civilians, and of the rights of both had been committed, which were the outcome of the “most cruel practices which primitive barbarism, aided by all the resources of modern science, could devise for the execution of a system of terrorism carefully planned and carried out to the end. Not even prisoners, or wounded, or women and children have been respected by the belligerents who deliberately sought to strike terror into every heart for the purpose of repressing all resistance.”
It is true that the Commission mentioned “systematic terrorism” on its list of recommended war crimes. However, it is uncertain what the Commission actually meant by “systematic terrorism” and whether their idea of the concept corresponds to Art. 51(2), 2nd Sentence of Additional Protocol I and Article 13(2), 2nd Sentence of Additional Protocol II. Moreover, the Judgement correctly states that “the few trials […] in Leipzig did not elaborate on the concept of ‘systematic terrorism.’” In this context, it has to be recalled that there was no penalization of terrorization against a civilian population in either Nuremberg or the Tokyo Charters. The same applies to Control Council Law No. 10.
15. The Judgement refers in paragraph 97 to a judgement rendered in 1997 by the County Court of Split, Croatia. It is questionable whether a single judgement can be considered an example of state practice. On the contrary, one could argue that the existence of just one judgement rendered in a region where there was much comparable criminal conduct actually militates against the proposition that there was relevant state practice.
16. Finally, it must be considered that the Trial Chamber made no finding as to the nature of the conflict being international or non-international at that time. However, an additional finding would have been required by the Appeals Chamber even though the relevant provisions of Additional Protocol I … and Additional Protocol II … are identical. At least, pursuant to the view of the majority which is primarily based on an interpretation of the Additional Protocols, the Appeals Chamber should have made a much more detailed determination of why according to the opinion of the majority both the relevant provisions of Additional Protocol I and Additional Protocol II would amount to international customary law.
17. Moreover, with all due respect, I cannot agree with Judge Meron’s proposition that “the conclusion [that criminal responsibility attaches to the prohibition of terrorization against a civilian population] also follows logically from the ban […] on ‘declaring that no quarter will be given.’” For me, the argument that “if threats that no quarter will be given are crimes, then surely threats that a party will not respect other foundational principles of international law – such as the prohibition against targeting civilians – are also crimes” appears to be incorrect since it could be made in any context in relation to any and every violation of international humanitarian law. While the act of declaring that no quarter will be given is undoubtedly penalized under international customary law (and was so during the Indictment period) it is nevertheless distinct from terrorization against a civilian population. In particular, the placement of Article 40 of Additional Protocol I in the part on means and methods of warfare, combatant and prisoner-of-war status, under the subsection dealing with methods and means of warfare, as well as its origin in Article 23(d) of the Hague Regulations, makes clear that the prohibition of declaring that no quarter will be given refers to enemy combatants. Having said this, I agree with Judge Meron that the prohibitions are similar in nature in that they both aim at protecting those who are either hors-de-combat or civilians. However, as an international criminal court, we are under an obligation to define what is a crime under our Statute with precision in order to avoid any violation of the fundamental principle of nullum crime sine lege certa.
18. What then is supposed to be the foundation of state practice, apart from the few states mentioned above? Moreover, while noting that de jure all member States of the United Nations are on an equal footing, I nevertheless observe that none of the permanent members of the Security Council or any other prominent state have penalized terrorization against a civilian population.
19. With regard to opinio juris, it is undisputed, as mentioned above, that there were many statements by states concerning the prohibition of acts and threats of violence the primary purpose of which is to spread terror among the civilian population but not referring to its penalization. In any case, as the recent Study on Customary International Humanitarian Law carried out by the International Committee of the Red Cross recognizes:
[I]n the area of international humanitarian law, where many rules require abstention from certain conduct, omissions pose a particular problem in the assessment of opinio juris because it has to be proved that the abstention is not a coincidence but based on a legitimate expectation.
20. In addition, and even though that I am fully aware of Article 10 of the Statute of the International Criminal Court, it must be pointed out that the Rome Statute does not have a provision referring to terrorization against a civilian population. If indeed this crime was beyond doubt part of customary international law, in 1998 (!) states would undoubtedly have included it in the relevant provisions of the Statute or in their domestic legislation implementing the Statute.
21. To be abundantly clear: the conduct prohibited by Article 51(2), 2nd sentence of additional Protocol I and Article 13(2), 2nd sentence of Additional Protocol II, namely acts and threats of violence the primary purpose of which is to spread terror among the civilian population, should be penalized as a crime sui generis. However, this Tribunal is not acting as a legislator; it is under the obligation to apply customary international law applicable at the time of the criminal conduct, in this case the time between 1992 and 1994. It is not necessary to dwell on the question of whether today the crime of terrorization against a civilian population is part of customary international law. In fact, there might be some indications that this is indeed the case. However, one cannot conscientiously base a conviction in criminal matters on a “continuing trend of nations criminalising terror as a method of warfare” or on a “trend in prohibiting terror […] continued after 1992” The use of the term “trend” clearly indicates that at the time of the commission of the crimes in question, this development had not yet amounted to undisputed state practice. The case in question is about a conduct that happened fourteen years ago, which must be assessed accordingly. The International Tribunal is required to adhere strictly to the principle of nullum crimen sine lege praevia and must ascertain that a crime was “beyond any doubt part of customary law.” It would be detrimental not only to the Tribunal but also the future development of international criminal law and international criminal justice if our jurisprudence gave the appearance of inventing crimes – thus highly politicizing its function – where the conduct in question was not without any doubt penalized at the time when it took place.
22. It is even less understandable in the present case why the majority chose this wrong approach when it would have been possible to arrive at the same result in an undisputable way: i.e. overturn [the accused’s] conviction under Count 1 and convict him under Counts 4 and 7 for the same underlying criminal conduct, namely the campaign of shelling and sniping, constituting the crime of attacks on civilians, this offence being without any doubt part of customary international law. In light of the finding of the Trial Chamber, which held that [the accused] “intended to conduct that campaign with the primary purpose of spreading terror within the civilian population of Sarajevo”, it would have been furthermore possible to consider this an aggravating circumstance in sentencing, which would also necessitate the adjusted sentence as handed down by the Appeals Chamber. 
ICTY, Galić case, Judgment on Appeal, 30 November 2006, XXII. Separate and Partially Dissenting Opinion of Judge Schomburg, pp. 211–220, §§ 4 and 7–22.
[emphasis in original]
International Criminal Tribunal for the former Yugoslavia
In the Blagojević and Jokić case before the ICTY in 2003, the accused, Vidoje Blagojević and Dragan Jokić, both officers in the Army of the Republika Srpska (VRS), were charged with various crimes, including extermination, murder and persecutions on political, racial and religious grounds, allegedly committed in the Srebrenica enclave during July 1995 which resulted in the deaths of over 7,000 Bosnian Muslim men and the forcible transfer of more than 25,000 Bosnian Muslims. 
ICTY, Blagojević and Jokić case, Amended Joinder Indictment, 26 May 2003, §§ 54–59, Counts 1B and 2–6.
In its judgment in 2005, the Trial Chamber found:
589. While the act of “terrorising the civilian population” is not found in the Statute, the Trial Chamber finds that it is similar to “[a]cts or threats of violence the primary purpose of which is to spread terror among the civilian population” prohibited under Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II to the Geneva Conventions. Based on the prohibitions enshrined in these two Articles and taking into consideration the Galić Trial Judgement, the Trial Chamber defines the elements of “terrorising the civilian population” as follows:
1. Acts or threats of violence;
2. The offender wilfully made the civilian population or individual civilians not taking part in hostilities the object of those acts or threats of violence; and
3. The acts or threats of violence were carried out with the primary purpose of spreading terror among the civilian population.
590. The Trial Chamber concurs with the Galić Trial Chamber finding that “terror” means “extreme fear”. The plain wording of Article 51(2) of Additional Protocol I does not suggest that the “terrorising of the civilian population” requires an actual infliction of terror. The Trial Chamber therefore finds that the Prosecution only needs to prove that acts or threats of violence were carried out to create an atmosphere of extreme fear or uncertainty of being subjected to violence among the civilian population.
591. As one element of the offence is the primary purpose of spreading terror, the offender must have intended to terrorise the civilian population. The Trial Chamber finds that “primary” does not mean that the infliction of terror needed to be the only objective of the acts or threats of violence, but that it was the principal aim.
592. In addition to the prohibition against acts or threats of violence enshrined in the Geneva Conventions, the Trial Chamber observes that the exposure to terror is a denial of the fundamental right to security of person which is recognised in all national systems and is contained in Article 9 of the [1966 International Covenant on Civil and Political Rights] and Article 5 of the [1950 European Convention on Human Rights]. Accordingly, the Trial Chamber finds that terrorisation violates a fundamental right laid down in international customary and treaty law. 
ICTY, Blagojević and Jokić case, Judgment, 17 January 2005, §§ 589–592.
International Criminal Tribunal for the former Yugoslavia
In the Dragomir Milošević case before the ICTY in 2006, the accused was charged, inter alia, with the crime of terror as a violation of the laws or customs of war, punishable under Article 51 of the 1977 Additional Protocol I, Article 13 of the 1977 Additional Protocol II and Articles 3, 7(1) and 7(3) of the 1993 ICTY Statute. According to the amended indictment of 18 December 2006:
From on or about 10 August 1994 to on or about 21 November 1995, Dragomir Milošević, as Commander of Bosnian Serb forces comprising or attached to the Sarajevo Romanija Corps and/or forces affiliated with the VRS [Vojska Republike Srpske], conducted a campaign of shelling and sniping upon civilian areas of Sarajevo and upon the civilian population which had the primary purpose of spreading terror among the civilian population. Civilians were killed or seriously injured as a result of these attacks. 
ICTY, Dragomir Milošević case, Prosecution’s Submission of Amended Indictment Pursuant to Rule 50 and Trial Chamber’s Decision dated 12 December 2006, 18 December 2006, § 22, Count 1.
The amended indictment furthermore stated:
Wherever a violation of the laws or customs of war … is charged in this Indictment, the acts or omissions had a nexus to the hostilities and were directed against civilian persons not taking an active part in hostilities. Article 51 of Additional Protocol I to the Geneva Conventions which prohibits unlawful attacks against civilians, including the prohibition of terror, was applicable to the parties to this armed conflict by virtue of the International Committee of the Red Cross (“ICRC”) Special Agreement signed by the Parties on 22 May 1992. Alternatively, Article 13 of Additional Protocol II to the Geneva Conventions, prohibiting unlawful attacks against civilians, including the prohibition of terror, was applicable to the parties. In the further alternative, the prohibition of unlawful attacks against civilians, including the prohibition of terror, was applicable to the parties by virtue of customary international law. 
ICTY, Dragomir Milošević case, Prosecution’s Submission of Amended Indictment Pursuant to Rule 50 and Trial Chamber’s Decision dated 12 December 2006, 18 December 2006, § 28.
In its judgment in 2007, the Trial Chamber stated:
873. Count 1 of the Indictment is charged pursuant to Article 3 of the [1993 ICTY] Statute and Article 51 of Additional Protocol I and Article 13 of Additional Protocol II. Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II are similarly worded as follows:
“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.”
The first sentence incorporates a general prohibition of attacks on civilians, while the second sentence prohibits a specific form of attacks on civilians.
874. The crime alleged in the Indictment is that of acts or threats of violence, the primary purpose of which is to spread terror among the civilian population (“crime of terror”). This crime was considered for the first time by this Tribunal in the Galić case. The Appeals Chamber held that the crime of terror was both prohibited and criminalised under customary international law. The crime falls under Article 3 of the Statute as a violation of the laws or customs of war and the Tribunal has jurisdiction over the crime.
875. In addition to the elements common to offences under Article 3 of the [1993 ICTY] Statute, the Trial Chamber and the Appeals Chamber in the Galić case found that for the crime of terror the following specific elements need to be met:
1. Acts or threats of violence directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population;
2. The offender wilfully made the civilian population or individual civilians not taking direct part in hostilities the object of those acts of violence;
3. The above offence was committed with the primary purpose of spreading terror among the civilian population.
(a) Actus Reus
876. The Appeals Chamber in the Galić case held that the actus reus of the crime of terror is constituted by acts or threats of violence directed against the civilian population or individual civilians causing death or serious injury to body or health within the civilian population or to individual civilians.
877. Like the crime of unlawful attacks against civilians, the crime of terror is not limited to direct attacks against civilians, but may also include indiscriminate or disproportionate attacks or threats thereof. Similarly, acts and threats of violence do not include legitimate attacks against combatants but only unlawful attacks against civilians. While the nature of the acts or threats of violence may vary, the important element, as outlined below, is that the acts or threats of violence are committed with the specific intent to spread terror among the civilian population.
(b) Mens Rea
878. As the Trial Chamber in the Galić case held, the crime of terror is a “specific intent crime.” The mens rea of the crime of terror consists of a general intent and a specific intent. The general intent is that the offender must have wilfully made the civilian population or an individual civilian the object of acts or threats of violence. The specific intent is “spreading terror among the civilian population.”
879. The Trial Chamber in the Galić case defined the crime of terror as “wilfully” making the civilian population or individual civilians not taking direct part in hostilities the object of acts of violence with “the primary purpose of spreading terror among the civilian population.” “Primary” does not mean that the infliction of terror is the only objective of the acts or threats of violence. Other purposes may exist simultaneously with the purpose of spreading terror among the civilian population, provided that the intent to spread terror is principal among the aims of the acts of violence. Perpetrators committing the crime of terror may have military, political or other goals. Consequently, the war crime of terror does not require proof of ultimate military or political goals.
880. While the actual infliction of death or serious harm to body or health is a required element of the crime of terror, both the Trial Chamber and the Appeals Chamber in the Galić case held that actual infliction of “terror” on the civilian population is not an element of the crime. The fact that the civilian population suffered and experienced terror during an armed conflict may, however, serve as corroboration of the intent to terrorise.
881. As the Appeals Chamber held, the specific intent of the crime of terror can be inferred from the circumstances of the acts or threats of violence, that is, from their nature, manner, timing and duration. In that regard, this Trial Chamber notes, attacks during cease-fires and truces or longterm and persistent attacks against civilians, as well as indiscriminate attacks, may be taken as indicia of the intent to spread terror. The Trial Chamber considers that the specific intent may also be inferred from the site of the attack. The fact that, during the siege, civilians were targeted and attacked at sites, well-known to be frequented by them during their daily activities, such as market places, water distribution points, on public transport, and so on, may provide strong indicia of the intent to spread terror.
882. In sum, the crime of terror requires the same legal elements as the crime of unlawful attacks against civilians. However, it is different from the crime of unlawful attacks against civilians in that it requires the additional mental element of the “primary purpose of spreading terror.” The crime of terror, therefore, constitutes an “aggravated”, more serious form of, unlawful attack on civilians …
(c) The Concept of “Terror”
883. ‘Terror’ is the key term in the formulation of the crime of terror. The Trial Chamber in the Galić case noted that the Prosecution did not provide a definition of ‘terror’ in its preliminary submissions, but that, in the course of the trial, it adopted a definition given by an expert which equated ‘terror’ with “extreme fear”. That Trial Chamber also cited the Defence submission that “[terror] has to be of the highest intensity. It has to be long-term. It has to be direct. And it has to be capable of causing long-term-consequences”. The Trial Chamber in the Galić case ultimately accepted the Prosecution’s rendering of terror as “extreme fear”. Like the Trial Chamber, the Appeals Chamber in the Galić case did not define the term “terror”. In a footnote, the Appeals Chamber merely noted that “terror could be defined, as the Trial Chamber did, as ‘extreme fear’”. As such, neither the Trial Chamber nor the Appeals Chamber in the Galić case carried out an examination of the term “terror”.
884. “Terror”, in its ordinary meaning, denotes “the state of being terrified or greatly frightened; intense fear, fright or dread” or the “action or quality of causing dread; terrific quality or terribleness.”
885. When asked by the Trial Chamber to define “terror” during its Closing Arguments, the Prosecution gave the following definition:
“No one knew whether they might be the next victim. It affected every waking moment of their lives. People for 15 months over the period of this indictment knew absolutely no sense of safety anywhere in the city. Terror is […] the intentional deprivation of a sense of security. It’s been [sic the primal fear that people feel when they see someone in front of them gunned down and that moment of panic when they try and run to help the victim, waiting for the next shots to come, and you’ve had ample evidence about that.”
“And it’s not just […] the fear that comes from being nearby the combat. This is a fear calculated to demoralise, to disrupt, to take away any sense of security from a body of people who have nothing […] to do with the combat.”
During its closing arguments, the Defence stated the following when addressing the issue of terror:
“The terror that my learned friend spoke about, the primordial fear which the primal fear, this fear was there for everyone, it was felt by everyone, civilians and soldiers alike. If someone had a strategy of terrorising and killing civilians, it would not have been possible for several thousand of their soldiers to be killed. […] This shows that that area was a theatre of heavy fighting, of serious conflicts, and one cannot characterise this as a civilian area and speak of civilians as the sole targets at the time of the events in this indictment.”
The Defence thereby appeared to challenge the terror charge on the basis that there was heavy fighting in all of Sarajevo which caused terror among everyone.
886. The Trial Chamber finds that the response of the Prosecution captures the essence of what the term terror denotes.
887. The Trial Chamber emphasises that the existence of an armed conflict constitutes a general requirement of Article 3 of the Statute and also of the crime of terror pursuant to Article 51 of Additional Protocol I and Article 13 of Additional Protocol II. In that regard, the Trial Chamber notes a growing tendency in international law to distinguish between terror in times of peace and terror in a situation of armed conflict as understood in international humanitarian law. However, the Trial Chamber observes that attacks directed against the civilian population are equally prohibited in the international instruments dealing with the crime of terror in peace time.
888. The Trial Chamber also notes that the crime of terror only covers acts or threats of violence which are specifically intended to spread terror among the civilian population. It must be established that the terror goes beyond the fear that is only the accompanying effect of the activities of armed forces in armed conflict. The prohibition of spreading terror among a civilian population must therefore always be distinguished from the effects that acts of legitimate warfare can have on a civilian population. The Trial Chamber notes that a certain degree of fear and intimidation among the civilian population is present in nearly every armed conflict. The closer the theatre of war is to the civilian population, the more it will suffer from fear and intimidation. This is particularly the case in an armed conflict conducted in an urban environment, where even legitimate attacks against combatants may result in intense fear and intimidation among the civilian population, but to constitute terror, an intent to instil fear beyond this level is required. Therefore, the circumstances of a particular armed conflict must be taken into account in determining whether the crime of terror has been committed, or whether the perpetrators intended to “spread terror among a civilian population.”
912. Furthermore, in light of the evidence referred to earlier in the Judgement on the basis of which the Trial Chamber found that the SRK was responsible for shelling civilians and civilian areas by modified air bombs, and particularly in light of the evidence of the indiscriminate nature of the modified air bomb, the knowledge of the SRK of that indiscriminate character, the gravity of the injuries and the number of deaths caused by the use of these highly inaccurate bombs, the Trial Chamber finds that terror within the meaning of Count 1 was committed by the SRK forces. In this respect, the Trial Chamber also recalls its earlier finding that only the SRK possessed and used modified air bombs to target the civilian areas in Sarajevo. It is perfectly reasonable for the Trial Chamber to infer an intent to terrorise from the very use by the SRK of this highly inaccurate and indiscriminate weapon, the modified air bomb.
913. In light of the evidence referred to earlier in the Judgement on the basis of which the Trial Chamber found that the SRK was responsible for shelling civilians and civilian areas, and particularly in light of the evidence as to the accuracy of mortars and the skill of the SRK mortar crews, the firing of numerous shells into the city, the gravity of the injuries and the number of deaths caused by mortar fire, the Trial Chamber finds that the deliberate targeting of civilians in the city, with these accurate weapons, fired in such high numbers, constitutes terror within the meaning of Count 1. Since it is acknowledged that a mortar is an accurate weapon and that the crew thereof were highly trained, the Trial Chamber is entitled to infer from the use of that weapon an intent to terrorise. 
ICTY, Dragomir Milošević case, Judgment, 12 December 2007, §§ 873–888 and 912–913.
In its judgment of 2009, the Appeals Chamber reviewed the Trial Chamber’s statement of the elements of the crime of terror, finding that the Trial Chamber had misinterpreted some prior jurisprudence. The Appeals Chamber stated:
31. In defining the crime of terror, the Trial Chamber held that in addition to the elements common to offences under Article 3 of the [1993 ICTY] Statute, the crime of terror consists of the following specific elements:
1. Acts or threats of violence directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population;
2. The offender wilfully made the civilian population or individual civilians not taking direct part in hostilities the object of those acts of violence;
3. The above offence was committed with the primary purpose of spreading terror among the civilian population.
32. The Appeals Chamber recalls that when noting Article 49 (1) of [the 1977] Additional Protocol I, the Galić Appeals Chamber held that the crime of terror can comprise attacks or threats of attacks against the civilian population. It did not limit the possible consequences of such attacks to death or serious injuries among the victims. Rather, it concentrated on the assessment of whether the allegations before it would qualify for the crime of terror under international customary law.
33. The Appeals Chamber finds that the Trial Chamber misinterpreted the Galić jurisprudence by stating that “actual infliction of death or serious harm to body or health is a required element of the crime of terror”, Dragomir Milošević case, Judgement, § 876 and § 880] and thus committed an error of law. Causing death or serious injury to body or health represents only one of the possible modes of commission of the crime of terror, and thus is not an element of the offence per se. What is required, however, in order for the offence to fall under the jurisdiction of this Tribunal, is that the victims suffered grave consequences resulting from the acts or threats of violence; such grave consequences include, but are not limited to death or serious injury to body or health.
34. As for the Prosecution’s submission that the crime of terror has no result requirement provided that the underlying acts or threats of violence are “capable of spreading terror”, the Appeals Chamber notes that the travaux préparatoires to Additional Protocol I show that there had been attempts among the delegations to introduce “acts capable of spreading terror” into the language of the prohibition enshrined under Article 51(2) thereof. However, these proposals were not reflected in the final text of the provision. In addition, the Appeals Chamber considers that the definition of the actus reus of the crime of terror suggested by the Prosecution, notably “acts capable of spreading terror”, does not necessarily imply grave consequences for the civilian population and thus does not per se render the violation of the said prohibition serious enough for it to become a war crime within the Tribunal’s jurisdiction.
35. The Appeals Chamber further recalls that the Galić Appeal Judgement clarifies that while “extensive trauma and psychological damage form part of the acts or threats of violence”, the “actual terrorisation of the civilian population is not an element of the crime”. [Galić case, Judgement on Appeal § 102 and § 104] It should be noted, however, that evidence of actual terrorisation may contribute to establishing other elements of the crime of terror.
37. The Appeals Chamber notes that the mens rea of the crime of terror consists of the intent to make the civilian population or individual civilians not taking direct part in hostilities the object of the acts of violence or threats thereof, and of the specific intent to spread terror among the civilian population. While spreading terror must be the primary purpose of the acts or threats of violence, it need not be the only one. The Galić Appeal Judgement suggests that such intent can be inferred from the “nature, manner, timing and duration” of the acts or threats. However, this is not an exhaustive list of mandatory considerations but an indication of some factors that may be taken into account according to the circumstances of the case. … [B]oth the actual infliction of terror and the indiscriminate nature of the attack were reasonable factors for the Trial Chamber to consider in determining the specific intent of the accused in this case. 
ICTY, Dragomir Milošević case, Judgment on Appeal, 12 November 2009, §§ 31–35 and 37.
[footnotes in original omitted; emphasis in original]
The Appeals Chamber then distinguished the crime of terror from the crime of attacks against civilians, stating that “proof of death or serious injury to body or health … is not per se an element of the crime of terror. … [T]he offence of terror requires proof of an intent to spread terror among the civilian population”. 
ICTY, Dragomir Milošević case, Judgment on Appeal, 12 November 2009, § 39.
Special Court for Sierra Leone
In the Bockarie case before the SCSL in 2003, the accused, a senior member of the Revolutionary United Front (RUF), Junta and Armed Forces Revolutionary Council (AFRC)/RUF forces, was charged, inter alia, with acts of terrorism as a violation of common Article 3 of the 1949 Geneva Conventions and of the 1977 Additional Protocol II (punishable under Article 3(d) of the 2002 Statute of the Special Court for Sierra Leone). 
SCSL, Bockarie case, Indictment, 7 March 2003, § 34, Count 1.
It was alleged that:
Members of the AFRC/RUF subordinate to and/or acting in concert with [the accused] committed the crimes set forth … in paragraphs 35 through 60 and charged in Counts 3 through 13 [of the indictment], as part of a campaign to terrorize the civilian population of the Republic of Sierra Leone, and did terrorize that population. The AFRC/RUF also committed the crimes to punish the civilian population for allegedly supporting the elected government of President Ahmed Tejan Kabbah and factions aligned with that government, or for failing to provide sufficient support to the AFRC/RUF. 
SCSL, Bockarie case, Indictment, 7 March 2003, § 34.
Owing to the accused’s death, the indictment was withdrawn. 
SCSL, Bockarie case, Withdrawal of Indictment, 8 December 2003.
Special Court for Sierra Leone
In the Koroma case before the SCSL in 2003, the accused, the leader of the Armed Forces Revolutionary Council (AFRC), a senior leader of the AFRC/Revolutionary United Front (RUF), a senior member of the Junta regime, and exercising the powers of the president of the Republic of Sierra Leone from May 1997 to February 1998, was charged, inter alia, with acts of terrorism as a violation of common Article 3 of the 1949 Geneva Conventions and of the 1977 Additional Protocol II (punishable under Article 3(d) of the 2002 Statute of the Special Court for Sierra Leone). 
SCSL, Koroma case, Indictment, 7 March 2003, § 32, Count 1.
It was alleged that:
Members of the AFRC/RUF subordinate to and/or acting in concert with [the accused] committed the crimes set forth … in paragraphs 33 through 58 and charged in Counts 3 through 13 [of the indictment], as part of a campaign to terrorize the civilian population of the Republic of Sierra Leone, and did terrorize that population. The AFRC/RUF also committed the crimes to punish the civilian population for allegedly supporting the elected government of President Ahmed Tejan Kabbah and factions aligned with that government, or for failing to provide sufficient support to the AFRC/RUF. 
SCSL, Koroma case, Indictment, 7 March 2003, § 32.
Special Court for Sierra Leone
In the Sankoh case before the SCSL in 2003, the accused, the leader of the Revolutionary United Front (RUF), a senior leader in the Armed Forces Revolutionary Council (AFRC)/RUF, and a senior member of the Junta regime, was charged, inter alia, with acts of terrorism as a violation of common Article 3 of the 1949 Geneva Conventions and of the 1977 Additional Protocol II (punishable under Article 3(d) of the 2002 Statute of the Special Court for Sierra Leone). 
SCSL, Sankoh case, Indictment, 7 March 2003, § 35, Count 1.
It was alleged that:
Members of the AFRC/RUF subordinate to and/or acting in concert with [the accused] committed the crimes set forth … in paragraphs 36 through 61 and charged in Counts 3 through 13 [of the indictment], as part of a campaign to terrorize the civilian population of the Republic of Sierra Leone, and did terrorize that population. The AFRC/RUF also committed the crimes to punish the civilian population for allegedly supporting the elected government of President Ahmed Tejan Kabbah and factions aligned with that government, or for failing to provide sufficient support to the AFRC/RUF. 
SCSL, Sankoh case, Indictment, 7 March 2003, § 35.
Owing to the accused’s death, the indictment was withdrawn. 
SCSL, Sankoh case, Withdrawal of Indictment, 8 December 2003.
Special Court for Sierra Leone
In the Fofana and Kondewa case before the SCSL in 2004, the accused, senior members of the Civil Defence Forces (CDF), were charged, inter alia, with acts of terrorism as a violation of common Article 3 of the 1949 Geneva Conventions and of the 1977 Additional Protocol II (punishable under Article 3(d) of the 2002 Statute of the Special Court for Sierra Leone). 
SCSL, Fofana and Kondewa case, Indictment, 4 February 2004, § 28, Count 6.
In its judgment in 2007, the Trial Chamber stated the following on the requirements of this crime:
167. The Indictment charges the Accused under Count 6 with acts of terrorism as a serious violation of Common Article 3 and of Additional Protocol II pursuant to Article 3(d) of the [2002 Statute of the Special Court for Sierra Leone]. This Count relates to the Accused’s alleged responsibility for the crimes charged in Counts 1 through 5, including threats to kill, destroy and loot, as part of a campaign to terrorise the civilian populations in those areas.
168. The prohibition against acts of terrorism in Article 3(d) of the Statute is taken from Article 4(2)(d) of Additional Protocol II which prohibits acts of terrorism as a violation of the “fundamental guarantees” of humane treatment under the Additional Protocol. This prohibition was, in turn, based on Article 33 of the Fourth Geneva Convention which prohibited “all measures of intimidation or of terrorism” of or against protected persons.
169. Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II further prohibit “acts or threats of violence the primary purpose of which is to spread terror among the civilian population”. The Chamber concurs with the ICTY Appeals Chamber in Galić, where it found that the prohibition of terror against the civilian population was a part of customary international law from at least the time it was included in those treaties and that the offence gave rise to individual criminal responsibility pursuant to customary international law.
170. In addition to these general elements, the specific element of [the] crime of acts of terrorism can be described as follows:
(i) Acts or threats of violence directed against persons or property;
(ii) The Accused intended to make persons or property the object of those acts and threats of violence or acted in the reasonable knowledge that this would likely occur; and
(iii) The acts or threats of violence were committed with the primary purpose of spreading terror among persons.
171. The first element relates to the actus reus of the offence. In Galić the Appeals Chamber of the ICTY addressed the elements of the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population. The Chamber held:
The acts or threats of violence constitutive of the crime of terror shall not however be limited to direct attacks against civilians or threats thereof but may include indiscriminate or disproportionate attacks or threats thereof. The nature of the acts or threats of violence directed against the civilian population can vary; the primary concern […] is that those acts or threats of violence be committed with the specific intent to spread terror among the civilian population.
172. The offence of acts of terrorism under Article 4(2)(d) of Additional Protocol II is very broad. The Chamber is satisfied that this prohibition includes both acts and threats of violence.
173. Indeed, as the Chamber held in the Rule 98 Decision in this case, the offence “extend[s] beyond acts or threats of violence committed against protected persons to ‘acts directed against installations which would cause victims terror as a side-effect’”. Thus, if attacks on property are carried out with the specific intent of spreading terror among the protected population, this will fall within the proscriptive ambit of the offence of acts of terrorism. The Chamber emphasises that all types of civilian property, including that which belongs to individual civilians, are protected. The focus of the offence is clearly on protecting persons from being subjected to acts of terrorism and the means used to spread this terror may include acts or threats of violence against persons or property.
174. The mens rea requirement of the offence of … acts of terrorism is found in the next two elements. To satisfy these elements, the Prosecution need only establish that the Accused intended to spread terror and does not need to demonstrate that the protected population actually was terrorised. The argument that actual terrorisation of the civilian population is a required element of the offence was rejected by both the Trial Chamber and the Appeals Chamber of the ICTY in Galić based on the rejection of attempts in the travaux préparatoires to Additional Protocol I to replace the intent to terrorise with actual terror. The Chamber is persuaded by this reasoning and finds that the actual infliction of terror is not a required element of the offence.
175. As the Chamber has already observed, the defining element of the offence of acts of terrorism is the specific intent to spread terror among the protected population. It is clear that civilian populations are frightened by war and that legitimate military actions may have a consequence of terrorising civilian populations. This offence is not concerned with these types of terror: it is meant to criminalise acts or threats that are undertaken for the primary purpose of spreading terror in the protected population. Thus, the specific intent to spread terror must be proven as an element of the offence. This is not to say, however, that the intent to spread terror must be established by direct evidence or that it needed to have been the only purpose behind the act or threat. 
SCSL, Fofana and Kondewa case, Judgment, 2 August 2007, §§ 167–175.
In its judgment in 2008, the Appeals Chamber, in considering the law applicable to acts of terrorism, stated:
344. Article 3.d. of the [2002] Statute [of the Special Court for Sierra Leone], grants the Special Court jurisdiction to prosecute “acts of terrorism” in violation of Article 3 common to the [1949] Geneva Conventions and of [the 1977] Additional Protocol II. Additional Protocol II contains two separate articles prohibiting acts of terrorism: Article 4(2)(d) and Article 13(2). Article 4(2)(d) contains a general prohibition of “acts of terrorism” and provides:
Without prejudice to the generality of the foregoing, the following acts against … [persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted] are and shall remain prohibited at any time and in any place whatsoever: … (d) acts of terrorism.
345. Article 3.d. of the Statute which borrows its language from Article 4(2)(d) of Additional Protocol II, therefore, prohibits acts of terrorism in its broad sense.
346. Additional Protocol II also contains a narrower offence prohibiting acts of terrorism. Article 13(2) provides:
Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.
347. As the ICRC Commentary to Additional Protocol II makes clear, Article 13(2) of Additional Protocol II constitutes a “special type of terrorism:”
“It should be mentioned that acts or threats of violence which are aimed at terrorizing the civilian population, constitute a special type of terrorism and are the object of a specific prohibition in Article 13.”
348. Article 13(2) is a narrower derivative of Article 4(2)(d). An offence under Article 13(2) of Additional Protocol II may be charged under Article 3.d. of the Statute. This is because acts of terrorism under Article 4(2)(d) inherently encompass the narrower elements of acts of terrorism prohibited under Article 13(2).
350. The Appeals Chamber finds that the elements of the crime of acts of terrorism under Article 13(2) of Additional Protocol II are:
(i) Acts or threats of violence;
(ii) That the offender wilfully made the civilian population or individual civilians not taking direct part in hostilities the object of those acts or threats of violence; and
(iii) The acts or threats of violence were carried out with the specific intent of spreading terror among the civilian population.
(i) Acts or Threats of Violence
351. The actus reus of the crime, acts of terrorism, may be proved by acts or threats of violence. Acts or threats of violence may comprise not only of attacks but also threats of attacks against the civilian population. Consistent with the ICRC Commentary to Additional Protocol II, this “covers not only acts directed against people, but also acts directed against installations which would cause victims as a side-effect.” Acts or threats of violence are also not limited to direct attacks against civilians or threats thereof but include indiscriminate or disproportionate attacks or threats.
352. Acts of terrorism may, therefore, be established by acts or threats of violence independent of whether such acts or threats of violence satisfy the elements of any other criminal offence. Not every act or threat of violence, however, will be sufficient to satisfy the first element of the crime of “acts of terrorism.” The Appeals Chamber is of the view that whilst actual terrorisation of the civilian population is not an element of the crime, the acts or threats of violence alleged must, nonetheless, be such that are at the very least capable of spreading terror. Whether any given act or threat of violence is capable of spreading terror is to be judged on a case-by-case basis within the particular context involved. For this purpose, the Appeals Chamber agrees with the Trial Chamber in Galić that “terror” should be understood as the causing of extreme fear.
(ii) That the Offender Wilfully Made the Civilian Population or Individual Civilians not Taking Direct Part in Hostilities the Object of Those Acts or Threats of Violence
353. The second element of the crime “acts of terrorism” is that the offender “wilfully” made the civilian population or individual civilians the object of an act or threat of violence.
354. The Appeals Chamber notes that Article 85 of [the 1977] Additional Protocol I and its corresponding commentary define the term “wilfully,” in relation to the distinct prohibition of making the civilian population or individual civilians the object of attack. The Appeals Chamber finds, however, that there is no reason why the definition of the term “wilfully” as discussed in relation to Article 85 of Additional Protocol I should not apply to the crime “acts of terrorism.”
355. It follows, that for the crime “acts of terrorism” the second element (“wilfully made the civilian population or individual civilians, the object of an act or threat of violence”) requires the Prosecution to prove that an accused acted consciously and with intent or recklessness in making the civilian population or individual civilians the object of an act or threat of violence. Negligence, on the other hand, is not enough.
(iii) Specific Intent to Spread Terror
356. The third element of the crime of “acts of terrorism” is the specific intent to spread terror amongst the civilian population. The Prosecution is required to prove not only that the perpetrators of acts of threats of violence accepted the likelihood that terror would result from their illegal acts or threats, but must prove that that was the result which was specifically intended. The spreading of extreme fear must, therefore, be specifically intended.
357. The specific intent to spread terror need not be the only purpose of the unlawful acts or threats of violence. It is well established that “[t]he fact that other purposes may have coexisted simultaneously with the purpose of spreading terror among the civilian population would not disprove this charge.” [ICTY, Galić case, Judgment on Appeal, § 104] The existence of a coexisting purpose does not, however, detract from the requirement that what must be proved irrespective of any other coexisting purpose, is the specific intent to spread terror. Whether the specific intent to spread terror is satisfied is determined on a case-by-case basis and may be inferred from the circumstances, the nature of the acts or threats and the manner, timing or duration of acts or threats of violence.
359. In light of the elements of the offence set out above, the crime “acts of terrorism” may be proved by any act or threat of violence capable of spreading extreme fear amongst the civilian population. The Appeals Chamber, therefore, agrees with the Prosecution that acts of terrorism need not involve acts that are otherwise criminal under international criminal law. The Appeals Chamber further agrees that acts of burning are acts or threats that are potentially capable of spreading terror, notwithstanding the finding that acts of burning do not satisfy the elements of pillage. 
SCSL, Fofana and Kondewa case, Judgment on Appeal, 28 May 2008, §§ 344–348, 350–357 and 359.
[footnotes in original omitted]
Special Court for Sierra Leone
In the Brima case before the SCSL in 2005, the three accused, all former non-commissioned officers in the Sierra Leone Army who became senior members of the Armed Forces Revolutionary Council (AFRC) which seized power from the elected government of the Republic of Sierra Leone in May 1997, were charged, inter alia, with acts of terrorism as a violation of common Article 3 of the 1949 Geneva Conventions and of the 1977 Additional Protocol II (punishable under Article 3(d) of the 2002 Statute of the Special Court for Sierra Leone). 
SCSL, Brima case, Further Amended Consolidated Indictment, 18 February 2005, § 41, Count 1.
It was alleged that, between February 1998 and January 1999, the three accused conducted attacks throughout the territory of the Republic of Sierra Leone. Targets of the armed attacks included civilians:
These attacks were carried out primarily to terrorize the civilian population, but also were used to punish the population for failing to provide sufficient support to the AFRC/RUF [Revolutionary United Front], or for allegedly providing support to the Kabbah government or to pro-government forces. The attacks included unlawful killings, physical and sexual violence against civilian men, women and children, abductions and looting and destruction of civilian property. 
SCSL, Brima case, Further Amended Consolidated Indictment, 18 February 2005, § 39.
In its consideration of the applicable law prohibiting acts of terrorism, the Trial Chamber found:
661. Article 3(d) of the [2002 Statute of the Special Court for Sierra Leone], which is the verbatim reproduction of Article 4(2)(d) of Additional Protocol II, prohibits acts of terrorism. The latter provision is tied to Article 13(2) of Additional Protocol II, which provides that “[a]cts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.”
662. The prohibition and criminalisation of the intentional use of “terror violence” in armed conflict against a civilian population for strategic purposes is well settled in customary international law. Such prohibition was first explicitly evoked after the First World War, when a deliberate use of a “system of general terrorisation” of the population to secure control of a region was found to be contrary to the rules of civilised warfare. Later, the prohibition of terror as a means of warfare was gradually introduced in a number of international conventions as well as in domestic military manuals.
663. Terror against a civilian population was first referred to as a war crime in a report published in 1919 by the Commission of Responsibilities. While “terrorism” was not explicitly criminalised by the Nuremberg Charter, evidence of terror violence was considered in the context of murder and mistreatment of the civilian population under Article 6 of the Nuremberg Charter. Further, post World War II domestic tribunals incorporated the crimes of “systematic terrorism” and “systematic terror” in their statutes. Finally, provisions criminalising terror against the civilian population as a method of warfare were incorporated into numerous domestic legislations.
664. In the wake of the Second World War, Article 33 of Geneva Convention IV was adopted. It provides that “all measures of intimidation or of terrorism are prohibited.” As Article 33 is applicable only to persons in the hands of a party to the conflict, it was subsequently complemented by Article 51(2) of Additional Protocol I and Articles 4(2)(d) and 13(2) of Additional Protocol II, to include acts of terrorism committed against the civilian population in international and internal armed conflict, respectively.
665. A provision prohibiting acts of terrorism can be found in Article 4(2) of the ICTR Statute. Although not expressly included in the ICTY Statute, the infliction of terror upon the civilian population has been adjudicated in a number of cases before that Tribunal.
666. In light of the foregoing, the Trial Chamber finds that customary international law imposed individual criminal liability for violations of the prohibition of terror against the civilian population at the time relevant to the Indictment. 
SCSL, Brima case, Judgment, 20 June 2007, §§ 661–666.
In its consideration of the elements of the crime of terrorism, the Trial Chamber found:
667. In addition to the chapeau requirements of Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II pursuant to Article 3 of the [2002 Statute of the Special Court for Sierra Leone], the Trial Chamber adopts the following elements of the crime of acts of terrorism:
1. Acts or threats of violence directed against persons or their property;
2. The perpetrator wilfully made persons or their property the object of those acts and threats of violence; and
3. The acts or threats of violence were committed with the primary purpose of spreading terror among those persons.
668. The ICTY Appeals Chamber in the Galić case provided further clarification as to these elements of the crime. With regard to the actus reus, it held that
the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population can comprise attacks or threats of attacks against the civilian population. The acts or threats of violence constitutive of the crime of terror shall not however be limited to direct attacks against civilians or threats thereof but may include indiscriminate or disproportionate attacks or threats thereof. […] Further, the crime of acts or threats of violence the primary purpose of which it to spread terror among the civilian population is […] rather a case of “extensive trauma and psychological damage” being caused by “attacks which were designed to keep the inhabitants in a constant state of terror.” Such extensive trauma and psychological damage form part of the acts or threats of violence. [Galić Appeal Judgment, §. 102]
669. Actual terrorisation of the civilian population is not an element of the crime. The requisite mens rea is composed of the specific intent to spread terror among the civilian population. In the words of the ICTY Appeals Chamber,
[t]he fact that other purposes may have coexisted simultaneously with the purpose of spreading terror among the civilian population would not disprove this charge, provided that the intent to spread terror among the civilian population was principal among the aims. Such intent can be inferred from the circumstances of the acts or threats, that is from their nature, manner, timing and duration. [Galić Appeal Judgment, §. 104]
670. The Kanu Defence argues that the crime of acts of terrorism does not encompass acts or threats of violence targeted at protected property but only protected persons. While the Trial Chamber agrees that it is not the property as such which forms the object of protection from acts of terrorism, the destruction of people’s homes or means of livelihood and, in turn, their means of survival, will operate to instil fear and terror. The attacks on, or destruction of, property thus plays an important role in defining the contours of this crime. What places acts of terrorism apart from other crimes directed against property is the specific intent to spread terror among the population. The acts or threats of violence committed in furtherance of such a purpose are innumerable and may well encompass attacks on property through which the perpetrators intend to terrorise the population.
671. Therefore, this Trial Chamber endorses the finding of Trial Chamber I that the ambit of acts of terrorism “extends beyond acts or threats of violence committed against protected persons to acts directed against installations […]” where such acts were committed with the primary purpose of spreading terror amongst the civilian population. 
SCSL, Brima case, Judgment, 20 June 2007, §§ 667–671.
Subsequently, each of the three accused was found guilty, inter alia, of the charge of committing acts of terrorism. 
SCSL, Brima case, Judgment, 20 June 2007, XIII. Disposition, §§ 2113–2123.
Brima and Kanu were each sentenced to 50 years’ imprisonment; Kamara was sentenced to 45 years’ imprisonment. 
SCSL, Brima case, Sentencing Judgment, 19 July 2007, VI. Disposition.
Special Court for Sierra Leone
In the Sesay case before the SCSL in 2006, the accused Sesay and Kallon, senior commanders in the Revolutionary United Front (RUF), Junta and Armed Forces Revolutionary Council (AFRC)/RUF forces, and the accused Gbao, senior commander in the RUF and AFRC/RUF forces, were charged, inter alia, with acts of terrorism as a violation of common Article 3 of the 1949 Geneva Conventions and of the 1977 Additional Protocol II (punishable under Article 3(d) of the 2002 Statute of the Special Court for Sierra Leone). 
SCSL, Sesay case, Corrected Amended Consolidated Indictment, 2 August 2006, § 44, Count 1.
It was alleged that “[m]embers of the AFRC/RUF subordinate to and/or acting in concert with [the accused] committed … crimes … as part of a campaign to terrorize the civilian population of the Republic of Sierra Leone, and did terrorize that population”. 
SCSL, Sesay case, Corrected Amended Consolidated Indictment, 2 August 2006, § 44.
In its judgment in the case in 2009, the Trial Chamber set out the elements of the crime of acts of terrorism, stating:
112. The Chamber adopts with the ICTY Appeals Chamber in Galic which ruled that the prohibition of terror against the civilian population was a part of customary international law from at least the time it was included in those treaties and that the offence gave rise to individual criminal responsibility pursuant to customary international law.
113. In the Chamber’s view, the specific elements of crime of acts of terrorism can be described as follows:
(i) Acts or threats of violence;
(ii) The Accused wilfully made the civilian population or individual civilians not taking direct part in hostilities the objects of those acts or threats of violence; and
(iii) The acts or threats of violence were carried out with the specific intent of spreading terror among the civilian population.
114. The first element describes the actus reus of the offence. The offence includes not only acts or threats of violence committed against protected persons, but also “acts directed against installations which would cause victims terror as a side-effect.” The Chamber is of the opinion that the rationale is clearly that of protecting persons from being subjected to acts of terrorism by whatever means.
115. Acts of terrorism may be “established by acts or threats of violence independent of whether such acts or threats of violence satisfy the elements of any other criminal offence.” [SCSL, Fofana and Kondewa case, Judgment on Appeal, §§ 352 and 359] The Appeals Chamber clarified that acts of burning are capable of spreading terror even though they do not satisfy the elements of pillage.
116. The Chamber recalls that the ICTY Appeals Chamber in Galic held:
The acts or threats of violence constitutive of the crime of terror shall not however be limited to direct attacks against civilians or threats thereof but may include indiscriminate or disproportionate attacks or threats thereof. The nature of the acts or threats of violence directed against the civilian population can vary; the primary concern […] is that those acts or threats of violence be committed with the specific intent to spread terror among the civilian population. [ICTY, Galić case, Judgment on Appeal, § 102]
117. The Appeals Chamber has stated that while “actual terrorisation of the civilian population is not an element of the crime, the acts or threats of violence must be such that they are at the very least capable of spreading terror” which is to “be judged on a case-by-case basis within the particular context involved.” [SCSL, Fofana and Kondewa case, Judgment on Appeal, § 352] Terror is to be understood as the causing of extreme fear. The Chamber is of the view that the Prosecution is not required to prove that the act or threat caused death or serious injury to body or health within the civilian population.
118. The Chamber notes that the second element requires that the Accused “wilfully” made the civilians the object of an act or threat of violence. The Appeals Chamber has held that this “requires the Prosecution to prove that an accused acted consciously and with intent or recklessness in making the civilian population or individual civilians the object of an act or threat of violence. Negligence, on the other hand, is not enough.” [SCSL, Fofana and Kondewa case, Judgment on Appeal, § 355]
119. The third element of the offence of acts of terrorism is the specific intent to spread terror amongst the civilian population. The Chamber emphasises that the Prosecution must prove not only that the perpetrators of the acts or threats of violence “accepted the likelihood that terror would result from their illegal acts or threats”, but also that this was the result specifically intended. [SCSL, Fofana and Kondewa case, Judgment on Appeal, § 356]
120. The Chamber acknowledges that civilian populations are usually frightened by war and that legitimate military actions may have a consequence of terrorising civilian populations. This offence is not concerned with these types of terror: it is meant to criminalise acts or threats that are specifically undertaken for the purpose of spreading terror in the protected population.
121. The specific intent to spread terror need not be the only purpose behind the act or threat. The ICTY Appeals Chamber clarified in Galic that:
[T]he purpose of the unlawful acts or threats to commit such unlawful acts need not be the only purpose of the acts or threats of violence. The fact that other purposes may have coexisted simultaneously with the purpose of spreading terror among the civilian population would not disprove this charge, provided that the intent to spread terror among the civilian population was principal among the aims. Such intent can be inferred from the circumstances of the acts or threats, that is from their nature, manner, timing and duration [ICTY, Galić case, Judgement on Appeal, § 104]. 
SCSL, Sesay case, Judgment, 2 March 2009, §§ 112–121.
[footnotes in original omitted]
In its judgment in 2009, the Appeals Chamber considered whether the crime of acts of terrorism required an exclusive intent to spread terror. The Appeals Chamber stated:
668. … [T]he fact that the acts of violence were intended to serve a further goal, such as the enslavement of the civilian population, does not show that the intent to spread terror was not the principal purpose of those acts. Simply, it need not be shown that the intent was to spread terror only for its own sake. Rather, the requirement that the principal purpose be to spread terror serves to distinguish “terror that is merely an incidental effect of acts of warfare which have another primary object and are in all other respects lawful.” [ICTY, Galić case, Judgment on Appeal, § 103] Accordingly, whether the goal of the acts of terrorism was to further the enslavement of the civilian population, or further the Common Criminal Purpose … the fact that the acts of terrorism were committed to further another objective would not show that the intent to spread terror was not the principal purpose of the acts of violence.
893. Moreover, where the Trial Chamber’s findings point to the possibility of an additional purpose for the acts found to constitute acts of terrorism, the Appeals Chamber recalls that “[t]he specific intent to spread terror need not be the only purpose of the unlawful acts or threats of violence,” and the fact of coexisting purposes does not disprove the specific intent to spread terror provided the intent to spread terror was “principal among the aims.” … [T]he mere existence of additional purposes … does not alone disprove the requisite intent to spread terror. 
SCSL, Sesay case, Judgment on Appeal, 26 October 2009, §§ 668 and 893.
[footnotes in original omitted]
The Appeals Chamber also considered the prohibition against acts of terror in general, stating:
889. … The Appeals Chamber recalls that the specific elements of acts of terrorism as defined under Article 13(2) of [the 1977] Additional Protocol II are (i) acts or threats of violence; (ii) the Accused wilfully made the civilian population or individual civilians not taking direct part in hostilities the objects of those acts or threats of violence; and (iii) the acts or threats of violence were carried out with the specific intent of spreading terror among the civilian population. The Appeals Chamber adopts the opinion of the ICTY Appeals Chamber that the prohibition of terror against a civilian population as enshrined under Article 13(2) of Additional Protocol II has been declared an offence that gives rise to individual criminal responsibility under customary international law by 1992.
891. The Appeals Chamber notes that a determination of “foreseeability” and “accessibility” with respect to the principle of nullum crimen sine lege must take into account the “specificity of international law.” The prohibition against acts of terror as set out in Article 13(2) of Additional Protocol II is by its grounding in the laws of war considered customary international law. Customary law is not always laid out in written form and therefore determination of its accessibility may not be straightforward. However, in this instance, by virtue of its customary international law nature and codification in the [1977] Additional Protocols, the prohibition against acts of terror as enshrined in Article 13(2) of Additional Protocol II is sufficiently foreseeable and accessible to put the Appellant on reasonable notice that infringement of this norm could entail criminal responsibility. 
SCSL, Sesay case, Judgment on Appeal, 26 October 2009, §§ 889 and 891.
[footnotes in original omitted]
Special Court for Sierra Leone
In the Taylor case before the SCSL in 2007, the accused, former president of the Republic of Liberia, was charged, inter alia, with acts of terrorism as a violation of common Article 3 of the 1949 Geneva Conventions and of the 1977 Additional Protocol II (punishable under Article 3(d) of the 2002 Statute of the Special Court for Sierra Leone). 
SCSL, Taylor case, Second Amended Indictment, 29 May 2007, §§ 5–8, Count 1.
It was alleged that:
Members of the Revolutionary United Front (RUF), Armed Forces Revolutionary Council (AFRC), AFRC/RUF Junta or alliance, and/or Liberian fighters, including members and ex-members of the NPFL (Liberian fighters), assisted and encouraged by, acting in concert with, under the direction and/or control of, and/or subordinate to the ACCUSED, burned civilian property, and committed the crimes set forth [in the indictment], as part of a campaign to terrorize the civilian population of the Republic of Sierra Leone. 
SCSL, Taylor case, Second Amended Indictment, 29 May 2007, § 5.
[emphasis in original]
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: Acts or threats of violence with a primary purpose to spread terror among the civilian population are prohibited.” 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 398.
ICRC
In an appeal issued in October 1973, the ICRC urged all the belligerents in the conflict in the Middle East (Egypt, Iraq, Israel and the Syrian Arab Republic) to observe forthwith, in particular, the provisions of, inter alia, Article 46(1) of the draft Additional Protocol I, which stated: “Methods intended to spread terror among the civilian population are prohibited.” All governments concerned replied favourably. 
ICRC, The International Committee’s Action in the Middle East, IRRC, No. 152, 1973, pp. 584–585.
National Societies (Yugoslavia & Hungary)
In a joint statement issued in 1991, the Yugoslav Red Cross and the Hungarian Red Cross expressed their deep concern about “the protracting internal conflict in Yugoslavia” and urged the parties to the conflict “to refrain from endangering and menacing the civilian population”. 
Yugoslav Red Cross and Hungarian Red Cross, Joint Statement, Subotica, 25 October 1991.
ICRC
In a communication to the press in 1993, the ICRC reminded the parties to the conflict in Nagorno-Karabakh that “acts of violence intended to spread terror among the civilian population are also prohibited”. 
ICRC, Communication to the Press No. 93/25, Nagorno-Karabakh conflict: 60,000 civilians flee fighting in south-western Azerbaijan, 19 August 1993.
ICRC
In 1994, in a Memorandum on Respect for International Humanitarian Law in Angola, the ICRC stated: “All acts or threats of violence the main purpose of which is to spread terror among the civilian population are also prohibited.” 
ICRC, Memorandum on Respect for International Humanitarian Law in Angola, 8 June 1994, § II, IRRC, No. 320, 1997, p. 503.
ICRC
In a communication to the press in 2000 concerning the violence in the Near East, the ICRC stressed: “Terrorist acts are absolutely and unconditionally prohibited.” 
ICRC, Communication to the Press No. 00/42, ICRC appeal to all involved in violence in the Near East, 21 November 2000.
Oppenheim
Oppenheim states:
In the War of 1914–1918 the illegality, except by way of reprisals, of aerial bombardment directed exclusively against the civilian population for the purpose of terrorisation or otherwise seems to have been generally admitted by the belligerents, – although this fact did not actually prevent attacks on centres of civilian population in the form either of reprisals or of attack against military objectives situated therein. 
Lassa Oppenheim, International Law. A Treatise, Vol. II, Disputes, War and Neutrality, Sixth edition, revised, Hersch Lauterpacht (ed.), Longmans, Green and Co., London/New York/Toronto, 1944, p. 414, § 214ea.
Institute of International Law
In a resolution adopted at its Edinburgh Session in 1969, the Institute of International Law recalled that “existing international law prohibits, irrespective of the type of weapon used, any action whatsoever designed to terrorize the civilian population”. 
Institute of International Law, Edinburgh Session, Resolution on the Distinction between Military Objectives and Non-military Objects in General and Particularly the Problems Associated with Weapons of Mass Destruction, 9 September 1969, § 6.
Turku Declaration of Minimum Humanitarian Standards
The Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights of Åbo Akademi University in Turku/Åbo, Finland in 1990, states: “Acts or threats of violence the primary purpose or foreseeable effect of which is to spread terror among the population are prohibited.” 
Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights, Åbo Akademi University, Turku/Åbo, 30 November–2 December 1990, Article 6, IRRC, No. 282, 1991, p. 332.
International Institute of Humanitarian Law
The Rules of International Humanitarian Law Governing the Conduct of Hostilities in Non-international Armed Conflicts, adopted in 1990 by the Council of the International Institute of Humanitarian Law, provide: “Acts of violence intended primarily to spread terror among the civilian population are also prohibited.” 
International Institute of Humanitarian Law, Rules of International Humanitarian Law Governing the Conduct of Hostilities in Non-international Armed Conflicts, Rule A2, IRRC, No. 278, 1990, p. 388.
Helsinki Watch
In 1993, in a report on war crimes in Bosnia and Herzegovina, Helsinki Watch denounced attacks by light and heavy artillery,
which often is used indiscriminately and disproportionately in order to terrorize the local population and force it to flee from the besieged area. Even in cases where there is no armed resistance to Serbian attacks, the area is besieged solely for the purpose of displacing or terrorizing the population. 
Helsinki Watch, War Crimes in Bosnia-Hercegovina, Vol. II, New York, April 1993, p. 11.
Human Rights Watch
In 1994, in the context of the conflict in Yemen, Human Rights Watch stated: “Attacks launched with intent to spread terror among the civilian population are also forbidden. We note that the rules of war apply equally to government and rebel troops.” 
Human Rights Watch, Letter to the Government of Yemen, New York, 19 May 1994.
Human Rights Watch
In 1995, in its Global Report on Women’s Human Rights, Human Rights Watch stated that its “investigations in the former Yugoslavia, Peru, Kashmir and Somalia reveal that rape and sexual assault of women are an integral part of conflicts, whether international or internal in scope” and found that “rape of women civilians has been deployed as a tactical weapon to terrorize civilian communities”. 
Human Rights Watch, The Human Rights Watch Global Report on Women’s Human Rights, New York, August 1995, p. 1.