Curiously, however, the detaining power has continued to defend its position on the basis, among others, that those held in Guantanomo Bay are persons that pose the greatest threat to the security of the United States and by extension to the whole world. International legal rules have been evoked as a justification for the continued detention of about 500 inmates of Guantanamo Bay. Most of these detainees have been classed, by the US, as illegal combatants that have no legal claims to Prisoners of War (POW) status under the Geneva Conventions. Under the Law Of International Armed Conflict, (LOIAC), illegal combatants are those who breach the law, by blurring the distinction between civilians and combatants. A combatant can breach this law by intentionally targeting civilians instead of military targets. As the controversy rages, the cherished rights of men and women take a dive.
The contradicting viewpoints on the legal status of those being detained in Guantanomo raise vital issues that go beyond international human rights law, but also call to question, the relevance of the whole corpus of international law, which some have argued, albeit unsuccessfully, should not be considered abiding. Terrorism and the containment measures being adopted by states, seem to have been unforeseen by the architects of the United Nations.
It is not surprising therefore, that the current state of affairs, challenge our understanding of the seemingly settled rules of international law, especially as they relate to the prohibition of the use of force, referred to as “jus ad bellum” and the law of international armed conflict, known as “jus in bello”. Opinions are sharply divided between two schools of thought, namely the restrictive and the expansive schools of thought. Whilst the former insists on watertight interpretation of the cardinal rules governing international relationships, the latter is eager to give an open-ended interpretation of these rules, thus raising a lot of troubling and unresolved issues for stakeholders.
The devastating attacks on the US on September 11, 2001, reaffirmed the general trend, observed in the last century, towards a marked diminution of inter-state wars and a proliferation of civil wars, guerrilla wars, internal violence and terror attacks, with civilians increasingly becoming targets. The attacks on the US were apparently planned, financed and carried out by non-state actors. They showed that non-state players, including both organizations and individuals, can use power in a manner in which only states have acted previously. With the collapse of the World Trade centre, it has been reasoned that several pre-existing international rules have been dismantled to meet with the exigency of the moment. The impact of non state actor-led terrorism on the pre-existing rules governing international relations could be the basis for the conclusion in some quarters that “the rules of the game have changed.” But, to what extent have these rules changed or have they really changed in fact?
The first issue to be considered, in this regard, is the continued relevance of the state-centered “Westphalia model” which has dominated the international order for more than three centuries. The US-led war in Afghanistan was supported by a generality of states and the United Nations as a legitimate self defence. However, the war raised new issues for international law; for instance, can the dethronement of the legitimate Taliban Government in Afghanistan and its replacement be justified as a form of self defence?
The second issue, it raises bothers on the relevance of the settled ‘jus in bello’ distinction between combatants and non-combatants. Specifically, since the Al- Qaeda fighters and some Taliban soldiers failed to meet the seven cumulative requirements for legal combantancy, could it be the US was right in denying those it considers unqualified, the POW status? Has the creation of new counter-terrorism measures and war against terrorism blurred this distinction between combatants and non combatants and what is the implication of this on the whole regime of law of international armed conflict?
With regard to the prohibition of the use of force, modern day terrorism has equally continued to raise troubling questions about the relevance of the United Nation’s war prevention mechanism. In his commentary on the UN Charter, Bruno Simma, et al, outlined a 4-step UN war prevention mechanism, which I would like to refer to as the UN’s 4-step architectural design for war prevention. The design is as follows:
• Prohibition of the use of Force, as provided in Article 2(4) of the UN Charter. This prohibition is generally considered as a “Jus cogens” norm. (Jus Cogens is derived from Latin. It means compelling law. It is a technical term given to those norms of general international law that are argued to be hierarchically superior. These are, in fact, a set of rules, which are peremptory in nature, and no derogation from them under any circumstances is, therefore allowed. See : Article 53 and 64, of the Vienna Convention on the law of Treaties
• Collective Security Measures to secure prohibition
• Obligation to resort to peaceful means of settlement
• Regulation on arms limitation and reduction
Terrorism threatens to dislodge the above architectural design. Each and every aspect of that design has been put on a collision course with the aggressive advance of terrorism and proliferation of weapons of warfare. Consequently, questions have persistently been raised about the continued relevance of the UN’s charter mechanism.
The following additional questions are also relevant:
The legality of pre-emptive self defense and the issue of what indeed constitute “armed attack” under Article 51 of the UN Charter:
The point here is that Article 2(4) of the United Nations Charter prohibits the resort to force in an unambiguous manner. Some have rightly referred to this section as the heartbeat of the UN, because the cardinal purpose of the UN Charter was to save succeeding generations from the scourge of war. Instead of resort to war the UN Charter erected collective security measures, giving the UN Security Council, power to declare threat to peace or breach of peace with a clear guideline to resort to force as the very last resort. The other qualification to Article 2(4) of the Charter is the provision for collective and individual self defence under Article 51. For self defence claim to succeed, an armed attack must have occurred. Measures taken in self defence must be reported to the Security Council and self defence must cease as soon as the UN restores international peace and security. The recent “Bush” doctrine of pre-emptive or preventive self defence seeks to expand the meaning of Article 51 and use it as a justification for the use of force, when no armed attack has in fact occurred or even foreseeable. That was one of the bases for the controversial war in Iraq. Advocates of this doctrine are also struggling to use the Caroline incident as a shield, but the requirements of necessity, immediacy and proportionality as propounded in the Caroline case are hardly met.
Unilateral humanitarian intervention: Humanitarian intervention, in the opinion of this writer, is a misnomer that clothes aggressive expansionism with the apparel of messianic humanitarianism. It is a unilateral war in the name of human rights; an obvious contradiction. But, opinions are sharply divided about this, with some arguing that legality is not the only window to view the issues as legitimacy and morality also provide dependable platform for deconstruction. In the Nicaragua case, the International Court of Justice (ICJ) considered the legality of such intervention and dismissed it as untenable, but the ICJ’s decision failed to dissuade NATO in raising this defence in justification of its aerial bombing of Kosovo. One major post-war rationalization for the war in Iraq was also based on the suspicious doctrine of humanitarian intervention. Some analysts see Iraq as the last blow that broke the back of humanitarian intervention, but no consensus has yet emerged as legal experts remain fractured into two opposing camps of “pro” and “anti” humanitarian intervention, despite the clear provisions of the UN Charter; a cumulative study of which points to the illegality of unilateral humanitarian intervention, with or without the “coalition of the willing.” The situation challenges the notion of “jus cogens.” Has compelling law been degraded to a permissive one? Or could it be that “might” has become “right” as no one seems prepared to watch the watchman?
Terrorism and the confusion about the legality of nuclear weapons:
The ICJ in its Advisory Opinion on the legality of the threat and use of nuclear weapons seem to have made a terrible mistake. The court failed to render an unequivocal advice on the legality of the threat and use of nuclear weapons. The use of such weapons was curiously linked to the demands of self defence. In the light of the serious security problems and proliferation of weapons that the world is grappling with today, with the alleged threat by the Iranian President Mahmoud Ahmadinejad to wipe Israel from the face of the earth, it is crucial that this issue be revisited. Nuclear weapon in the hands of a “radical” could as well mean the end of human race.
Terrorism and the urgent issues of reform in UN Peace architecture:
There is an urgent need to take a second look at the United Nation system. The current reform being carried out with regards to the membership and role of the Security Council should be encouraged and be speeded up. There may also be a need to re-examine some sections of the charter and close gaps shown by current problems of terrorism. For instance, veto power has been identified as contributing to the current strain in the UN’s collective security measures. Meanwhile, the search for a clear cut definition of terrorism must have to yield positive results. In absence of this, it would be difficult to prosecute any suspect on charges of terrorism without raising questions of conformity with human rights norms. “You cannot put something on nothing and expect it to stand.”
In light of the issues discussed above can it be said by way of conclusion, that terrorism and counter measures as symbolized by Guantanomo Bay have changed the rules of the game?
It seems to me that Lord Hoffman’s deep analysis in the celebrated UK House of Lords’ decision in A and others v Secretary of State for the Home Department [2004] UKHL 56 will be helpful here. In that case, Lord Hoffman and his colleagues were asked, among others, to examine the question whether terrorism could be considered as a threat to the life of the UK nation, in accordance with the substantive requirement for derogating from UK’ s obligation under Article 5 of the European Convention on Human Rights (ECHR) Lord Hoffman reasoned, in line with earlier decision in Lawless v. Ireland (1979-80) 1 EHRR 1, 13, &15 that “Life of the nation” as used in Article 15 of the ECHR, is not conterminous with the lives of the citizens of the nation. For Hoffman, life of the nation is metaphorical and refers to the organized life the community of which the state is composed; its values and institutions. On that basis His Lordship held that terrorism does not threaten the life of the UK nation, rather what threatens that life are counter terrorism laws, such as UK’s Anti-terrorism, Crime and Security Act, 2001.
On the strength of that sound reasoning, I conclude, that the terrorism has not changed the rules of international law. What it has done is to challenge these rules, in such a way as to inspire all states to take a second and deeper look at them with a view to reiterating and reforming them, without losing sight of the cardinal human interest rational for these laws. It may well be that terrorism, which, undoubtedly, is a crime against humanity, will be better confronted by emphasizing the things that hold us together, whilst de-emphasizing those things that hold us apart; by building bridges across the divides of poverty and riches; colour and cultures; by making conscious efforts to understand why some people choose to become terrorists; to shed innocent blood, wreck havoc and die for a cause so ill-defined; so illogical.
« return.