UDC 323.28(4-672ЕU)
Biblid: 1451-3188, 14 (2015)
Vol. 15, No 52-53, pp. 289-305

Оriginal article
Received: 01 Jan 1970
Accepted: 01 Jan 1970


Simentić Janja (Универзитет у Београду, Факултет политичких наука), janja.simentic@fpn.bg.ac.rs

This article analyses the relationship between rules on terrorism in international law and international humanitarian law (IHL), with the special emphasis on the European Union’s standpoint on this issue. To this end, the article will present EU regulation in this field and the 2014 judgment of the Court of Justice of the European Union (CJEU) in the Tamil Tigers case will be analysed. Having in mind that the relation between the scope of application of the rules on terrorism and international humanitarian law is one of the contentious issues that burden and prologue adoption of the Comprehensive convention on terrorism under the auspices of United Nations, this article will point out to the standpoint which the CJEU took regarding that relation and whether it can be instructive for this process. In order to present differing viewpoints of the states about the issue of relation between rules on terrorism and IHL, process of negotiations in the Ad hoc committee whose task is to draft the Convention on terrorism will be addressed firstly. It is concluded that the Western states and those states that are members of the Organization of Islamic Cooperation have opposite views about the aforementioned relation and that these disagreements prevent them from adopting the final draft of the future convention on terrorism. On the other hand, European Union (EU) adopted the regulation on the fight against terrorism, and based on that regulation certain number of organizations is marked as terrorist organizations and economic measures are imposed upon them. Among these organizations is the organization of Liberation Tigers of Tamil Eelam (LTTE, Tamil Tigers) which challenged this decision before the CJEU. The main object of the analysis is therefore the judgment of the CJEU in this case and especially the part of the judgment in which Tamil Tigers contest the application of the EU rules on terrorism, stating that it cannot be applied in the armed conflict occurring between them and the government of Sri Lanka, since the only norms applicable in this case are the rules of international humanitarian law. The Court found that the rules about financing terrorism apply all the time and that in the situation of armed conflict they are applicable alongside the rules of IHL. The Conclusion of the article is that the CJEU approach in this judgment can give useful guidelines for the resolution of a burdening issue of the relation between rules on terrorism and IHL. The rules on terrorism should be divided into two distinct categories, and each category should have its own relation with the IHL norms – rules on financing terrorism should be applied alongside IHL in armed conflict while the rules on incrimination of terrorist acts should not be applicable in situations of armed conflict. Also, the distinction between ius ad bellum and ius in bello should be preserved, therefore the application of the rules on terrorism and IHL should not depend upon the expressed motives of the parties to the conflict. In the end, it is also pointed out that the EU regulation has some shortcomings when it comes to the definition of terrorism and some recommendations are given for its overcoming.

Keywords: rules on terrorism, international humanitarian law, Court of Justice of the European Union, the Tamil Tigers case