INTERNATIONAL LAW AND THE USE OF FORCE: LESSONS IN TERROR AND
THE FUTURE OF WORLD PEACE
BY MUHTAR ADEIZA ETUDAIYE ESQ.*
Hugo Grotius: All things are uncertain the moment men depart from law.
1. INTRODUCTION
The object of this discourse is to analyze the varying views or perception of
International Law and what it portends for the future of interstate intercourse. Over the
years, the shade of the world polity has gradually changed from the East/West divide of
the cold war era to the new emergent period of the lone superpower. In this has come
the need to review the various aspects of International Law and whether it remains a
Law, properly so called or as John Austin would opine, simple “positive morality”.
This has become important in view of International Law references to the use of force
and what constitutes “self defence” and “armed attack” in the arena of the international
environment. A clear definition of the above would engender a better and more
encompassing world peace. In line with the above is a search for the definition of what
constitutes terrorism and whether terrorist acts come within the contemplation of an
“armed attack” within the context of the United Nations Charter.
Further, this paper hopes to go into the ever arising question of anticipatory attacks in
trying to ward off a perceived danger of antagonism. Do states have this right and if
they do, what are the right’s qualifications? Also, are such fears reasonable in the age
of the nuclear technology where states as economically incapacitated as India and
Pakistan both boast of nuclear capabilities? Or will such rights of anticipatory attacks in
fact, trigger a greater cataclysm than the one it sought to prevent?
An understanding of the above ultimately brings into fore the duties of the international
community to its citizens and the path out of this quagmire of violence, recriminations
and inexorable movement towards anarchy.
2. INTERNATIONAL LAW AS LAW
International Law has been defined as “the sum of the rules by which states have
consented to be bound, and that nothing can be law to which they have not
consented.”1 While consent would seem to be a necessary prerequisite for the
effectiveness of International Law, it has now become a sterile argument that only
consenting states can be affected by deliberation and resolutions of the international
community. As indeed, states who do not consent usually are affected by the resolve of
the international community and international institutions; a reason Switzerland and
other dirty money havens were forced to open up their banking systems to the scrutiny
of financial crime regulatory bodies and Interpol.
1
J. L. Brierly, The Law of Nations at 1, 51 (6 th Ed. 1962)
1
The sources of International Law has come to be encapsulated in the Statute of the
International Court of Justice as follows:
1. The Court, whose function is to decide in accordance with International
Law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing
rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as
law;2
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various nations,
as subsidiary means for the determination of rules of law. 3
International Law has had an age long controversy relating to its viability as a law form;
a controversy that has been much legal as it is jurisprudential. The most apt capture of
this controversy is gleaned from Duncanson and Samuel’s hypothesis of the view of
theories to wit:
“Truth is not a criterion we would use. Every reflection is (by definition) a true
reflection. Usefulness is the test of mirror-gazing. The device produces
information, when we use it, which enables us to perform tasks we would
otherwise find impossible or more difficult.”4
In essence, theories relating to anything, more particularly, what constitutes Law can
almost only be viewed from a subjective perception. In a mirror, a protagonist views one
reflection dictated by his trajectory, another views another, still dictated by that other’s
own trajectory. Every vision is a truth but rarely the truth of the sum. The “usefulness” of
that particular reflection ultimately becomes the test for that trajectory.
A lot of this storm stems from John Austin’s definition of Law as a sovereign’s
command enforced by sanctions.5 In his view, a sovereign was a superior creation and
it had no other creation of a supervening nature. He stated that “International Law”
thereby lacking sovereign legislature(s) and sanctions could not qualify as Law properly
so called. This is where the International Lawyer disagrees. To him, legislation has
been decreed by treaties and sanctions by the availability of “self help” as well as the
use of force. In the Austinian Positivist sense, this will not do as it does not lay
credence to any direct institutionalized creation for sanctions but was more or less a
self help measure akin to mob lynching, the very measure “International Law” purports
2
In deciding whether a behaviour or reaction has been upgraded to customary acceptance, the International Court of
Justice held in Libyan Arab Jamahirya V. Malta (1985) I. C. J. 13, 29 (June 3) that “it is necessary to look at its
content and the conditions of its adoption”.
3
Statutute of The International Court of Justice, Chtr 2, Art. 38
4
Jurisprudence: Ian Duncanson and Geoffrey Samuel (1980) (Sweet and Maxwell) at 1
5
Austin, Province of Jurisprudence Determined at 141-142, 201
2
to exist to curtail. As such, they regarded International Law as rules of morality and fair
conduct.
A greater alternative area of divergence was the tack of the International Law lawyer in
completely rejecting the Austin parameters for the definition of Law. This rejection
stated that there was no need for a sovereign and of sanctions. They went on to
propose a definition of Law wide enough to include International Law. Salmond 6 cites
Oppenheim7 as defining Law as
“a body of rules for human conduct within a community, which by common
consent of this community shall be enforced by external power.”
In this vein, Salmond states that there was clearly an international community and there
existed rules of conduct and “a common consent that these rules be enforced by
external power”8 and International Law fulfilled these qualifications.
International Law has become part and parcel, in fact, an appendage of several nations’
constitutions. Umozurike9 cites Gray J. in the Paquete Habana10 thus
“International Law is part of our law, and must be ascertained and administered
by the courts of justice of appropriate jurisdiction, as often as questions of right
depending upon it are duly presented for their determination.”
And as such, laws native to a particular jurisdiction, in this case a country, are
interpreted so as to give effect to International Law.
Further, institutions abound such as the United Nations (the International Court of
Justice representing its judicial organ) as well as regional institutions like The African
Union, The European Union and so on to give effect to rules and determinations and
not merely treat intransigence as an ethical or moral permutation.
The “sanction issue” has been flogged to death, brought to life and flogged again.
Sanctions have been said to include
“appeal to public opinion, publication of correspondence, censure by
parliamentary vote, demand for arbitration with the attendant odium attendant on
a refusal to arbitrate, rupture of relations, reprisals…”11
The premise of the positivist opinion stems from the notion that the sanctions likely to
be imposed are imposed usually only with the consent of the offending state. An
6
Salmond on Jurisprudence by P. J. Fitzgerald 12 th Ed. at 54
Oppenheim, International Law (8th Ed) at 7-15
8
ibid
9
U. O. Umozurike, Introduction To International Law (1995) at 4
10
175 US 677 at 700
11
North Atlantic Coast Fisheries 1910 Scott Hague Court Reports 141 at 170
7
3
example is Switzerland12 which is not a member of the United Nations. Does it feel
bound by rules emanating from the United Nations? If it does not, then it does not
satisfy the Austinian use of “Law” as it does not necessarily face a sanction unless it so
wills. This is in fact true of a lot of nations within the United Nations. Hillier invokes that
“We all recognize, and regret that rules of International Law are flouted on
occasion and we are all too aware of the fact that an enraged world public
opinion simply is incapable of discouraging the violation. Should our conclusion
then be that rules of International Law are not law…”13
Restating the fact that some rules may not be obeyed does not in essence mean that
International Law does not exist. Some aspects of municipal law are also flouted with
impunity. But municipal law is seen as existing by the positivists. And this, because of
the ever presence of physical sanctions. That, I, submit, is a jaundiced view of what the
law’s nature and functions are and must be as sanctions remain sanctions, physical or
otherwise.
G. G. Fitzmaurice further states that the community of nations are a society whose
“basic members” are sovereign states and as such cannot possess a corpus of law
similar to domestic or municipal law. He states that International Law
“.. therefore, can be composed at bottom-of rules which the sovereign states
themselves establish in order to regulate the relations between them.” 14
As it is with municipal law, International Law is very much similar to a system of rules
which individuals in any particular community have foresworn themselves to be bound
by. The issue of willful acceptance of these rules remains the same in most societies
where individuals also do completely disregard municipal law. These are aberrations
and they will always exist. In February 14, 197915 when Islamic militants overran the
U.S embassy in Tehran, over seventy U. S. citizens were taken hostage including the
United States ambassador resulting further in two deaths after the carnage. The
American government by application commenced proceedings at the ICJ in November
29, 1979 and filed a memorial. None was filed by Iran. The U. S. asked for a declaration
that Iran violated its international legal obligations vide the several Geneva conventions,
violated the Treaty of Amity, economic relations and consular rights between them and
that Iran violated the provisions of the U.N. Charter. When the court finally decided that
the U. S. were entitled to reparation, Iran appeared unconcerned as unlike municipal
law, the ICJ had no police or bailiffs. However, instances abound in jurisdictions where
this disregard for law does occur in municipal law.
12
as well as some other countries who for varying reasons like economic considerations ( financial and banking
considerations in this case ) are reluctant to be within the searchlight of the United Nations.
13
Tim Hillier, Sourcebook on Public International Law at 25
14
G. G. Fitzmaurice, The Foundations of the Authority of International Law and the Problem of Enforcement (1956)
19 MLR 1 at 9
15
Guardian Law Report, The Guardian (Nigerian), July 12, 1983
4
In view thereof, what is of some use is not that laws will not be broken but that when
they are broken, there are institutions where parties (or states in this case) can seek
redress.
ENFORCEMENT
Enforcement of International Law is not the same as that of municipal law in the
understanding that there cannot be a legislature that forces down rules made on the
electorate by the actions of the executive arm and its organs of enforcement. Further,
that there remains no uniform way of enforcement which in the view of many writers
blurs the line between what constitutes International Law and international diplomacy.
While this may sound apt, and in fact is in many circumstances, the fact remains that
this is a failing endemic in most of human endeavours: the absence of perfection. A
failing that is also common in many aspects of municipal law, where negotiated
settlements sometimes take over the toga of justice.
Peace, breach of the peace or acts of aggression
Where the United Nations Security Council has deliberated and reached a
determination that the actions of any nation is a threat to the peace, breach of the
peace or act of aggression, enforcement procedures may be made under Chapter VII of
the Charter of the United Nations. Measures that are obtainable are wide ranging and
can involve the use of force or economic sanctions. This has been seen to be adequate
in a lot of cases. However, the fact remains that belligerent nations abound and
economic sanctions, for instance, can have limited effects. This can occur in
dictatorships where the lean resources of the government becomes the property of the
dictatorship and these resources are used for perpetuating itself in power.
Judicial measures
This can be made by making representations to the ICJ and having judgments entered
as in the case of the Cameroon and Nigerian problem over the Bakassi Peninsula. The
main function is to resolve disputes very much like that between individuals. Specialized
international tribunals now abound with varying specialization. An example is that which
tried the accused persons in Scotland as a fallout of the Lockerbie bombing in 1992.
Rights and privileges
A lot has been said about the loss of rights and privileges. Some of these rights and
privileges include the freezing of assets (the temporary U.S. measure against Iran in
1979), truncation of treaty rights, trade embargoes (the U. S. measure against Libya 16
and Iraq) and at its most extreme, the severance of diplomatic ties (measures by most
African nations against South Africa during the apartheid regimes). It has been shown
that the above measures can prove very effective in enforcing duties as stipulated by
International Law. An example is the threat by the Nigerian government to close its
border with the Republic of Benin in an effort to awaken Benin to its duty to clamp down
on trans border bandits enjoying refuge in her territory. This threat alone was widely
held to be responsible for the reduction in trans border raids.
16
In addition, there were closure of the Libyan Embassy and the expulsion of 27 diplomats. See Thriving on
Trouble, Time, June 8, 1981; see also Kaddafi's Dangerous Game, NEWSWEEK, July 20, 1981.
5
Self help
Self help, while not a very viable and distinguished option, it does seem to have an
optimum level of effectiveness in limited cases. In fact in a number of cases,
International Law counsels the use of an aggrieved nation’s aggression to counter a
sense of injustice and to make reparations as well as to arrive at fairness. Umozurike
states that a state in exercise of her right of self help may resort to (a) retorsion i.e a
lawful act designed to injure the offending party like reneging on a promise to give
economic or military aid and (b) reprisal i.e a wrongful act that is justified by the prior act
of another. The basic issues relating to self help especially reprisals under International
Law revolve around self defence and in the course of this presentation, the varying
aspects of self defence shall be thoroughly examined. A reprisal may be an act which
may not be similar but should be proportionate. 17
While International Law may not be the all cure drug for aberrations in the community of
nations, it is neither prudent to refer to its supporters as snake oil salesmen;
International Law being the snake oil, of course. In many instances, it has stopped
conflict and the few failures that have resulted in anarchy have come to be projected as
its mascot. While these abnormalities persist, International Law has come to be used
extensively in the amelioration of conflict’s several devastating effects especially with
regards to humanitarian aid and war rules (as it relates to human right concerns and so
on).
3. TERRORISM AND THE WAR AGAINST TERROR
“For instance, Nelson Mandela, a Nobel Price winner and the first (post apartheid)
president of South Africa, in his early years was on the “State Department’s list of
international terrorists”18. Now, “he is a hallowed and reserved symbol of the
struggle for justice and equality.”19
A definition of “terrorism” and “terrorist” is as elusive as the unicorn. Again, as with
reflecting mirrors, the location of the viewers give very wide and varying descriptions.
When one juxtaposes “location” with “interest”, the description becomes apt as just
another view doctored by the need or wish of the “describer”. As is common, in
international diplomacy, interests claim superiority over morality and sometimes
regrettably, International Law. In this vein, International Law can sometimes become
indistinguishable from International diplomacy. But anyone who has ever witnessed the
process of a jury selection, would ascribe the same quality to the procedure. This
essentially is what militates against the search for an apt portrayal of international terror
and its perpetrators.
It is a truism that the use of terror almost always stems from some inherent wrong in a
political and/or economic and/or social environment. In this vein, it becomes rather rash
17
supra at 5, cited also: Naulilaa Case, Portugal v. Germany 1928 2 RIAA 1012
Beverly Allen, Legal Aspects to the Control of Transnational Terrorism: An Overview, 13 Ohio N. Y. L. Rev.
117, 134-138 (1986)
19
ibid
18
6
to hang the placard of terrorism on every struggle for self actualization and
determination. The South African experience continues to have dominating resonance
for this argument.
Further, despotic governments have used the process of international law and
international diplomacy as one would use a chain mail against catapult shots, angling
for time. This has led to the disenfranchisement of aggrieved peoples who have lost
faith in international law and diplomacy and see it as a tool in the hands of the
oppressor. In many instances however, terrorists deserve their appellation and are
deserving of the international feeling of indignation they receive as there can hardly be
any justification for the deaths of innocent men, women and children.
Mark P. Popiel20 cites Alex Schmid,21 a political scientist as saying that between 1936 to
1981, approximately 109 definitions have been employed for terrorism. He went on to
say that that confusion led to the hand wringing comment by Justice Stewart in Jacobilis
v. Ohio who simply stated, ”I know it when I see it.”22 While the annals of international
law will be greatly enhanced by a conducive definition, the reality is that none exists.
This inexistence of a definitive description does not necessarily make the problem of
terror intractable.
The Declaration on Principles of International Law Concerning Friendly Relations and
Cooperation Among States in Accordance with the Charter of the United Nations came
into fore in October 24, 1970. The primary thrust of the Declaration was a restraint on
the use of force by states in their international relationships. But the Declaration almost
inadvertently offered an insight into a structure upon which state terrorism and
individual terrorism can be primarily viewed. It stated that nations amongst other things
had a duty to “refrain from organizing, instigating, assisting or participating in acts of
civil strife or terrorist acts in another state”. It went on to caution states against
“organizing, or encouraging the organization of irregular forces, or armed bands,
including mercenaries, for incursion into the territory of another state.” while no clear
acts of terrorism are defined, it does set parameters for what could be termed as the
threat or use of force which in fact encompasses what has come to be termed globally
as terrorism.
As a consequence of the above Declaration, the United Nations in 1972 invited nations
and adopted Resolution 3034 to take all steps, both national and international to
eradicate the problem. This was as a result of acts of terrorism which were happening
with greater frequency. Another view was that the political terrain and instances of
decapitated aspirations become greater and dislocated peoples began to see terrorism
as the way for the future. But again, Resolution 3034 did not define terrorism. 23
20
Redrafting the Right of Self Defence in Response to International Terrorism, 1, Across Border International Law
Journal at 4 (2003) cited to http://www.across-borders.com
21
Political Terrorism: A Research Guide to Concepts, Theories, Data Base and Literature (1983)
22
Robert J. Beck and Anthony Clark , Arend, “Don’t Tread On Us”, International Law and Forcible State Responses
to Terrorism, 12, Wis. International Law Journal 161 (1994)
23
G.A. Res. 3034 UNGOAR 27th Sess., Supp. No. 30, at 1, U. N. Doc. A/RES/3034(XXVII)(1972).
7
Why was there this dearth in a specific and widely accepted definition? This was
because most states were ready to vote for the resolutions in the absence of a
definition lacking specificity. A more precise definition would have disenfranchised
some supporters of groups who believed that such groups were in fact in a struggle for
self determination. In fact this was co-opted into the Resolution as been excluded as
acts conducted for the legitimate reason of “the right to self determination and
independence and other fundamental human rights and fundamental freedoms”. 24
There were resolutions in 197625 and 197726 but the texture remained the same. Most
states backed the said resolutions but there were dissent from some key states who
were concerned about the lack of definition for terrorism. These states were the United
Kingdom, the United States, Canada, Japan and of course Israel among other states.
The definition in the view of these states was the key to its termination in global affairs.
In 1979, without any dissent, a restatement of previous resolutions was made with
Resolution 34/145 as the General Assembly condemned “all acts of international
terrorism which endangers or takes human lives or jeopardize fundamental freedoms”.
This condemnation was extended in 1981 to include “acts of violence which lie in
misery, frustration, grievance and despair and which cause some people to sacrifice
human lives including their own in an attempt to affect radical changes”. 27
While the pendulum of world opinion remained the same, it became obvious that that of
the most powerful nations had either changed or had begun to have more force in the
United Nations. This was so because their allies were either the recipients of these
“acts” or they were direct repositories of these violence. The United Kingdom had the
Irish Republican Army to contend with; nations as far affield as Spain had the Basque
Separatists, the United States were concerned about Israel and the Palestinian
Liberation Organization and much smaller countries were beginning to use the term
“terrorism” for local “skirmishes”.
In view thereof, the United Nations28 moved to denounce it as “criminal” in 1985. In
1987, the United Nation itself finally accepted that a definition was crucial in its
Resolution 42/159. Still there was no generally agreed definition and because of this,
the American reaction was a disaster waiting to happen. Happen not only in the sense
of the reprisals, but in its nature, extent, post conflict management and implications for
continuing world peace.
THE AFGHANISTAN AND IRAQI EQUATION
The Afghanistan and Iraqi problem had been brewing for a while and when two hijacked
planes were steered into the twin towers of the World Trade Centre in New York on
September 11, 2001, it clearly came to a head. The revulsion of the whole world gave
24
ibid at 4
Resolution 31/102
26
Resolution 32/147
27
Resolution 36/109
28
vide Resolution 40/61
25
8
liver to a clampdown on “terrorism” and in part to another clampdown on legal
aspirations by people all over the world in struggles for self determination. This
revulsion was nothing compared to the outright shock of Americans. While Americans
had been beneficiaries of acts of violence in foreign countries, they had largely felt safe
at home in the knowledge that the several acts of terrorism had always left trails that led
to “mentally imbalanced” Americans29; a development that could hardly detract from
economic woes at home. But this was different.
The Americans fingered al-Qaeda for this particular mayhem. It is notable that while the
Afghanistan Taliban regime also came within the American spotlight as a haven for
terrorism, at no time before the September 11 bombing was the Iraqi regime’s
involvement in terrorism a centerpoint of U. S. policy and public declarations30. The
charge against Saddam Hussein’s regime was always that he had in his possessions,
weapons of mass destruction (WMD), an obvious assertion apparent in his use of
biological weapons against the Kurds (an event many attributed to effective United
States’ propaganda). Whether he had destroyed his arsenal was however debatable. It
is also noteworthy here that after well over one year of unfettered access in Iraq, not
ONE accredited WMD has been discovered. Even if, given a hypothetical situation, it
was discovered, the reality is that possessing military capabilities is the only way for a
nation to safeguard its territorial integrity. This is in spite of the fact that in International
Law, war remains an illicit act.31 However in the course of this discussion, the effect on
world peaceful cohesion will be examined. Also it is pertinent to note further the issue of
one nation’s right to inflict “regime change” on another; a phrase bandied around by
American government officials in outright contravention of International Law and
conventions.
The implications for the American involvement in Afghanistan was in a way the
announcement of the implications for her involvement in Iraq (and a precursor to what
her involvement in Iran, Libya, Sudan, North Korea etc is going to be). This involvement
was widely stomached by the international community because of the extent of horror
felt by it at the September 11 attacks. The Americans therefore capitalized on this
feeling of sympathy (and revulsion for the dastardly acts of terrorists) for its travails and
without much fanfare obtained a declaration from the U. N. Security Council stating that
the United States may use “the inherent right of individual or collective self defence in
accordance with the Charter” and thereafter attacked Afghanistan in the wake of the
Taliban regime’s refusal to hand over Osama bin Laden. It claimed to have several U.
N. resolutions in its kitty for defence of her actions. The world took little notice and
enjoyed the spectacle of war as translated by nighttime visions on cable networks in the
safety that it promised to be a short confrontation. The Americans largely relied on
Article 51 of the U.N. Charter citing self defence which in all good sense seemed
29
Timothy McVey in the Okhlahoma bombing (see Day of Reckoning, James Collins, Time, June 6, 1997 at 21), the
“Unabomber” etc
30
Paul Pillar, Terrorism and U. S. Foreign Policy 160 (2001)
31
Dr. Max Nduaguibe, International Law and the Problem of World Disarmament: A Review of Progress, “The
Attorney, A Journal of the Nigerian Association of Law Students Vol. 1, No. 3 (April, 1985) at 35, School of Legal
Studies, Imo State University, Nigeria.
9
acceptable to the international community in the knowledge that enforcement of
international law should ordinarily not be undertaken if it threatens international peace;
the rationale being that the very existence of International Law was primarily to protect
international peace.
Article 51 is the narrow opening given nations to protect their territorial integrity while
Resolution 1441 was the specific United Nations resolution which more or less
stipulated the actions of nations with regards to military incursions in Iraq. Both have
been read mutatis mutandis in alliance with the American view for the use of force in
Iraq. A close examination of both will further explain the American action and its
reverberations across the world.
ARTICLE 51 OF THE UNITED NATIONS’ CHARTER
While international peace has become a nom de guerre for International Law, it
became essential that international peace be pervasive above all other considerations.
Article 51 became the most prominent exception to the avoidance of the use of force.
Article 51 of the Charter of the United Nations provides:
“nothing in the present Charter shall impair the inherent right of individual or
collective self-defence if an armed attack occurs against a member of the United
Nations, until the Security Council has taken measures necessary to maintain
international peace and security”.
Riding on the back of several resolutions and articles of the United Nations, Article 2(4)
which enjoined nations from embarking on the use of force and stating as follows;
“All members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in
any other manner inconsistent with the purpose of the United Nations.”
The above principle was cited by Mark P. Popiel32 quoting Michael J. Glennon33 as
emanating from Francis de Vitoria more than 400 years ago when the revered scholar
stated that “there is a single and only cause for commencing war… namely, a wrong
received.”
Several deliberations by the United Nations and its organs as well as members resulted
in the agreed virtue34 of shunning the use of force by nations against each other. It was
Article 51 cited above that offered a narrow angle for the use of force. A narrow angle
wide enough for the United States government to wriggle through as justifications for its
32
supra
Limits of Law, Prerogatives of Power: Interventionism after Kosovo at 19 (2001)
34
Article 2(3)
1965 Declaration of the Inadmissibility of Intervention
1970 Declaration on the Strengthening of International Security
1981 Declaration on the Inadmissiblity of Intervention and Interference in the Internal Affairs of States etc
33
10
attack on Afghanistan as well as Iraq even though the threats were widely varied; as
varied as previous U. S. policies relating thereto.
The debate will be long-running as to what extent Article 51 is applicable. The question
inevitably turns on the meaning to be infused into the at first very vague phrase “armed
attack”. It is clearly not a phrase admitting of a legal meaning. The word “armed” in itself
may be so admitting. The word “arm” means in ordinary English use “a weapon…
weapons of offence and defence” and “armed” means “furnished with arms: provided
with means of defence”35 or offence, one feels the needless urge to add. In legal
connotation the meaning appears not dissimilar. It means “furnished or equipped with
weapons of defence or offence”.36 There is however no precedent for a legal
connotation for the word “attack”. In ordinary parlance however it connotes an offensive
disposition rather than a defensive or for that matter a passive one. For it means in
verbal use “to fall upon violently: to assault: to assail: to begin to affect or act
destructively upon”37 and in noun use “an assault or onset: the offensive part in any
contest: the beginning of active operations on anything, even dinner”.38 The phrase
“armed attack” can logically, rationally and legally therefore only mean an offensive
assault on another with weapons. Against this background, the Iraqi invasion of the
independent state of Kuwait (a member nation of the United Nations) would, without
much ado, pass the test. That would seem to have been the general diplomatic
sentiment and that was evident in the wide consensus coalition very conveniently put
together by the United States for the liberation attack which resulted in Iraqi forces
being expelled from Kuwait. On the other hand applying these principles, it was clear
that the legal grounds on which the attack on Iraq in 2003 was based were to say the
least somewhat ambiguous. For one thing, put succinctly, even if there were weapons
of mass destruction (there is still no evidence of them), there did not exist the slightest
semblance of an attack on any independent nation by Iraq much less an armed attack.
Thus the inability of the United States to pass legal muster in justifying its invasion may
also be said to have been evident in the reluctance, if not more aptly refusal, of
influential nations in the international community such as France, Russia (both of them
members of the Security Council) and Germany to back the eventual unilateral armed
attack on Iraq.
While Article 51 of the Charter remains a veritable tool for the protection of member
states, the fact remains that it also offers rogue states a defence for unwarranted and
extreme actions against perceived aggressors; aggression that were not only military,
but sometimes economic. It should be noted that Article 51 does not encompass
unilateral and instinctive defence against solitary armed attacks but imminence of a
second or continuing attack and only to the extent of the existence of such a threat.
35
Chamber Twentieth Dictionary at 68
Black’s Law Dictionary, 6th Edition at 108; See also People ex rel. Griffin V. Hunt, 150 Misc. 163, 270 N.Y.S.
248, 254
37
Op. Cit. at 81
38
ibid
36
11
Further, the level of threat to nationhood of the subject of the aggression is a central
point in the right to self defence in the event of not first seeking peaceful resolution vide
the United Nations or otherwise. The knowledge that the U. N. preached moderation
was deemed unsatisfactory in the event of its deliberation by victim states as
moderation was an unnecessary tool for the sweet aroma of vengeance.
The said armed attack should be spontaneous and instant and leaving no room for
deliberation upon which the victim state can retaliate in a way that is proportionate to
the attack (a striking resemblance to the rules relating to provocation as a defence to
criminal liability in most jurisdictions) until such a time the United Nation steps in usually
based on reports submitted to it by the victim state. It can also unilaterally engage in
attempts at resolution without a brief before it by any of the parties.
As stated, measures taken by the victim state must be reported to the United Nations
and the attack must cease immediately the threat of the attacker ceases. This calls into
question the various reasons nations cease attacks on other states. When Iraq invaded
Kuwait and a coalition of nations headed by the United States liberated Kuwait and
attacked parts of Iraq short of stepping into Baghdad, it was thought that the United
Nations Charter had emerged victorious as the force was proportionate and the attack
ceased when the threat ceased. However, there were other considerations in the
American mind relating to the balance of power in the Middle East which would have
swayed in favour of Iran, an avowed American and Israeli enemy and further, a bedrock
of Islamic traditionalism. It was thought that the local rivalry between Iraq and Iran was
a healthy thing in the American eye.
Further, what constitutes a proportionate response remains illusory. In 1993, President
George Bush was expected to be on visitation to Kuwait, a key Middle East ally. In the
interim, Kuwaiti Intelligence in alliance with the American Federal Bureau of
Investigations (FBI) claimed to have uncovered a plot to assassinate the American
President in Kuwait and quite customarily fingered the renegade regime of Iraq for the
plot. In retaliation, tomahawk missiles were deployed on what was thought to be Iraqi
Intelligence positions at the time. On June 27, 1993, the United States Ambassador to
the United Nations justified that act by stating that “we responded directly as we were
entitled to do under Article 51 of the United Nations Charter which provides for the
exercise of self defence in such cases.”39 She further mentioned that the action was
“proportional”. While the United States and allies were of the opinion that the attacks
were acceptable and necessary, other nations, especially those of the Arab community
were vociferous in their condemnation.
It then becomes clear that while the narrow window for self defence was essential in the
arena of international relations, it is beset with responsibilities; responsibilities which
very few nations were willing to adhere to and sought self medication on the alter of self
interest. Again, this qualification was essential because countries were always going to
defend themselves either collectively or individually and with or without United Nations’
39
John M. Broder, Hussein Directed Plot to Kill Bush, U.S. Says, L. A. Times, June 29, 1993 at A1
12
authorization once threats to territorial integrity was perceived. The Article sought to
bring this primal need within bounds, and at some level in fact, did succeed.
RESOLUTION 1441
The background to the passing of Resolution 1441 and the eventual American invasion
of Iraq was inundated with the type of political intrigue and chicanery that had made
participants become blasé since the cold war era. This highwire antics between nations,
dictated by interests on the one hand and the search for justice on the other brought the
United Nations to the precipice of general acceptance. After the fallout, it was clear that
the influence of the United Nations, especially with the stronger nations, was immensely
whittled down.
After the Iraqi invasion of Kuwait that culminated in the Gulf war, with the United States
prompting, the United Nations made moves to forestall any further act by Iraq that could
result in aggression against its neighbours and/or perceived enemies. Resolution 687
was passed which required the destruction of chemical, biological and nuclear weapons
as well as long range ballistic missiles. Economic sanctions had already been imposed
at the onset of the Kuwaiti invasion and compliance was a condition precedent for the
lifting of sanctions. Further, the UNSCOM (United Nations Special Commission) and the
IAEA (International Atomic Energy Agency) were to supervise and observe the said
destruction. But UNSCOM found Iraq to be in perpetual intransigence.40On two
occasions, there were military strikes by the Americans and British 41 to enforce
compliance.
The inspections continued with allegations of Iraqi concealment, deception and outright
bullying until things came to a head in 1998. Resolution 1154 was passed in March,
1998 voiding any progress in lifting of economic sanctions without compliance with
arms inspection and warning of dire consequences in the event of continued Iraqi
intransigence. While this Resolution warned of severe consequences, China, France
and Russia were of the view that force was not indicated. 42
Resolution 1441 was eventually passed in 2002 after some persuasive U. S.
maneuvering. The salient points were to the effect that
i. that Iraqi non-compliance was a breach of international security;
ii. that that breach was material;
iii. that the burden of proof was on Iraq to prove that it harboured no weapons of
mass destruction (WMD) or such other similar components;
40
Patrick McLain, Settling the Score with Saddam: Resolution 1441 and Parallel Justification for the Use of Force
Against Iraq, 13, Duke Journal of Comp.and Int’l Law at 246
41
Christine Gray, International Law and the Use of Force at 192 (2000)
42
Patrick McLain (supra) citing Paul C. Szasz, Legal Authority for the Possible Use of Force Against Iraq, 92 AM.
SOC’Y INT’L L. PROC. 136, 141 (1998)
13
iv. that the IAEA and UNMOVIC43 be given larger latitude to inspect sites and
interview personnel and if required, ferret such personnel outside Iraq for
interviews; and
v. that Iraq desist from threatening U.N. personnel, agents or any other member
nation of the U. N.
At no time did the phrase “all necessary means”, a military phrase, emerge from the
Resolution or the deliberations leading to it despite obvious American inclination for its
inclusion on the assumption that the phrase in itself would signify authorization by the
United Nations for states to unilaterally enforce the Resolution.
Without much ado, the September 11 bombing of the Twin Towers of the World Trade
Centre complicated matters. It gave the Americans an impetus to want to move against
Iraq after a successful Afghanistan campaign and much of the world felt powerless to
stop her in part because of the revulsion of the world at the human losses and the
carnage and in part because of the emergence of the United States as the sole world
power at the onset of the new millennium as well as the strength of its resolve.
Countries like France, Germany, Russia and much of Africa were against military
incursions in Iraq basing their objections on the ground that Resolution 1441 did not
exclude a further coming together of member nations for a further express authorization
on the use of force. The United Nations was split down the middle. The United States
withdrew attempts at putting the issue to a vote and with the active participation of
Britain invaded Iraq.
4. TERRORISM AND THE STATE
In the absence of a viable definition of terrorism, a less difficult agreement has been
what constitutes terror. In this vein, the activities of groups devoted to violence against
a group of persons or states have been deemed to constitute terror. While states are
settled as to what they term as terror, it has not been as consummated in its relation to
Article 51 and the right of states to self defence.
It is important to note that an armed attack as envisaged by Article 51 can only
emanate from a state. The armed attack must be continuing. Not all violence against a
state constitutes an “armed attack”. Not all armed attacks are continuing. In this
discourse, it becomes essential to find out whether a terrorist attack constitutes an
armed attack, a reason for the United States’ invasion of states lately and a reason
more likely to be canvassed in the future by states for intervention.
In the traditional view, an armed attack is perpetrated by a state against another by the
use of an armed force. It seems reasonable to conclude that that was the event
foreseen by the U. N. when it agreed on Article 51 as a guiding light for the unilateral
use of force. It also follows that in the traditional sense, terrorist attacks were not
envisaged in this sense because it concerned non state perpetrators. This view is soon
43
UNMOVIC ( United Nations Monitoring and Verification Commission) replaced UNSCOM after the breakdown
of the initial inspection process.
14
to change under the American aegis as America becomes even more influential in
international diplomacy.
The traditional view is as stipulated in the case of Nicaragua V. U. S. 44 which held that
the activities of armed bands must occur on a significant scale to trigger the
qualification of an “armed attack” upon which it is reasonable to expect an “individual or
collective right of self defence”. Where acts did not have the above qualifications, the
action is unlawful and the reaction for a state as stated by the case infra is to seek
claims and damages and not to unilaterally instigate an armed response and seek
refuge under Article 51 of the Charter. Popiel45 is of the opinion that while the judgment
referred to “armed bands”, it is unreasonable to use this reference to terrorists as the
armed attack must emanate from a state.
The American jurisprudential view was to impute terrorism to state actors in order to
find protection for her actions under Article 51. The Nicaragua Case tried to deal with
this by stating that the actions of non state actors can only be imputed to a state if the
said state exercised “effective control” over the actions of these groups. What
constitutes “effective control” remains illusory and opens up a plethora of opportunities
for renegade nations with visions of grandeur. However, an attempt had earlier been
made to decipher this phrase, even though “unliving” at the time. In the Island of
Palmas Case,46 it was stated that
“territorial sovereignty … involves the exclusive right to display the activities of a
state. This right has a corollary duty: the obligation to protect within the territory the
right of other states, in particular, their right to integrity and inviolability in peace and
in war.”47
While these duties and corresponding duties exist, it would appear illogical for states to
impute state protection to non state actors and without proof of this dalliance between
both state and terrorist before the United Nations, unilaterally attack the said annoying
state. The reality is that a state being helpless against the activities of insurgents within
its territory does not mean that the state offers protection to the groups or individuals or
that the state exercised effective control over them. In this dispute followed by
subjective proof, the only path to resolution will ultimately be the United Nations. Any
other road leads to chaos, the very reason International Law came into being.
5. IMPLICATIONS FOR THE AMERICAN VIEW OF THE RIGHT OF SELF
DEFENCE
The American view of the right to self defence is in many respects a symptom of
American social life embedded with endless psychoanalysis and smug know-it-all. This
44
(1986) I. C. J. 14, 110 (June 27)
supra
46
(U. S. V. Neth.) 2 R. I. A. A. 829, 839 (1928), see also S. S. LOTUS (Fra. V. Tur.) 1927 P. C. I. J. (Ser. A) No.
10 at 4, 88 (Moore J. dissenting stated that “it is well settled that a state is bound to use due diligence to prevent the
commission within its dominions of criminal acts against another nation or its people”.)
47
per Max Huber, sole arbitrator in Island of Palmas Case
45
15
analysis ultimately auto-suggests to the protagonist that enemies lurk in every corner to
destroy her advance. In part, a lack of the knowledge of the outside world, its cultures
and perception of the United States acts as a corollary to this view.
The view of unilateral self defence is supported by Article 51, but only under strict
limitations as earlier stated. This view in the American mind while sufficient for nations
like Ghana, for instance, is insufficient for the protection of the world’s “greatest
democracy” beset by enemies from all angles. In this vein, anticipatory attacks in aid of
self defence is paramount. Whether in fact, this does not work for a country like Syria or
Iraq against Israel is arguable. In the same token, nothing stops Nigeria from invading
Cameroon under the guise of Cameroonian gendarmes’ activities at Nigeria’s border at
the Bakassi peninsula and environs before the judgment of the International Court of
Justice.48 Further, an anticipatory strike by India on Pakistan, a natural enemy, after
Pakistan made it public that it had nuclear capabilities would have been in place.
Anticipatory self defence was originally popularized by America’s isolation of Cuba
during the Cuban missile crisis, the 1967 six day war between Israel, Egypt, Jordan and
Syria and the 1981 bombardment of the Iraqi nuclear reactor at Osirak. 49 The
circumstances today are markedly different in the sense that states generally rely on
self defence against an attack and American reactions in invoking anticipatory self
defence remains ambiguous.
While the United Nations may appear slow and dilatory in solving the world’s enormous
glitches, it remains the only hope for civilized interaction among states. The ability for a
state to claim the right of intervention because of the ineffectiveness of U. N. actions
only breeds terror; the like of which it seeks to extinguish. This is because in the
reflecting mirror of inappropriate phraseology, “armed attack”, “self defence” etc can
connote anything, depending largely on which nations are concerned.
The American action has also led to a situation where nations without nuclear arms are
treated with “disrespect” and nations that possess nuclear weapons are dealt with with
a pat on the back. The continuing dialogue (a dialogue sometimes greater in form than
content) with North Korea, India and Pakistan by the United States instead of outright
invasion is a pointer to this phenomenon. What this does is to encourage countries to
surreptitiously seek to acquire nuclear weapons for respect rather than self defence.
Again, it has been said that humanitarian intervention should be brought directly under
the forte of the United Nations with the participation of regional unions as this will stop
nations from duplicitous intervention, an act that the United States has used extensively
in intelligence gathering. Prof. Byers and Simon Chesterman are cited by Patrick
McLain50 to state that
48
Delivered on October 10, 2002.
Patrick McLain (supra) at 269
50
Patrick McLain(supra) citing Prof. Michael Byers and Simon Chesterman, Changing the Rules about Rules?
Unilateral Humanitarian Intervention and the Future of International Law, HUMANITARIAN INTERVENTION:
ETHICAL, LEGAL AND POLITICAL DILEMMAS (Holzgrefe & Keohane eds.) (2003) at 202
49
16
“a select group of states (such as western liberal democracies, or perhaps the
United States alone) agreeing on criteria (for intervention) amongst themselves –
would seriously undermine the current system of international law: it would also
greatly undermine the position of the United nations as an effective organization in
the field of peace and security, after a decade in which, despite some obvious
failures, it achieved more than in the previous half-century.”
While the United States apparently lacks trust in the decisiveness of the United Nations,
it is pertinent to note that that lack of trust is not repository in the United States alone.
Countries abound who are of the opinion that the United Nations panders to every
American whim. This undermines attempts at instilling international peace. With the
United States under the Republican President George W. Bush in the forefront of self
help protagonists, the United Nations’ attempts at consummating its purpose become
more exasperating.
Further, the American view must be consistent with Law as well as morality to engender
wide support from member states. What gives the right to Israeli ownership of nuclear
technology but not North Korea, Iran, Syria or in fact, Iraq? Why has America not
moved against Pakistan and India other than for the reason of shared economic and
political interests. Also, it must be brought into focus the lack of serious American policy
on the culpability of Saudi Arabia since its citizens constitute not less than fifteen of the
total sum of terrorists (numbering nineteen) involved in the September 11 bombing. 51
The Iraqi lesson remains that these interests may not necessarily abide in time
(especially if fuelled by personal relationships of executives of states rather than by
state concerns).52 Then, they suddenly will become “rogue states” and as such issues
relating to inspections by the IAEA are put on the frontburner by American influence. 53
In a new world where the United states has become the focus of attention, albeit power,
it is argued that the United Nations has a duty to establish comprehensive legal and
procedural regimes to answer American concerns as it seeks to cope with states it
describes as “rogue states”. And its opinion is that the international institutions, at its
apex, the United Nations has not been alive to this responsibility. The fact remains that
unilateral interventions ultimately lead to quagmires of chaos and carnage that will
completely erode the need for peaceful world co-habitation. This drives dissent
underground, and the American view of obvious “centers of concern” will become
obliterated by less obvious but more numerable cells of aggression. This will further
Making Saudi Arabia Pay, Maximillian Potter, Gentlemen’s Quarterly, June 2003, 176 at 184 states that the Saudi
ambassador to the United States, close friend to the Bushes arranged a flight out of the U.S. for a Saudi woman
before she could be subpoenaed by the Justice Dept. as well as Osama bin Laden family members in the U. S. with
the connivance of the Federal Bureau of Intelligence. The ambassador’s father Prince Sultan, the head of IIRO is
alleged to be involved in a financial deal that precluded al-Qaeda from attacking in Saudi Arabia. His wife further
made “charitable donations” that ended up in the accounts of a couple implicated in the September 11 debacle and
the JusticeDept. Declined to pursue that line of inquiry. The ambassador’s brother in law, Prince Turki allegedly
brokered the deal with al-Qaeda. All these being facts likely to end up in Ronald Lee Motley’s brief on behalf of
September 11 victim’s families’ proposed civil suit against Saudi Arabian elements.
52
Supra at 46
53
IAEA Resolution Sends “Serious and Ominous Message” to Iran, The Punch (Nigerian), November 27, 2003 at 58
51
17
make international legal regimes and policing more difficult. A case in point: On 20 th,
November, 2003, three explosions resulting in several deaths simultaneously occurred
in Istanbul, Turkey, the locations were a shopping mall, the HSBC Bank building and
the British Consulate. At the same time, President George W. Bush was visiting Britain.
Of the three locations, two had undeniable British links. 54 It was reported that the
American Embassy was in a decidedly safe and impregnable location in the capital. No
as yet known group or cause can be linked with these explosions but the contemporary
customary “culprit” could very well be al-Qaeda. While this is yet to be seen, the
existence of less obvious protagonists remains ominous.
Lastly, the continued disregard for International Law and the views of member states,
especially that of Europe in the unilateral actions of the United States will further
exacerbate the divide among the leading world nations. 55 This has led to a weakening
of internationally laid down procedures for dispute resolution. The “arrogance” of the
Americans when espousing the bar room phraseology of “you are either for us or
against us” could best be regarded as a throwback to the acrimoniously notorious years
of the Cold War where illiterate “peasants” governed world affairs. This arrogance will
lead to a much greater problem of former allies becoming blasé in future matters of
security concerning member nations.
6. INTERNATIONAL LAW AND MORALITY: THE ISRAELI EXPERIENCE
International Law has had a lot of its persuasive prowess embedded in the universality
of Laws; the universe as governed by laws regarded as divine, and if not divine, moral.
This has led to its acceptability among nations. Further, the need for peaceful
coexistence among nations has also allowed the blooming of the flowers of
international institutions. And all these despite the occasional hiccups associated with
everyday existence. This morality upon which the world is governed by, when not
bombarded by personal interests is what makes international relations work.
This workability has been besought by mistakes of the past. When the issue of
terrorism is discussed, the Palestinians seem to possess a franchise of terror. This is
an anomalous concept. Other groups like the Irish Republican Army, the Basque
Separatists, the Tamil tigers, the Niger Delta youths, the Chechnya militants, etc
abound. As stated earlier in this discourse, the colour of terror can only be viewed from
a particular trajectory: that of the viewer.
The most notorious has been the Palestinian case which has held the world spellbound
both in its enormity and its journalistic allure. The background to this failure of the world
community began inauspiciously in 1897 when the first Zionist Congress held in
Switzerland called for the establishment of a Jewish state in Palestine. This led to an
increase in the immigration of European Jews. Britain, then operating a protectorate
over Palestine was clearly in favour of this which led to the Balfour Declaration
protecting the rights of already existing non Jewish communities (at the time,
Palestinians maintained 90% of the population). In 1920, the League of Nations’
54
55
CNN Breaking New, November 20, 2003.
Clyde Prestowitz, “Why Doesn’t America Listen” Time, August 26, 2002 at 25
18
mandate was given to Britain for a Jewish existence in Palestine. In 1936, the very
beginning of several uprisings against British rule occurred. In 1937, the British
proposed partitioning Palestine into Arab and Jewish states. The Arabs refused.
Another plan was proposed in 1939 in which there was to be one state with an Arab
majority. The Jews bluntly refused. The coming world war all but put an end to the
prevarications.56
The 2nd World War was a particularly heinous event for European Jews with millions
dying in the holocaust configured by the then Nazi regime under Adolf Hitler. There
was suddenly a greater need for a Jewish homeland, which would be immune from
oppression, the fact being that at the time, Jews were hardly welcome anywhere in
Europe. Anti Semitism was at its height. While the holocaust compelled armchair Jews
to hurry in finding an acceptable location, it further swelled the Jewish population in
Palestine resulting in more resentment. In 1947, a proposal for a Jewish state and an
international zone for Jerusalem was made, but the Arabs refused. On May 14, 1948,
the mandate matured and a state of Israel was proclaimed. Egypt, Syria, Lebanon, Iraq
and Jordan invade the same day. Thousands of Palestinians flee their homeland to
begin their own diaspora. Treaties were signed with Arab countries, but Israel had dug
in her heels and had gained control of West Jerusalem. In 1956, Israel acting secretly
with France and Britain during the Suez Canal crisis invades Egypt and occupy the
Sinai peninsula and the Gaza strip. In 1957, Israel withdrew under U. N. pressure. The
Palestinian Liberation Organization was formed in 1964 in Cairo. In 1967, Israel
launched an anticipatory strike in what was later to be known as the Six Day War. It
overran the Sinai Peninsula, occupied the West Bank, East Jerusalem and captured
the Golan Heights from the Syrians in November on the same year, the U. N. adopts
Resolution 242 which called for Israeli withdrawal.57 Israel balked.
The result of the actions by all the parties involved were accusations and counter
accusations as well as military attacks and counter attacks. This brought the activities of
the Palestinian Liberation Organization to the consciousness of the Palestinian peoples
and they had vast armies of ragtag militants and splinter groups all scattered in the
Middle East, each with their own notion of liberation and the means, often crude, to
seek it. Every cause possessed, sometimes in abundance, men with glint in their eyes
and grudges in their hearts.
The above leads to “terrorists” exacting revenge not just against states that are primarily
involved in their perceived displacement but states that have given active support
traditionally and were in fact sometimes main instigators of the perceived wrong.
The history of displaced peoples all over the world were not too dissimilar. The British
complicity in Ireland is another case in point. The divisive and immoral activities of
colonials who now make the more influential nations resonate repeatedly. These
actions of the great and more powerful nations who perpetrated these anomalies and
sometimes signed into being treaties without the participation of existing peoples led to
56
57
Legacy of Hate, Time, November 11, 1991 at 16, 17
ibid
19
the struggle for self actualization. Terrorism became the poor man’s atomic bomb, and
like the atomic bomb, made no distinction between men, women and children.
In the unfolding events in Nigeria, in what Prof. M. Ayo Ajomo 58 calls the “Bakassi
imbroglio” between Nigeria and Cameroon, it has become clear the ease with which
actions by greater powers can lead to terrorism. Nigeria is being held to a pre colonial
treaty and the most irregular “treaty” this side of civilization; 59 agreements which the
inhabitants are unaware of and if they had been aware, were unlikely to be party to.
This was held to be sacred by the International Court of Justice in its judgment at the
Hague delivered on October 10, 2002. The reality is that the people who are most
affected by these actions have no say. The mute tend to be more physically expressive.
Prof. Bolaji Akinyemi, former Nigerian Minister of External Affairs once stated that in
international diplomacy, morality was not a viable tool for deliberation. States did what
was in their best interest. It behooves the intellectual however, not to ignore the
implications of actions devoid of morality. This is intoned by none other than the
Americans. Every American war was fought for freedom; even the Afghanistan and Iraqi
wars. This is a search for acceptance under the umbrella of morality, hence the
moniker. Indeed, it is permissible for international diplomacy to be devoid of morality but
fatal to International Law.
It follows therefore that if International Law must have the force of Law properly so
called, it must conform with what is just and moral, else it becomes a tool in the hands
of the bigger and more influential nations as well as dominant groups within states to
perpetuate their dominance through autocratic means and label resistance as
“terrorism”.
7. THE WAY FORWARD
The present rules relating to reaction to attacks have appeared to be too lame to
conquer the problem of terrorism, seeming to make it intractable. Pierre Lellouche was
almost prophetic when in 1988 he made a projection of a likely emerging security
situation around the world. He stated that
“the day will come when the great powers and indeed Europe, will come within
range of third world missiles equipped with nuclear or conventional warheads. Then
everyone will be forced to revise today’s notion of security and today’s rules of
deterrence.”60
In 2002, a statement of American security strategy decreed to wit:
“It has taken almost a decade for us to comprehend the nature of this new threat.
Given the goals of rogue states and terrorists, the United States can no longer solely
58
International Treaties and Bakassi Imbroglio: Lessons for Nigeria, Department of Jurisprudence and International
Law, Faculty of Law, University of Ilorin, Public Lecture Series No. 1 2003
59
The Anglo-German Treaty of 1913 and subsequently the Maroua Declaration of June 1, 1975
60
The Other Arms Race, Newsweek, October 3, 1988 at 4.
20
rely on a reactive posture as we have in the past. The inability to deter a potential
attacker, the immediacy of today’s threats and the magnitude of potential harm that
could be caused by our adversary’s choice of weapons do not permit that option.
We cannot let our enemies strike first”.61
This present day reinstatement of the new American view makes it difficult for the
international community and by extension, International Law to have much use as it is
presently constituted. Progress seems to be in the way of International Law seriously
giving considerations to American concerns by formulating rules which are alive to the
danger of the existence of rogue states “likely” to conceive of aggression against
another state in a way that encompasses the amassing of WMDs. While the world has
not been helped by the lack of WMDs in Iraq till date despite unfettered American and
United Nations’ access, International Law must be alive to the concerns of its most
influential nation. But this concern must be across board and every complaint catered to
by supervision and unfettered access by the supervisory body. This includes complaints
by nations as infinitesimal as Chad.
Further, a rule must be formulated that requires a mandatory recourse to the United
Nations or the Security Council in cases where the fear of an imminent danger of armed
attack or a continuing attack do not meet the requirements stipulated under Article 51 of
the Charter. A right of self defence, even if lacking adequate specificity, can then be
given after due deliberation by the United Nations or its Security Council.
The rules relating to the use of the veto in the Security Council needs to be revisited.62
For one thing, the participation of states is almost non existent and the power of one
veto canceling attempts at resolutions is undemocratic and not in tune with emerging
realities especially as the use of such veto are most often not guided by concerns for
morality and justice but self interest and the myopic posturing of traditional allies.
The United Nations must also take into account the consistency of policies and policy
statements of nations before arriving at resolutions. A case in point is where the United
States in fact was responsible for the stockpiling of arms by Iraq, as a counterfoil in her
war against Iran and at no time before September 11 make any statements relating to
Iraqi dalliance with terrorism. United States policy and public declarations changed with
the emergence of the George W. Bush government and more particularly after the
decision to invade was formulated. Some pundits finger economic concerns even more
than security concerns for the American intervention. This very palpable lack of
consistency may further be stated in the pressing requirement for a mechanism to be
put in place for defining when an attack has amounted to an “armed attack”. For this will
no doubt reduce arbitrariness to its barest minimum. Who is to protect the nations that,
though considered unfriendly are nevertheless victims of armed attacks by nations
61
The National Security Strategy of the United States of America (Sept. 24, 2002) at
http://www.whitehouse.gov/nsc/nss.html: visited on 30/10/2002
62
Malcom Harper, Director of U. N. Association of Great Britain and Northern Ireland suggests a complete
abolition of the veto system and a system of permanent regional seating in the Security Council. Further, he advises
that military operations be brought under the auspices of the U.N. See Letters, Time, February 8, 1993 at 6
21
perceived as friendly, if only for the moment? Or nations that for myriad reasons are not
influential enough or are not sufficiently economically interesting to the world powers to
persuade them to come to their defence when assaulted by other nations? Sometime in
September 1980 the notorious Iraq sent its troops into Iran and took over a thirty-mile
swatch of Iranian territory east of the Shatt al Arab, the one hundred and twenty-milelong border waterway that empties into the Persian Gulf. 63 The publication captured the
response of the international community:
“Some Arab leaders made it obvious which side they were on. Saudi Arabia’s
King Khalid phoned Iraqi President Saddam Hussein to express support for his
battle against ‘the enemies of the Arab people,’ according to Iraqi reports.
Jordan’s King Hussein publicly applauded the attack. Kuwait’s official news
agency, which reflects the views of the ruling family, adopted a hawkish, pro-Iraq
stand. To varying degrees, Qatar, Kuwait, the United Arab Emirates and Oman
all jumped on the Iraqi bandwagon”.64
The United States Secretary of State Edmund Muskie fearful for the life of its fifty-two
citizens held hostage in Tehran nevertheless wrote an ambivalent letter to Iran reemphasizing U.S. neutrality. A United Nations Security Council vote weakly called for
an end to hostilities while a miffed Iranian President Abolhassan Banisadr “replied to
the UN plea with a scornful insistence that his country would not consider a ceasefire
‘so long as Iraq is in violation of our territorial sovereignty.’”65
Here, there had clearly been a violation of the territorial integrity of a member nation of
the United Nations and all that was heard was public support from the international
community for the aggressor and a whimper from the United Nations bent as it was not
to enforce if not the letter of Article 51, then its principles.
8. CONCLUSION
The relevance of International Law becomes particularly poignant as the world forges
ahead in the arena of science rather than law. To guide the new openness brought
about by the shortening of the global village, Law must be leader. The era of the
internet is at hand, “armed attack” takes a different tinge when the economy of one
country faces danger from the unfettered internet access of the citizens of another 66
and cyberspace becomes the only product that binds the world. The need for a more
specific definition of the four walls bounding “armed attack” and of the parameters
within which a nation can defend herself against an “armed attack” needs to be visited.
As stated earlier, it is essential that a rule of international law be evolved where states
need and indeed seek the approval of the United Nations or some other organ under
the authority of the United Nations before defending herself. This is essential in an
63
The Blitz Bogs Down, Time, October 13, 1980 at 14
On the Fretful Sidelines, Time, October 13, 1980 at 16
65
supra at footnote 58 at 13
66
Note the American threat against China because of the latter’s lukewarm attitude to internet fuelled plagiarism of
American copyright in music, movies, books and other types of intellectual property.
64
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altered state of security in the world where states are constantly being faced by threats
that are not conventional and yet can be attributed to other states.
Events after September 11, pose a challenge to International Law as well as the
international community. The attack on Afghanistan and Iraq were events that the
international community did not prepare for and offered at best very muted response
except of course, in the case of Germany and France. Unilateral action by the United
States challenged the world into seeking greater verification for the use of force
especially in anticipatory attacks. The very same lame legal justifications canvassed by
the United States can be used as a façade under which other nations may seek refuge
in attacking rival states. Unarguably, there must be a rethink of Article 51 to take
cognizance of the need for anticipatory or pre-emptive strikes against threats that are,
in terms usually employed in security circles in the United States, a “clear and present
danger”. That need must also be balanced by a meticulously worded and unambiguous
article that has nothing of the ambiguity of the phrase “clear and present danger”. More
important is the need for an independent arbiter that proclaims what amounts not only
an “armed attack” but also “clear and present danger”.
While it is commendable that the United States initially made attempts to seek further
verification from the United Nations on Resolution 1441 before attacking Iraq, the reality
was that when it was faced with loss at the votes, it threatened that it will go it alone and
indeed did go it alone with the passive support of a few traditional allies. The fear is that
over time, and with repeated state participation in such acts, it may pose a bigger
problem as connivance will eventually make the practice a candidate for acceptance as
international customary law. This is unacceptable.
A view was expressed by former United States President Bill Clinton; a view this writer
is completely in alliance with that the United Nations should maintain a rapid response
force that could be deployed to uses other than traditional peacekeeping. It could be in
efforts to react to “armed attacks” and so on and in the event be the only legal means
(and this a deviation from Mr. Clinton) by which nations are allowed to react to
aggression. Bill Clinton states,
“a United Nations’ rapid deployment force that could be used for purposes
beyond traditional peacekeeping, such as standing at the borders of countries
threatened by aggression, preventing attacks on civilians, providing humanitarian
relief and combating terrorism and drug trafficking”.67
This lends a stronger arm to multilateralism in world affairs which will further whittle
down the renegade leanings of nations perceived to be stronger than others. While the
United Nations remains reluctant to be engaged in conflicts that are likely to be
prolonged or continuing, this seems the only way to go. This force can be stationed in
particular locations in each continent to make the issue of deployment less
cumbersome.
Clinton’s Foreign Policy Jujitsu, Michael Kramer (citing Bill Clinton), Time, March 30, 1992 at 28. Also, see
footnote at 57
67
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As the world trudges on, the new challenge for international law is its continuing
relevance. Most obvious in this regard are the laws relating to international human
rights, war rules and international commercial law. The world has to awaken to the
reality that it must connive with each other in formulating better rules for the emergent
security situation; and nations must speak in support of morality even when their
economic and political interests are at variance with such declarations. This is not only
good for the deponent but for the survival of the international union as the nation
making the declaration is seen as having the moral edge in future matters against the
background of its statements. Policy makers may not agree, as international diplomacy
is sometimes based on the antics of the existentialist, but it is the hope of most right
thinking peoples of the world that the world be governed by its peoples and just laws;
not politicians awash in a sea of hallucinations.
Most importantly, International Law does not cease to be a law form because of its nonadherence to traditional Austinian parameters nor because of its several “failures”. This
is because he saw Law in the traditional sense and not as a constantly evolving system
of rules creating a specie of Law that was unique in its form, content and application. A
form that in a constantly changing world must be endowed with its own failings as other
aspects of municipal law. Notwithstanding, if there is to be a positive shift towards
consensus as to the identity of international law, the regular shifting of goalposts in the
definition of terminologies (and the acts that amount to them) such as “armed attack”
and “self defence” must be discouraged. And it is pertinent to state here that perhaps its
greatest challenge will be the way it manages the use of force by nations in the new
millennium.
*MUHTAR ADEIZA ETUDAIYE ESQ. is a lecturer at the Dept. of Jurisprudence and
International Law, Faculty of Law, University of Ilorin, Ilorin.
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