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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.
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Wilfred Mamah
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