Revolutionary Guard Members, Photo: AFP/Getty

The press  reported last week that the Bush Administration plans to label the Iranian Revolutionary Guard a "terrorist" entity in accordance with Executive Order 13224. The Washington Post explained:

The United States has decided to designate Iran's Revolutionary Guard Corps, the country's 125,000-strong elite military branch, as a "specially designated global terrorist," according to U.S. officials, a move that allows Washington to target the group's business operations and finances.

The Bush administration has chosen to move against the Revolutionary Guard Corps because of what U.S. officials have described as its growing involvement in Iraq and Afghanistan as well as its support for extremists throughout the Middle East, the sources said. The decision follows congressional pressure on the administration to toughen its stance against Tehran, as well as U.S. frustration with the ineffectiveness of U.N. resolutions against Iran's nuclear program, officials said.

The designation of the Revolutionary Guard will be made under Executive Order 13224, which President Bush signed two weeks after the Sept. 11, 2001, attacks to obstruct terrorist funding. It authorizes the United States to identify individuals, businesses, charities and extremist groups engaged in terrorist activities. The Revolutionary Guard would be the first national military branch included on the list, U.S. officials said -- a highly unusual move because it is part of a government, rather than a typical non-state terrorist organization.

The order allows the United States to block the assets of terrorists and to disrupt operations by foreign businesses that "provide support, services or assistance to, or otherwise associate with, terrorists."

Not surprisingly, the Revolutionary Guard has not responded well to this report. The AP reported:

The commander of Iran's elite Revolutionary Guards was quoted on Saturday as threatening to deal heavier blows in future against the United States after Washington said it may label the force a terrorist group.

The Iranian daily Kayhan said commander-in-chief Yahya Rahim Safavi made clear the Guards would not bow to U.S. pressure and would use all their leverage against the Americans.

Kayhan did not provide direct quotes from the speech in the central city of Isfahan on Thursday.

But can the military of a state be labeled a "terrorist"? And what are the consequences of such labeling?

Executive Order 13224 allows for the designation of designation of "persons" who "have committed, or to pose a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals or the national security, foreign policy, or economy of the United States." The Executive Order provides in Section 3:

For purposes of this order:

(a) the term "person" means an individual or entity;

(b) the term "entity" means a partnership, association, corporation, or other organization, group, or subgroup;

Under the specific language of the Executive Order, it seems that such a "group" as the Revolutionary Guard could be labeled as a "terrorist" group. And there seems to be nothing else in the Executive Order that would prohibit such designation.

But what about under international law?

It is well understood that there is no agreed-upon definition of "terrorism." But one common thread that seems to run across most defintions is that "terrorism" must be something committed by non-state actors. To be sure, a state can support, sponsor, or tolerate terrorism, but the "terrorist" is a non-state actor. When states engage in acts that mirror what "terrorists" do, we call those acts war crimes, crimes against humanity, and so on.  Indeed, the problem under international law has never really been categorizing what states do, but rather describing what non-state actors do.

It seems to me that the term "terrorist" should continue to be reserved to non-state actors. Let me cite but one problem: Once we start using this term for state actors, it may led to further transgressions of the Geneva Conventions. Article 4 (1) of the Geneva Convention on POWs provides that POW status is to be granted to:

Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

It seems to me that this is an absolute category.  Members of the military of a state are to enjoy POW states. If any individual member of the military has committed an offense, that person can, of course, be tried for that offense. But that person's offense does not negate his or her status as a POW. By designating the Revolutionary Guard as a "terrorist" entity, wouldn't the US, in effect, be making it near impossible to treat the group in accordance with the Geneva Convention? The US would have essentially pre-judged that all members of the group were engaging in actions that  were in violation of international law.

This is precisely what the United States ended up doing with the Taliban. Even though members of the Taliban were recognized as belonging to  the "armed forces" of Afghanistan, the Administration determined that because the Taliban did not follow the laws of war, they were not entitled to POW status. The basis for making this determination lay in what I believe to be a misapplication of Article 4.

After providing that-- as noted above-- "members of the armed forces of a Party to the conflict" would enjoy POW status, Article 4 in paragraph 2 further notes that POW status shall also be granted to

Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

But the Taliban forces were not members of an "other militia," etc. They were "members of the armed forces." In my view the group as a whole should have been granted POW status. Failing to grant them that status meant that they were allowed to be treated far more harshly than is allowed for POWs.

The situation is even worse with respect to the Revolutinary Guard. Not only might they automatically be placed outside the protection of the Geneva Convention, but they might find themselves subjected to even worse treatment inherent in the use of the word "terrorist."

And, of course, if the United States can label military groups as "terrorists," what precedent will that set? Will the US military be so labeled by some states in future conflicts?

A Better Approach

Why not just label Iran as a "State Sponsor of Terrorism," if it is so determined?  That approach is already established under US law, and it does not blur the distinction between states and non-state actors and led to potential dangerous legal precedents.