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Pre-emptively targeting terrorists threatening national security is legitimate: in-depth analysis of Justice Adel Maged study on countering terrorism in Sinai - Daily News Egypt

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Pre-emptively targeting terrorists threatening national security is legitimate: in-depth analysis of Justice Adel Maged study on countering terrorism in Sinai

It is complacently wrong to name members of the terrorist groups in Sinai “fighters” or “insurgents”. In fact, according to established rules of international law, they should be labelled as “armed terrorist groups”: Adel Maged 


The Egyptian Armed Forces adhere to the rules of legitimacy when targeting terrorist groups in Sinai and beyond, and they take into consideration all military principles and respect human values during their operations. Their operations could even be called “surgical operations”, as they perform them efficiently and carefully to avoid civilian casualties.

The main justification for pre-emptive attacks is that it is illogical to wait for terrorist attacks to occur and then to try to stop or deter them, as this could lead to fatal loss of life.

Countries supporting terrorism will face a serious impasse if the Egyptian authorities show, with legal evidence, that terrorist organisations and groups being supported by those countries, have committed acts of terrorism against Egypt.

It is necessary to standardise terminology used against terrorist groups in Sinai, since the applicable legal rules may vary accordingly.

Over the past three decades, Egypt has suffered waves of terrorist attacks aimed at destabilising the country’s internal security and stability.

Recently, Egypt has been facing a real challenge: a new wave of “black terrorism”, which does not only aim to terrorise the people and destabilise the state, but it also aims to undermine the foundations of its institutions to achieve a greater goal, and to diminish the sovereignty and territorial integrity of the state; to weaken Egypt’s regional and international role. This is done with external support with signs making it seem clear that they can be described as organised international terrorism.

One of the characteristics of this terrorist wave is that it uses the name of God and religion to serve its objectives by exploiting the credulity of certain groups, their sectarianism, or greed for power. They may also titillate the feelings of those who belong to extremist political Islam streams, and fund them with money and weapons to achieve their goals, which later results in violence, murder, and destruction.

The most dangerous part about that black terrorism is that its members lack any values or morals that govern them or prevent them from committing such heinous crimes. Moreover, they do not utilise traditional means to commit their crimes, but instead they use modern means of warfare.

Solid proof of that is the pattern of attacks in Sinai and other areas, such as the terrorist attack on a bus carrying a group of Egyptian Copts on their way to the monastery of Anba Samuel in Minya on 26 May 2017, killing about 30 of them; the Oases attack, which killed 16 police officers and wounded 13, and finally the despicable 24 November 2017 terrorist attack on worshippers at the mosque in Al-Rawdah city of Bir al-Abed in Arish, North Sinai, which resulted in the killing of 311 worshippers, as well as injuring more than a hundred of them. That incident was evidence that all Egyptians are targeted, whether they are Muslims or Copts, military or civilians; all are targeted.

After these heinous crimes, the demands for revenge—or so-called “retribution” under Islamic law—for the lives of innocent civilians that have been lost have escalated. Security commanders have also issued directives ordering pre-emptive attacks against terrorist outposts.

Many political analysts believe that this wave of armed terrorism sweeping Egypt, and other countries in the Arab world, is primarily aimed at creating separatist militias and armed groups that commit more vicious and deadly terrorism, seeking to undermine security, destroy the economy, and exhaust Arab armies, inevitably to weaken the Arab regimes, and fragment their homelands.

Therefore, traditional security operations are no longer sufficient to confront this new and ruthless wave of terrorism. It is necessary for military forces to intervene in order to confront these large terrorist hostile operations and to target their perpetrators, in order to prevent future attacks, by resorting to “pre-emptive attacks against terrorism” and “targeted killings of terrorists”.

In view of the scarcity of Arab studies on this subject, the Al-Ahram Center for Political and Strategic Studies (ACPSS) collaborated with an Arab expert known for his ability to deal with complex, modern legal issues, namely Justice Adel Maged, Vice President of the Court of Cassation and Arab expert on international criminal law issues, to publish a long study entitled “Countering Terrorism in Sinai: The Strategy of Pre-emptive Attacks”. Notably,  relevant studies of Justice Maged provide solutions to many of the issues Egypt is facing, such as the phenomenon of black terrorism, particularly operating in Sinai.

States have a right and a duty to take effective counter-terrorism measures to prevent and deter future terrorist attacks

The study shows how the terrorist attacks—which have escalated during the past three years, especially in Sinai—have three main characteristics: first, the use of armed warfare tactics by terrorists and the use of civilians as human shields; second, the foreign support for these terrorists; third, the motive for these attacks is neither terrifying civilians nor pressuring the state authorities to achieve certain demands, but in fact its main target is to weaken the state and undermine its institutions by all means, including through different forms of terrorism, which is some security experts and strategists call ‘the Fourth Generation Wars’. Further, the study stressed that States have a right and a duty to take effective counter-terrorism measures to prevent and deter future terrorist attacks.

Characteristics of terrorist groups active in Sinai

The study reveals that one of the most important characteristics of the terrorist groups active in Sinai is their connection to terrorist organisations outside Egypt and the funding they receive from foreign sources. It is evident that members of these groups have received training abroad and established training camps and cluster cells in Sinai and other border areas to implement their malicious plans.

The study asserts that attacks by these groups are not merely ordinary criminal acts, but rather a massive use of armed force, in a context of organised violence, aimed at undermining the sovereignty of the state.

The study indicates that some erroneous international and foreign policies—in light of a misunderstanding of the social, political, and religious structure of the Arab world—allowed extremist ideologies to expand and organised terrorist groups to become more brutal. Therefore, state authorities had to deal with organised terrorism through a comprehensive legal framework. Accordingly,

in February 2015, Law No. 8 of 2015 Regulating Lists of Terrorist Entities and Terrorists was issued. Pursuant to this law, the Office of the Prosecutor General has already included some active terrorist groups in the list of terrorist entities. This was followed by the adoption of Law No. 94 of 2015 on Combating Terrorism, which defined terrorism and terrorist groups.

Justice Maged’s study shows that the national definition of terrorism and terrorist entities does not address the case of terrorist groups resorting to armed hostilities against state authorities, which the traditional counter-terrorism system is unable to deal with in the light of traditional norms, because they are subject to the use of armed force rules which are regulated by different legal systems.

According to the author, those terrorist groups have an organised paramilitary nature that uses armed violence on a large scale. Therefore, the use of armed forces against them is inevitable, according to the rules of international law in force. This is why, after the events of 11 September 2001, the United States used the term “unlawful combatants” to deal with such terrorist groups. This description corresponds to the approach of modern international jurisprudence, which defines the unlawful combatants as members of terrorist groups that use armed hostilities to achieve their terrorist objectives.

The UN Security Council, therefore, considers the Taliban, Al-Qaida, and other groups to be “illegal armed groups”.

Maged supports this definition so that those terrorists—who carry out armed attacks against the state—can be removed from the umbrella of any international protection, including international humanitarian law, and to counter any attempts to justify terrorist acts or affiliate them with religious backgrounds. According to the author, “no cause or grievance can justify the unspeakable horrors that terrorist groups are carrying out in Sinai and beyond”.

Furthermore, the author rejects the attempts to label their acts as “violent extremism”, without referring to the term “terrorism”. His study emphasises the importance of what was mentioned in Egypt’s statements during the Summit on Countering Violent Extremism held by the White House in Washington from 17 to 19 February 2015, during which Foreign Minister Sameh Shoukry declared that “terrorist organisations exploit violent extremist ideology to attract and recruit elements, to combat and legitimise their criminal acts. A proper understanding of the phenomenon of extremism must begin by recognising that all terrorist organisations under different names are linked to a single ideological framework, whether it is advocating Boko Haram, or supporters of Sharia, Al-Qaeda, or others. ”

The study points out that the relevant rules of international law, particularly those governing armed conflicts under the concept of international humanitarian law, need to be revised and developed, and this suggests a new breakthrough in the international legal order that would create a special legal regime against what might be called ” international armed terrorism”, which takes place between states and armed terrorist entities, as well as “non-international armed conflicts”, which are conventional under customary international law.

Therefore, some jurists describe this new system as the law of extra-state armed conflict, while others call it the law of transitional armed conflict, while the researcher prefers to describe it “The Model of Armed Conflicts between the State and Terrorist Groups” because it reflects the nature of the real confrontations with these groups and emphasises their terrorist character.Some media outlets’ flaws
The study referred to some flaws committed by some national media outlets by describing these groups as militias or insurgents. According to the author, labelling such groups as militias, insurgents or combatants means that they may be subject to the provisions of the Geneva Convention of 1949 and its Additional Protocol II, which applicable to non-international armed conflicts, paving the way for international intervention.

It is also inaccurate to describe the participants in terrorist groups in the Sinai Peninsula as fighters or combatants, for the same aforementioned reason, and because they are in fact “armed terrorist groups”.
The study also shows that it is not desirable to describe the operations launched against terrorist groups in Sinai, or other parts of the country, as a “war” in the legal sense, because using this description has undesirable legal consequences. First, it grants recognition that the opposing entity is capable of having an international character. Second, it gives them a regional identification (i.e. those groups have the ability to control a particular territory or part of a territory). Third, it turns the criminal acts carried out by those terrorist groups into ‘acts of war. Fourth, it forces countries fighting those hostile terrorist entities to follow the laws of war in dealing with them, and fifth, it opens the door to the intervention of third parties.
The concept of pre-emptive strikes against terrorism
The main justification for pre-emptive strikes—according to the study—is that it would be illogical to wait for terrorist attacks and then try to stop or deter them because this technique would lead to huge causalities. Therefore, the policy of the US in such cases is to protect the national security at the expense of privacy and freedoms. It resorts to unconventional means to combat this type of terrorism, outside of the traditional applicable legal frameworks.
Maged revealed that the reference to pre-emptive strikes against terrorism began in Egypt after the escalation of the terrorism phenomenon in Sinai, describing the direct military operations launched by the Egyptian Armed Forces against armed terrorist groups. These pre-emptive strikes aim to prevent those terrorist groups from carrying out new operations.
The national armed forces have the right to conduct pre-emptive strikes against armed terrorist groups, in accordance with the pre-emptive self-defence concept, provided that the forces have sufficient and accurate intelligence to avoid collateral damage. In this case, the use of force should be necessary and correspond to the anticipated threat.

Targeted killings of terrorists
According to Maged, ‘deliberate’ or ‘targeted killings’ of terrorists means launching lethal attacks against dangerous individuals who have been proven to have carried out previous terrorist acts. This strategy was described by some media outlets as “elimination”. The study recommended avoiding this description and called for unifying the terms used in combating terrorist groups in Sinai, since the applicable legal rules may vary according to the used terminology. Therefore, the author commends the Egyptian Armed Forces and security forces in Egypt for calling the forces confronting terrorist groups in Sinai, “law enforcement forces”. It affirms Egypt’s commitment to applying the law and respecting the rule of law during the operations of its armed forces.
The study concludes that the involvement of an individual in any armed terrorist group that commits acts of hostility against the state in Sinai, or elsewhere, gives the Egyptian authorities the right to target this person during these hostile operations—or even afterwards—whether they were in Sinai or a foreign country that provides them a safe haven.

In his analysis, the author elaborates that international law has been developed and goes beyond pre-emptive strikes against terrorists, permitting the use of lethal force against those groups. It allows ‘targeted killings’ within the framework of military tactics. This method was used by several states in their operations against terrorist groups.
However, according to the study, there are strict conditions for using the ‘targeted killings’ strategy. Therefore, the use of lethal force outside armed conflict must be seen as an exception which can be used only in case of absolute necessity to protect individuals from imminent violence.

These conditions required to carry out targeted killings include: the existence of a real terrorist threat targeting the country or its citizens, having sufficient evidence on the targeted person’s involvement in or planning of terrorist attacks, inability to take legal procedures to arrest a terrorist, and having no other way to prevent further terrorist attacks. When these preconditions are met, the targeted killings become “legitimate”. In addition, the blacklisting of individuals or entities that are involved in terrorist acts will undoubtedly contribute to enhancing the legitimacy of ‘targeted killings’ strategy. Outside armed hostilities, there are specific cases where security forces can use “targeted killings” against members of terrorist groups, such as if they resist or threaten law enforcement forces while performing their duties.

The study also explained the basis of using pre-emptive strikes against terrorist groups in neighbouring countries, including these countries’ inability to combat terrorist groups on their territories, or supporting them. The study showed that Egypt’s air raids against the so-called Islamic State (IS) in Libya meet the standards of international law, being reprisal and pre-emptive at the same time. It was vengeance for the killing of 21 Copts in Libya, and aimed to prevent these terrorist organisations from attacking Egyptian expatriates or Egyptian territory, again.

The study outlines the necessary steps to establish countries’ liability for terrorism in the region.
The study points out to the fact that the law enforcement forces had already arrested terrorists in Sinai and other areas, and had established their links with foreign countries. The study stressed that, in this case, the legal description of these countries according to international law, is “hostile states”. According to the International Court of Justice’s judgement concerning military activities in and against Nicaragua, it may be agreed that an armed attack must be understood as including not merely action by regular armed forces across an international border, but also “the sending by, or on behalf of, a state armed bands, groups, irregulars, or mercenaries, which carry out acts of hostilities against another state of such gravity as to amount to an actual armed attack conducted by regular forces.”

In such cases, the attacked state has the right to self-defence. The International Court of Justice considered that a state’s acceptance of terrorist groups operating on its territory makes such groups part of the state, and holds it internationally responsible for the group’s illegal acts. Obviously, this approach applies to certain countries that support and finance armed terrorist attacks against Egypt. The modern international counter-terrorism scheme widened this description to include providing financial support or safe havens to terrorist groups. Thus, a state’s support of terrorist groups or gangs to conduct armed operations against another state is in fact a breach of Article 2 (4) of the Charter of the United Nations.
In all cases, it is always important to prove the links between terrorist groups and the supporting states, in accordance with the principle of “necessity” that guarantees the legitimate right to self-defence. However, when the state that has terrorist groups operating on its territory, is involved in military operations against these groups, other states shall refrain from conducting military operations in this state without its consent.
In this regard, it should be noted that international conventions and the UN Security Council’s resolutions stipulate that all states shall be committed to preventing terrorist acts inside or outside their territories, and adopt required measures to prohibit such acts and criminalise incitement for terrorism.

All states shall also be committed to exchanging necessary information with other countries to avoid terrorist acts and punish their perpetrators. If any state breached these commitments, other countries could establish their liability for terrorism at the regional and international levels, in accordance with the provisions of international conventions.

Furthermore, Egypt can resort to the UN Security Council Counter-Terrorism Committee (CTC), established under the Resolution 1373 (2001), to take the necessary action towards the states that are reluctant to cooperate in the fight against terrorism. Egypt can also resort to the Security Council to impose international sanctions on those states in accordance with the provisions of Chapter VII of the Charter of the United Nations.

Egyptian Armed Forces’ respect of international humanitarian law
The study pointed out that the Egyptian Armed Forces are committed to following the law in targeting terrorist groups in Sinai, and it respects military principles and human values. Egypt’s counter-terrorism policy is based on a direct confrontation to eradicate terrorists, without causing civilian casualties, in accordance with the military principles and human values of the Egyptian military.

Combating terrorism is a fundamental human right 

Terrorism clearly has a very real and direct impact on human rights, with devastating consequences for the enjoyment of the right to life and physical integrity. The study stressed that Egypt and the Arab nation has suffered tragic human loss as a result of violent terrorist acts. Accordingly, the Office of the United Nations High Commissioner for Human Rights (OHCHR) issued a study entitled ‘Human Rights, Terrorism, and Counter-terrorism’. It said that terrorism deprives citizens of their basic human rights and destroys social stability, so the state has a fundamental obligation to take appropriate measures to protect those rights. States therefore have an obligation to ensure the human rights of their nationals and others by taking positive measures to protect them against the threat of terrorist acts and bringing the perpetrators of such acts to justice. This stems from the general duty of States to protect individuals under their jurisdiction against interference in the enjoyment of human rights.

Therefore, the study affirmed that state security authorities should defend the basic human rights of the citizens against this vicious wave of terrorism according to the concept of the right to self-defence.

The study criticised some foreign parties’ attempts to invoke the protection of those who carry out terrorist operations. It explained that those who bear arms against the state are not civilians and fall under the concept of “unlawful enemy combatants”, who are not protected by international law.

Final remarks

Judge Adel Maged concluded his study by asserting that combating terrorism requires a comprehensive and inclusive approach that takes realities on the ground into account. This approach should be based on a consolidated action, which doesn’t only rely on security and military means, but also on comprehensive national strategy that aims to counter extremist ideologies and exposes the reality of terrorist groups claiming to belong to the Islamic faith, according to the ongoing call in Egypt to ‘renew the religious discourse’. He added that “counter-extremism efforts should be combined with preventive measures to address governance deficits and promote social and economic development, with special focus on Sinai.

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https://www.dailynewsegypt.com/2017/12/12/pre-emptively-targeting-terrorists-threatening-national-security-legitimate-depth-analysis-justice-adel-maged-study-countering-terrorism-sinai/
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