联合国反恐全面公约中的武装部队问题
黄瑶联合国反恐全面公约中的武装部队问题
On the Issue of Armed Forces in the Comprehensive Convention against Terrorism of the United Nations
期刊名称：《法学研究》
期刊年份：
作者：黄瑶
单位：中山大学法学院
中文关键词：联合国反恐全面公约;武装部队;国家恐怖主义;国际人道法
英文关键词：the Comprehensive Convention against Terrorism of the United Nations;armed force;state terrorism;international humanitarian law;national liberation movements
中文摘要：
如何规范一国武装部队的行为是制定联合国反恐全面公约的最大难题之一。武装部队在武装冲突及执行公务中的活动，应否受该公约的管辖？各国在此问题上难以达成共识。分歧的主要原因在于各国在国家恐怖主义的概念以及全面公约与国际人道法的关系问题上看法不一。为使全面公约尽早得以通过，可以明确规定国家武装部队在武装冲突及执行公务中的活动以及民族解放部队的活动均免受全面公约的管辖。因为即使不适用全面公约来约束武装部队的行为，国际人道法和国际刑法等其他相关国际法规则也可对此种行为进行管制。
英文摘要：
The application scope of the Comprehensive Convention on International Terrorism drafted by the United Nations General Assembly is the key issue whether or not the Convention can be concluded. At present, there are two outstanding issues surrounding its application scope, one is the issue of National Liberation Movements, and the other is the issue of armed forces. Moreover, these two issues affect each other, and become the final material obstacles to complete the Convention.The issue of armed forces includes two specific problems, one is whether the activities of armed forces during armed conflicts are governed by the Convention, which is provided in paragraph 2 of draft article 18, and the other is whether the activities undertaken by the military forces of a State in the exercise of their official duties are governed by the Convention, which is provided in paragraph 3 of draft article 18.As to the actions of armed forces during armed conflicts, the text circulated by the Coordinator of the Convention provides that they are not governed by the Convention, which represents the view of the West countries group. The text proposed by the Organization of the Islamic Conference provides that the activities of the parties including national liberation forces during an armed conflict are not governed by the Convention. The substance of the controversy is the relationship between international humanitarian law (IHL) and international anti-terrorism law (e.g. the Convention). This paper thinks that a feasible solution to current disagreement is that the activities of both State armed forces and national liberation forces during an armed conflict, which are governed by IHL, are expressly excluded from the scope of the Convention. According to the text circulated by the Coordinator, the activities undertaken by the military forces of a State in the exercise of their official duties are not governed by the Convention. On the contrary, under the text proposed by the Organization of the Islamic Conference, if those activities are not in conformity with international law, they will be governed by the Convention. The terrorism acts committed by the military forces of a State in time of peace belong to acts of State terrorism, which in theory should fall within the scope of the Convention. Morevover, the International Criminal Court can hold members of armed forces responsible for their terrorism crimes. However, since there are a lot of difficulties to punish States themselves for their terrorism acts in the present international reality, this paper thinks that, beyond the Convention, other rules of international law such as IHL and international criminal law can be applied to regulate State military forces’ acts in the exercise of their official duties.
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