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The prohibition of the use of force by Article 2(4) of the United Nation’s Charter, generally accepted as a “jus cogens” norm (compelling law), has been killed by the ongoing war on terror; or so it appears. The tool, employed in this destructive enterprise, is the tool of Article 51 turned upside down. The Bush doctrine of pre-emptive self defence is certainly the last destructive blow. The continuing crisis in the Middle East is only a glimpse of the danger that mankind now faces. In a bid to fight terror outside the United Nations system, the world has been dragged back to the pre-1945 era. This article argues that although terrorism is an unmitigated evil, a crime against humanity, the global response to it has heightened tension and threatens global peace and security. The war on terror is too rhetorical, too imprecise to have any real meaning and content.
September 11; 2001 and July 12, 2006 have something in common. The attacks on those days were masterminded by non state actors with the alleged collaboration or support of state actors. The attacks left on their trail, destruction, massacre and kidnappings. The use of civilian airplanes to attack sensitive civilian targets in the US on 9/11 will continue to be remembered with shock, disbelief and trepidation. The war on terror, declared by the US President in response to the September 11 senseless attacks was still ongoing, when home-grown terrorists attacked London on Jul 7, killing over 50 people and wrecking so many people’s lives.
Hezbollah, already identified by the US and some of its allies as a terrorist organisation, was not dissuaded by the resolve of the international community to stamp out terrorism when they struck targets in Israel and kidnapped two Israeli soldiers. Israel has since continued to pound targets in Lebanon [article submitted to Panorama July 29, 2006], despite the latter’s insistence of innocence and plea for a political solution. A recent report shows that more than 380 Lebanese and 42 Israelis have died, whilst about 2000 people have been injured in the two week old conflict. The latest casualties are the United Nation’s observers. Four unarmed UN observers from Austria, Canada, China and Finland were killed when their bunker was hit by a heavy bomb from an Isreali war plane.
Several others have been displaced and Western countries are currently air-lifting their citizens, as the Middle East broils in another terrible conflict. The distinction between combatants and non combatants has been stretched to a breaking point, thus calling to question the continued relevance of humanitarian law and the peace architecture in United Nation’s system.
The sole purpose of the UN is to save succeeding generations from the scourge of war, which “twice in our lifetimes has caused untold hardships to mankind.” The use of force is strictly prohibited. The only exception to this is in the exercise of individual and collective self defence. In his commentary on the UN Charter, Bruno Simma outlined a 4-step UN war prevention mechanism, which could be represented diagrammatically as the UN’s 4-step architectural design for war prevention. The design is as follows:
Modern day terrorism and the response to it threaten to dislodge the architectural design. Each and every aspect of that design has been put on a collision course with the aggressive advance of terrorism, counter terrorism and proliferation of weapons of warfare. Consequently, questions have continued to be raised about the continued relevance of the UN’s charter mechanism. Some of the issues that arise are as follows:
• The legality of pre-emptive self defense and the issue of what indeed constitutes “armed attack” under Article 51 of the UN Charter
• The issue of humanitarian intervention and defence of nationals
• Terrorism and the confusion about the legality of nuclear weapons (in the light of the serious security problem and proliferation of weapons that the world is grappling with today, with the Iranian President Mahmoud Ahmadinejad threatening to wipe Israel from the face of the earth could it be that the International Court of Justice (ICJ) made a terrible mistake in its advisory opinion on the legality of the threat and use of nuclear weapons?)
• Terrorism and the urgent issues of reform in UN Peace architecture
We will now consider some of the issues implicated briefly:
Self Defence as a Pivotal Issue:
Israel claims that its attacks on Lebanon are covered by the “inherent right to self defence.” The United States supports this view. The US’s war on terror, it is also argued, derives legitimacy from this right. The US has even gone a step further to argue that there is a right to attack on the basis of “pre-emptive self defence” that is the right to use force to quell any possibility of future attack. This is what is today known in international law as the Bush Doctrine.
Article 51 of the UN Charter recognises the right to self defence. It is the only exception, outside the UN’s enforcement measures, where a state can unilaterally resort to the threat or use of force against the territorial integrity or political independence of another state. The general rule is that the use of force in settlement of international dispute is illegal. This general rule is enshrined in Article 2(4), which is generally agreed to be a part of customary international law.
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Wilfred Mamah
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