i
ASSESSMENT OF STATES’ RESPONSE TO THE SEPTEMBER 11, 2001TERROR ATTACK IN THE UNITED STATES OF AMERICA AND THE NIGERIAN PERSPECTIVE
BY
EMEKA C. ADIBE REG NO: PG/Ph.D/13/66801
UNIVERSITY OF NIGERIA FACULTY OF LAW DEPARMENT OF INTERNATIONAL LAW AND JURISPRUDENCE
AUGUST, 2018
ii
TITLE PAGE ASSESSMENT OF STATES’ RESPONSETO THE SEPTEMBER 11, 2001TERROR ATTACK IN THE UNITED STATES OF AMERICA AND THE NIGERIAN PERSPECTIVE
BY
EMEKA C. ADIBE REG. NO: PG/Ph.D/13/66801
SUBMITTED IN FULFILLMENT OF THE REQUIREMENTS FOR THE AWARD OF THE DEGREE OF DOCTOR OF PHILOSOPHY IN LAW IN THE DEPARMENT OF INTERNATIONAL LAW AND JURISPRUDENCE, FACULTY OF LAW, UNIVERSITY OF NIGERIA
SUPERVISOR: PROF JOY NGOZI EZEILO (OON)
AUGUST, 2018 iii
CERTIFICATION This is to certify that this research was carried out by Emeka C. Adibe, a post graduate student in Department of International law and Jurisprudence with registration number PG/Ph.D/13/66801. This work is original and has not been submitted in part or full for the award of any degree in this or any other institution.
------ADIBE, Emeka C. Date (Student)
------Prof. Joy Ngozi Ezeilo (OON) Date (Supervisor)
------Dr. Emmanuel Onyeabor Date (Head of Department)
------Prof. Joy Ngozi Ezeilo (OON) Date (Dean, Faculty of Law)
iv
DEDICATION To all Victims of Terrorism all over the World.
v
ACKNOWLEDGEMENTS Gratitude is owned to God in and out of season and especially on the completion of such a project as this, bearing in mind that a Ph.D. research is a preserve of only those privileged by God who alone makes it possible by his gift of good health, perseverance and analytic skills.
Again I would like to express my sincere gratitude to my advisor, Prof. Joy Ezeilo
(OON) for the continuous support of my Ph.D. study and related research, for her patience, motivation, and immense knowledge. Her guidance assisted immensely to the success and timely writing and completion of this research. I could not have imagined having a better and very understanding advisor and mentor for my Ph.D. work.
Besides my advisor, I would like to thank the rest of the academic staff of Law
Faculty of University of Nigeria especially Prof. Chukwunonso Okafo who provided the initial academic advice at the inception of this work and to the rest of the staff for their untiring support and encouragement during the course of this research work.
I also owe and acknowledge the assistance of my immediate family and numerous friends especially Mrs Jane Adibe- my mother, Dr & Mrs Basil Nwankwo, Rev. Fr
(Dr) Steve Ziga Dedua and Mrs Tina Obiakor who have contributed in many varied ways to see to the success of this research through their moral, financial and logistics support.
I cannot forget the subtle contribution of my students at the Law faculty of University of Nigeria to the success of this work, as they continued to provide me with subjects for deep thinking and analysis leading to more profound analysis of the subject matter of this research. Emeka Adibe vi
TABLE OF CONTENTS
TITLE PAGE ...... ii CERTIFICATION ...... iii DEDICATION ...... iv ACKNOWLEDGEMENTS ...... v TABLE OF CONTENTS ...... vi TABLE OF CASES ...... ix TABLE OF STATUTES, RESOLUTIONS AND CONVENTIONS ...... x TABLE OF ABBREVIATIONS ...... xiii ABSTRACT ...... xv CHAPTER ONE: GENERAL INTRODUCTION ...... 1 1.1 Background of the Study ...... 1 1.2 Statement of the Problem ...... 5 1.3 Research Questions ...... 11 1.4 Aim and Objectives of the Study ...... 11 1.5 Research Methodology ...... 13 1.6 Significance of the Study ...... 14 1.7 Scope and Limitation of the Study ...... 16 CHAPTER TWO: A REVIEW OF LITERATURE ON TERRORISM AND COUNTER-TERRORISM FRAMEWORKS ...... 18 2.1 Defining Factors of Post 9/11 Era ...... 18 2.2 The Historical and Theoretical Evolution of International Terrorism ...... 30 2.3 Terrorism According to Kinds ...... 41 2.4 Terrorism: The Problem of Definition ...... 45 2.5 Nature of Terrorism ...... 51 2.6 Definition of Terrorism ...... 58 2.6.1 Mens Rea of Terrorism (Subjective Element) ...... 68 2.7 Typologies of Terrorism...... 74 2.8 Counter Terrorism Response Frameworks ...... 83 2.8.1 Counter Terrorism and Use of Force in International Relations ...... 83 2.8.2 Terrorism as Armed Attack ...... 90 2.8.3 Combating Terrorism and International Humanitarian Law ...... 93 2.8.4 Counter-Terrorism and Human Rights Regime ...... 100 2.9 Major Terrorist Networks in the Post 9/11 Era ...... 105 vii
2.9.1The al Qaeda ...... 105 2.9.2 Boko Haram ...... 109 2.9.3 Al Shabaab ...... 111 2.9.4 Islamic State in Iraq and Levant (ISIL) or ISIS ...... 113 CHAPTER THREE: COUNTER TERRORISM INITIATIVES UNDER INTERNATIONAL LAW AND COUNTER TERRORISM RESPONSE MODELS ...... 117 3.1 International Legislative Frameworks ...... 117 3.1.1 The United Nations Counter Terrorism Initiatives ...... 118 3.1.2 UN Counter Terrorism Conventions ...... 119 3.2 Regional Initiatives- European Union (EU), African Union (AU), ECOWAS, Arab League, Organisation of American States (OAS) ...... 134 3.2.1 European Union (EU) ...... 135 3.3 African Union (AU) ...... 140 3.4 Arab League ...... 143 3.5 Economic Community of West African States (ECOWAS) ...... 144 3.6 Organisation of American States (OAS) ...... 146 3.7 The Problem of Policing and Prosecution of Terrorists ...... 147 3.8 Counter-Terrorism Response Models ...... 156 3.8.1 The Rule of Law Model ...... 156 3.8.2 The War Model: Between National Security and Liberty ...... 167 3.8.3 Human Rights/International Humanitarian Law Response Model ...... 200 3.8.4 Anti- immigration Model- Donald Trump Alternative...... 216 3.8.5 Negotiation Model (ADR) ...... 223 CHAPTER FOUR: TERRORISM AND THE NIGERIAN EXPERIENCE ...... 230 4.1 Historical Dimension and Causes of Terrorism in Nigeria ...... 230 4.2 Impact of Terrorism in Nigeria ...... 243 4.3 A Review of Nigerian Terrorism Prevention Regime and Counter Terrorism Measures...... 251 4.4 Challenges of Combating Terrorism in Nigeria ...... 272 CHAPTER FIVE: FILLING THE GAPS-TOWARDS AN INTEGRATIVE MODEL OF COUNTER TERRORISM ...... 278 5.1 Towards an Integrative Model of Counter-Terrorism-A Just Peace Making Theory ...... 278 5.2 Counter-Terrorism and Criminal Justice Paradigm ...... 293 5.3 Information Technology, Terrorism Financing and Financial Institution‘s Role in Combating Terrorism ...... 298 viii
5.4 Victims of Terrorism in the Counter Terrorism Matrix ...... 315 CHAPTER SIX: SUMMARY OF FINDINGS, RECOMMENDATIONS AND CONCLUSION ...... 320 6.1 Summary of Findings ...... 320 6.2 Recommendations ...... 327 6.2.1 Human Rights Compliant Counter Terrorism Framework ...... 327 6.2.2 Capacity Building and Better Policing Mechanisms ...... 328 6.2.3 Emphasis on the Criminal Justice Model rather than War Model ...... 328 6.2.4 Diplomacy and Public enlightenment united against Terrorism ...... 329 6.2.5 Positive Counter Terrorism Propaganda and Proportional Military Response when necessary ...... 329 6.2.6 International Cooperation of States ...... 330 6.2.7 Focusing attention on the Victims of Terrorism as an essential part of Counter Terrorism Matrix ...... 330 6.2.8 Weapons Control and International Community ...... 331 6.2.9 Strengthening Social Security especially for Minorities/Unemployed to discourage further Recruitment of New Members ...... 331 6.2.10 Judicial Reform...... 332 6.3 Conclusions ...... 332 BIBLIOGRAPHY ...... 336
ix
TABLE OF CASES Charkaoui v. Canada 2007, SCC 9, (2007) 1 SCR 350 209, 220
Federal Rep. of Nigeria V. Charles Tombra Okah & 3 ors, Suite no. FHC/ABJ/CR/186/2010 264
Federal Republic of Nigeria v. Shuaibu & 5 ors (unreported) 264
Gillian & Quinton v. United Kingdom 4158/05(2010) ECHR 28 (12 January 2010) - 324
Hamdam v Rumsfeld U.S 548 U.S 557(June 29, 006) 96,164,183,185,190,191,198
Hamdi v Rumsfeld 542 U.S 507 (2004) 188, 195, 198
Johnson Eisentranger 339 U.S, 763 (1950) 186, 187, 190
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ- 102
Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S) 1986, ICJ 14 (June 27) Merits 87, 171,179,215
Othman Abu Qatada case (Othman (Abu Qatada) v U.K (2012)55 EHRR 1, 211
Ex Parte Quirin (Quirin case) 317 U.S 1 (1942) 191,192
Rasul v Bush 542 U.S. 466 (2006) 188, 198
Sheras v. De Rutzen (1895) 1 Q.B, 918 70
Suresh v. Canada (Minister of Citizenship and Immigration, 2002, SCC1 208
Tadic Case (Prosecutor v. Dusko Tadic, ICTY, Case no. IT-94-172, 1995 97, 98 179, 214.
x
TABLE OF STATUTES, RESOLUTIONS AND CONVENTIONS Nigerian Legislation Economic and Financial Crimes Act (EFCC) Cap. EI of 2004 252, 264 Section 46 252 Section 15 253,264 Money Laundering (Prohibition Act), No 11 (2011) 253 Section 16 253 Terrorism Prevention Act (2011) (as amended) 255, 256, 259, 263 Nigeria Cybercrime Act 2015, s.18- 307, 308
International Law Instruments United Nations Charter (UNC)Art. 2(3) 88, 96 Art 2(4) 89,90, 97,170 Art 2(7) 97 Art 51 86,89,90,169, 170, 202 Art 25 312 Art 48(1) 312 UN Security Council (SC) Res. 731 (1992) 9 UNSC. Res. 1054 (1996),) 9 UNSC (Res. 1267 (1999) 9 UNSC. Res. 1368(2001), 12 Sept. 2001 93, 94,118, 130 UNSC. Res.1566 71 UNSC.Res/1373 (Sept. 28, 2001) 94,118,120, 130,131,251, 312 UNSC/Res/1456 (20th Jan. 2003) 132,206 UNSC Res.2349 (31 March 2017) 131 UNSC/Res. 1535 (2004 133 UNSC/Res. 2178 (2014) 150 UNSC Res.955/1994 ( 8 Nov.1994) 152 UNSC Res. 1377 (12 Nov. 2001) 312 UNSC Res. 1390 (28 Jan. 2002) 312 xi
UN Definition of Aggression, Annex to G.A. Res.3314 (XXIX), U. N. GAOR, 29th sess. U.N. Doc. A/9631 (1974) 90 UNGAOR, UN.Doc.A/RES/54/164 (24 February 2000) 206 UN Convention for the Prevention and Punishment of Terrorism (1937) Art 1 49 UN Convention on the Status of Refugees (1951) 223 Geneva Convention(1949), Art 3 98, 102, 179, 192, 196, 214, 215 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention), 10th Dec. 1984 223 UN International Covenant for Civil and Political Rights (1966) 209, 212 UN International Convention for the Suppression of Financing of Terror (1999) 272 Declaration on the Principles of International Law concerning Friendly Relations and Co- operation among states in Accordance with the Charter of United Nations adopted in 1970- U.N Doc.A/8028 89 Rome Statute of International Criminal Court (ICC)-1998- Art. 11 154 Art. 6 155 Art. 7 155 Art. 1 155 Art.17 155 Art. 25 156 Regional Instruments Africa--AU Resolution on the Strengthening of Cooperation and Coordination among African States [AHG/Res.213 (XXVIII) 140 OAU Declaration on the Code of Conduct for Inter-African Relations[AHG/Del.2 (XXX)]- 140 OAU Convention on the Prevention and Combating of Terrorism (1999) - (The Algiers Convention) 140, 141 Arab Convention for the Suppression of Terrorism (1998) 143 Inter-American Convention against Terrorism (2002) 146 European Convention on the Suppression of Terrorism (1977) 139 European Convention on Human Rights- 139 Council of Europe Convention on the Prevention of Terrorism (Warsaw Convention) - (2005) 139
xii
Foreign Legislation Authorised Use of Military Force (AUMF) 164, 181, 182, 184 Canadian Charter of Rights and Freedoms- Art 7 209 Canadian Immigration and Refugee Protection Act 209 Detainee Treatment Act (DTA) 2005 189, 193,194 195, 196,198 Enhanced Border Security and Visa Entry Reform Act (EBSVERA) 219 USA- Patriot Act 2001 218, 219 U.S Military Commissions Act (2006) 164, 186, 193, 195,198 Uniform Code of Military Justice (UCMJ) 96, 185, 193
xiii
TABLE OF ABBREVIATIONS ADR- Alternative Dispute Resolution AU- African Union AUMF- Authorised Use of Military Force CCR- Cooperative Conflict Resolution CSRT- Combatant Status Review Tribunal CTC- Counter Terrorism Committee DTA- Detainee Treatment Act ECOWAS- Economic Community of West African States EU- European Union EFCC- Economic and Financial Crimes Commission FATF- Financial Action Task Force GC- Geneva Conventions GAOR- General Assembly Ordinary Resolution ICJ- International Court of Justice ICC- International Criminal Court ICTY- International Criminal Tribunal for the Former Yugoslavia ICTR- International Criminal Tribunal for Rwanda ICRC- International Committee of the Red Cross ICCPR- International Covenant on Civil and Political Rights IED- Improvised Explosive Device IPOB- Indigenous People of Biafra IRA- Irish Republican Army ISIS- Islamic State of Iraq and Syria ISIL- Islamic State of Iraq and Levant IHL- International Humanitarian Law LTTE- Liberation Tigers of Tamil Eelam MASSOB- Movement for the Actualisation of the Sovereign State of Biafra MCA- Military Commissions Act NDA- Niger Delta Avengers xiv
NDVF- Niger Delta Volunteer Force OAS- Organisation of American States PKK- Kurdistan Worker‘s Party Res. – Resolutions SC- Security Council TPA- Terrorism Prevention Act UNCTITF- United Nations Counter Terrorism Implementation Task Force UCMJ- Uniform Code of Military Justice UN- United Nations UNC- United Nations Charter UNSC- United Nations Security Council 9/11- September Eleven, 2001 terror incident in the United States
xv
ABSTRACT In the face of the unimaginable negative impact of terrorism since 11September 2001 incident on the stability of states ranging from insecurity, economy, threat to life and property, human rights, legal and enforcement machineries have been unleashed for purposes of containing the menace. This research properly demonstrates that International law as well as states are continuously developing strategies and road maps in the form of resolutions and conventions, legislations for the purpose of defeating terrorism. This work unpacks the notable legal frameworks and principles that are often implicated in the ongoing campaign against terrorism. However, the overriding objective of this thesis is to examine the variant models of response adopted by states (with Nigeria in focus) grappling with the problem of terrorism looking at their policy and legal framework for anti-terror campaign. Five variant models are extrapolated as representing the counter-terror models namely: The Rule of Law approach, War model, Human Rights/ International Humanitarian Law response Model Negotiation Model and Anti-Immigration Model. Following a comparative, historical and analytic methods, the sources of data for the research include relevant statutes of some states as well as legal instruments originating from international organisations and regional bodies. Other sources include opinions from legal theorists and experts gleaned from textbooks, journal articles, Newspapers, electronic media and web based sources. The high point of this study is to be located in its finding that the effectiveness of most counter terrorism measures lie in the lack of attention given to the social dimension that attends to many terrorism conflicts notwithstanding the security measures in place. This approach finds that responses that are heavily skewed towards punitive measures and legal remedies fail to address the drivers and the underlying factors that cause violent extremism in the first place. Other findings of the research include the dilemma faced by the governments who are confronted with the need to counter terrorism while preserving the human rights of its citizens.
1
CHAPTER ONE
GENERAL INTRODUCTION
1.1 Background of the Study In the wake of the Tuesday, 11 September, 2001 attack orchestrated by al Qaeda terrorist network, President Bush addressed America in the following words:
Ladies and gentlemen, this is a difficult moment for America. Two airplanes have crashed into the world trade centre in an apparent terrorist attack on our country. Terrorism against our nation will not stand.1 For President Bush, America had suffered the most devastating surprise attack since
Pearl Harbor.2 Subsequently, it became a major project for United States to devise a strategy to bring the terrorist to justice so they would not strike again. Since the attack of Sept 11, 2001, many other parts of Europe (especially Western Europe) and parts of Africa and Asia have had their own bouts of terrorist attack in devastating scale too.
There is no doubt that the 9/11 event has had tremendous impact on the way things are done all over the world. Hence, the statement of Barkawi that ―one of the consequences of 9/11 is a reinvigoration of state efforts to control movements of people and goods across borders.‖3. Often the response of many states to terrorism is determined by the prevailing rhetoric employed to describe them in any given situation. Where the war language is the prevailing narrative, the response model will consequently follow the military model. Hence, ―if the terrorists are viewed…as
1G. W. Bush, Decision Points, (Crown Publishers New York 2010) 128. 2 On December 7, 1941, hundreds of Japanese fighter planes attacked the American naval base at Pearl Harbor near Honolulu, Hawaii. The barrage lasted just two hours, but it was devastating: The Japanese managed to destroy nearly 20 American naval vessels, including eight enormous battleships, and more than 300 airplanes. More than 2,000 Americans soldiers and sailors died in the attack, and another 1,000 were wounded. 3 T. Barkawi, Globalisation and War, ( Rowman and Littlefield Inc. Oxford 2005) 6. 2 people who cannot be reasoned with or engaged in any fashion, the tendency is to rely wholly on military and other security means, legitimated in a Manichean rhetoric of absolute right versus absolute wrong.‖4 The point made here is that different worlds create different worldviews regarding their appreciation of conflict and the corollary response they provide in order to counter or resolve it.
Whatever strategies that have been employed by all these other countries including
Nigeria as counter terrorism measures, eventually reducing the menace and bringing terrorists to justice is the subject of analysis and evaluation of this thesis. What is commonly known in this era is that terrorism has become an element of modern society that will never be eliminated because human nature appears to thrive in conflict. There is no doubt that the threat of terrorism has risen progressively in the world over the last decade. The current political, economic and political reality of the world has made it that people are increasingly influenced by mounting religious fundamentalism, angered by nationalistic policies, displaced socially and geographically by economic and territorial expansionism. Thus, any group or individual who is disappointed with or alienated from a particular system or have no other means of expression can find legitimate reasons in religious texts or in expressions of nationalism to justify the act of terrorism. In the light of this fact, terrorist often target anyone whom they blame for what they believe to be injustices of a system.
Acts of terrorism occur both in time of war or peace. (In response to it, it sometimes creates a war situation as in Afghanistan and Iraq in the years leading from September
11, 2001 event.) War as a social phenomenon whether fought as just war or in defence of civil rights or in counter terrorism is an ill wind that blows no one any good. In any
4Ibid. 130. 3 event whether on the side of the strong or weak, the number of victims rises all around and civilians are often killed as collateral damage. It has often been argued that the ethical theory of just war can be extrapolated to argue for the war model of counter terrorism. But whether or not the war model has succeeded in solving the menace or exacerbating the incidence remains to be proved. Perhaps in the recent times, more prominent than all these threat to global security mentioned above is war orchestrated by various acts of terrorism which transcends all geographical boundaries. Hence Reuven Young clearly describes the situation as follows:
Although the frequency of terrorist attacks has been relatively constant since 1989, the increasing scale of attacks (as September 11, the Bali and Madrid bombings, the siege at Beslan, and the London bombing tragically illustrate) is alarming. September 11, illustrating that terrorism crosses national and ethnic boundaries changed the prevailing attitude to terrorism and certainly the attitude of the most influential states. The proliferation and greater availability of weapons of mass destruction, modern society‘s dependence on computer systems, and the emergence of cyber-terrorism increases the likelihood of a large scale high-impact terrorist attack.5 War is a corollary of terrorism and sometimes the rhetoric for the response to terrorism is war. If it was not the al Qaeda in Afghanistan or Pakistan, it is the ISIS in
Syria and Iraq, or the Al Shabbat in Somalia or the Boko Haram in Nigeria or a small cell Moslem fundamentalist groups in Canada or other parts of the Europe like France or Belgium waging a jihad in defence of Islam.
Since the September 11, 2001 terror attacks in the United States, the need to prevent or respond to acts of terror has radically transformed the policing and security landscape of countries.6 This is often marked by the enactment of new legislations, creation of new security agencies or departments, fostering inter-agency intelligence
5 R. Young, ‗Defining Terrorism: The Evolution of Terrorism as a Legal Concept in International Law and Its Influence on Definitions in Domestic Legislation‘, Boston College of International and Comparative Law Review, (Vol. 29), (Issue 1) 23. 6Walter Liqueur, Historical Context for the Phenomenon of Modern Day Terrorism (2007),
In Nigeria, since the return to democratic rule in 1999, we have had national security challenges across the six geo-political zones in the country.7 The spate of bomb blasts, kidnapping, and pipeline vandalisation are all emerging trends of domestic terrorism.
The trend of domestic terrorism in the country especially with activities of the dreaded Islamic sect popularly known as Boko Haram has become a major concern for both the Nigerian government and the international community. The sustained and growing conflict between the state and extremist groups such as Boko Haram has exacted a devastating cost on the human rights of citizens. Since January 2009, attacks by these groups have grown exponentially, leading to deaths of dozens of people and large scale destruction of properties.
In many jurisdictions, measures have been taken, sometimes at the expense of compromising civil liberties in affected regions. These measures cannot be said to be have been effective for the purpose of acquiring actionable intelligence against terrorist threats and responding effectively to it. Against the backdrop of the experience in Iraq and Afghanistan and other terror destinations in the world, it has been shown that there cannot be a credible and sustainable solution to terror violence without the collaborative effort of civil society groups, academia, local community‘s leaders, faith-based organizations, and neighborhood watch. They remain central to long term solutions to terror conflicts and terror violence. Given the level of destruction and displacement of peoples occasioned by act of terrorism in many affected communities, it is of utmost priority to all affected states and the
7 J .O. Abimbola and S.A. Adesote, ‗Domestic Terrorism and Boko Haram Insurgency in Nigeria, Issues and Trends: A Historical Discourse‘ [2012](4) Journal of Arts and Contemporary Society, 15.
5
International Community not only to defeat terrorism but also find credible solutions to prevent its reemergence or at least keep it in check.
It is against this background that this research tends to investigate the challenges of international and domestic terrorism. This work evaluates the various models which
States over the past two decades have adopted to address and counter the menace of terrorism. Effort was be made in understanding in particular, the response model subscribed by Nigeria to counter the emergent Islamic terrorist sect called Boko
Haram and any other group in Nigeria masquerading as terrorists so called in the overall understanding of this research work.
1.2 Statement of the Problem The problem of conducting any research on terrorism in this era of incessant terrorists‘ activities must begin with the problem of lack of commonly agreed definition of the term among scholars and stakeholders. Not until the events of 9/11 which hit the United States so hard, the focus was more on describing terrorism by some of its activities rather than from a conceptual view point. Terrorism has always existed before the advent of 9/11.But one of the major problems militating against effective response to terrorism is the elusiveness of the term, hence the lack of universally accepted definition because it is difficult to respond to a problem that is undefined in its ontology, nature, scale and method. Mohammad Qadri agrees more to this state of affairs when he remarks that ―Ontological and political obstacles have been faced by scholars who have engaged on this daunting task… the quest for perfect definition had in fact thrown scholars into different directions.‖8 The supposition that is often reached is that terrorism is a matter of perception. Hence, more often than not, individual states are left with articulating the meaning of terrorism within their
8 Muhammad Ahmed Qadri, ‗Terrorism: A Serious Challenge to Transnational Relations and World Peace‘ [2016] International Affairs and Global Strategy (Vol. 40); 43. 6 borders such that a person or group of person are tagged terrorist in a place, while in another, they are regarded as heroes.
It is apposite to state at this point that every act of terrorism involves a measure of violence or threat of violence to achieve a set of objectives in the mind of the terrorist.
On account of the variant definitions offered for terrorism, the burning and ultimate question is whether all forms of violence amount to terrorism, or is terrorist violence a function of who is responsible for it or to whom it is targeted and for what purpose?
The offshoot of ambiguous state of affairs is that individual States using relevant laws that suit their purpose are often enabled under their laws to declare a group or organization as terrorist and deal with them as fit their law.
However, what is acceptable both on the streets and amongst scholars is that terrorism is a violent crime, which like all crimes must satisfy some basic components to be defined as such. However, the material factor remains the intent behind the violence.
Without the requisite intent, the crime would be something else and not terrorism.
What has become problematic is the stereotyping of all violence as terrorism when orchestrated by notorious group of persons and in places notorious for similar acts of violence. General statements about the rejection of violence are not sufficient to condemn terrorism because there is need to make clear statements that differentiate between the different kinds of violence. In this light, certain counter terrorism approaches or models are often not very effective in fighting terrorism perhaps because of its hydra headed nature as to its forms, motivation and identity of suspects as found in many literatures. The differentials of place of attack and who is in involved in the terrorist activity are critical to determining the legal framework applicable. Thus, perpetrator of the attack, at what period (peace time or armed 7 conflict period), and the likely purpose of the attack would often determine the model of response and the legal framework to be engaged.
Sometimes, terrorist attacks are carried out by a state through its regular army or its citizens or by foreign organizations housed and provided for by the aggressor states.
Sometimes, the violence is committed by an individual within a state or by a group motivated by religious or doctrinal reasons. Sometimes assaults are carried out by international organisations that have affiliates with other groups. The response model for terrorism should not therefore be a one size fits all. The problem here consists in the setting out the parameters that must be in place for the determination of the proper response model in any given terrorist assault situation.
One of the questions that beg for answer in this research is whether states are obliged to observe the rules of International Humanitarian Law (IHL) in their counter terrorism campaign especially where the anti-terrorism measure has snowballed into full scale war as we find in Syria and Iraq currently. It is necessary to observe that international humanitarian law has evolved to incorporate some inalienable principles like respect for human values that are consistent with religions and world conscience.
While states recognise this principle of International Humanitarian Law, the narrative of response to terrorism has not indicated that they are highly respected by states in their counter terrorism approaches. The war campaign and rhetoric against terrorism has shown that states worry less about complying with the principles of IHL, and are concerned more with the virtual terrorist as an enemy or evil to be destroyed.
The Just War theory model considers the moral permissibility of engaging in warfare for the purposes of countering terrorism. The problem associated with this model is that while this model attempts to justify military measures against terrorism from 8 moral perspective, the question of efficacy of the military measures and the collateral effect is relegated to the background. Similar to this model, is the deterrence model which also uses the military offensive as a tool to effecting counter terrorism success.
More importantly Munoz and Crostton9 argue that counterterrorist deterrence are often un-popular because of their perceived heavy handedness and lack of confidence that the strategy can be effective against non- state actors like the Boko Haram, ISIL, al Qaeda and other non-state terrorist cells. Largely this model has been the most popular by the Nigeria government in its counter terror measure.
This research cannot claim an oversight to the problems associated with transnational nature of terrorism incidents as well as the counter-terrorism measures and its interface with the theory of non- intervention/territorial integrity of states. D.J.
Omale10 proposes a model that speaks to the increased cooperation of states for effective counter terrorism effort. For instance, the Paris massacre or incident of
January 2016 was planned in Belgium (another state) and executed in Paris by both
French and Belgium nationals. The offshoot of this is that any counter terrorism approach must take cognizance of the inviolability of the state territory and tend toward a model which admits of the cooperation of states.
Recognizing this interdependent approach to the fight against terrorism, the United
Nations and its various organs underscored that fact in many of its documents while addressing terrorism. However, the problem that confronts this approach is that some states are found to be sympathetic to the terrorist groups such that it becomes very difficult to police the terrorists within the boundaries of those states even where such organisations have been declared as a threat to international peace and security.
9 Ibid 10 D. J. Omale, ‗Terrorism and Counter Terrorism in Nigeria: Theoretical Paradigms and Lessons for Public Policy‘ [2013] Canadian Social Science (Vol. 9) (No.3) 96-103 101 9
However to those who see terrorism as a justified reaction to oppression and as a product of social and political marginalization, the best counter terrorism model is to address the social and political exclusionism that underpins grievance of minorities/young people and estops the youths from association with elements that promote radical ideologies, extremism and violent resistance.
Apart from these approaches to anti – terrorism, the United Nations has neither rested on her oars in making necessary legislative and institutional recommendations to enable states formulate policies for effective campaign against terrorism. The United
Nations understands that after the demise of cold war, terrorism is considered as the most compelling threats of these era, thus in many of its resolutions origination from the Security Council (SC), it has often qualified the acts of international terrorism as threats to international peace and security.11
Given the pivotal role assumed by the SC in the international fight against terrorism, any act of international terrorism is considered a threat to international peace and security.12Unfortunately, the implementation and effective enforcement of anti-terror resolutions at the domestic level depend to a greater parton the cooperation of UN member states. Andrea Bianchi expressly this point as follows: ―The efficacy of action undertaken at the international level relies therefore on the willingness and actual capacity of states to incorporate international standards in their domestic legal systems and to subject them to their adjudication and enforcement procedures.‖13 The first problem that confronts the United Nations model of anti-terrorism is the lack of widely shared definition of terrorism at the international level. This problem speaks to
11 Security Council (SC) Res. 731 (1992), SC. Res. 1054 (1996), SC. Res. 1189 (1996), SC (Res. 1267 (1999) 12 SC. Res. 1368(2001), 12 Sept. 2001 13 A. Bianchi, ‗Security Council‘s Anti- terror Resolutions and their implementation by member States- An Overview‘ [2006] Journal of International Criminal Justice (JCJ) (4); 1044-1073 @1045. 10 the difficulty of assuring mutual assistance of States in combating terrorism. This explains the lack of comprehensive anti-terror conventions from the world body notwithstanding the significant impact of terrorism to transnational relations and world peace. The recent events in the Syrian War occasioning the Russian involvement from a perspective different from US involvement in that war speaks volumes to the differing construction of terrorism amongst member states. States are not given blank cheque to fight terrorism according to their own definitions as that would pave way to abuse and political witch-hunting. While the major thrust of the
United Nations is to direct states to criminalize acts that are terrorism in nature, the
United Nations also enjoins them to do so in ways that correspond with human rights standards and without limiting civil liberties. Discussions are rife among scholars like
Jeremy Waldron14 as to what extent civil liberties can be limited especially in the quest for security within the context of the campaign against terror. Waldron argues among other things that some adjustments in the scheme of civil liberties is inevitable.
While Grayling argues on the contrary that it is a mistaken belief to think that the right way to defend society against terrorism and crime is to dismantle some aspects of civil liberties.15
In the light of several models and problems attendant to them as succinctly exposed herein, the search for effective model continues unabated for the global society and for Nigeria. This research hopes to contribute to this scholarship with the principal aim for a re-evaluation of models prevalent among states and making necessary recommendations for the adoption of a model (with adapted legislative and institutional frameworks) well suited for each location including Nigeria.
14 J. Waldron,‘ Security and Liberty: The Image of Balance‘ [2003]The Journal of Political philosophy (Vol. 11) (2); 191-210 15 A. C. Grayling, Liberty in the Face of Terror- A Defence of Civil Liberties and Enlightenment Values, (Bloomsbury London 2009), 1. 11
1.3 Research Questions
The following questions will be addressed by this research:
1. To what extent has the problem of lack of universally agreed definition of
terrorism impacted the absence of effective model for combatting terrorism
under International law and in Nigeria?
2. What legal or institutional strategies for counter terrorism exist within
international law and what response models are there in general and upon what
theory/ideology are they based especially as it interfaces with human rights
and international humanitarian law principles?
3. What are the foundations and driving factors of terrorism in Nigeria and what
efforts have Nigeria made within the legal forum or otherwise in combating it?
4. What proposals can be made in the context of the difficulty of defining and
combating terrorism and of the variant models that exist at the international
level and the domestic level for more effective counterterrorism?
1.4 Aim and Objectives of the Study The aim of this research is to examine the response of states (with Nigeria in context) to terrorism in the post 9/11 era, that is dating from the time after the horrific attack on the United States of America in 11 September 2001 and propose a credible model for states and Nigeria.
The global society is very preoccupied with finding ways and means for effective elimination of terrorism much more than this researcher does. This is more so in this era where recentlynations in the western Europe are not at rest from incessant lone wolf terrorists attacks counting the Islamic State of Iraq and Levant(ISIL) network 12 striking in Paris (France)16 in November 2015 and subsequently with another attack in
Brussels (Belgium)17 in March 2016 at locations where the law enforcement agents were least expecting them with potential tremendous casualty to the civilian population comprising mainly of tourists and travelers using the public spaces and transportation systems. This is not to lose sight of the attacks perpetrated by Boko
Haram in the North East of Nigeria on daily bases, destroying villages and Churches and rendering people displaced from their local communities and the attacks by terrorists in Ivory Coast (March 13, 2016 and Mali(March 21, 2016) targeting hotels, recreational resort centres, beaches etc. for obvious reason of disrupting the normal lives of innocent citizens, tourist and expatriates workers.. As the West, Middle East and African nations continue to fashion approaches to anti-terrorism, terrorists are busy contriving maneuvers to strike at the deepest of impact on innocent populations.
It is appropriate for the academic community to go deeper than the war models prevalent in many anti- terrorism approaches, to engineer a more all-inclusive model for the purpose of defeating, prosecuting, discouraging and eliminating the evil menace.
In addition to the stipulated major objective, this research also seeks achieve the following specific objectives namely: i.) Review the various legislative and institutional strategies as well as the effectiveness of existing tools for combating terrorism at the global spectrum relating same to the lack of universally accepted definition of terrorism, ii) Identify the various models amongst states in the practice
16 On the evening of Friday 13 November 2015, a series of coordinated terrorist attacks occurred in Paris and its northern suburb, Saint-Denis. Three suicide bombers struck near the Stade de France in Saint-Denis, followed by suicide bombings and mass shootings at cafés, restaurants and a music venue in central Paris. The attack killed 130 persons with many others wounded. The ISIL which claimed responsibility said it was in retaliation of the French airstrikes in ISIL targets in Iraq and Syria. 17 On the morning of 22 March 2016, three coordinated nail bombings occurred in Belgium: two at Brussels Airport in Zaventem, and one at Maalbeek metro station in Brussels. In these attacks, 32 victims and three suicide bombers were killed, and over 300 people were injured. ISIL also claimed responsibility for these attacks. 13 of anti-terrorism; critically examining the potential collateral damage counter terrorism has on human rights and international humanitarian law ideals.iii) Critically focus attention to the existing tools within Nigerian policy space for counterterrorism with the objective of evaluating the Nigerian counter terrorism model, iv) Make recommendations to strengthen the existing tools- legislative and institutional frameworks for combating terrorism in the global society and Nigeria.
1.5 Research Methodology Terrorism as a subject is as historical and as it is dynamic. It is historical in the sense that it has deep historical roots in many jurisdictions much more than what is being witnessed. It is dynamic because terrorist activities and techniques continue to change its methods, geographical emphasis and philosophy. Against this backdrop, the research methodology adopted in this work would follow a doctrinal-historical float and driven by analytic and comparative approaches.
The doctrinal-historical method is employed for the purpose of identifying the different faces of terrorism and their perpetrators in the more recent era since 9/11 event and at the same time extrapolate the various models that were employed to counter them.
The comparative approach will extend to the comparison of the laws/regulation as found within the United Nations systems and in regions which have recorded considerable impact of terrorism such as the Middle East, United States, Europe and
Nigeria. These regions were specifically chosen because of incessant cases of terrorism and the attendant responses either collectively as a region or individually as a country for the purposes of counter terrorism. The comparative approach will also involve a deeper investigation into the different measures discernable from state 14 practices especially in these locations mentioned where the terrorism threat has become common place and more palpable.
A descriptive and analytic approach is employed in this research for the purpose of understanding the primary and secondary research resources. The primary sources of data include case laws, national legislations and conventions/resolutions of international bodies. While the secondary sources of information were derived from international law text books, journal articles newspapers and other relevant textbooks.
The purpose of this is to further enrich the database on terrorism for the purpose of making a holistic recommendation for an effective counter-terrorism strategy.
The research tools engaged include library research, internet based resources, law reports, consulting with law journals, case reviews and insightful discussions with stakeholders on the subject matter of terrorism. Essentially the research follows a theoretical route too by alluding to important theories and their relevance to the models adopted within the counter terrorism community. In this connection, the work engages a number of basic theories which include the rule of law theory, human rights theory and the cost benefit theory in exploring the models uncovered in the research.
1.6 Significance of the Study Whereas it is obvious that terrorism represents an ominous threat to security of life and property both in domestic and global society, it is not readily apparent the great risk or harm or consequences that inappropriate responses to it really portends for the global liberal political order. Against the backdrop of a sustained military response to terrorism as the more pronounced model, there is need to ask and provide answers to some important questions such as: Why has terrorism persisted in the face of sustained military response without deference to liberal democratic values like human rights and rule of law? Apart from a military/war model, can we construct another 15 model or other models to effectively deal with the problem? If not, could there be a modified alternative to the war model as currently constructed, applying the principles of international law that are sufficiently enshrined in the United Nations
Charter. The essence of this is to lend some considerable legitimacy to any military response whatsoever in any place where terrorism is being combated.
The war approach of responding to terror adopted immediately following post 9/11 derives its force from the claim that the terrorist attack on United States of America on Sept. 11 was an attack on the values that made the country great namely freedom and justice. However starting a war to promote and protect freedom and democracy could in rare circumstances be a justified act,18but where war on terror has taken the form of war on civil liberties in the name of security, Grayling has argued that such a strategy is counterproductive and unjustifiable.
This research work is intended to provide rather comprehensive information regarding the history as well various anti-terrorism practices therein for all stake holders at the international and domestic level through the conduct of robust literature review. One of the goals of this research is to develop a level of objectivity in dealing with this contentious and emotional subject. The other important goals are to explore this troubling phenomenon in order to explain and understand it. The work therefore seeks to explain and understand terrorism in order to come to terms with it and to create and implement policies that will counter it effectively and expose the underlying causes that give rise to it.
The research‘s approach in the deconstruction of various anti-terrorism models would further expose the problems and weakness of the more popular models or approach
18 A. C. Grayling, Liberty In the Age of Terror, A Defence of Civil Liberties and Enlightenment Values, (Bloomsbury Publishing Plc. London, 2009) 59.
16 taken by states in their anti-terrorism campaign. Thus exposed, states would go beyond their mere traditional approach in the combating of terrorism and embrace a more realistic but comprehensive model.
Case law and legislations of various local and international jurisdictions will be consulted and evaluated for the purposes of assessing their legitimacy under the rule of law democratic principles. This research will also tow a rare trajectory of conducting analysis of counter terrorism using the lens of criminology. Hence, it would engender an understanding of counter terrorism or the campaign against it from multifarious curves.
The whole idea of this research is a critical attempt to answer the question from historical and legal analysis as to why the more pronounced war model has been less effective and the need to evolve a more robust model that will be more effective and credible to be applicable not just to a multi ethnic Nigeria but also to other jurisdictions.
1.7 Scope and Limitation of the Study The research is time conditioned in the sense that it studies the practice of states in their anti-terrorism campaign dating from the tragic events of 9/11 which has been regarded as the seminal and defining moment of contemporary terrorism. The study shall also conduct a nominal roll call of the principal terrorist organisations, their motivation, ideology, affiliation, geographical presence and means of operation.
Efforts will therefore be made to identify as many states as possible that has an inherent problem of terrorism and what effort and resources that has been put in place to checkmate the problem from a legal point of view and at the policy level.
The research shall draw from the various legal and normative instruments at the international and regional levels in order to evaluate how state parties have complied 17 with the provisions thereon. However, the focus shall extend to the problem of terrorism in Nigeria as recently orchestrated by the Boko Haram sect and the Niger
Delta Militants. Thus, the aim is to evolve from our study a more comprehensive approach or model in the fight against terrorism that would be credible as well as effective for Nigeria and for most states in the anti-terror campaign.
Also given that much of Nigeria‘s counter terror campaign is shrouded in secrecy and centered around military campaign and secret service, it was difficult to identify a clear policy on anti-terrorism except by extrapolating from the practices that are apparent in much of the response adopted by these agencies discernable from newspapers and commentaries.
Given the growing frequency and never ending campaign of terror around the globe and in Nigeria by various groups, it was also difficult to keep pace with the statistics, nature, and forms of terrorism as well as with the response model attendant to them as employed by stakeholders. The researcher appreciated the fact that terrorism and counter terrorism is an ever growing subject and hence the research is limited by the existing practices, models and regulations under international law and various bodies relevant for the significant checkmate of prevailing terrorism activities. 18
CHAPTER TWO
A REVIEW OF LITERATURE ON TERRORISM AND COUNTER- TERRORISM FRAMEWORKS
Chapter two is an exercise undertaken precisely for the purpose of understanding the subject matter of terrorism. In addition to locating the defining factors of the terrorism in the period in question, it takes off from reviewing the literature around the problem of definition of terrorism, delving into the various tools critical to understanding terrorism as a criminal act with obvious international wings in terms of its reach and impact. In this chapter, it was significant to underscore the theoretical frameworks that underlie the major assumptions and foundations of this research. Such theoretical frameworks include the following: Use of force, Human Rights, International
Humanitarian law. Again the chapter identifies and traces the major terrorism networks in the frame of post 9/11 narrative.
2.1 Defining Factors of Post 9/11 Era Describing a state, Daniel Madar says, ―that a state occupies a given territory, has population and a government and is recognised by other states.‖1 He concludes that neatly defined territorial political units constitute the foundation of the international system, shaping its spatial order and organising human kind into formal subdivisions.
At the base of anarchy in a political system is the problem associated with the responsibility of the state to secure its territorial integrity and manage it successfully.
In international relations, political systems are therefore established to preserve order against international and external threats, to wit to forestall anarchy.
1 D. Madar, Canadian International Relations, (: Prentice –Hall Canada Inc. Scarborough, Ontario 2000) 97. 19
The threat of war and violence pervades the historical past of mankind and on account of these warfares and violence; dread has always been mankind‘s regular companion.
Security issues continue to be any states‘ major concern. Madar defines security as low probability of damage to acquired values.2 Furthermore, international security has frequently been understood as ―the security of a state from external threats to its territorial integrity, political independence and general way of life.‖3 This definition for Madar naturally leads to some specific consideration namely: which values are threatened? Who threatens them? What means are used for the threat? The concomitant response questions to these considerations are: which values are to be protected?, by what means?, and at what cost? In a realistic sense, the most significant challenge has been the military threat posed by other states, revolutionary movements, secessionist groups and terrorist groups. Armed invasion as means of threat violates sovereignty and threatens a state with loss of territory, people and resources. With the demise of the cold war, during which there was massive military standoff between the
Communist Eastern block and the Liberal Democratic West- United States of
America, Canada and Western Europe, the threat to acquired values has made a shift from state occasioned threats to threats perpetrated by the use of violence from non- state actors often propelled by different political ideologies.
In the heat of cold war, and the potential threat to security of states attendant to it, coalitions were formed to muster collective defence systems. Now the cold war is over, these coalitions still stand to serve other but similar purposes in the world stage.
As rightly put,
2Ibid. 223. 3 A. Sens & P. Stoett, Global Politics: Origin, Currents and Directions, (4th edn. Nelson Education Ltd USA 2010) 185. 20
The end of cold war had a profound effect on the study of international security. The focus on superpower rivalry vanished, and a wide range of other security concerns moved to the centre stage. Many of these concerns were not new, but the end of cold war served to bring them to the forefront of the international security agenda.4 This other purpose is the collective response against the menace of violence emanating from non- state actors. Thus apart from the efforts being made by individual states to check the activities of these persons from unsettling their security concern, the efforts of aligned groups are also on hand to pick up the fight as a collective problem, knowing that threats that often arise in active zones of conflict may occasion instability elsewhere. One of such immediate threat is terrorism by non
–state actors who possess the ability to operate in a variety of countries because of their sophisticated network and ever changing tactics. While it is admitted that terrorism has been an international security issue for decades, it has however become the most important security priority of the United States government, Canada and many other governments around the world since the September 11 attacks on the
United States.5 Although there had been actual threats and warnings of terrorist attacks on United States of America6 and her interest abroad, none compares with the
September 11, 2001 attack. The attack was targeted at twin towers of the world trade centre in New York and the Pentagon in Washington D.C and about 3,000 people were killed. The United States identified al Qaeda and its leader, Osama Bin Laden as the group responsible for the attack.7 With September 11 attacks followed other attacks at similar establishments in other places targeting tourists and western interests abroad. Arising from the unprecedented nature of the September 11 attack, people worry about attacks on transportations systems, computer systems, fuel depots
4Ibid.186 5Ibid.187 6 Previous terrorist attacks on U.S interests include the bombing of World Trade Center in 1993, the bombing of U.S embassies in Africa in 1998 and an attack on U.S Warship in 2000. 7Sens and Stoett, (n.3) 192 21 and even water supplies. With September 11 incidents, terrorism was noted as the primary security threat to the United States of America. Consequently terrorism and the states that supported it became the focus of the war on terror launched by the administration of George W. Bush in 2001. Against the back drop of the formidable network of al Qaeda terrorist group with operations in many countries, it became obvious that the problem of terrorism was a trans-sovereign problem and the war on terror was a trans-sovereign war that would involve multiple sovereign states. As
David Long would put it: ―It is not the motivations of terrorist per se that make terrorism a trans-sovereign problem, but rather the official policy responses of multiple sovereign states... To the extent that terrorist activity crosses sovereign boundaries and that no single state can successfully contain international terrorism unilaterally, it is truly beyond sovereignty.‖8 With September 11, there appeared a shift in the discussion of the security threats to international peace and security. It was no longer the threat of war between states or the international humanitarian crisis occasioned by inter-ethnic conflicts in many failed states. It has become the threat of terrorism which must be prevented and defeated beginning with the American response models and modules to the event of September 11. Croft draws this picture adequately when he declared that ―The discursive shift of contemporary security which took place after American 9/11 has been termed the ―war on terror.‘9It is believed that this discourse has developed not only in America but also in other countries in Europe, the Middle East, and South and Central Asia and subsequently
Africa. It has also altered perceptions of states and has led to new patterns of behaviour.10 For Ashcroft , the then Attorney General of United States of America,
8 D. E. Long, Countering Terrorism Beyond Sovereignty, in Maryann K. Cusimano (ed.), Beyond Sovereignty, Issues for a Global Agenda, (Bedford/St Martin, Boston 2000), 97 9 S. Croft, Culture, Crisis and America‟s War on Terror, (Cambridge University Press 2006), 53 10 Ibid. 22 the events of September 11 require that we provide law enforcement with tools necessary to identify, dismantle, disrupt and punish terrorist organisations before they strike again.11 The al Qaeda and all other terrorists‘ organisations are the new enemy which has been constructed following September 11 event.
This War against terror in the perception of the new discourse is the war against the enemy which was committed to destroy freedom, kill Americans, Jews and Christians, with contempt for human life, and a determination to restrict the freedoms of women, free expression and freedom of religion. This war provoked a fundamental change in the nature of American interaction with the world and contemporaneously of individual states with all their neigbours.
The September 11 incident was assumed to be the result of years of planning and preparation by al Qaeda, the terrorist group led by Osama bin Laden. The al Qaeda is the organisation that had been responsible for a number of attacks against U.S interests both home and abroad. They had been identified as the America‘s top security threat and the Clinton led administration attempted to disrupt its operations and capture Osama bin Laden, their leader. With its entire network, it has its primary base in Afghanistan, they are engaged in planning and execution of terrorist attacks, fundraising and training thousands of terrorists‘ fighters. Hence with the resolute posture that al Qaeda is the enemy, on September 17, 2001, President Bush launched the war on terror by declaring that ―Our war on terror begins with al- Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped and defeated.‖12 Colin Powel, the then U.S Secretary of state also
11 ‗Ashcroft Outlines Proposed Changes in Anti – Terrorism Laws‘, Global Security , (24 September 2001),
W. Bush began a war against the state of Afghanistan in October 7, 2001, with the major objectives of destroying al Qaeda, capturing Osama bin laden and overthrowing the Taliban government sympathetic to them and in fact root out terrorist wherever they are across the globe. That war was perceived as not just a war against terrorists at all fronts; It has to be a move from searching for transnational organisations (Al
Qaeda) to pursuing rogue states and the intervention was decisive.15 Rumsfeld, the then Secretary of Defence, described the impending war as follows: ―It will be broadly based sustained effort, not in a matter of days and weeks but over years.‖16
The oracle of Rumsfeld has since been ratified by events years after 9/11 incident.
More than a decade after 9/11, the U.S is still engaged in war on many fronts against terror ranging from the continuing crisis in Afghanistan and Iraq, the involvement in
Libyan civil war, the more recent crisis in Syria and the perilous daily confrontation with ISIL. This is not to cast into oblivion the work of the U. S intelligence community that has been engaged in a ―twilight struggle across the globe finding
13 Colin Powell, ‗Meet the Press‘ (23 September 2001)
America‘s enemies, determining their plans and capabilities and in some cases killing them by whatever means are available.‖17
The war that has been ignited in more global fashion beyond the American soil gradually began to be interpreted as a long standing conflict between the West and
Islam.18 The world in the eyes of the conflict occasioned by terrorism was perceived as divided between unalterably opposed civilizations and camps; one under the banner of the cross and another under the banner of Islam. Islam was understood in the context as different civilizations whose people is convinced of the superiority of the culture and are obsessed with the inferiority of their power. Simply put, Islam was constructed within the context of the prevailing conflict as a culture that reinforces their hostility and hatred of the west. Al Qaeda in this connection is seen ―not simply as a product of Islamic fundamentalism, but also as having a global revolutionary, anti-western perspective that echoed the anti-imperialism of the older Arab and
European new left and even today‘s anti globalisation movement.‖19 The motive of many Muslim inspired terrorism has been attributed to the much debated support of
Israel against their Arab neighbor‘s interest and to the U.S assistance to the repressive regimes in the Islamic world and a reaction against western modernization and its growing cultural influences in Arab world propelled in large part by United States.
According to Sens and Stoett, ―the Al Qaeda used an extreme interpretation of these grievances… to recruit and train young volunteers for a perverse form of Jihad or holy wars against America and the West.‖20 It is important to note that the United States counter terrorism strategy against the Al Qaeda and allied terror networks has
17 M. M. Aid, Intel Wars, The Secret History of the Fight against Terror, (Bloomsbury New York 2012), 6 18 T. Barkawi,Globalisation and War, (Rowman and Littlefield Inc. Oxford 2005) , 132. 19B. Mackinnon, Ethics: Theory and Contemporary Issues(4th edn. Thomson, Canada 2004), 433. 20Sens & Stoett, (n.3) 220. 25 emphasized the use of military power. Although some measure has been achieved such as the capture and killing of Osama Bin laden and other senior Al Qaeda leaders, the military offensive has largely been interpreted in the Muslim world as war on
Islam. Moreover, it need be said in this connection that the attention placed on Al
Qaeda and Islamic inspired terrorism has obscured the fact that terrorism is much wider phenomenon which is inspired by a wide variety of causes and perpetrated by variety of groups with variant motivations. This research space provides opportunity to highlight as many as possible the various terrorist network and the operational history.
In fact, 9/11 has led counter terrorism experts into a game of speculation as to what type of attacks, terrorist groups may undertake in the future. Since Sept 11, terrorists have attacked markets, nightclubs, embassy buildings, hotels, train stations, airports, public arena like stadiums, restaurants, pipelines, railways, religious centres and gatherings. Against the hindsight of incessant theorist threats around the globe, we are likely to see opportunities for terrorist attack wherever we look.
Below are the deadliest terrorist attacks since 9/11:
1. Nov. 28, 2002 Kenya: Three suicide-bombers blew up a car outside an Israeli
tourist hotel in the resort of Mombassa, killing 18 people.
2. Nov. 28, 2002 Indonesia: Double bomb attack on discotheques on the Island
of Bali claimed 202 lives.
3. April 11, 2002 Tunisia: A suicide-bomber blew himself up in an attack on a
synagogue on the Island of Djerba, killing 21 people. 26
4. November 20, 2003 Turkey: Bombs explode outside British-run building in
Istanbul killing at least 33 people. Five days earlier, more than 20 passersby
were killed in attacks on two synagogues.
5. May 16, 2003 Morocco: Forty-five people died in five attacks by Islamists on
Western and Jewish targets in the port city of Casablanca.
6. May 12, 2003, Saudi Arabia: Thirty-five people were killed in a series of
bomb attacks on residential compounds housing mainly foreigners in the Saudi
capital of Riyadh.
7. August 24, 2004, Russia: Two Russian airlines crashed within an hour after
explosives were detonated onboard. A total of 90 people confirmed dead.
8. May 29, 2004 Saudi Arabia: Twenty-two people, mainly foreigners, die in
attacks in an office and an apartment block used by Westerners in Al-Khobar.
9. March 11, 2004 Spain: Ten Bombs exploded on four counter trains in Madrid
killing 191 people. The attack is blamed on Moroccan Islamists. Suspects
escape.
10. Oct. 10, 2004, Russia: A group of 30 armed men and women seized a school
on the first day of autumn classes at Beslan in the Southern Russian region of
North Ossetia, taking 1,100 hostages. More than 300 children and adults were
killed in a bloody end to the siege
11. Nov. 9, 2005, Jordan: Coordinated bombings at three Western Hotels in
Central Amman killed at least 67 people and leave another 150 wounded in
early reports.
12. October 29, 2005, India: Three blasts in New Delhi ahead of Hindu Diwafi
festival killed 59 people and wounded 210. 27
13. Oct. 13, 2005, Russia: A large unit of suspected Islamic Militants attacked
Russia‘s North Caucasus City of Nalchik, with a reported 130 people killed
before security forces repulse the group in fierce fighting.
14. October 1, 2005, Indonesia: Three suicide bombings killed 22 in triple blasts
on Indonesia‘s resort Island of Bali – Al-Qaeda linked Jemaah Islamiyah, a
South-East Asia militant group was suspected.
15. July 23, 2005, Egypt: At least 64 people including foreign tourists were killed
in a series of bombings in the Egyptian resort of Sham El-Sheikh.
16. July 7, 2005, Britain: In Western Europe‘s first suicide bombings, four
Moslems blow themselves up on London‘s transport system, attacked on three
underground trains and a bus, killed 56 people and injure 700.
17. July 11, 2006, India, Muslim terrorist attacks on Rail System in Mumbai killed 182 people, injured 770. 18. May 25, 2011 Pakistan: A terrorist attacks killing over 20 people in North-
West Pakistan.
19. July 16, 2011 Nigeria: First ever suicide bombing in the Nigeria‘s Police
Headquarters Abuja by Boko Haram killing several people and destruction of
properties worth millions of naira and with many people were injured.
20. July 23, 2011 Norway: A homegrown terrorist attack by a 34 year old young
man killing several lives and injuring many.
21. July 23, 2011 Iran: A deadly terrorist attack in the capital of Iran-Tehran
killing and injuring several people, PJAK claimed responsibility.
22. August 25, 2011 Nigeria: A historic terrorist attack on the United nations
Headquarters in Abuja killing 34 workers including foreigners and injuring
several people by the Boko Haram Islamic sect. 28
23. October 5, 2011 Somalia: Suicide bomber killed 70 in Somali capital Mogadishu and injuring many. (Daily Sun Wed. Oct. 2, 2011). 24. April 14, 2014; 270 girls from Government Girls Secondary School Chibok,
Borno State were abducted till date.
25. In France, Nov. 13, 2015, series of attacks occurred. A series of coordinated
attacks began over about 35 minutes at six locations in central Paris. The first
shooting attack occurred in a restaurant and a bar in the 10th arrondissement
of Paris. There was shooting and a bomb detonated at Bataclan theatre in the
11th arrondissement during a rock concert. Approximately 100 hostages were
then taken and overall 89 were killed there. Other bombings took place outside
the Stade de France stadium in the suburb of Saint-Denis during a football
match between France and Germany. ISIS claimed responsibility.
26. In San Bernardino, United States 2nd, Dec. 2015, Syed Rizwan Farook and
Tashfeen Malik, a married couple, stormed a county health department's
holiday banquet in San Bernardino, California, fatally shooting 14 people and
injuring 22 others while leaving a failed pipe bomb at the scene. Both
perpetrators were shot and killed four hours later in a shootout with police
forces. Malik pledged allegiance to Islamic State on the day of the shooting.
27. Brussels, Belgium- 22nd March, 2016-On the morning of Tuesday, 22 March
2016, three coordinated nail bombings occurred in Belgium: two at Brussels
Airport in Zaventem, and one at Maalbeek metro station in Brussels. In these
attacks, 32 people and three suicide bombers were killed, and 340 people were
injured.
28. Orlando, United States- 11th June, 2016- 49 people were killed when an
alleged lone-wolf gunman entered the Pulse gay nightclub. Hostages were
taken and the perpetrator, Omar Mateen, was shot dead by local SWAT units 29
in an attempt to storm the building. The FBI classified the attack as an act of
"domestic terrorism" motivated by "Islamic leanings".
29. Turkey Airport- 28th June, 2016-Three suicide attackers opened fire on and
blew themselves up at Atatürk Airport in Istanbul.
30. Nice France- 14th July 2016- A truck drove through a crowd of people on the
Promenade des Anglais in Nice, France who were celebrating the French
National Day. The driver who was a 31-year-old Tunisian man was shot by
police in an exchange of fire. Upon search of the truck, fake grenades and
firearms were discovered.
31. Ansbach, Germany- 24th July 2016- A 27-year-old Syrian refugee detonated a
bomb at a wine bar in Ansbach, killing only himself, but wounding 15
civilians. He had previously been denied entry to a nearby music festival.
Authorities found a recorded video message on the attacker's phone, pledging
his allegiance the Islamic State.
Again, since the 9/11, al-Qaeda and other radical Islamic groups have successfully executed major attacks in several parts of the world. In addition to the above and numerous others not mentioned so far, there have been several planned terrorist attacks that were not successful. Most of them are July 21, 2005 London bombings and 2007 London car bombs; 2006 Toronto terrorism plot; 2006 trans-Atlantic aircraft plot; 2009 Bronx terrorism plot; 2009 Christmas Bomb plot by a Nigerian born
Abdul-Mutallab: 2010 Times Square car bombing attempt
The September 11, 2001 terrorist attack was globally acknowledged to be the worst terrorist attacks so far in the history of the world and 21st century. The recurrent questions of this research are: Can terrorism be stopped? Can a war of terrorism be 30 won? These questions are as relevant for any western interest as it is for Nigeria with all the problems that Boko Haram terrorist group has posed for the struggling economy, national peace and integration. It remains therefore to fashion out the most effective model or approach for the purposes for reducing the organization, occurrence and possibly elimination of terrorism in all its forms. The reason why this question is relevant is the post 9/11 approach of overly military which might have not succeeded, though recorded some success, but has provided even more vigor for recruitment and indoctrination of persons for terrorists activities especially the jihad driven terrorist cells.
2.2 The Historical and Theoretical Evolution of International Terrorism Terrorism as an organised system of intimidation has been applied throughout human history, although not in the form and method as we know and experience it today globally. As a form of political violence, it has been a problem for hundreds of years.
It may not be eliminated but it can be understood, managed and at times, resolved.
The philosophical question that antedates terrorism is: when is it politically and morally acceptable to use unconventional tactics such as violence to bring about political and social change? While the purview of this segment is not to answer this question, it suffices to say that most terrorist activities whether state sponsored or directed against a government down in history are basically fuelled by the desire to effect a political or a social change.
The history of terrorism is as old as humans' willingness to use violence to affect politics. Hence O‘Connor maintains that ―Terrorism has been around as a major nuisance to governments as long as recorded history.‖21 O‘Connor traces the evolution of terrorism citing the biblical prototype of terror and assassination found in
21 Tom O‘Connor, The Criminology of Terrorism: History, Law and Definitions, Typologies,
The root word ―terror‖ (from the Latin ―terrere‖—―to frighten‖) entered Western
European languages‘ lexicons through French language in the fourteenth century and was first used in English in 1528.23The word gained its political connotations from the
Reign of Terror instigated by Maxmilien Robespierre in 1793, following the French revolution. Robespierre, one of twelve heads of the new state, had enemies of the revolution killed, and installed a dictatorship to stabilize the country. He justified his methods as necessary in the transformation of the monarchy to a liberal democracy.24
Robespierre's sentiment laid the foundations for modern terrorists, who believe violence will usher in a better system. The word ‗Terrorism‘ was not however introduced into common use until the advent of French Revolution25 when Edmund
22 G. Naqishbandi, Alienation or Terrorism, Paradoxical Words and Two faced Currency, Essay presented to the Faculty of Humanities and Social Sciences, Political Science Department, Adelaide University, Australia. (2004). 23 Alex, P. Schmid, The Problems of Defining Terrorism, in Encyclopedia of World Terrorism 12, 12 (Martha Crenshaw & John Pimlott( eds, 1997) 24Amy Zalman, History of Terrorism,
Burke used the term to criticise those revolutionaries who under the reign of terror employed extreme violence as a means of stamping out aristocratic decadence.
Terrorism, initially associated with state-perpetrated violence, shifted to describing non-state actors following its application to the French and Russian anarchists of the1880s and 1890s. Thus in the mid 1800‘s, two prominent philosophical leanings namely; anarchism and communism stood out as the receptacle upon which terrorism gained its ideological foundations.
Anarchism invented in 1840 by Pierre Proudhon and expanded by Mikhail Bakunin and Karl Heinzein, apparently supported terrorism with statements such as: If you have to blow up half a continent to destroy the enemy, do so with no scruples or conscience.26According to Dave Neal, Anarchism thrives on three major principles namely: (1).The theory that all forms of government are oppressive and undesirable, and should be abolished; (2). Active resistance and terrorism against the state, as used by some anarchists, (3).Rejection of all forms of coercive control and authority.27
Proudhon, the progenitor of Anarchism was seen as a revolutionary, ―but his revolution did not mean violent upheaval or civil war, but rather the transformation of society. This transformation was essentially moral in nature and demanded the highest ethics from those who sought change. Nor did his desire for revolution make him sneer at reforms.‖28 It was this transformation connection that is attached to
Anarchism that translates to the employment of any means possible for the purposes of dethroning undesirable regimes or state of affairs. Thus, these anarchists who believed in revolutionary political and social change adopted terrorism tactics as a
26 T. O‘Connor (n.21) 27 Dave Neal, Anarchism: Ideology or Methodology, 1997
Communism on its own invented by Karl Marx, given foundation by ideas of
Feuerbach and expanded further by Lenin, emphasized the liberating potential of self- reliance and mass movements. For Karl Marx, force and violence were conceived not as good in themselves, but as necessary means to bring about a more equal, more democratic society, more human than the exploitative capitalist society.29 In Lenin‘s communist tradition, individual acts of terrorism was condemned but mass acts of terrorism were upheld which crystalized into a battle to defeat capitalism at home and abroad in order to establish a worldwide communist regime, giving rise to the cold war era between the East and the West. He insists that all wars of liberation against world Capitalism must be supported. Lenin therefore affirmed not only the use of violence but also the resort to terroristic activities. That is, he allowed the use of acts which was intended to arouse panic and fear amongst specific target groups.30His view was that one should not regard terror as a series of individual unrelated cases, but as a mass action, well-coordinated by a central revolutionary authority which issues orders from the top. In addition to these tactics for political transformation, the
Lenin‘s tradition denounced the exploitation of nations of Asia, Africa and America, and regarded those people who struggle for their national freedom as important allies of the proletariat in their war against Capitalist exploitation.31
The preceding ideology ushered another phase of the history of terrorism. This phase locates the cuddle of terror strategy in nationalist and anti-colonial struggles in the
29 Raphael Cohen-Almagor, Foundations of Violence, Terror and War In the Writings of Marx, Engels and Lenin[1991]Terrorism and Political Violence, Vol.3, No.2, 1-24 @ 9
Ottoman Empire was the first anti- colonial group to wage guerilla warfare and engage in terrorism to gain control. Other groups that followed include the exploits of
Mao Zedong whose organised army brought down the Imperial Manchu China in
1949 during the early days of their cultural revolution. There was also the Cuban
Revolution coordinated by Fidel Castro32 in1959 and a host of others, similar to that, notably, the African National Congress‘ Struggle coordinated by Nelson Mandela against the apartheid Regime of South Africa dating back to the 1960‘s and 70‘s until
1994 when victory was finally scored, breaking down the last vestiges of the apartheid
32 Fidel Castro was projected to be an Orthodox candidate for Congress in the 1952 elections, but those elections were cancelled by Batista and never held. Castro went to court and charged the dictator with violating the constitution, but the Court rejected the petition. It is at this point that Fidel began his career as a revolutionary leader. He organized, together with his brother Raul, 165 men and women who carried out an armed attack on the Moncada army barracks in Santiago de Cuba on July 26, 1953. The attack was intended to spark a general insurrection throughout the island, but it failed miserably. Half of the attackers were killed; Castro and his brother Raul were taken prisoner. The date of this attack would become the name of their revolutionary movement and since 1959, July 26 has been celebrated as Cuba‘s most important national holiday and the occasion of a major speech by Fidel. During his trial, Castro made an impassioned critique of the Batista regime and called for greater political and social liberties. Known as the ―History Will Absolve Me‖ speech, it became the rallying cry of the July 26th Movement. On May 15, 1955 Batista declared a general amnesty and the Castro brothers were released, but they in no way renounced their desire to overthrow Batista. Over the next eighteen months Fidel traveled to the United States and Mexico to organize the July 26th Movement. In Mexico, Argentinean doctor Ernesto ―Che‖ Guevara joined the movement and on December 2, 1956 they set sail for Cuba in an aging yacht, the Granma, purchased from an American couple. The 82 men launched an attack in the Oriente province that was to be timed with an insurrection in Santiago led by Frank Pais. However, like the attack five years earlier, it was a total failure. Only twelve of the original attackers survived, but they succeeded in fleeing into the remote Sierra Maestra Mountains to continue their struggle. From the mountain stronghold, called La Plata, the revolutionaries built a base camp that included a primitive radio transmitter, and went about the task of organizing a movement against Batista. The movement reached out to the local peasantry promising land reform, education, and democracy. Literacy classes were conducted for the local population. One by one locals were recruited to the movement and a campaign of guerrilla warfare was begun against local army outposts. Most attacks were successful and the needed additional weaponry was stolen from the army. See. Gary Prevost, Fidel Castro and the Cuban Revolution, Headwaters: The Faculty Journal of the College of Saint Benedict and Saint John‟s University, Vol. 24, Article 4. 5/22/2012. p.19. Available at:
Britain.
Akin to terrorism that was tied to many anti-colonial struggles, is another era of terrorism that brought a slightly different meaning to terrorism. There was the event leading to World War I and II where the fascist regime of Italy and Hitler led Nazi
Regime33 of Germany were significant power players. Subsequently, it became typical of dictatorships in many places like Argentina, Chile, El Salvador, and Colombia to use death squads or terror squads in intimidating and killing political opponents, labour leaders, journalists and human rights workers. Words used to describe this kind of terrorism include state terrorism, state imposed terrorism or state directed terrorism. Naquishbandi canvasses that terrorism of that nature that is state- sponsored can take different forms, both domestic and international. He remarks that dictatorial regimes which impose severe restrictions on their own people are often the same ones
33 After Adolf Hitler was appointed chancellor of Germany on January 30, 1933, he seized every opportunity to turn Germany into a one-party dictatorship. He also moved carefully to organize the police power necessary to enforce his long-term policies of "racial" purification and European conquest both inside and outside the legal framework of the German constitution. On the night of February 27- 28, 1933, a mentally disabled Dutch citizen set fire to the German parliament building (the Reichstag). Hitler and his propaganda minister, Joseph Goebbels, presented the incident as the prelude to an armed Communist uprising and persuaded the aging President Paul von Hindenburg to establish what became a permanent state of emergency. This decree, known as the Reichstag Fire Decree, suspended the provisions of the German constitution that protected basic individual rights, including freedom of the press, freedom of speech, and freedom of assembly. The decree also permitted increased state and police intervention into private life, allowing officials to censor mail, listen in on phone conversations, and search private homes without a warrant or need to show reasonable cause. Under the state of emergency established by the decree, the Nazi regime could arrest and detain people without cause and without limits on the length of incarceration. Hitler and the Nazi regime also resorted to simple and extra-legal terror to intimidate opponents. Nazi paramilitary formations, such as the Storm Detachments (Sturmabteilungen or SA, more commonly known as Storm Troopers) and the Protection Squads (Schutzstaffel or SS), had been established during the 1920s to terrorize political opponents and to protect Nazi leaders. After the Nazis came to power, many members of these units were recruited as auxiliary policemen and given license to arbitrarily beat or kill persons they deemed to be opponents. The SS was a particularly important tool of Nazi terror. Its members staffed the concentration camps, in which perceived enemies of the regime were imprisoned.
Gradually, the characterization of terrorism as a state action waned, while the idea of terrorism as an attack by organised group against an existing political order became more prominent. This marked a radical shift from the connection which terrorism has with states to a scenario where the source of the violence can be likened to an organised group action or crime to say the worst.
Typical examples include the Kurds, a distinct ethnic and linguistic group in Turkey,
Syria, Iran and Iraq, who have sought national autonomy since the beginning of the
20th Century. The Kurdistan Worker's Party (PKK), formed in the 1970s, uses terrorist tactics to announce its goal of a Kurdish state. Also the Sri Lankan Liberation
Tigers of Tamil Eelam are members of the ethnic Tamil minority. They use suicide bombing and other lethal tactics to wage a battle for independence against the
Sinhalese majority government.
In all these, terrorism was ostensibly seen as a domestic problem of individual states and following the doctrine of inviolability of State Sovereignty under the United
Nations Charter, there was little or no international effort expended to understand, legislate or combat terrorism.
International terrorism became a prominent issue in the late 1960s. Following the
Arab defeat in the 1967 Arab – Israeli war, radical Palestinians groups began actively using terrorist tactics. In fact, the year 1968 marked a radical shift both in the understanding of terrorism as a domestic problem and in the extent of injury to lives and properties possible occasioned more by hijacking of planes which became a favored tactic. In that year (1968), the Popular Front for the Liberation of Palestine 37
(PFLP) hijacked an El Al Flight.34 The 1968 event was the first time that the PFLP, or any Palestinian group, hijacked a plane. From that day on, the baggage check program was introduced for air travels. This spectacular form of terrorism, designed to get global attention, would become a regular occurrence over the next several years.
Another event that sparked global attention and was truly international in scope was the bloody events at the 1972 Munich Olympics, termed the Munich Massacre35 which continues to raise chills for international sports competition. Munich massacre radically changed the international community‘s and United States' handling of terrorism. The terms counter- terrorism and international terrorism formally entered the Washington political lexicon. As David Long remarks, that, ―As a result of the incident, the major powers began to review their capabilities should such an attempt occur within their borders.‖36 Twenty years later, the bombing of a Pan Am flight over Lockerbie, Scotland,37 shocked the world. The era also gave us a contemporary sense of terrorism violence as highly theatrical and symbolic for organized groups
34On July 22, 1968, an El Al Israel Airlines plan departing from Rome and headed for Tel Aviv, Israel, was hijacked by the Popular Front for the Liberation of Palestine (PFLP). They successfully diverted the plane, carrying 32 passengers and 10 crew members, to Algiers. Most of the passengers were released relatively quickly, but for seven crew members and five Israeli male passengers, who were held hostage for five weeks. After 40 days of negotiation, the Israelis agreed to the exchange. See Amy Zalman,
The Arab – Israeli conflict which continued to deteriorate, ushered the era of religiously motivated terrorism which is considered the most alarming terrorist threat today. Groups that justify their violence on Islamic grounds- Al Qaeda, Hamas,
Hezbollah—come to mind first. These groups can best be described as violent extremists who manipulate religious concepts for their own purposes. There is no doubt however that the current campaign against terrorism in the last decade has been much directed against Islamic fundamentalism or extremism who have organised themselves using varied designations in many safe havens and countries, and are capable of carrying out coordinated attacks with tremendous global impact.
Until September 11, 2001, the Oklahoma City bombing38 of the federal building was the worst terrorist attack to take place on U.S. soil. The September 11, 2001 was carried out by right-wing Islamic extremist, the Al Qaeda. Other Islamic militants have also emerged with affiliations to Al Qaeda or in sympathy to their cause. Since
9/11, the United States America in its anti-terrorist campaign has gone to war in pursuit of terrorist in Afghanistan, Iraq, Libya, Yemen, Somalia etc. and as Bennis would remark, ―More than fourteen year later, thousands of US troops were still in
Afghanistan, in what had long ago become the longest war the United States ever fought.‖39 But rather than bring to reduction the spade of terrorist threat, it has continued unabated within the entire globe, although with reduced frequency and precision. Several terrorist incidents have also been recorded in many countries of the
38 On April 19, 1995, a truck-bomb explosion outside the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, left 168 people dead and hundreds more injured. The blast was set off by anti-government militant Timothy McVeigh, who in 2001 was executed for his crimes. 39 P. Bennis, Understanding ISIS and the New Global War on Terror- A Primer, (Olive Branches Press, M.A 2015), 7 39
West, Asia and Africa. Suffice it to say that al Qaeda is one of the numerous Islamic
Militant groups.
In the contemporary times, the deadliest group seems not to be the al Qaeda anymore, but the Islamic State of Iraq and Levant (Syria) - ISIL or ISIL. The trajectory of the fight against terrorism has shifted from the war against Al Qaeda to the fight against
ISIL expansion in all its ramifications including their network in Europe and other non-Arab world. While the attention placed on Islamic inspired terrorism continues to increase, it has not obscured the fact that terrorism is a much wider phenomenon which is inspired by wide variety of causes and carried out by a wide variety of groups. However whatever the reasons are, terrorism is likely to remain a feature of global politics.
In Nigeria, terrorism is fast becoming an emerging challenge to national security.
Nigeria has been experiencing incidences of terrorism which includes the 1965 terrorist act by Isaac Boro‘s group under the auspices of Niger Delta Volunteer Force
(NDVF). Their acts include breaking of oil pipes and taking security men hostage.
Since then, there have been other violent attacks leading to the loss of lives and properties. In the last decade of the twentieth century, Nigeria witnessed various ethnic militants such as O‘odua People Congress (O.P.C), Movement for the
Actualization of the Sovereign State of Biafra (MASSOB), Arewa Youth Consultative
Forum, Niger Delta Volunteer Force of Nigeria, The Ogoni Youths, Ijaw Youths and
Various Vigilante Groups in the Eastern States of the Country. Often, the acts of these groups match the global categorization of acts of terrorism. Accordingly, there has been a continuous occurrence of acts that could be termed terrorism in Nigeria, although have not been officially labeled as such by Nigeria and by international political press. However following the violent activities of the Boko Haram and their 40 attendant admission of affiliation with ISIL, the narrative has since changed since their emergence in 2009, orchestrating an uncountable number of bombings and violent activities against the civilian population in Nigeria. Hussein Solomon remarks that, ―While the initial geographical focus of the attacks was in the four northern states of Bauchi, Kano, Yobe and Borno, these attacks have now spread across the country, notably to the federal capital of Abuja itself. During this period, the targets of the attacks also widened from churches and shops to politicians and the state security apparatus to the United Nations itself.‖40As we speak, Boko haram insurgency has continued to escalate in boundary and sophistication.
A feature of contemporary form of terrorism that demands highlighting is the growing link between different terrorist individuals and groups. Such networks facilitate the sharing of memberships, training facilities, weapons, information and finance and therefore reduce reliance on client states for sponsorship. Suffice it to say that the dividends of globalisation such as has internet communication and web based information dissemination has become a prominent feature of recruiting members and carrying out new waves of attack in contemporary terrorism. In the light of this, the following remark is very apposite as it refers to al Qaeda: ―Using the internet, al-
Qaeda has remade itself into a global conduit for two basic messages: a simple narrative of Muslim oppression at the hand of unbelievers; and a call for violent resistance through Jihad.‖41 Akin to the increasing sophistication of terrorists in many part of the world, as the tactics of using bombs and suicide bombers has become a constant feature of terrorist tactics, it is a growing concern that terrorists might
40 H. Solomon, Counter- Terrorism In Nigeria[2012]Responding to Boko Haram, Rusi Journal,[August/September], Vol. 157, no. 4,.6-11 at 1 41 Sens & Stoett (n.3) 224 41 acquire and use chemical and biological weapons or even nuclear weapons as new feature of their attack methods.
The effectiveness of the current counter-terrorism measures across the globe is therefore under intense scrutiny in this research work. We note especially the emphasis on military power which has apparently become counterproductive because rather than witness the reduction and de-escalation of terrorist groups and their violent activities, the opposite appears to be the case.
2.3 Terrorism According to Kinds For want of immediate definition of Terrorism that is yet to be offered in this work and for a more expanded understanding of terrorism and their nature, this section seeks to explore an understanding of terrorism from a trajectory that does not define but describe it. This research does not presume to have a clear cut description of terrorism according to kinds. This is because in preserving such a clear cut analysis between kinds or types, for the purposes of describing terrorism, it will run the risk of under-describing some terrorist organization with overlapping tendencies. Whenever terrorism is mentioned, what comes to mind is that without warning, a plane is hijacked, a bomb explodes, individuals are kidnapped or taken hostage, or the park or hotel or church or train where there is concentration of people is attacked. There is always a surprise that attends to most terrorist incidences and most times a group claims responsibility or is suspected to be responsible for it.However, a chronicle of the major terrorist events in history would possibly shed some light on the innumerable kinds or types of terrorism in history. Such historical incidences of terrorism include:
i. The Zealots, a Jewish sect that appeared in B.C.E 6 and used assassination in
an effort to force the Roman empire out of Palestine; In the middle East 42
between 1090 and 1275 A.D, Muslims known as hashashin carried out many
political and religious killings on behalf of their political and spiritual
leaders;
ii. In 1605, a group of English Catholics conspired to blow up James I of
England, in the failed ‗gunpowder plot‖;
iii. At the end of the 19th century, political assassinations by anarchists claimed
U.S president William McKinley, French President Sadi Carnot, the Empress
Elizabeth of Austria and Spanish Prime Minister Antonio Canovos;
iv. World War I began with an act of terrorism- The assassination of Austrian
Archduke Franz Ferdinand- by a Serbian terrorist organisation called the
Black Hand;
v. The precursor to the Contemporary car bombing was in 1920 when a horse
drawn cart exploded on Wall Street in New York city, killing 40 persons and
injuring hundreds;
vi. The 1946bombing of King David Hotel, the British Secretariat in Palestine
by a Jewish group killing 91 people;
vii. The 1972 Bloody Friday bomb explosion in and around Belfast orchestrated
by the Irish Republican Army; viii. A bomb aboard Air India flight 182 in 1985 placed by Sikh Extremists at
Vancouver International airport killing 329 people;
ix. the 1993 car bomb that exploded in the underground parking lot of the World
Trade Center Towers in New York killing six persons;
x. The release of the nerve gas in 1995 in the Tokyo subway station by a
Japanese cult called Aum Shinrikiyo, killing 12 and injuring thousands;
xi. The 1999 Oklahoma city bombing of the Federal Building. 43
But it should be noted that in all these events following Sens and Stoett remark, what runs through is that ―Traditionally, terrorism has been the weapon of the weak, employed as political instrument or groups seeking to reject authority, generate social change, promote revolution and spread fear.‖42 Moreover, these reflect but a small fraction of terrorist acts which continue to be a daily occurrence in many parts of the world. It is merely illustrative of the fact that terrorism cuts across cultures, countries and continents of the world.
Suffice it to say that if appropriate and effective counter terrorism can be developed, an understanding of the types and kinds of terrorism is necessary. The immediate classification of terrorism according to types and kinds would be chasing the wind in the absence of a clear understanding of what constitutes a terrorist act. A terrorist act is a violent act or threat of violence against civilians or non-combatants or public buildings/places in order to further political cause by the psychological effects of the terror created by the act. These acts of violence may often be state- sponsored or supported; or may be exclusively that of organised individuals with or without ethnic or religious affiliation intending to score political advantage respecting their motives.
It is in this respect that this work identifies terrorists and terrorism according to:
1. State Sponsored/ State supported;
2. Terrorism for Nationalist struggles/ Revolutionary fronts;
3. Ideological terrorist ;
4. Religious Terrorism/Fundamentalism; and
5. Anarchist/Criminal Groups
Based on these major classifications which would be given detailed treatment in the next chapter, many terms have been used to refer to terrorists such as : Crusaders,
42Sens & Stoett, (n.3) 216. 44
Extremists, freedom Fighters, Guerillas, Insurgents, Nationalists, Radicals, Rebels,
Separatists, Revolutionaries, Avengers, Pirates . The point being made herein is that the profile or the mosaic of terrorism varies with circumstances, social milieu, people, culture and political situations.
Further classified, terrorism may be termed domestic or transnational or international, respecting the areas of operation and the boundaries of their activity and targets of their violence. International terrorism is referred to as terrorism involving citizens or the territory of more than one country. Rosendodorff and Sandler explain that
Domestic terrorism is home grown and home directed, with consequences for just the venue country, its institutions, citizens, property and policies. In the case of domestic terrorism, there are no spillovers of benefits or costs to other countries. While transnational terrorism, through its perpetrators, victims or audience has implication for two or more countries.43 Such groups as Al Qaeda, who operate in the Middle
East, Western Europe and United States of America, ISlL can qualify for international or transnational terrorists. Sometimes transnational terrorism is spillover terrorism in the sense that the incidents starts in one country but terminates in another. For instance, political grievances in the Middle East motivate terrorists to stage attacks in
European cities where they are availed wider media exposure and global awareness for their political agenda. Boko Haram is fast approximating to international category because of their increasing trans-boundary operations, activity and networks with major terrorist cells. Domestic terrorists and terrorism refer to groups and their activities that do not extend beyond international borders. An example of domestic terrorism would be the incessant bombings of pipelines in the Niger Delta region of
43 B. P. Rosendorff & T. Sandler, The Political Economy of Transnational Terrorism [2005], Journal of Conflict Resolution [April] Vol. 49, No. 2, 171-182 @ 172 45
Nigeria by militants claiming to be fighting for economic empowerment of the Niger
Delta region through greater access to the rich oil resources of the region.
2.4 Terrorism: The Problem of Definition If you are familiar with the literature on this subject, then you realize that this is a fool‘s errand. There is little agreement on what constitutes and who practices terrorism even among academics; never mind the myriad of intelligence agencies, militaries, judicial systems and governmental decision making bodies that deal with this subject from a positional perspective. This topic is very subjective. It largely depends on an individual‘s perceptions and experiences which determine to a large extent what definition they give to it. One may relate to the victim or one may relate to the perpetrator, particularly if the perpetrator is from one‘s own ethno-national, religious or ideological group. Perception is one of the core problems in defining terrorism. In the light of the ambiguity that attends to the definition of terrorism, some effort will be made to develop a level of objectivity in dealing with this contentious and emotional subject.
Terrorism involves the use of various violent means to unleash deliberate violent attacks on civilian population, police, military and other security agencies coupled with massive destruction of government facilities and civil properties like the oil installations, police stations, prisons, churches, mosques, and shops and so on. And it is often intended to intimidate or coerce a civilian population, to influence the policy of a government by intimidation or coercion, and to affect the conduct of a government by assassination or kidnapping.44 Terrorism is by nature political because it involves the acquisition and use of power for the purpose of forcing others to submit or agree to terrorist demands. It is generally agreed that the notion of terrorism
44J .O.Abimbola and S.A. Adesote, Domestic Terrorism and Boko Haram Insurgency in Nigeria, Issues and Trends: A Historical Discourse [2012] Journal of Arts and Contemporary Society 4, 14. 46 relates to the use of violence against targets to desired objectives, but the features of this violence as understood from place to place and people to people is what differentiates one definition from another. The warp and woof of difficulty in defining terrorism is agreeing on the basis for determining when the use of violence
(directed at whom, by whom and for what ends) is legitimate as the use of violence for the achievement of political ends is common to state and non- state groups.
Issues that stand out in most definitions of terrorism include violence, fear and intimidation. Suffice it to say that there are fundamental disagreements among states as to the universal definition of terrorism. Shawn Kaplan45, in his article, ‗The
Typology of Terrorism‘ avers that the difficulty surrounding the task of defining terrorism is at first glance classic problems of connotation and denotation. This is because in its everyday usage, terrorism is value laden, often referring to an accusation laden with indifference to innocent lives. Also accusations carry an explicit moral claim with an extremely negative connotation. The apparent universal moral content of terrorism found in definition of terrorism refers to its targeting of innocent persons. This is what makes terrorism morally indefensible even in the face of noble ends which it seeks to achieve. Like violence remarks Kaplan, terrorism is at best always a means for obtaining any number of possible ends.
It is possible to conceive of a noble end that is realizable by violent means (terrorism tactics). In that situation, a positive moral evaluation of terrorism may be expected. In the light of this, a definition of terrorism that admits of its noble end would be broad in order to capture its seeming purpose. The problem created by this approach is the inability to capture or predict with certainty what ends the terrorist act sets out to
45 Shawn. Kaplan, A Typology of Terrorism,
William Cunningham46 admits also that terrorism is a complicated and emotional laden phenomenon. His inference stems from the fact that many disciplines study terrorism including most social sciences, history, law, journalism, intelligence and law enforcement agencies, legislative and judicial branches of the government. This has led to a definitional confusion over the topic.
Another research conducted by Human Rights Council47 in the U.S. A admits that although there has been work toward an international definition of terrorism, problems remain pervasive as there are disagreements among states as to a universal definition of terrorism. The research notes that some member states urge the inclusion of state use of force against civilians in the definition, while other states insist that the definition avoid criminalizing self-determination struggles. That research concludes that the lack of a definition of terrorism results in the creation of state counter terrorism measures outside the realm of international law, as states may create broad, overreaching definitions and inadvertently criminalize activity outside the realm of terrorism. By extension too, states may use the broad definition as a basis to suppress oppositional movements or unpopular groups under the guise of combating terrorism.
Tom O‘Connor48 notes that terrorism is impossible to define because it is intangible and fluctuates according to historical and geographical contexts. He further avers that some forms of it are indistinguishable from crime, revolution and war while other
46 W. Cunningham, Terrorism, Definition and Typologies, in Terrorism, Concepts, Causes and Conflict Resolution, New York: U.S Defense Threat Reduction Agency, (2003). 47Counter- terrorism and the Protection of Human Rights, Human Rights Council, 13th Session, Agenda Item 3: Countering Terrorism, (Berkeley: Human Rights Advocates)
But the inclination of this work would err on the side of identifying with a definition with three parts namely: method of violence (act), target of the violence and purpose
(motivation) of the violence which is often political in nature. It is this political motivation behind terrorist incidences that differentiates terrorism from ordinary crime. Criminals may often terrorize their victims, however their purpose is not to terrorize but to extract property or money or other assets for personal enrichment or satisfaction.
On the other hand, Cunningham concludes that terrorism is motivated by higher political causes and terrorist acts are symbolically carried out to further that cause.49
From the foregoing, it is apt to conclude that terrorism is a distinct form of political violence with distinct targeting policies and operational practices. It is important to have a clear conception of terrorism because counter terrorist models are framed from the understanding of terrorism itself. Thus, as many as there are sides to the definition of terrorism, so are the many counter terrorism response models. Cunningham identifies four predominant models of how terrorism is conceived namely:1) a crime that should be handled by law enforcement and the judicial system; 2) a form of warfare best suited for a military response; 3) a liberation struggle conducted by oppressed minority, political or religious groups whose desires for self-determination or power should be accommodated.; 4) a violent reaction to complex set of socio-
49 C. Cunningham, (n.46) 49 economic, political, cultural and possible religious variables that have both long term preconditions a d short term precipitant causes that need to be addressed with multi- faceted intervention to eliminate underlying causes and cycles of violence.
At the international level, the definition of terrorism was first confronted as a discrete subject matter of international law by the international community in the mid-1930s, following the assassination of a Yugoslavian king and a French foreign minister by ethnic separatists.50 The League's attempt to generically define terrorism in an international treaty prefigured many of the legal, political, ideological and rhetorical disputes which plagued the international community's attempts to define terrorism in the 50 years after the Second World War. Although the treaty never entered into force following the dissolution of the League itself, the League's core definition51 has been highly resilient and has influenced subsequent legal efforts to define terrorism.
The international legal system continues to grapple with the problem of arriving at an acceptable definition of terrorism in the subsequent conventions that are born out from the United Nations Conventions and Security Council‘s resolutions. In the absence of such unanimous definition, Acharya52 corroborates that there is a free and open tendency for persons using the term, whether states, organized groups or scholars, to define it as suits their purposes at the moment leading to uncertainty on how to fashion a legal structure to address terrorism. He further argues that the
50 The French government had proposed, following the assassination by Croatian and Macedonian separatists of King Alexander I of Yugoslavia in Marseilles in 1934, that the League adopts a convention on terrorism. 51Article 1 of Convention for the Prevention and Punishment of Terrorism, 1937 defined acts of terrorism as "criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons or a group of persons or the general public. The convention specified the kinds of anti-state actions that were to be considered acts of terror (e.g., attacking public officials, heads of state and their families, or the destruction of public facilities). It required signatory states to enact laws making such acts extraditable offenses in the event one of their nationals committed an act of terror in a foreign country. The convention never came into effect, in part because disputes among the member states over the articles on extradition prevented ratification. 52 U. D. Acharya, War on Terror or Terror Wars: The Problem in Defining Terrorism, [2009] Vol. 37.4 Denv. j. Int‟L & Pol‟y, , 653-673 @ 655 50 problem of defining terrorism is further complicated in modern days by one party‘s tactical use of characterizing another party as terrorist. Hence weak, less militarily equipped and marginalized people are identified as terrorists and often their quest for governance or self-determination with or without violence is undermined by powerful actors either in the national or international arena. In such situation, each side labels the other as terrorist, each seeking to justify its own violence while condemning the other‘s violence. Consequently, Acharya notes that it is necessary to draw the line between the quest for nationalist identity and act of terrorism between legitimate political demands within a country and suppression of those who make such demands.
He concludes that the focus should not be whether a group is a terrorist group, but rather what activities or actions constitute terrorism. Understanding a terrorist act is critical to understanding what we are fighting against, so that we isolate terrorist act and not people. In his view such an analysis is necessary in order to arrive at a comprehensive and inclusive approach to defining terrorism.
Christian Walter53 traces the persistent cause of dissent and difficulty in defining terrorism at the international level to the question of whether or not the freedom fighters or the official forces of the state can commit terrorist offences. Amidst the uncertainty and conundrum surrounding the definition of terrorism, most states had adopted a definition of what should be understood by terrorism in their national legal order with semblance and influence from what is obtainable in the international scene.
However, Young54 argues that there is still need for universal acceptable definition which is crucial for the purposes of harmonizing counter terrorism operation and
53 C. Walter, Defining Terrorism in National and International Law, (2003).
For Young, ―An accepted definition would enhance intelligence sharing and international cooperation and permit tighter goal definition in the war against terrorism which might facilitate coalition building and strengthen the legitimacy of the war. Imposing sanctions and criticising states that support terrorism would attract broader support once a definition of terrorism is established.‖55
2.5 Nature of Terrorism If formulating the definition of terrorism remains problematic, the search for common terrorist traits, operational patterns, mindsets and motivations presents an equally difficult task. Unfortunately for the analyst, the primary and overriding characteristic of terrorism centers on its unpredictability and its correlation with crime of violence.
Thus, despite terrorism's diverse features, certain general characteristics, operational principles and tactical patterns can be discerned, that, if not universally applicable, do offer a conceptual starting point for observation, prediction, analysis and identification. Causes, targets, weapons and technologies may change, but, conceptually, terrorism remains remarkably consistent. As a form of asymmetric violent conflict, it draws from a long heritage of murder, arson, destruction, assassination, theft and random attacks against civilian population and established public assets and facilities. To add clarity, most discussion on terrorism focus on attacks aimed at destroying or radically reforming from within the existing political or social order, be it within a state or society or in a wider regional or global context. So- called "state-terrorism", symbolized by such groups as Hitler's Nazi incident, Stalin‘s
Russian Secret police, Idi Amin‘s death Squads in Uganda or today's government
55 Ibid. 32 52 supported paramilitaries in Africa and Latin America, while brutally subjugating domestic populations, more accurately constitute political repression, not terrorism.
Also military special operations which include those performed by proxies, directed by one state against another must be considered, in keeping with international law as acts of aggression and war, however vicious the tactics, and not terrorism within the understanding of this research . The scope of this work thus deals with terrorists whose primary objectives lie in the realm of rebellion or revolution; those seeking, through violent means, to change or overthrow existing political and social institutions, policies or practices. Given its long history, it should be little surprise that terrorism possesses certain essential characteristics transcending time and situation.
While exceptions can always be found, these characteristics tend to be repetitive.
Naqishbandi56 identifies contemporary perpetrators of terrorism to include groups or people sometimes state sponsored who are prepared to kill on a massive scale, merely to make a political statement. These people feeling isolated from political mainstream and lacking a base of popular support substitute kidnappings, assassinations, hijackings, skyjacking and bombing for legitimate political activities. The author further identifies four kinds of terrorists which include (1) The State Sponsored and
State Supported terrorists,( 2)The Nationalists Terrorists, (3) Ideological terrorists and(4) Religious Fundamentalism.
The State sponsored or state supported terrorist can take two different forms namely domestic and international. Excluding terrorism perpetrated by a government against its own people, this form of terrorism exists because a certain state sanctions unprovoked attacks on other countries or targets though sponsoring some terrorist
56 G. Naqishbandi, Alienation or Terrorism, Paradoxical Words and Two Faced Currency, Being Paper presented to the Faculty of Humanities and Social Sciences, Political Dept., Adelaide University, (2002). 53 cells. Accusations of state sponsorship range from a nation state providing a safe haven for terrorists, or not actively supporting the war on terror, to providing financial support for terrorists and even using terrorist organisations to officially carry out foreign or domestic policy. Examples of such groups abound in the recent times. Iran provides support for the Hezbollah which is very active in Lebanon, the Hamas in
Palestine waging a Jihad against Israel. Syria provides safe haven and support to several terrorist groups which have morphed into the ISIL/ISIS. The Taliban led regime in Afghanistan provided support and safe haven for the Al Qaeda which was instrumental to the 9/11 incident and the subsequent decision to uproot both the Al
Qaeda in their safe haven and Taliban government of Afghanistan. Shawn Kaplan while delimiting the bounds of state terrorism concludes that ―when terrorists and state sponsors are so intertwined that the normative evaluation of each is based upon identical criteria, we are really considering a case of state terrorism.‖57
The Nationalist terrorists so called are somehow problematic since those who are accused of this insists that they are not terrorist but freedom fighters. These groups
―seek to dissociate themselves from the society for a variety of reasons, which may be based on racial, religious, ethnic or political issues, and fight for self-determination in their own separate state or national liberation.‖58 For instance, the long struggle of the
Irish people being championed by the Irish Republican Army is clear of example of
Nationalist struggles group.
The Irish Republican Army (IRA), which traces its roots to Catholic Irish nationalism in the early 1900s, was considered by many to be a terrorist organization because of certain tactics like bombings and assassinations it used to oppose British rule in
57 S Kaplan, (n.45). 33 58 Ibid 54
Ireland. The objective of IRA is the creation of a unified Ireland under Irish, rather than British rule. They frequently used terrorist tactics to protest the Unionist/
Protestant treatment of Catholics in Northern Ireland. The emergence of the Irish
Republican Army has its roots in Ireland's 20th century quest for national independence from Great Britain. In 1801, the Anglican (English Protestant) United
Kingdom of Great Britain merged with Roman Catholic Ireland. For the next hundred years, Catholic Irish Nationalists opposed Protestant Irish Unionists, so named because they supported the union with Great Britain.
Also the Tamil Tigers struggle in Sri Lanka is another example. Tamil Tigers, by name of Liberation Tigers of Tamil Eelam (LTTE), is guerrilla organization that sought to establish an independent Tamil state, Eelam, in northern and eastern Sri
Lanka. The LTTE was established in 1976 by Velupillai Prabhakaran as the successor to an organization he had formed earlier in the 1970s. The LTTE grew to become one of the world‘s most sophisticated and tightly organized insurgent groups.59 To fund its operations, the group engaged in illegal activities (including bank robberies and drug smuggling) and the extortion of Tamils in Sri Lanka and elsewhere, but it also received considerable voluntary financial support from Tamils living abroad.
The Kurdistan workers party (PKK) in Turkey also belongs to this group. This group, which has Marxist-Leninist roots, was formed in the late 1970s and launched an armed struggle against the Turkish government in 1984, calling for an independent
Kurdish state within Turkey. Since then, more than 40,000 people have died. During the conflict, which reached a peak in the mid-1990s, thousands of villages were destroyed in the largely Kurdish south-east and east of Turkey, and hundreds of thousands of Kurds fled to cities in other parts of the country. In the 1990s, the
59
In Nigeria, there exist similar organisations with nationalist struggle objective.
Notable among them are: The Indigenous People of Biafra (IPOB) and Movement of the Actualisation for the Sovereign State of Biafra (MASSOB). The MASSOB/IPOB is a secessionist movement with the aim of securing the resurgence of the defunct state of Biafra from Nigeria. The Nigerian government accuses them of violence and terrorist activities.
The Movement for the Emancipation of Niger Delta (MEND) is another group with similar objective. The organization claims to expose exploitation and oppression of the people of the Niger Delta and devastation of their natural environment by public- private partnerships between the Federal Government of Nigeria and corporations involved in oil production in the Niger Delta. MEND has been linked to attacks on petroleum operations in Nigeria as part of the Conflict in the Niger Delta, engaging in actions including sabotage, theft, property destruction, guerrilla warfare, and kidnapping. Another new group in Nigeria is the Niger Delta Avengers. Their spokesperson declared: ―We are the Niger Delta Avengers; a group of educated and well-traveled individuals that are poised to take the Niger Delta struggle to new heights that has never been seen in this nation before. We have well-equipped human
60
The next category of terrorist is the Ideological terrorist. In the words of
Naquishbandi, ―Ideological terrorists comprise of a wide variety of people who are disillusioned by various aspects of morality of the society in which they live and are prepared to take support for certain issues to the extreme.‖62 These people feel strongly about such issues as abortion, animal rights, racial purity, environmental protection, that they develop a ―them against- us mentality‖63 There is therefore the inclination and the tendency for this kind of people to use violence to intimidate the rest of the society to tow their line. For example there have been cases where anti- abortion groups have threatened to bomb abortion clinics. Also the white supremacist groups like the Ku Klux clan who are making comebacks in many western societies employing terrorist tactics of all sorts are clear examples of this category. It is however disputed in many circles whether they can be branded terrorists in the modern sense of the word. At best, they may be regarded as radical criminal organisations with uncommon motivation for violence.
The last category of terrorists is the group with deep seated Religious fundamentalist and extremist ideology. In these contemporary times, Naquishbandi writes that
―examination of the websites that deal with terrorism show that about one half of all the terrorists in the world are Islamic in nature and inspire their followers to wage jihad or holy war against the west in general‖64 or their allies and interests everywhere and anytime. This research can relate to the more and many recent terrorist incidences
61
Scott summarizes the nature of terrorism in these clear words as follows:
To achieve revolutionary change, terrorism resorts to violence; simply stated, terrorist acts inflict death and destruction or threaten to do so. This straightforward truth, as obvious as it may be, too often gets lost in debates over terrorist motivations, causes and personalities, as well as discussions of current and future terrorist threats. Whether the violence consists of a single assassination or hijacking, suicide bombings or even the intentional spreading of disease, it inflicts injury, damage and quite often death.65
Today's threat from radical Islamic terrorism, however valid may be its roots, the darker side of terrorism cannot be justified. Terrorism as discussed and as practiced lacks legitimacy; the ends do not justify the means. Political rhetoric and valid causes aside, terrorism fundamentally diverges from the norms associated with warfare or insurgency, based largely on just war traditions of proportionality, even if often bearing the outward appearance and precision of military operations, but often executed using methods that are largely incompatible with recognized norms associated with military operations.
Another striking nature of terrorism is the psychology impact that attends to the terrorism tactics. To achieve political or social change, terrorist violence strives
65 R. Scott Moore, Characteristics of Terrorism, in Terrorism, Concepts, Causes and Conflict Resolution,( New York: US Defense Threat Reduction Agency, 2003), 42 58 primarily for psychological impact rather than physical effect. For terrorists to be successful, they must both terrorize their enemies and gain the attention of a larger constituency from whom they hope to garner sympathy if not open support. To do so, terrorists create uncertainly and fear. Unlike military operations, in which success usually requires the physical defeat of an opposing force, terrorism uses killing and destruction to strike at the mind of the enemy population rather than the body. As horrifyingly catastrophic as were the attacks on the World Trade Center in September
2001, although they actually inflicted considerable physical damage to the United
States as a whole, but did or could not hope for victory in a classical military sense.
But the shock produced by the television images of two aircraft crashing into the New
York skyline created near panic on the government and public, not just in the United
States, but worldwide. The real impact lay not in the destruction or death wrought by the attacks, but in the psychological impact.
2.6 Definition of Terrorism As already noted, there exist fundamental disagreements among states as to a universal and international definition of terrorism. While some states urge the inclusion of state use of force against civilians, otherwise called state terrorism, some others condemn its inclusion and argue for the inclusion of national struggles by groups for self-determination in the proposal, while others insist that the definition must avoid the criminalization of self-determination struggles. Cunningham argues that the necessity of defining and properly conceiving terrorism is significant because he believes that how one structure the problem will help to determine both the desired response to it and this is very true of the problem of terrorism and the response 59 models to counter it.66 He therefore raises three key themes that arise regarding the definition and typologies of terrorism. The questions are:
( 1) What elements constitutes terrorist acts?
(2) Who perpetrates terrorist acts?
(3) Why do they use terrorism as tactic or strategy (what motivates them to use this type of violence)?
Before exploring the answers to these questions, it is important to consider Shawn
Kaplan‘s four strategy approach67 to the definition of terrorism.
The first strategy is to identify terrorism with a series of non-conventional tactics which people resort to in asymmetric conflicts. According to this approach, terrorism is a type of political violence that is adopted for pragmatic reasons due to one side being the resounding underdog in a conflict. Such an approach to the definition of terrorism would include anyone as a terrorist who resorts to guerilla warfare, assassination, rioting or any revolt that does not use an established army. It is argued that defining terrorism as political violence by non-conventional means excludes the impact of the perceived threat of actual violence and does not provide the precision needed to determine the role of psychological violence already identified in this work as vital to terrorism.
The Second strategy is to circumscribe terrorism as an indiscriminate violence that targets the innocent. While it is agreeable that most terror incidences include attack on innocent civilians (non-combatant who pose no immediate threat to Terrorists) like the 9/11 incident or the Paris incidents of 2016 or the Brussels Airport incident
66 Cunningham, (n.46) 6 67 Shawn Kaplan.(n.45) 3 60
(2016), it cannot be a central factor in the characterisation or definition of terrorism.
Moreover where the targets are the infrastructure without potential loss of innocent lives, it is argued that these would be regarded as acts of terrorism any more than the attack against innocent civilians in the Istanbul airport on June 28, 2016. On the other hand, a rather restrictive understanding like this approach would conclude that where supposedly non- innocent persons are targeted like the attack on combatant positions
(the U.S.S Cole attack68), then the act is not terrorism as combatant targets are considered legitimate targets for the purpose of isolating terrorist acts. It is therefore fair to propose that terrorism includes the indiscriminate targeting of non-combatants, where otherwise employed by the nation state, it becomes war crime and not terror crimes.
The next alternative approach to defining Terrorism is to follow the proposal of Carl
Wellman69 by suggesting that terrorists have in fact two targets: direct and indirect targets. Under this form, the emphasis is on the coercive intent that attends to all terrorism acts or overtures. Herein the understanding is that the harm that terrorism unleashes is received by the so called direct target but the direct target is secondary to the target that the terrorists intend to influence or coerce by the act. In the overall, neither the direct or indirect targets need be innocent. In other words this approach to defining terrorism is not restrictive with regard to the terror producing tactics involved in coercing the indirect target, nor does it place restrictions upon the agent of terrorism. Thus either a nation state or a non-state agent or even an individual can inflict harm upon one target in order terrorise or coerce a response from another.
68 The USS Cole bombing was a terrorist attack against the United States Navy guided-missile destroyer USS Cole (DDG-67) on 12 October 2000, while it was harbored and being refueled in the Yemeni port of Aden. 17 American sailors were killed, and 39 were injured. The terrorist organization al-Qaeda claimed responsibility for the attack. 69 Carl Wellman, ― On Terrorism Itself,‖[1979] Journal of Value Inquiry , 13, 250 61
Kaplan expresses this fact in these words: ―The implication is that terrorism can be carried out not only by individuals, non-state organisations and nation states but by an entire gender.‖70 Another implication of this approach is to highlight the underlining motive or desire of the terrorist act, which is the coercive intent, although it must be remarked that the intent does not exclude the involvement of other motives such as the desire to punish or avenge. The problem with this approach is that it takes us into the murky waters and awkward position of not being able to identify attacks as terrorism where the intentions are not clearly identified.
The fourth approach to defining terrorism tends to aggregate several aspects together into a composite definition. The argument for this approach is that a composite definition of terrorism would tend to highlight the core elements that establish the family resemblance between the various types of terrorism already identified.
However Kaplan argues that such composite definitions do not highlight the distinct character of terrorism from other kinds of political violence.71 Daniel Long tends to move away from the aggregate approach by introducing psychological component to terrorism. Rather than defining terrorism, he offers a descriptive position. He describes terrorism as ―Seeking political goals through psychological means by the use of or threat of violence that are neither sanctioned under the criminal statutes of most states nor by international law.‖72 Daniel Long isolates three very significant features of terrorism in the absence of any acceptable definition. These include: 1) violence or threat of violence, 2) political objective and 3) Psychological impact on the human target (fear and intimidation, sense of insecurity). Suffice it to say in the concordant opinion of this researcher that any definition of terrorism must necessarily
70 S Kaplan, (n.45), 9 71 Ibid. 11 72 D. E. Long, Countering Terrorism Beyond Sovereignty, in Maryann K. Cusimano (ed), Beyond Sovereignty, Issues for Global Agenda, (New York: Bedford/St Martin, 2000), 97 62 carry the imprint of these features otherwise; it may be classified under any other offence other than terrorism.
It is relevant at this juncture to consider the fundamental thematic question raised by
Cunningham for the purpose of assisting us to arrive at a relatively acceptable definition of terrorism. To recap, they are as follows: 1) what elements constitute terrorist acts, 2) who perpetrate terrorist acts, 3) why do they use terrorism as tactic or strategy (what motivates them to use this type of violence). These themes would be further interpreted using legal parlance to read: what elements constitute a good definition of terrorism. To answer this question, it is apposite to consider the objective and subjective element of terrorism and as well as the agents involved. To define terrorism without these elements is to miss the warp and woof of any legal concept with criminal connotation. In this connection, a discussion of the Actus Reus
(Objective element) and Mens Rea (the Subjective element) of terrorism would be inevitable.
The importation of these two aspects of crime derives from the popular Latin maxim:
Actus non facit reum, nisi mens sit rea- The Act itself does not give rise to guilt unless done with a guilty intent.‖Similarly put, the intent and the act must both concur to constitute a crime. Thus, the prosecution bears the burden of proving all the elements described in the definition of the offence. In modern criminal law, there is a movement to relinquish the use of these terms in the definition of offences. However, some have argued for their continued use in criminal law. According to some authors,
―The argument in favour of keeping the terms, Actus Reus and Mens Rea in common use is that they are the customary language of the courts.‖73 This maxim applies to crime generally. To prove terrorism as within the ambit of criminal law therefore, the
73 D. Stuart et al, Learning Canadian Criminal Law (10th edn. Thomson Canada 2006) 188. 63 specific offence must be terroristic in its externality with the attendant requisite terroristic intentions.
2.6.1Actus Reus (External Element) of Terrorism
Generally under common law, definition of any offence/crime under the law, must tow a desired pattern. Crime is considered a public wrong whose commission will result in criminal proceedings, which may in turn result in the punishment of the wrong doer. Terrorism because it often results in loss of lives and destruction of property has attracted the attention of all and sundry, hence its classification as inherently evil in all its ramifications. The Actus Reus of terrorism (which we otherwise call external element include more than just the act but also contemplates both the circumstances and consequences) addresses the question of what elements constitute terrorist acts. These may include single events or incidents, tactic and campaigns.
―Actus Reus consists in act or omission. It also includes consequences and such surrounding circumstances if any be required, as are material to the definition of the crime.‖74 Thus, they are referred to as the essential elements of an offence in the absence of which an offence cannot be said to have been committed. Actus Reus simply refers to the prohibited act. However not all crimes can be adequately described simply by reference to the act; most require proof of accompanying circumstances and some proof of a particular consequence. The crime of rape for instance condemns sexual intercourse only under the circumstances of a woman not consenting to the intercourse and this includes sexual intercourse with minors which has been described as statutory rape.
74 P.W.D. Redmond, General Principles of English Law, (6th edn. Longman Group Ltd London 1990), 387 64
Thus strictly speaking, ― the concept of ‗actus reus‟ is a package which embraces acts, circumstances and consequences which collectively constitute the physical elements of the crime.‖75Actus Reus asks the question ―what is the event, action, consequence or situation prohibited by the offence or act of terrorism? The prosecution must establish beyond reasonable doubt that the Actus Reus- the event, action, consequence or situation was prohibited by the relevant legislation- has occurred. In other words, any definition of terrorism must set out to itemize situations, actions and consequences that constitute the criminal activity. The reason for requiring an actus reus suggests Don Stuart el al. is the impossibility of proving a purely mental state, following the popular saying of Brian C. J ‗that the thought of man is not triable, for the devil himself knoweth not the thought of man.‘
A review of the many definitions of terrorism reveals that the consensus opinion underlies and refers to violence against persons as a sufficient criterion designed to represent the Actus Reus of terrorism. Some definitions also prefer to refer to the consequences of acts without specifying the act or event that resulted to those consequences. Externally speaking, a terrorist act always carries with it either an explicit or implicit threat of future and separate act of violence, hence the name terrorism. It is in this connection that the general understanding of terrorism involves an act in which violence or force is used or threatened, 2) and is intended to cause fear or terror 3) is primarily a political act with symbolic burst. These acts of violence or threat may be directed to the civilian or combatant population, although civilians are often the target of the threat or violence. Terrorism may also be located with the genre of crime although with distinct political goals since terrorist activities are symbolically carried out to accomplish a political cause. This explains the reason for
75A. M. Dugdale, M. P. Furmston, S. P. Jones & C. H. Sherin, ‗A‟ Level Law, (Butterworth, London 1996), 225. 65 ineffectiveness of the employing exclusive criminalization process as a counter terrorism strategy because criminalization can deal with the after effects but not the underlying cause of terrorism. Some of the definition of terrorism presented hereunder relates to the objective element of terrorism, namely: violence, political purpose and terror driven or threat of it outlined. Here are some of the definitions:
The UN General Assembly Resolution 49/60 (adopted on December 9, 1994), titled
"Measures to Eliminate International Terrorism," contains a provision describing terrorism as: Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them.
The Arab Convention for the Suppression of Terrorism was adopted by the Council of
Arab Ministers of the Interior and the Council of Arab Ministers of Justice in Cairo,
Egypt in 1998.
Terrorism was defined in the convention as: Any act or threat of violence, whatever its motives or purposes, that occurs in the advancement of an individual or collective criminal agenda and seeking to sow panic among people, causing fear by harming them, or placing their lives, liberty or security in danger, or seeking to cause damage to the environment or to public or private installations or property or to occupying or seizing them, or seeking to jeopardize national resources.
UN Security Council Resolution 1566 (2004) gives a definition: criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the 66 general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act.
The European Union defines terrorism for legal/official purposes in Art.1 of the
Framework Decision on Combating Terrorism (2002). This provides that terrorist offences are certain criminal offences set out in a list comprised largely of serious offences against persons and property which given their nature or context, may seriously damage a country or an international organization where committed with the aim of: seriously intimidating a population; or unduly compelling a Government or international organization to perform or abstain from performing any act; or seriously destabilizing or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.
The United States has defined terrorism under the Federal Criminal Code. Title 18 of the United States Code defines terrorism and lists the crimes associated with terrorism. In Section 2331 of Chapter 113(B), defines terrorism as: ―…activities that involve violent… or life-threatening acts… that are a violation of the criminal laws of the United States or of any State and… appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and…(C) occur primarily within the territorial jurisdiction of the United States.
FBI definition of terrorism is as follows: The unlawful use of force or violence against persons or property to intimidate or coerce a Government, the civilian population, or any segment thereof, in furtherance of political or social objectives. 67
U.S. Army Manual definition terrorism reads: "Calculated use of unlawful violence or threat of unlawful violence to inculcate fear. It is intended to coerce or intimidate governments or societies ... [to attain] political, religious, or ideological goals." U.S.
Army Field Manual No. FM 3-0, Chapter 9, 37 (14 June 2001).
Department of Defense Dictionary of Military Terms defines terrorism as: The calculated use of unlawful violence or threat of unlawful violence to inculcate fear; intended to coerce or to intimidate governments or societies in the pursuit of goals that are generally political, religious, or ideological.76
An immediate analysis of these definitions in terms of the Actus Reus tends to show a consistent reference to a number of common denominator. Cohen underscores this opinion in these words: ―The number of definitions given to terrorism might directly correspond to the number of people asked. This diversity notwithstanding, most of the definitions of terrorism address the core elements.‖77
There is no doubt that terrorism falls within the genre of crime but not limited to it. Be it as it may the common denominator in these definitions include: (1) Acts committed with intent to cause death or serious bodily injury with a purpose to provoke a state of terror in the general public,( 2) with the aim to compel a government or international organisation in furtherance of political goal. (3) Activities that involve unlawful use of violent or life threatening act. (4) Against a civilian population or combatant personnel unprovoked. The Security Council in its 4413th meeting in 2001, adopted resolution 1377 where it avoided a definition of terrorism but maintained categorically that ‗The only common denominator among variants of terrorism was
76 Various Definitions of Terrorism,
Suffice it to say that for our purposes in this research, without attempting to castigate any given definition, a judgment can made on any definition so given by States or international organisation using the guidelines presented and adopted above. Adoption of these guides as the content of Actus Reus in a consistent fashion amongst States and international organisation would enable States to create a rather more universally accepted and consequently more effective counter terrorist policies that admit of measures that are location specific.
It is apposite to reference in this context, the various tactics most favored by terrorists in these more recent times. Some of these tactics include but not limited to: bombings, assassinations, kidnappings, hostage situations and hijacking, indiscriminate shooting, suicide attacks, car bombing, armed assaults in the public places, cyber warfare, letter bomb, use of vehicle/trucks to run into crowds or public places etc. However beyond these generalization underscoring the behavior and operations of terrorists, it is critical to note that it is virtually impossible to stereotype terrorist behaviour given the fact that most terrorist planning and activity is covert, hence the difficulty of gathering enough statistical data in that realm of study.
2.6.1 Mens Rea of Terrorism (Subjective Element) Mens Rea as a technical term speaks to the relationship or the connection between the act prohibited and the mental disposition of the perpetrator. Dinstein remarks that
Mens Rea is an indispensable component of international crimes.78 This can
78 Y. Dinstein, War, Aggression and Self Defence (4th edn, Cambridge: University Press 2005), 136 69 effectively be spoken of all crimes. The Rome Statute of ICC underscores this simple but important principle when it states that in its article 30 that:
―1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.
2. For the purposes of this article, a person has intent where:
(a) In relation to conduct, that person means to engage in the conduct;
(b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.
3. For the purposes of this article, "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events.
"Know" and "knowingly" shall be construed accordingly.79
In other words, it expresses the criminal law requirement that an ―accused person be proved to have had a specified cognitive relationship to the various elements or the actus reus in order to be guilty.‖80 For example, in order to convict a person for murder, it is necessary to inquire whether the accused intended death of a human being as the possible outcome of his action or conduct. However, the exact mental element will vary according to the offence. For instance, in reference to Murder, mens rea is any state of mind which comes within the description of malice or afterthought while for theft; the mens rea is an intention to deprive the owner of the property permanently, fraudulently and without claim of right. In this connection, A. M.
79 Rome Statute of the International Criminal Court, 1998,in Adams Roberts & Richard Gueff (eds.), Documents on the Laws of War (3rd edn. Oxford: University Press, 2000), 690 80 R. Cairns- Way, Dimensions of Criminal Law, (3rd edn. Emond Montgomery Publ. Canada 2002), 339 70
Dugdale et al writes, ―In many cases, the proof of the required mens rea is the critical element in the prosecution and the determinate of the criminal liability. Further, it will be the mens rea of the accused that will often differentiate between serious and less serious crimes as with murder and manslaughter.‖81 Certain offences are said to be crimes of strict liability or vicarious liability. Such offences are creatures of statute.
Thus, even though, it is a principle of common law that mens rea is essential element in the commission of criminal offence, it may displaced by the statute. Hence in the
English case of Sheras v. De Rutzen, Wright, J laid it down that there was a presumption that mens rea was an essential ingredient in a statutory offence, but that presumption was liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it dealt.‖82 Such offences invariably require no mens rea to be proved as an element for the purposes of effectual prosecution. They constitute exceptions to the adage Actus non facit reum nisi mens sit rea. Except for strict liability offences, intention and the proof of that intention remains the crucial factor and epitome of mens rea. Although negligence and recklessness are known and included as forms of mens rea, intention remains the critical factor in differentiating other forms of violence from the terrorist violence.
Some offences like terrorism require particular kinds of intention or knowledge.
One fundamental element that cannot be taken away from any attempted definition of terrorism is the creation of climate of terror and fear within the civilian or combatant population or parts of it. This state of affairs need not be objectively present in the acts of terrorism. It however suffices to have the intention to create such atmosphere objectively judging from the nature of the conduct or the actus reus or consequences of it. However, one must not lose sight of the political undertone behind every terror
81 A.M Dugdale et al. (n.75), 236 82 (1895) 1 Q.B, 918, 921 71 incident. Hence it is important to draw a line between the quests for nationalist identity (as we find in the quest for self-determination struggles and an act of terrorism, between legitimate political demands within a state and suppression of those who make the demands. A scholar like Upendra Acharya subscribes to the shift from who is a terrorist to what constitutes terrorist acts. He emphatically maintains:
―The focus is not and should not be whether a group is a terrorist group, but rather what activities or actions constitute terrorism.‖83 With this focus in mind, he maintains that it will help states and international community to understand the nature of the fight in which we exclude terrorist acts, without excluding people. Although the reverse argument can also be made that groups are often labeled terrorist by the prevailing conduct and policy projection by which they are known and associated.
From the hindsight of acts already isolated as terrorists‘ act which must themselves be unlawful; the mens rea of these (terrorist) acts themselves must be intentional and its consequences foreseen and desired for one to conclude that a terrorist incident has occurred or born. The intentional act must however include the intent to terrorise and bring about terror as a consequence of the act performed. The understanding here is that the act performed which is the constitutive act of terrorism is not end in itself but a means to an end- an instrument or vehicle of terror. The Security Council resolution
1566 identifies the mens rea when it speaks of ―acts done with the purpose to provoke a state of terror... or to intimidate.‖84 The International Convention for the
Suppression and Financing of Terror85 in its article 2 uses explicit language to
83 U. D. Acharya, War on Terror or Terror Wars: The Problem of defining Terrorism [2009]Denver Journal of International Law and Policy, Vol. 37:4, 656 84 S.C. Res.1566 85 Article 2 1.Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and willfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out:(a)An act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex; or (b)Any other act intended to cause death or serious bodily injury to a civilian, or 72 accommodate the mens rea. The word ‗willfully‘ denotes a voluntary and premeditated act. While the word ‗intended to cause death or injury‘ with a purpose to cause fear…‘ constitute clearly the mens rea of terrorism for the purposes of this convention. This convention therefore requires a form of desired foresight with respect to the consequences of the proscribed act which is to terrorise and intimidate.
Christian Walter argues further in this connection that, the element of fear and insecurity is not only used as a subjective element, but as a necessary requirement.86In addition, from a rather different wave of thought, Kaplan87 raises a few concerns that speak to the resistance of scholars in including terror as an element of terrorism.
These concerns include: 1) that it is sometimes difficult to determine whether the motives of terrorists are primarily aimed at eliciting terror or at some other end. 2)
The problematic rhetoric of labeling all incidences of violence with terror consequences as terrorism. 3) The probability that putative act of terrorism may not be followed with attendant terror or will fail to elicit terror. 4) The uncertain nature of terror that attends to the label of terrorism. Kaplan insists that as with 9/11 attacks, that without a perceived threat of future violence, there would not exist an act of terrorism.
It is a possibility that sometimes the terrorist‘s motives may not be clearly apparent, nevertheless surrounding circumstances may likely clarify the motive to sustain the designation of terrorism. It is also a remote possibility that a violent or terror threatening action may not elicit the necessary terror as a consequence, but that does not make it less an act of terrorism so long as all other features of terrorism already
to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act. 86 C. Walter, Defining Terrorism in National and International Law, 2003. http://cdoc.mpil.dc/conference-on-terrorism/index.cfm 17/07/16 87 S. Kaplan, (n.45) 73 identified are present. Significant as these concerns are, it does bring to the discussion in an unmitigated rhetoric that the mens rea of terrorism must not be separated from the deliberate intention to cause terror with attendant political motive, an element that runs through most modern definitions of terrorism. Thus, an author concludes that,
―While the intention of creating terror and fear within the population is an uncontroversial element of definition, the degree of influence on the government decision-making, which is necessary in order to speak of terrorism, varies.‖88
In the light of these preceding discussions, the definition of terrorism that will be provided by this research intends to takes account of these elements and concerns raised. However, this research acknowledges and adopts the definition of terrorism by
Shawn Kaplan ―As an act or threat of violence to persons or property that elicits terror, fear, or anxiety regarding the security of human life or fundamental rights and functions as an instrument to obtain further ends. This instrumentality relies upon either an explicit or implicit threat of separate acts of future violence.89 However there is need to enlarge the definition and locate the emphasis where they should be.
In view of this, the working definition of terrorism of this project while acknowledging the difficulty of error proof and universally acceptable definition is as follows: Terrorism is a criminal act which involves the intentional and illegitimate use or threat of violence by a person or groups of persons with the capacity to bring about death or bodily injury to civilian/combatant population or damage to property with the intention to elicit terror or fear of future violence in order to achieve a proximate or remote political purpose.
88 C. Walter,(n.86) 89 S Kaplan, (n.45) 74
2.7 Typologies of Terrorism An understanding of terrorism from a typological perspective is apposite at this point in order to supplement this definition. Typologies are generalizations employed by social science to describe patterns or system that is in constant state of flux and development. It is fact of experience that the nature of terrorism is always changing.
What is termed terrorism one year may be called something next year, hence, the use of typology to advance an understanding of terrorism. Typologies are also necessary for the purpose of understanding terrorism because based on our definition, terrorism certainly covers a wide range of divergent and variety of activities, behaviour, targets, affiliations, motivations, and tactics not clearly brought to the spotlight by the definition. Typologies would certainly help in drawing necessary distinctions between the divergent types of terrorism as well as incorporating the many parameters of terrorism as a subject matter. The capacity of typology in uncovering the level and gravity of terrorism can be used to determine the model and nature of response required. Although, typologies have the potential to reflect the biases of the researcher; they may not be able to provide an in-depth political analysis; or solve definitional problem, but they can be useful in the more limited role of tactically identifying a security problem.90 Just as there is no universally accepted definition of terrorism, there is no universally accepted typology of terrorism or a typology that can account for all forms of terrorism. In the course of reviewing the literature on the typology of terrorism, this author will propose a typology to reflect the contemporary forms of terrorism at the domestic and international levels.
90 ‗A Tactical Typology of Terrorism, Typologies of Terrorism‘ ,
Paul Wilkinson91 identifies four categories of terrorism namely: criminal, psychic, war and political. He defines criminal terrorism as the planned use of terror for financial and material gain. He relates Psychic terrorism to magical beliefs, myths and superstitions induced by fanatical religious beliefs. War terrorism is the annihilation of the enemy through whatever means possible. These three are not so much our concern in this work. Political terrorism which is the focus of this work is understood as the use of violence and fear to achieve political purpose.
Since Political terrorism is of great interest to him, he provides seven specific characteristics92 of political terrorism and further classified political terrorism into three namely: revolutionary, sub revolutionary and repressive.
Revolutionary terrorism represents the ―systematic tactics of terroristic violence with the objective of bringing about political revolution. The second category in
Wilkinson‘s classification of political terrorism is sub revolutionary terrorism. This is defined as terror used for ―political motives other than revolution or governmental repression.‖ Sub revolutionary terrorism is directed at forcing the state to change its policy on a controversial political issue, warning state officials, or retaliating against the state for some act seen as reprehensible by the terrorist group. For example, a clandestine anti-abortion group, calling itself the ―Army of God,‖ has planted bombs in several abortion clinics in the United States to protest what it sees as liberal abortion laws. Also the recent shooting to death of 49 gay club attendants in Pulse
Gay Club in the state of Orlando, Florida on 12th June of June 2016 by single gun
91 P. Wilkinson, Terrorism and the Liberal State (Wiley, New York 1977) 35. 92 1. The systematic use of murder, injury, or threats to realize a political objective such as revolution or repression. 2. An atmosphere of fear, coercion, and intimidation. 3. Indiscriminate attacks are made on noncombatants (soft targets)—no one in particular is the target, no one is safe. 4. Its unpredictability: the individual is unable to avoid injury or death. 5. Its abidance by no rules or conventions of war. 6. The savage methods of destruction used, such as car bombs, nail bombs, double bombs, and mass murder.7. The moral justification for acts of terrorism, found in the group‘s political philosophy. 76 man, named Omar Mateen may be cited as another most recent example of sub revolutionary terrorism.
Wilkinson‘s third category, repressive terrorism, is defined as ―the systematic use of terroristic acts of violence for the purposes of suppressing, putting down, quelling, or restraining certain groups, individuals, or forms of behavior deemed to be undesirable by the oppressor.‖ Repressive terrorism relies heavily on the apparatus of the state security police who are usually set apart from the rest of society. In fact, various aspects of contemporary terrorism were introduced to international affairs by a state rather than by an independent terrorist organization. For instance, Hitler‘s SS and
Gestapo used a variety of terrorist methods against the Jews. The mass extermination of the Jews of Europe represents the last phase of Hitler‘s terror campaign against a civilian population.
Frederick J. Hacker‘s typology of terrorism classifies terrorists according to motives: crusaders, criminals, and crazies. According to Hacker93, the emotionally disturbed
(crazy) are driven by reasons of their own that often do not make sense to anybody else. The motives of criminal terrorists are simply personal gain through illegitimate criminal behavior. Crusading terrorists are idealistic aspired, seeking no personal gain but prestige and power for a collective political goal, while acting for the interests of the ―common good. Hacker further delineates his classification of crazy terrorism from psychotic terrorism. The latter category is very similar to the ―motiveless‖ murder, which can offer no moral justification for the act of terroristic violence other than individual recognition. Using Hacker‘s typology, the crusading terrorist represents the class that is most common in the last decade. We can conveniently
93 Frederick J. Hacker, Crusaders, Criminals, Crazies. Terror and Terrorism in Our Time (Bantam Books, New York 1978) 3–38. 77 locate the many recent terrorist incidences in France, Baghdad, Turkey and Belgium in 2016 claimed by ISIS terrorist network as crusading terrorists.
Thornton94 identifies two broad classifications of the use of terrorism. The first is enforcement terror, which is used by governments to extinguish threats to their power and authority. The second is agitational terror, which specifies the terrorist activities of an organized group attempting to disrupt the existing political establishment and take political control. In a sense, Thornton discusses terrorism from above and terrorism from below. Agitational terrorism as classified by Thorton remains the focus of most anti-terrorist campaign of the United Nations and individual states.
A similar split is approved by May95, who categorizes terrorism as ―regime of terror‖ and ―siege of terror.‖ Regime of terror refers to the use of terrorism by the established political system, while siege of terror pertains to terrorism used by revolutionary movements. According to May, the regime of terror is the most insidious type of terrorism, but public attention is focused on the siege of terror due to the sensationalism of media reporting.
Schmid and de Graaf96 have presented an interesting classification of political terrorism distinguished by three principal types: (1) insurgent terrorism directed against the state, (2) state or repressive terrorism directed against less powerful segments of society, and (3) vigilante terrorism directed neither at the state nor on behalf of the state. Insurgent terrorism is further subdivided into three categories:(1) social revolutionary terrorism which aims at causing worldwide revolution, (2) separatist, nationalist, or ethnic terrorism, which is concerned with radical changes in
94 Thomas P. Thornton, ―Terror as a Weapon of Political Agitation,‖ in Internal War: Problems and Approaches, ed. Harry Eckstein (Free Press of Glencoe, New York 1964), 71–99. 95 W. F. May, ―Terrorism as Strategy and Ecstasy,‖ [1974]Social Research 41 Spring 1974 277. 96 Alex P. Schmid and Janny de Graaf, Violence as Communication: Insurgent Terrorism and the Western News Media (Sage,Beverly Hills, CA 1982) 59–60. 78 one part of society and not the entire political structure, and (3) single issue terrorism, which is concerned with the granting of some privilege to a specific group. Schmid and de Graaf recognise that this typology concerns itself only with domestic and national terrorism while omitting international and transnational terrorism.
Here is a summary of these typologies as identified in a simple table:
Table 1: Summary of Typologies of Terrorism ------
Author: Types ------Wilkinson: Criminal, Psychic, War, Political Hacker: Crusaders, Criminals, Crazies Thornton: Enforcement, Agitational
May: Regime, Siege
Schmid and de Graaf: Insurgent, State, Vigilante, Social Revolutionary, Separatist
From these various typologies of terrorism, from where we may now seek to provide a reasonably comprehensive typology of terrorism, it is evident that any typology of terrorism must accommodate the indiscriminate nature of terrorist violence (victim), variety of motives, target, reach (place), modus operandi and issues canvased for a given terrorist incident. Meanwhile, the above typologies as presented and explained illustrate unmistakably that while there is little consensus on the details, there are themes that permeate and are consistent in the literature and models of terrorism. 79
William Cunningham97 chooses to introduce order to this apparently scattered presentation of the models of terrorism, by first, making a distinction between state and non-state actors in the understanding of terrorist tactics. He recognizes that there is a fundamental qualitative and quantitative difference between state and non-state terrorism. He avers that, ―state and non-state actors engage in different forms of terrorism that are comprised of different types of acts and actions.‖98 In his narrative, it makes no difference whether the state is democratic or authoritarian since both forms of government have in the past sponsored or supported terrorism in varied fashions. For instance, the democratic regime of Iran have been accused many times of supporting and sponsoring Hezbollah99 of Lebanon in no less way as the Taliban authoritarian Regime had supported and protected the al Qaeda terrorist network before their decimation, following the 9/11 incidence. Cunningham also notes that state actors engage in three forms of terrorism, namely: state sponsored, state – performed (acts of terrorism conducted directly or covertly by state governments) and internal repression (Terrorism practiced on one‘s own population, exemplified by the
Taliban regime of the last two decades in Afghanistan and the extreme deprivation of the civil liberties and violations of human rights during the Abacha military regime in
Nigeria. Its Purpose is to eliminate all forms of opposition to the regime). These are more or less self-explanatory. The warp and the woof of these three forms is that the state is either directly or indirectly involved in these forms of terrorism, even though
97 William G. Cunningham Jr., Terrorism Definitions and Typologies, in W. Cunningham (ed) Terrorism , Concepts, Causes, and Conflict Resolution, New York: U.S Defense Threat Reduction Agency, 2003, .5-38 98 Ibid. 25 99 Hezbollah is a clear form of state sponsored terrorism. State sponsored terrorism is externally directed and its purpose is to influence the political behaviour of target groups outside of the sponsoring state. The Hezbollah although based in Lebanon carries out operations in support of Iranian and Syrian governments and its foreign policy directives 80 in some instances, the target of the terrorists act and the impact is beyond the states boundaries.
A further distinction is made of the non-state actors based on their primary motivators, which are: political ideology, ethno-nationalism and religious extremism.
Ideologically motivated terrorists are those who engage in terrorism for reason of perceived threat to their ideology; ethno- nationalist are concerned more with a threat to their identity to their ethnic or nationalist predisposition; while religious extremist are concerned with the perceived threat to their religious convictions.
The examples of ideologically motivated terrorist are the anti-abortion campaigners who are inclined occasionally to engage in some form of violence to drive home their outlooks. These groups are aware that their opinions are unpopular and will not get ahead in elections or referendums. In consequence, rather than become isolated from political mainstream, they take to violence as a vehicle to express their frustration.
The examples of ethno-national terrorist are the Provisional Irish Republican Army
(IRA), the Niger Delta Avengers (NDA), The Tamil Tigers of Sri Lanka (LTTE), the
Hamas of Palestine, the Biafra secession struggle in Nigeria which culminated in the
Nigeria Biafra civil war between the year 1967-1970 and the Kurdistan Worker Party
(PKK) in Turkey. These groups usually perceive themselves as an oppressed and victimized minority, being threatened by dominant majority groups. Most wars of secession and struggle for self-determination that have violence as a component tactic belong to this split. Cunningham has therefore argued that ―the objective of ethnic motivated violence is to secure some level of autonomy or independence for a minority group from the majority dominated state structure.‖100
100 W. Cunningham (n.97) 32 81
Terrorist violence manifested by way of religious extremism is most common fashion of terrorism expression since the 9/11 incident and regrettably it has continued to rise astronomically in spread, tactics and impact across transnational boundaries. Since
9/11, Islamic fundamentalism has been a major catalyst of religious motivated terrorism. These groups represent values that are not easily changed, modified or negotiated away, thus the difficulty of engaging in any negotiations with them. In their circle, it is believed that violence is permitted in the name of God for the purposes of destruction of one‘s enemy for which the perpetrator will be rewarded in the afterlife. Religious motivated violence often involves unprecedented violence in large scale which is a reflection of the fact that religious terrorists unlike the previous one discussed do not rummage to lobby any constituency or authority for approval other than their own god or religious authorities and therefore feel less need to bring into line their violence. The trans- boundary nature of religion makes the religious motivated terrorism more dangerous and more difficult to combat, more so, with the modern means of communication and information sharing, affiliations with these groups are greatly facilitated. Consequently, an affiliate does not need to physically relate with his choice group, in order to carry terroristic attacks in their name. It is merely sufficient to be convinced of their core values and objectives. This explains counter-terrorists model in the west, ‗to uncover and exterminate‘ as the most dominant rhetoric against terrorism motivated by Islamic fundamentalism. Evident examples of religious motivated terrorist networks are the ISIL/ISIS currently localized in Iraq and Syria with many incidences of violence motivated by them in many parts of western Europe and Middle East, Boko Haram (localised in North East of Nigeria) but extending their activities to other parts of Nigeria and Africa with affiliations to ISIS, Al Qaeda Terrorist Network , although dwindling in power, 82 spread and influence globally, due to the killing of their arrow heads notably Osama
Bin Laden, are still visible in many Asian or middle eastern countries like Yemen,
Afghanistan and Pakistan.
A review of these typologies discloses that each of them has one aspect of the other descriptively speaking, although a distinct nomenclature was used. However, the opinion of this researcher is that the typologies as espoused by Schmd/De Graaf and
Cunningham remain the most comprehensive as their cumulative appreciation contemplates an understanding of terrorism as experienced in the post 9/11 era. While recognising that terrorism could either be domestic or international as already explained in this work, a presentation of combined typology of both is thus adapted and reflected in the following table:
A Typology of Terrorism
STATE NON-STATE
TERRORISM TERRORISM
CRIMINAL
INSURGENTS
SEPARATIST/ETHNO-NATIONALIST
IDEOLOGICAL/CRUSADERS/SOCIAL
REVOLUTIONARY
REPRESSIVE TERRORISM
RELIGIOUS EXTREMISM 83
STATE SPONSORED
STATE PERFORMED
In the foregoing table, the narrative that is being explored is that most terrorist violence can be classified under two major categories which can take various forms depending on many variables which include: motivation, repression, perpetrator, target, religion, ideology, ethnic survival, objective, foreign policy adjustment. These variables have been sufficiently explained within the many typologies exposed in the preceding pages. I will not hesitate to add that these variables are a function of which model to adopt in the counter terror efforts amongst states.
2.8 Counter Terrorism Response Frameworks The focus of this subsection is to unpack the popular legal frameworks, rules and principles that are implicated in the ongoing fight against terrorism. The service that this exercise provides is that it helps to identify the outstanding models being adopted by states in their counter terrorism initiatives.
2.8.1 Counter Terrorism and Use of Force in International Relations All politics is a struggle for power and the ultimate kind of power is violence. Power says, Voltaire consists in making others act as I choose and Max Weber also said, ‗ power is present whenever I have the chance to assert my own will against the resistance of others‘, while reminding us that war is an act of violence to compel the opponent to do as we wish.101 Hannah Arendt in consonance with these thoughts declares that, ―if the essence of power is the effectiveness of command, then there is no greater power than that which grows out of the barrel of a gun.‖102 Arendt insists
101 Hannah Arendt, On Violence, ( A Harvest Book Harcourt Inc. Orlando 1970), 36 102 Ibid. 37 84 that, a distinction needs to be made between violence and power and between power and force. This is necessary because there appears to be a qualitative difference between arbitrary use of force in order to gain power and use of force according to law in international and human relations, which in essence changes the force narrative and indeed qualifies it. Force is a synonym of violence where it serves as a means of coercion. In this connection, the application of force or violence in order to coerce somebody in an organised society need to be justified and legitimate, otherwise it would be an exercise in anarchy. Thus no organised society can function without established authorities with power to use violence to compel obedience. Arendt concludes that, ―In foreign relations as well as in in domestic affairs, violence (force- mine) appears as a last resort to keep the power structure intact against individual challengers- the foreign enemy, the native criminal….‖103 In the wake of terrorist incidences following the 9/11 attacks, The United States in its National Security
Strategy against the perceived enemy, the White House declares as follows:
Defending our nation is the first and fundamental commitment of federal government… Today the task has changed dramatically. To defeat this threat we must make use of every tool in our arsenal- Military power, better homeland defenses, law enforcement, intelligence and vigorous effort to cut off terrorist financing. The war against terrorist of global reach is a global enterprise of uncertain duration.104 In order that the use of this force which serves to put off the challengers and foreign enemy in its many forms including the terrorists, international law and domestic law have come up with principles of legitimate use of force.
The difficulty of addressing the major forms of violence and destruction orchestrated by terrorism has however remained unaffected by any intellectual or technological innovations. The current efforts to articulate a response to them concentrate on the
103 H. Arendt, (n.101) 47 104 The National Security Strategy of the United States of America, September, 2002. 85 domain of law which rely on the two disciplines or traditions namely international law and criminal law. Criminal law as a tool of the nation state aims to offer a remedy to the social problem of terrorist violence and carries the ultimate purpose of preventing further crimes (terrorism) by way of law enforcement. The use of force or firearms in law enforcement is seen as the last resort and hence it is seen as an extreme measure.
Laura Ani lays this point in the following words, ―Law enforcement officials may resort to the use of force only when all other means of achieving a legitimate objective have failed (necessity) and the use of force can be justified (proportionality) in terms of importance of the legitimate objective to be achieved.‖105 The reason why there is clear restraint on the use of severe force in law enforcement is the connection between law enforcement and constitutional obligation to protect human rights, especially the right to life in many jurisdictions. Thus, it is only legitimate to use proportionate force and in moments of extreme necessity where the regular law enforcement machinery are unable to contain the criminal act. This is the position of
Nigeria as she struggles daily to contain the menace of Boko Haram terrorist group which have defied and overwhelmed all regular law enforcement measures and the mantle of control has now been transferred to the regular Nigeria military to continue the counter terror measures in a military style using tools as sophisticated or more as the enemy tools. Where this use of force in permitted under law enforcement terms in order to combat terrorism, it is only at the instance where all other less forceful measure have failed and it is absolutely necessary to use requisite or proportionate force in order to achieve that legitimate objective, in this case the counter measures against terrorist who are unrelenting in their attack against the civilians and civilian targets.
105 Laura Ani, Use of Force Against Terrorism, in Epiphany Azinge (ed), in Laws of Wars and Use of Force, (NIALS, 2014) 177. 86
International law functions by way of diplomatic conferences, convention-making by consensus and based on the willingness of sates to conform to a rule or practice that is accepted as appropriate, aims at containing crimes of terrorism where they constitute threat to international peace and security. While the use of force to combat terrorism within domestic sphere falls within the domain of criminal law, the use of force to combat international terrorism can only by regulated by international principles agreed amongst states. Recognising the sovereign equality of states, the principle of non-intervention and inviolability of another‘s territory, the United Nations Charter has set boundaries for the purpose of regulating the use of force in international relations. In the light of the death and destruction caused on September 11, 2001, which reflects an increasingly complex nature of modern conflict, states like the
United States and other NATO allies have often defended the use of extensive force to combat terrorism even where it extends beyond their territorial boundaries, laying claim to their right of self defence in the face of an armed attack.
Thus, James Green affirms that ―Following September 11, states have found themselves faced with the unenviable problem of finding a balance between the need to adequately secure themselves against the threat and the imperative to ensure that any action taken in combating terrorist activities conforms to principles of international law.‖106 Green cites the ‗Operation Enduring Freedom‘ in Afghanistan as one example of resort to inherent right self defence in responding to terrorism. The argument is rooted in the fact that the tools of violence range from conventional weapons of war to more modern weapon of mass destruction. This has resulted in the reluctance of situating criminal acts related to terrorism within the purview of domestic law enforcement alone and has rather brought it within the dome of armed
106 J. Green, Docking of Caroline: Understanding the Relevance of the Formula in Contemporary International Law Concerning Self Defence, 14 Cardozo J. int‟l & Comp. L. 429 @ 430 87 attack in order to invoke other corollary principles in international law such as the right to use of force in self defence to combat the menace.
The international law on the use of force and self defence has two sources of: customary international law and United Nations Charter ratified by nearly all the member states. Hence, the International Court of Justice (ICJ) stated in the
Nicaragua case as follows: ― There can be no doubt that the issues of use of force and collective self defence raised in the present proceedings are issues which are regulated both by customary international law and by treaties.‖107 The customary international law regarding self defence has been identified by reference to the correspondence exchanged between the United Kingdom and the United States in relation to the dispute over the sinking of the Caroline108 by British forces in 1837.
The correspondence concerning between the U.S. Secretary of State and the British minister in Washington regarding the Caroline incident gave birth to the Caroline formula illustrative of the customary law principles of self defence. In this Caroline exchange, international law has found the basis for the customary law concerning self defence and use of force. Jennings referred to it as the locus classicus of the law on self defence.109
The Caroline doctrine asserts that the use of force by one state against another is permissible as a self defence action only if force is both necessary and proportionate.
The principle of necessity indicates that the attack being responded to must be of such
107Military and Paramilitary Activities (Nicaragua v. U.S, (1986) I.C.J. 14, p.34 (June 27) 108 In 1837 a group of men led by William Lyon Mackenzie rebelled in Upper Canada (now Ontario), demanding a more democratic government. There was much sympathy for their cause in the United States, and a small steamer, the Caroline, owned by U.S. citizens, carried men and supplies from the U.S. side of the Niagara River to the Canadian rebels on Navy Island just above Niagara Falls. On the night of Dec. 29, 1837, a small group of British and Canadians loyal to the Upper Canadian government crossed the river to the U.S. side where the Caroline was moored, loosed her, set fire to her, and sent her over the falls. seehttp://encyclopedia2.thefreedictionary.com/The+Caroline+Case accessed 12 July, 2016. 109 R. Y. Jennings, ‗The Caroline and Mcleod Cases‘, 32 American. J Int‟l L 82, 84 @ 92. 88 a nature as to threaten fundamentally the survival of or at least the vital interests of the state. In this case, it draws along with it, the theory of imminence in the case of attack that is yet to occur but is foreseeable with capacity to threaten the vital interests of the state concerned. Necessity also requires an exhaustion of all means, thus the action must be by way of last resort after all peaceful means have failed. The necessity of self defence following the Caroline doctrine must also be ―instant, overwhelming, leaving no choice of means and no moment of deliberation and must not be unreasonable or excessive,‖110 (must be proportionate- emphasis mine).These principles were accepted by the British government at that time and are accepted as part of customary international law.
The principle of proportionality has been interpreted to mean that the use of force taken in response must be commensurate to the scale and means of the attack being responded to or that the measures taken must be sufficient for the ultimate goal of dwindling or annihilating the attack suffered and therefore prevents any future occurrence. According to Green, the idea of imminence links directly to the Caroline formula and international law has recognised that nations‘ need not to suffer an attack before they can lawfully take action themselves against forces that represent an imminent danger of attack.111
In modern International law, states may resort to the use of force against another state or beyond their territories under conditions set down by the United Nations Charter
(UNC). Article 2(3) of the UNC provides that ―All members shall settle their international disputes by peaceful means in such a manner that international peace and
110M. N. Shaw, International Law (4th edn, University Press Cambridge 1997) 787. 111 Green ( n.106) 467. 89 security and justice are not endangered.‖112 Article 2(4) elaborates on that and states as follows: ―All members shall refrain in their international relations from the threat or use of force against the territorial or political independence of any state or in any other manner inconsistent with the purposes of the United Nations.‖113 This principle of prohibition of the use of force has been reaffirmed in other documents of the UN
General Assembly, particularly, the 1970 Declaration on Friendly
Relations114amongst states. This declaration besides restating Article 2 (4) of the UN
Charter emphasises that such threat or use of force ―shall never be employed as a means of settling international disputes.‖115 Notwithstanding the UN charter‘s proscription of use of force in the settlement of international disputes, the Charter however permits state use of force as reasonably necessary in the face of armed attack in self-defense of its vital interests. Thus article 51 of the Charter declares that
―Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United
Nations, until the United Nations has taken measures necessary to maintain international peace and security.‖116 Under the Charter, only the self defence paradigm allows recourse to use of force when faced with armed attack in international relations.
In the context of our discussion, the question that need to be answered is whether terrorism or some incidences of it (especially where trans-boundary non–state actors) can be considered an armed attack for the purpose invoking the right of self defence under UNC? The answer to this question would also determine whether the extra
112UN Charter, Art 2, para 3. 113 Ibid, Art. 2, para. 4. 114 Declaration on the Principles of International Law concerning Friendly Relations and Co- Operation among States in Accordance with the Charter of the United Nation, ,Annex to Resolution 2625 (XXV) adopted on 24 October 1970. U.N. Doc. A/8028. 115Ibid. para 1. 116 UNC, Art. 51. 90 territorial use of force by a state against another state which is unable to prevent its territory from being used as a base for operations for hostile activities of the terrorist will be legitimate or contrary to the principles of the Charter? An analysis of the
Article 51 of the UNC can provide a better understanding for the legal basis for the use of force against terrorist organisation and their state sponsors in these modern times.
This body of international law on the legitimate use of force in general is called Jus in bellum; and it merely sanctions exceptions under the charter for the use of force in international relations relying principally on authorization of the security council and doctrine of self defence as provided in Article 51 of the UNC. To ground the exercise of self defence in the face of terrorism, one needs to be prove that the criminal act of the terrorists or incident tantamount to an armed within the understanding of international legal instrument.
2.8.2 Terrorism as Armed Attack Article 51 of UNC recognises the possibility of using force in self defence when the
Security Council has not acted, if the armed attack occurs against a member state.
Nowhere is armed attack defined in the UNC. Davis Brown117 draws us to the meaning of armed attack, when he insists that an analysis of the meaning of armed attack begins with the definition of aggression (an extension of armed attack) found in the United Nations General Assembly Resolution of 1974.118 Article 1 defines aggression as ―the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner
117 D. Brown, Use of Force against Terrorism after September 11th: State Responsibility, Self Defense and Other Responses, [ Spring 2003] 11 Cardozo Journal of International and Comparative Law, 1, 21. 118Definition of Aggression, Annex to G.A. Res.3314 (XXIX), U. N. GAOR, 29th sess. U.N. Doc. A/9631 (1974) 91 inconsistent with the Charter of the United Nations as set out in this definition.‖119
Article 3 of that resolution lists a number of activities120 that constitute aggression which leads us to conclude that any form of aggression falls within the meaning of armed attack and criminal acts of terrorism can be considered armed attack as they are a form of aggression against a state. However, David Brown121 is of the view that armed attack is a species of aggression which has a certain gravity or severity which sets it apart from other less severe degrees of force or aggression. Thus, not all use of force can be regarded as armed attack but all armed attack is use of force. To constitute armed attack, the operation must be sufficiently large and the damage will be of sufficient scope, otherwise the term aggression would have been used in article
51 to express the terms and conditions that trigger the exercise of self defence in international relations.
The question that confronts the reader now is whether armed attack can be extended to acts committed by non-state actors acting on their own behalf like the ISIL, Al
Shabab or Al Qaeda or Boko Haram? While the General Assembly Resolution on the
Definition of Aggression does appear to delineate the limits and bounds of aggression
119 Ibid, art 1. 120 Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression:(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof, (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein. 121 D. Brown (n.117) 24. 92 and assists us in understanding the meaning of armed attack, it is apparent that it does not contemplate the use of force as we see and find it by terrorist in the contemporary times. However, the expression of the term ‗armed attack‘ as employed under article
51 of the Charter cannot be confined to states alone as the article did not in any way envisage such limitation in the language used. It is therefore argued herein that armed attack for all intents and purposes envisages attack by states and other non-actors with the capability to unleash an attack with such extended severity resulting in extensive damage as to be described as an armed attack. A strong sense of agreement is being held among states that armed attacks can cover attacks by armed bands, irregulars and mercenaries. This idea is reinforced by the September 11, 2001 attacks on the world trade center and pentagon by al Qaeda, a terrorist organisation which brought a phenomenal destruction on the America psyche and soil. Thus, Laura Ani underscores this point when he maintains that, ―The events of 11 September 2001 represent a new element within terrorism, in terms of both the objects of the terrorist‘s attacks and the extent of damage caused…. The attack on the world trade center and the pentagon brought a revolutionary challenge to the doctrine of self defence and a reassessment of the law in this area.‖122
Davis Brown also keys into this paradigm shift when he maintains that, ―State practice has clearly established that an attack of the scale and effect of September 11th is an armed attack against a state, giving rise to the inherent right of self Defense.‖123
This change is to the effect that there is an adaptation and expansion of the traditional interpretation of Art. 51 limiting states in their exercise of self defence only against nations that engage in terrorism to include non –governmental terrorist organisations as is evident in the practice of states following the 9/11 incidence and the war that
122 Laura, Ani, (n.105) 181 123 D. Brown, ( n.117) 29 93 followed in Afghanistan and Iraq against the Taliban/al Qaeda and Saddam Hussein regime respectively. To lend a legislative credence to this narrative, the UN Security
Council resolution 1368 passed a day after September 11th attacks explicitly condemned the attacks and called on states to ―work together urgently to bring to justice the perpetrators, organisers and sponsors of the attacks.‖124 In this statement, it reaffirmed the inherent right of self defence in the face of terrorist attacks pursuant to art. 51 of UNC. Prior to these events, Mr. Shultz, a onetime Secretary of State of the
United States had said that, ―a nation attacked by terrorists is permitted to use force to prevent and pre-empt future attacks, to seize terrorists, or to rescue its citizens, when no other means is available.‖125 It was on the heels of these narratives that the war model of counter terrorism developed in international relations. It was President
George Bush who in plain language employed the war language to describe the counter terrorism measures. Hence some days after 9/11 attacks, he declared that, our war on terror begins with al Qaeda, but it does not end there and he believes as he writes in his autobiography that he is on the verge of the first wave of war on terrorism in which Americans should expect not one battle but a lengthy campaign.126
2.8.3 Combating Terrorism and International Humanitarian Law War and conflict have always been common phenomena in international relations.
Against the backdrop of the devastating impact of armed conflict wherever and whenever they happen, sustained efforts are made not only to regulate the frequent use of force, but also to attach humanitarian obligations obtainable in situations wherein armed force is inevitable. ‗Jus ad Bellum‟ represents the regime that regulates the legitimate use of force, while ‗Jus in Bello‟ regulates the international
124 S.C. Res. 1368. 56th sess., U.N. Doc. S/Res/1368 (Sept. 12, 2001) 125 Schultz quoted in: Jackson Nyamuya Maogoto, Walking an International Law Tightrope: Use of Military Force to Counter Terrorism—Willing the Ends [2006] 31 Brooklyn Journal of Int‟l. L. 2006, 405 @433 126 George W. Bush, Decision Points, (Crown Publishers, New York 2010) 191 94 humanitarian obligations assumed by states or groups as they engage in necessary and inevitable hostilities. Chapter VII of the United Nations Charter governs the former, and four Geneva Conventions of 1949 and the three protocols additional to them, govern the latter. However the changing concept of armed conflict which arose following September 11 attacks and is still with us in the battle with ISIL and Boko
Haram challenges existing legal mechanism that were used to regulate war fare for many years.
Although the United Nations Security Council (UNSC), had earlier taken the position in its Resolution1368 that terrorism is act of crime (not of war), its approach did not remain consistent because in subsequent pronouncements, in Resolution 1373, it apparently contradicted this earlier approach when it reaffirmed that international terrorist acts constitute a threat to international peace and security and the right of individual or collective self defence under the UNC, and clearly stated the ―the need to combat by all means in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts.‖127 In that same resolution, it enjoined States to establish in their domestic criminal laws to designate terrorist acts as serious criminal offences with the attendant punishment that reflects the seriousness of such acts. On the basis of this, states have used this mixed response as a justification for waging a war against terrorists. In this connection, this rhetoric of war on terror has triggered the inclusion and categorisation of any assault on terrorists and terrorist acts as armed conflict and has opened doors to the importation of principles associated with international humanitarian law.
The starting point for humanitarian law is the respect for human values and dignity even in the time of armed conflict. However the normative framework of International
127 S.C. Resolution 1373, U.N. Doc. S/Res/1373 (Sept. 28, 2001). 95
Humanitarian Law is that humanitarian law requires the balancing of humanity with military necessity. According to Kenneth Watkin, ―the primary goal of military necessity is the submission of the enemy at the earliest possible moment with least possible expenditure of personnel and resources.‖128 However international humanitarian law which is primarily governed by the Geneva Convention regimes of
1949 makes a fundamental distinction between internal armed and international armed conflict on the one hand and non- international armed conflict on the other hand. In the light of the recent development where terrorist have engaged states in wanton use of sophisticated armed force, it has become necessary to situate their conflict with states within any of these categories of conflict and seek out within the law, any international humanitarian rules that are applicable in such conflicts.
Classic laws of war acknowledge two possible statuses for a person during armed conflict, namely combatant and non-combatant. These two statuses was a product of widely accepted international legal instruments- The Geneva Conventions relating to the laws of war, also known as international humanitarian law. In the words of
Richard Rosen, ―the laws of war seek to diminish the evil of war by protecting both combatants and non-combatants from unnecessary suffering, safeguarding the fundamental rights of persons who fall into our hands and facilitating the restoration of peace.‖129 However the protection of these values depends on whether the conflict is perfectly harmonised as internal or interstate conflict in which case the combatants are clearly defined and the relevant rules of war are triggered to regulate all aspects of that conflict. In such cases all participants in the armed conflict are obligated to
128 K. Watkin, Controlling the Use of Force: A Role for Human rights Norms in Contemporary Armed Conflict [Jan. 2004] A.J.I.L, Vol. 98. No. 1, 1-34 @ 10. 129 R. D. Rosen, America‘s Professional Military Ethic and the Treatment of Captured Enemy Combatants in the Global War on Terror [Winter 2007], 5 Georgetown J. L. and Pub. Pol‟y ,113@ 124. 96 comply with international humanitarian law and need to exhibit some responsibility and accountability in the prosecution of the armed exchange. However where non state actors attack a state from within and no other state is involved, Dinstein underscores such scenario as either internal armed conflict or domestic terrorism130 in which case it does not trigger the state‘s inherent right of self defence in art. 51 of
UNC or other IHL rules. Rather it triggers the security, law enforcement and criminal law machinery of the victim state.
In the recent past, we have seen non-state actors or terrorists engage in armed conflict with state agents, and we have also seen non-state actors engage in armed conflict with de facto or de Jure government agencies. Recent armed conflict narratives reveal that armed conflict of non-state actors has dominated the story of armed conflict. In these circumstances it becomes very difficult to locate these conflicts as international conflicts or non-international conflicts, and to identify the legal regime which governs it. The unsettled position of the law was reflected more profoundly in the jurisprudential tussle found in the case of the Hamdan v. Rumsfeld.131 At the US
Supreme Court, it was concluded that the military commission convened to try
Hamdan lacks power to proceed because its structure and procedures violate both the
Uniform Code of Military Justice (UCMJ) and the Geneva Convention. The US Court of Appeal had earlier argued that the Geneva Convention is not applicable to the armed conflict during which Hamdan was captured and that the war with Al Qaeda evades the reach of the Geneva Convention. What is certain is that the human rights of the defendant (Hamdan) was compromised, owing more to the uncertainty of the regime which governed the hostilities in the event of the invasion of Afghanistan after the tragic event of the Sept 11, 2001.
130Dinstein (n.78) 204. 131126 S.Ct.2749 (2006). 97
Terrorists in the context of the present discussion and connection with IHL refers to persons who are either sponsored by the state or on their own employ armed aggression against the state, either as insurgents or terrorist, freedom fighters. This show of aggression that often spills into armed conflict may be for political or other reasons, which they find plausible in the context of the ends for which, they have set for themselves. In some instances, the onset of the aggression unleashed by the groups of persons could be against a state foreign to the host state of operation. This work contemplates of such groups as the Al Qaeda terrorist organization, the Hezbollah political front, the Hamas, the Boko Haram, Al Shabab. Also included are the various other groups that operate both domestically and internationally and are capable of massive violence against a state, and for which states will likely respond in self- defense with an armed attack.
The Geneva Conventions were designed preeminently to regulate the conduct of hostilities among states. Because the Conventions were formulated following the atrocities of the 2nd world war, it was considered less important to include conflicts that occur within the state. It was in 1977, that given the prevalence of the civil wars, that there came a protocol designated to regulate internal conflicts. I can guess that the reason why international humanitarian law did not take much interest in internal conflicts is that it was assumed to be within the domestic jurisdiction of the states.
Under Art 2(7) and Art.2 (4), of the United Nations Charter, both the Security Council and the individual states are to preserve the independence and territorial integrity of states through the policy of non-intervention. In the contemplation of the Geneva
Convention and the protocols, conflicts may therefore be categorized into
International and Non-International conflict. Thus, in the Tadic case, decided after the conflicts in former Yugoslavia by the ICTY, it was stated, ―armed conflict exists 98 whenever there is resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state.‖132
The subtle mention of categories of conflict into international and non-international conflict in the1949 Geneva Convention appears only in the Common article 3.
Presupposing that 1st, 2nd and 3rd Geneva Conventions are related to conflicts which are international in nature, common article 3 states, that ―In cases of armed conflict not of an international character occurring in the territory of one of the high contracting parties, each party to the conflict shall be bound to apply as minimum the following provisions.‖133 Given that at that time many armed conflicts were interstate in nature, the 1949 Convention did not expound on the definition of non-international conflict, thus proper distinction cannot be made on the basis of law, but on speculation among scholars. This necessitated the formulation of additional protocols to the Convention, which will separately relate to the international conflict and non- international conflict respectively. The ICRC commentary to the Geneva Convention articulates the distinction between the two conflicts as follows: ―A non-international armed conflict differs from an international conflict because of the legal status of the entities opposing each other: the parties to the conflict are not sovereign states, but the government of a single state in conflict with one or more armed factions within its territory.‖134
In the light of the foregoing analysis, terrorist warfare may be defined as a non- international armed conflict in which non- state actors employ means and methods that are completely in violation of the laws of war and consists in the acts of terror.
132ICTY, Case No. 1T-94-172 @.37. 133Common Article 3 of the Geneva Convention 1949. 134 ICRC Commentary, General Introduction to the Commentary on Protocol II, no. 4338,
State practice (United States and Israel) has coined the term, ‗Unlawful Enemy
Combatants‘ in order to put them in perspective of the IHL. Shlomy Zachary in speaking of this new taxonomy, remarks as follows: ―This term, lacking clear international definition, seems to be in an intermediate position between the known statuses of combatant and civilian; the unlawful combatant does not have its own convention, and drifts between the international conventions defining the two existing statuses.‖135 Zachary therefore argues that the term, although controversial and nonexistent in literal presentation under the IHL, it is the most suitable term to define terrorists. However, it need be expressed that where the government seeks to apply the minimum protection afforded in common article to them, it is not intended to accord such organisation any legal status or recognition under IHL. They do not enjoy the status of combatants as they are civilians involved in unlawful armed conflict.
Thus, while civilians enjoy general immunity from direct attacks in international conflicts, they lose their protection during any period in which they take active part in hostilities. This implies that armed militants and terrorist organisations waging terrorist warfare, as well as their military assets and capability are legitimate targets of the victim state. Thus, any military operation resulting in their death cannot be regarded as summary execution; it is a combat, not a law enforcement operation. This author is therefore of the opinion that the scale and effects of these incessant terrorist attacks and their potential to be repeated reaffirms the continued call for an integral response other than one focused exclusively on law enforcement. This model of response as it connects counter terrorism campaign is the Humanitarian Model. This model disagrees with the opinion of scholars like Zachary136 alongside Dinstein who
135 S. Zachary, Between the Geneva Conventions: Where Does the Unlawful combatant Belong? [2005], 38 Israel Law Review, Spring ,378 @ 379 136Ibid 388 100 regard such trans boundary military action as extra territorial law enforcement and not a situation subject to the classic laws of war.
2.8.4 Counter-Terrorism and Human Rights Regime The boundaries between human rights law and international humanitarian law should not be construed to be like the distinction between ‗jus ad bellum‟ and ‗jus in Bello‟.
It is rather a distinction between the applicable rights regime in time of peace and in the time of war. While the international bill of rights which developed considerably after the 2nd world war may apply concurrently in time of peace and war, the international humanitarian regulations and later formalized legal instruments are applicable only in time of war. Goldman & Tittemore express this point as follows:
It is well recognized that the international human rights commitments of states apply at all times, whether in times of peace or situations of armed conflict, to all persons subject to a state‘s authority and control…international humanitarian law, on the other hand, generally does not apply in peace time and its fundamental purpose is to place restraints on the conduct of warfare in order to diminish the effects of hostilities.137
Like international human rights law, the obligation under international humanitarian law flows from both treaty and custom. While human rights law or international humanitarian law sourced by custom creates obligations for all states belonging to the international community; the obligations that arise from treaty operate based on the consent freely given by those states. However, states reserve the right to contract outside of the ordinary customary rules of international law not of the status of Jus
Cogens.138 In the legal regimes comprising of human rights and international
137 R. Goldman & B.Tittemore, Unprivileged Combatants and the hostilities in Afghanistan: Their Status and Rights under International Humanitarian and Human Rights law, [2002], ASIL Task Force papers, Task force on Terrorism. 138 Jus cogens (from Latin: compelling law; English: peremptory norm) refers to certain fundamental, overriding principles of international law, from which no derogation is ever permitted. See Ian Brownlie, Principles of Public International Law (5th edn.Oxford, 1998). In practice, jurists' attempt to classify certain rules, rights and duties as jus cogens or peremptory norms have not met with success: 101 humanitarian law, there exist customary rules designated as norms of Jus Cogens.
Although states may be divided as to the particular rules constituting them, owing more to the cultural relativist argument on the content of human rights, some of these rules may agreeably include the right to life although subject to derogation in times of war or rules on capital punishment, the rule against torture, the rule regarding prisoners of war and other fundamental freedoms creating negative obligations for state parties in international law. In the light of the foregoing, it is seen that both regimes are aimed at promoting human dignity, one in time of peace and the other in situations of armed conflict.
The theory underlining the invocation of humanitarian principles in times of conflict is that human persons are no-less humans because they engage in war. War is not however an end in itself. For the realist, it remains the immediate channel for securing maximum interests of the concerned states in their international relations. However this perspective should not serve to obscure the basic human dignity which remains unchanged at all times. The realist perspective is to wage war notwithstanding the cost provided that national interest is absolutely ensured. It serves no interest to pass value or moral judgment on the conduct of the hostilities. Besides, the import of the humanitarian standard in war time represents the rationalist approach to humanize war and mitigate its harsh effects on both the civilians and the combatants, given that war is not an end in itself. It is a means to an end and should not be seen to be more catastrophic than the gains anticipated.
while there is near-universal agreement for the existence of the category of jus cogens norms, there is far less agreement regarding the actual content of this category. Id. at 517. Examples of jus cogens norms include: prohibition on the use of force; the law of genocide; principle of racial non- discrimination; crimes against humanity; and the rules prohibiting trade in slaves or human trafficking. See https://www.law.cornell.edu/wex/jus_cogens 102
Like human rights regimes, humanitarian rules aim at creating basic standards of human dignity in particular circumstances of armed conflict. According to Forsythe,
―these two bodies of international law share the objective of creating minimalist standard of human dignity by establishing humane standards that states are legally obligated to meet in different situations.‖139
In terms of the specific legal instruments that are applicable, while the GC (I-IV) of
1949 and the three additional protocols govern the International Humanitarian Law
(IHL); the International Bill of Rights which includes the Universal Declarations of
Human Rights (1948), the International Covenant on Civil and Political Rights(1966), the International Covenant of Economic, Social and Cultural Rights(1966), basically stand as operative guidelines for the interpretation of human rights obligations of states. However, some provisions in international human rights instruments provide great resource for the interpretation of certain humanitarian law obligations. For example common article 3 of the GC makes reference to ―humane treatment‘ of captured enemy combatants. This expression is nothing but an echo of Article 5 of the
UDHR adopted a year earlier than the GC. The meaning of humane treatment although in the context of armed conflict ought to be obtained within the larger framework of the UDHR which influenced its inclusion in the GC. More importantly human rights obligations of states do not stand in abeyance, just because the states are involved in armed conflict. At best, both regimes would oblige states concurrently in times of armed conflict. The ICJ in the Nuclear Weapons Advisory opinion140 upheld the applicability of human rights law in time of war. Theodor Meron opines in this
139 D. Forsythe, Human Rights in International Relations, (Cambridge University Press, 2000), p.45 140Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ.Rep.226, para.105(2)(E), (July 8) 103 connection that ―these rights and protections constituted factors in the calculus of proportionality and discrimination under the law of war.‖141
The import of these analyses is to push the argument that campaign occasioned by the menace of terrorism, however horrible it has shown itself does not give governments the leverage to shortchange the human rights regime of the International community and as found and implemented in many domestic legislations, including constitutional law. The fight against terrorism does not suspend the obligations of states to keep the rule of international law or their domestic constitutional principles. Although some of these rights are violable under certain circumstances, the misconception that exists is that in the time of war or armed conflict such as precipitated in response to terrorism, international human rights law no longer applies and is supplanted by international humanitarian law (IHL). The easier option for many countries reeling from the menace and travail of terrorism is to return fire for fire with a consequential neglect of all the legal safeguards that are applicable in a democratic system of government.
Dinah Pokempner142 acknowledges that the difficult problem of human rights protection and counter terrorism measures relates essentially to conceptual paradigm followed in understanding the campaign against terrorism by non- state actors. While some states like the United States and Nigeria see it as engaged in a war, some others like many states under the European Union (France, Belgium, and Germany) see it as law enforcement. The paradigm followed has profound implication for human rights.
Rules of war have very clear implication for norms for the protection of human rights because it permits of extensive derogation as in the time of emergency. Outside of war and in the face of law enforcement, the police and military personnel are held to
141T. Meron, The Humanization of Humanitarian Law, [2000] AJIL, Vol.94, no.2, .241 142 D. Pokempner, Terrorism and Human Rights: The Legal Framework, Paper Presented at the Seminar on International law and Terrorism, Sept. 24-26, 2002; Organised by International Institute of Humanitarian law in cooperation with George C. Marshal Centre. 104 strict standards on the use of lethal force. While these two poles of war and law enforcement are open, a third paradigm has been seen in the practice of states who conceive terrorism as armed attack and therefore requires counter measures that are a little higher and more serious than law enforcement, but short of full scale international conflict. The epitome of this paradigm is the George Bush Policy in response to the 9/11 attacks which claimed that terrorist threat generated a new paradigm, one in which groups with broad, international reach commit horrific acts against innocent civilians and this new paradigm requires a new thinking in the law of war. Thus, terrorist were designated as enemy combatants, a new term completely unknown to the Geneva Convention on the laws of armed conflict. By employing this term, it therefore meant that the protection affordable under the law of war cannot apply to the detainees accused of terrorism. It must be affirmed herein that although terrorism constitutes a great threat to peace and security of state, lives and property, the counter terrorism measures need also comply with international law and should not violate fundamental human right law. It is in this connection that Kofi Annan, the then UN Secretary General affirms that:
Human rights law makes ample provision for counter- terrorist‘s action, even in the most exceptional circumstances. But compromising Human rights cannot serve the struggle against terrorism. On the contrary, It facilitates achievement of the terrorist objective- by ceding to him the moral high ground … upholding human rights is not merely compatible with successful counter terrorism strategy. It is an essential element.143
143 Kofi Annan, A Global Strategy for Fighting Terrorism, Keynote Address to the closing Plenary of International Summit on Democracy, Terrorism and Security, 8-11 March, 2005, Madrid
2.9 Major Terrorist Networks in the Post 9/11 Era 2.9.1The al Qaeda Armed conflict between a state and private organization like al Qaeda is not a classical war in the contemplation public international law. Classical war is inter-state war or internal, i.e. a war between different states or political communities to the exclusion of non-homogenous144 political or militant groups like a terrorist organization. Thus while groups like the Tamil or Hezbollah could engage in a classical war, al Qaeda cannot, because they are a non-homogenous militant group.
However, recent political events have shown that the classical definition of war as conflict between homogenous political or militant groups is overtaken. The post 9/11 landscape has indeed necessitated the elevation of the crusade against terror and terrorist organizations to international warfare. As an association of people with political intent, al Qaeda is capable of engaging in large scale warfare; they do indeed carry out belligerent operations against states or other political entities.The Stanford
Encyclopedia confirms this fact in these words: ―certain political groups like the terrorist organizations, might be considered political communities in that they are associations of people with a political purpose and indeed many of them aspire to statehood or to influence the development of statehood in certain lands‖145
Al–Qaeda is an international alliance of militant guerilla organizations established by
Osama bin Laden and others around the time of Soviet withdrawal from Afghanistan in 1989. Its objectives include the elimination of foreign influence in Muslim countries, eradication of those deemed to be infidels, elimination of Israel, and the creation of a new Islamic caliphate As a Political entity fueled by religious sentiments, al-Qaeda and its founders are intensely critical of any western military
144 By homogenous group, I mean a group of persons coming from the same country or ethnic group, not just brought together by common ideology or military project. 145
Laden to protect the country from invasion by Iraq, and the reliance rather on international support, was the explosive catalyst leading to widespread propaganda of westernization of the Islamic empire and the eventual open diatribe against the US and the rest of the west. In the report of the content of a fatwa146 issued and signed by
Osama bin Laden and other Islamic groups in 1998; they ―accused United States of defiling Islam‘s holiest sites through its military presence in the Arabian Peninsula and attempting to partition the Middle East into tiny entities in order to keep them weak and divided in the face of the Jewish crusader-assault‖147 Osama bin Laden consumed in this anti-western worldview together with al-Qaeda, called for a jihad which was targeted against the west not only wherever they are found in the Arab peninsula but also in their homeland; and ‗the primary tool for moving the battle to the enemy‘s ground was terrorism‘148
The name al Qaeda as a terrorist organization has been around since 1990, after the withdrawal of Russia from Afghanistan. In fact the organization has been linked to a number of deadly bomb attacks against the US both in and outside the US. They occasionally claim direct responsibility for particular attacks, the claims which are sometimes difficult to establish. In its use of martyrdom operations, al Qaeda aims to inflict maximum causalities on its enemies. The enemy referred here is evident in their commitment as follows ―To kill all Americans and their allies –civilians and military- is an individual duty for every Muslim who can do it in any country in which
146 Fatwa is binding religious edict, and in this case it is a public declaration of war against the United States and any of its allies. 147Karsh Efraim, Islamic Imperialism, A History, (Yale University Press London 2007) 230. 148Ibid. 226. 107 it is possible to do it….‖149 Some of the attacks that were linked to the al Qaeda include:
i. In 1993, al Qaeda associate Ramzi Yousef used a truck bomb to attack the
world trade center in New York. Six people were killed and 1,042 injured, in
addition to resulting $300 million in property damage.
ii. Al Qaeda operative played active part in the regional conflicts of Bosnia,
Kosovo, Chechnya and Tajikistan and also financed extremist groups in
Egypt, Algeria, Sudan and Somalia. iii. The 1996 attack on the US military base in Khobar, Saudi Arabia. iv. The 1998 simultaneous US embassy bombings in East Africa (Kenya and
Tanzania), killing 224 people and injured 4,500 persons.
v. The Oct. 12th, 2000 attack on the destroyer, USS Cole, while refueling in
Yemenport of Aden. It left 17 sailors dead. vi. The Sept. 11 attacks which records as the most devastating terrorist attack in
the history of America, killing nearly 3,000 people, destroying four
commercial airliners and leveling the World Trade Center towers and
damaging the Pentagon. In this event, Al Qaeda carried its war on America to
unprecedented heights and indeed attracted American right of self defense
against any Al Qaeda plot or network. The 9/11 attacks precipitated the
invasion of Afghanistan in 2001 as an essential part of the self-defense war
with Al Qaeda, the invasion of Iraq in 2003 and the other minor anti-terrorist
military campaigns in places like Somalia and Sudan.
149Ibid. 230. 108
The invasion of Afghanistan in 2001 challenged that country‘s viability as an al-
Qaeda sanctuary and training ground and compromised communication, operational, and financial linkages between al-Qaeda leadership and its militants. Rather than significantly weakening al-Qaeda, however, these realities prompted a structural evolution and the growth of ―franchising.‖ Increasingly, attacks were orchestrated not only from above by the centralized leadership (after the U.S. invasion of Afghanistan, based in the Afghan-Pakistani border regions) but also by the localized, relatively autonomous cells it encouraged. Such grassroots independent groups—coalesced locally around a common agenda but subscribing to the al-Qaeda name and its broader ideology—thus meant a diffuse form of militancy, and one far more difficult to confront.
With this organizational shift, al-Qaeda was linked (whether directly or indirectly) to more attacks in the six years following September 11 than it had been in the six years prior, including attacks in Jordan, Kenya, Saudi Arabia, Indonesia, Turkey, the United
Kingdom, Israel, Algeria, and elsewhere. At the same time, al-Qaeda increasingly utilized the internet as an expansive venue for communication and recruitment and as a mouthpiece for video messages, broadcasts, and propaganda. Meanwhile, some observers expressed concern that U.S. strategy—centered primarily on attempts to overwhelm al-Qaeda militarily—was ineffectual, and at the end of the first decade of the 21st century, al-Qaeda was thought to have reached its greatest strength since the attacks of September 2001.
On May 2, 2011, Osama bin Laden was killed by U.S. military forces after U.S. intelligence located him residing in a secure compound in Abbottabad,Pakistan, 31 miles (50 km) from Islamabad. The operation was carried out by a small team that reached the compound in Abbottabad by helicopter. After bin Laden‘s death was 109 confirmed, it was announced by U.S. President Barack Obama, who hailed the operation as a major success in the fight against al-Qaeda. On June 16, 2011, al-
Qaeda released a statement announcing that Ayman al-Zawahiri, bin Laden‘s long- serving deputy, had been appointed to replace bin Laden as the organization‘s leader.
2.9.2 Boko Haram The Britannica .com150 explores the meaning of Boko Haram from it literal interpretation. Boko Haram is a Hausa word which means westernization (book) is sin. The original name of the group is Jamāʿat Ahl al-Sunna lil-Daʿawah wa al-Jihād often translated as ―Association of the people of the Sunnah for preaching and Jihad‖ or Association committed to the spread of Islam through Jihad‖. The name Boko
Haram was given to the group by neighbours based on how they viewed its lifestyle and teachings. Ideologically, Boko Haram is against westernisation, which it views as negatively impacting Islamic values. The group blames western influences for Nigeria culture of corruption, which has contributed according to them to the wide gap between the few rich and the many poor.
It was founded in 2002 by Muhammed Yusuf in Northeastern Nigeria. Since 2009, it has carried out an uncountable number of terrorist attacks on many civilian locations and was responsible for the attack on United Nations facility in August 26, 2011.
Some people are of the view that an understanding of the causes of the Boko Haram mayhem cannot be separated from the unmasking of the central figure and motivating force of this movement in the person of Utaz Muhammed Yusuf, an Islamic preacher and leader of the sect and famously known as the Nigeria Taliban leader.151 Yusuf was born in January 29, 1970 in Yobe State. He was formerly a shite Moslem but later joined the Sunna movement. Later on, he found a liking for the Shababul Islam which
150 Encyclopedia Britannica, https://www.britannica.com/topic/Boko-Haram (01/08/16) 151 Y. Olomojobi,Islam and Conflict in Northern Nigeria, (Malthouse Press Limited Lagos 2013) 221 110 was founded in 1995 in Northern Nigeria by Abubakar Lawan. This sect acquired a new image of Boko Haram when Yusuf became its leader in 2002.
The group‘s initial intent was to uproot corruption in Nigeria which it blamed on western influence and to impose sharia or Islamic law in the multi –cultural and secular state of Nigeria. In this light, Olomojobi suggests that Boko Haram is loosely modelled on the Taliban152agenda and has its own version of Islamic Theocracy.153 Its founder Mr. Yusuf was killed on 30th July 2009 under controversial circumstances in the hands of security agents. Thereafter, the Boko Haram regrouped under Abubakar
Shekau, their new leader who with the members vowed to avenge his death. Since then Nigeria has had daily dose of terrorist attack especially in the Northeast, including a number of attacks in other part of Nigeria. Since 2010, Boko haram attacks has increased in frequency and magnitude, killing, injuring, kidnapping and rendering many homeless. They often target police stations, markets, churches, public spaces and army barracks. In 2010, they were responsible for the detonated explosives in churches and public spaces in Maiduguri, Kano and outskirts of Abuja to mention but a few. It is important to note that members of the sect frequently engage in suicide bombing like their counterparts in Al Qaeda and other Islamic militant or terrorist groups. The group invited worldwide attention and condemnation after it perpetrated a mass kidnapping of more than 275 girls from boarding school in Chibok in Borno
State in April 2014.
It has been estimated that Boko Haram had a stronghold of about 540, 000 followers.
A significant number of these men were unemployed youths otherwise known as talakawa and the almajiri (students of Quranic schools). Also large number of
152 The Taliban ruled Afghanistan from 1996 – 2001 and they were notorious for their strict and militant interpretation of sharia. 153 Y. Olomojobi, Islam and Conflict in Northern Nigeria, (Malthouse Press Limited Lagos, 2013) 222 111 members comes from neighboring Cameroun, Chad and Niger, made possible by the fact that Borno state shares a border with these countries. It has also been said that some of the militants consist of foreign nationals of Somalia and Sudan.154 It is this very fact that has made Boko haram not just a local militia but an international network with many attacks directed against these other border countries. Moreover, the strong links which it has with Al Qaeda is not so much in doubt, as Yusuf was charged in 2006 for receiving funds from an al Qaeda linked organisation. Hence
Britannica writes that ; ― Security reports indicated that Boko haram had links with other terrorist networks such as al- Qaeda in the Islamic Maghrib (AQIM) and the Al
Shabaab in Somalia.‖155Recently in 2015, it was reported that the group pledged allegiance to the Islamic State of Iraq and Levant (ISIL), a terrorist network with its base in Iraq and Syria.156
Olomojobi reacting to the negative impact of Boko Haram notes that, Boko haram is the Nigeria‘s greatest nightmare since independence. It has threatened the social fabric of the northern Nigeria and Nigeria as a whole.157 The palpable attacks incidented by Boko Haram have put Nigeria at war with itself. Hence, the
Government has devoted so much resource in the campaign against the sect including enacting an Anti-terrorist legislation, but the outcome is a far cry from decimating their impact and the terror they reflect especially in the Northeast of Nigeria.
2.9.3 Al Shabaab Al Shabaab (Somali- Youth) is Somali based radical Islamic militant organisation with links to Al Qaeda.158 Its full name is Harakat al Shabaab al-Mujahideen
154 Ibid. 223 155Encyclopedia Britannica (n. 150) 156 ibid. 157 Olomojobi (n.171) 221 158 M. M. Aid, Intel Wars- The Secret History of the Fight against Terror (Bloombury Press, New York 2012) 137 112
(Mujahideen Youth Movement). It originated as a militia affiliated with the Islamic
Courts Union (ICU), a federation of local and clan based Islamic courts that had been founded in Southern Somalia in 2004 to combat lawlessness and banditry afflicting the area. It started in 2006 by way of insurgency against the Somalia‘s Transitional
Federal Government. In the words of Mathew Aid:
Al Shabaab can trace its origins back to the port city of Kismayo, a long time militant stronghold in southern Somalia where in early 2006, a coalition of moderate and radical Somali militia groups, including the al Shabaab banded together under the banner of an umbrella organisation styling itself as the Islamic court Union, led by an ambitious and politically astute Libyan- educated man named Sheikh Sharif Ahmed.159
However, when the ICU disintegrated during the invasion of Somalia by the
Ethiopian troops which installed another Somali transitional government under
Ahmed Yusuf, the al Shabaab did not disappear. Instead it announced that it was going to stand and fight from its stronghold in the southern part of the country. Within a short period of time, thousands of militiamen from all major Somali clan joined forces with them with the goal of resisting Ethiopian led transitional government and ostensible occupation. So, Al Shabaab remained intact and began to mount campaign of bombing and attacks against the Transitional federal Government, Ethiopian forces in Somalia, civilians and African Union Peace keepers. On July 11, 2010, al Shabaab suicide bomber began to get involved in international attacks as they attacked and killed about 75 people in Kampala in Ugandan. According to Britanicca.com, ―they claimed that the attack was in retaliation of Ugandan troop‘s participation on African
Union peace keeping force (AMISOM).160 Even in the face of great military offensive against Al Shabaab with much support from the United States of America, Al
159 Ibid. 160 Encyclopedia Britannica
Shabaab has increased the size of its militia over five thousand men who are better armed in most respects than the Somali government troops they face. It is actually recruiting more foreign militants over the internet to come over to Somalia and join their Jihad.161
2.9.4 Islamic State in Iraq and Levant (ISIL) or ISIS According to Bennis, the origin of ISIS also known as ISIL or the Islamic State ‗lies in the 2003 US invasion and occupation of Iraq.‘162 Bennis argues that the dissolution of the Iraqi Military, the dismantling of the civil service and the overthrow of Saddam
Hussein ruling Baath party was part of the reason for the turn towards religion and sectarian identity in order to replace national identity and the Sunni Iraqis were the worst hit in this context. Within months after the invasion and occupation, the US-UK occupation was tremendously challenged by militia and the earliest of which was al
Qaeda in Iraq (AQI) which was a Sunni militia created in 2004 by Abu Mussab Al
Zarqawi who pledged loyalty to the leadership of al Qaeda. Their terrorist‘s tactics included bombing and use of Improvised explosives devices (IEDs) as well as kidnappings and beheadings. The AQI initially focused its attacks on US and other coalition forces with the goal to purge Iraq of foreign occupiers, subsequently, it expanded to a more explicitly sectarian plan in which Iraqi government, military and police forces dominated by the Shia as well as Shia civilians were targeted.
In 2006, the US changed its Iraq strategy and instead of fighting the Sunni militants, decided to co-opt them bankrolling the Sunni tribal leaders in the resistance against
AQI. At this time, the Al Qeada in Iraq changed its name to Islamic State in Iraq (ISI).
According to Britannica, the change of name ―reflected the group‘s efforts to hold and
161 Aid (n.176) 142. 162 P. Bennis, Understanding ISIS and the New Global War on Terror- A Primer, ( Olive Branch Press, United States 2015) 16. 114 control territory as its ambition to obtain universal leadership of the Islamic community.‖163
With the death of Al Zarqarwi; Abu Bakr al Baghdadi became the new leader of the new movement in 2010. He was a militant recently released from a five year detention in a U.S run prison in Southern Iraq. When the sectarian fighting escalated in 2010,
ISI emerged as the leading Sunni force and the military capacity of the organisation expanded, extending their attacks to prison, freeing the key military leaders of the group. With the gradual withdrawal of foreign troops from Iraq, ISI gained more prominence in frequent attacks, bombings and show of extremism in cities and towns where they have established control.
In 2011, with the Syrian crisis beginning to escalate into a full scale civil war, opportunity was provided for the ISI fighters to move freely into Syria since the
Sunni- Shia split was a major component of that war. ISI therefore took up arms against the Alawite/Shia regime of Bashar al- Asad and was fighting alongside the wide range of secular and Sunnis militias including the al Qaeda linked Nusra front who were already confronting the regime being led by Ayman al zawahiri.
In April 2013, the leader of ISI declared his intention to combine forces with Nusra
Front, under the name Islamic State of Iraq and Syria, a move rejected by Nusra front.
This occasioned a big split between the two groups resulting in open fighting and a competition for recruits. Nevertheless the group had acquired a new name of ISIL and quickly a zone of exclusive authority in the eastern areas of the Syrian and imposed strict version of Islamic law and attracted a significant number of radicalized recruits from outside Iraq and Syria.
163 Encyclopedia Britannica
Bennis underscores the impact and spread of ISIS in these words: ―Still Led by al
Baghadadi, and loyal to al- Qaeda, ISIS was rapidly gaining strength , not least from its recruiting of experience fighters and acquisition of heavier arms in Iraq. It fought on both sides of Iraq and Syria frontier, against governments and civilians in both countries, capturing crossing posts and essentially erasing border altogether.‖164
It is necessary to underscore a major difference between ISIS and other terrorist networks. While ISIS moved to seize territory which others like al Qaeda never did, it was asserting a remote aim of creating a caliphate, through its tactics of occupying, holding and governing and expanding base across Iraq- Syria Border. As rightly put,
―Al Qaeda could concentrate on carrying out acts of violence aimed at destroying ungodly governments; ISIS needs to govern.‖165
In its further military campaign to safeguard its conquered territories like Al Raqqah and Mosul, it declared itself a global caliphate in June 29, 2014 and named al
Baghadadi, the Caliph and this time changed its name to Islamic State and claimed universal leadership of the Muslim community. With this global reach to its name, it attracted groups of militants and religious extremists from Pakistan, Afghanistan, far away Europe and elsewhere who declared their loyalty to the Islamic State.
With a firm control of the territories occupied by them, in Syria and Iraq, it engaged in a campaign of cultural cleansing and started ravaging Shite and Christian places of worship as well as Sunni shrine deemed idolatrous and destroying artifacts and museums with cultural heritage.166
164 Bennis (n.162) 21 165 Ibid. 29 166Encyclopedia Britannica (n.163) 116
By 2014, there began to emerge cells of militants claiming allegiance and affiliation to ISIL and establishing their presence in conflicts in Africa, Middle East and Central
Asia. It has been established that affiliated groups to ISIL exist in Libya, Egypt and
Ethiopia and they have carried out terrorist attacks and beheading in these countries.
In the late 2015 and early 2016, ISIS affiliated gun men launched a series of killings and suicide attacks in many part of Europe including France, Germany, Belgium and
Turkey. It is not in doubt that a serious campaign is under way in Europe and United
States on how to stem the tide of ISIL, hence the sending of over 3000 troops back in
Iraq in the late 2014 and the incessant US airstrikes in Syria to counter the humanitarian tragedy being orchestrated by ISIS. 117
CHAPTER THREE
COUNTER TERRORISM INITIATIVES UNDER INTERNATIONAL LAW AND COUNTER TERRORISM RESPONSE MODELS
This chapter examines the dense and numerous efforts under international law regime to counter terrorism. This would include the various legal measures adopted by the
UN to fight and prosecute terrorism and terrorism offences. At the Regional level, the efforts of the European Union, African Union Middle East bloc will be examined. The chapter will also highlight some of the institutional strategies and arrangement at the international level at combating terrorism.
Following a theoretical and applied approach, the chapter also underscores and evaluates the various models that have been identified in the practice of states in their counterterrorism operations. Whether these models have been effective is a function of how far terrorism incidents have reduced in the affected jurisdiction. The fact however remains that these models have been extrapolated and identified by the researcher from the various relevant literatures as models existing across board in the many counter terrorism approaches that have been studied. These models are: the
Rule of Law model, War model, Human rights/humanitarian law model, Negotiation model and Anti-immigration model.
3.1 International Legislative Frameworks In international context since 9/11, terrorism is considered a volatile contemporary phenomenon which presents complicated legal problems. The United Nations as well as other regional bodies have made and will continue to work out strategies towards responding effectively to the menace of all acts of terrorism which has been regarded 118 as a threat to international peace and security.1At the regional level, that is, European
Union, African Union, Middle East, so many measures were also adopted by these union of states. The charting of an international law strategy for Counter Terrorism under the United Nations framework is a story of efforts of committee, their reports and eventual resolution and treaties emanating from General Assembly of the UN and the Security Council with a consequent call for states to walk the talk.
3.1.1 The United Nations Counter Terrorism Initiatives While some forms of terrorism can be dealt with exclusively by way of law enforcement, international terrorism that is transnational or trans-boundary in nature must need the force of domestic law enforcement as well as the cooperation of states, the legal backing from international conventions and resolutions as provided under the umbrella of United Nations. There is the necessity of a more complex form of cooperation amongst states to thwart the current and future threats posed by States that sponsor terrorism and networks of contemporary terrorists like ISL, Al Qaeda and
Boko Haram. The United Nations has never been in the back bench when responding to horrible acts of terror. Its position was ineluctably manifested in the immediate aftermath of 9/11 attacks on the United States, where the Security Council moved quickly and adopted Resolution 13732 which empowered all member states to take specific action to counter terrorism. The United Nations has the capacity to enact and establish binding directives for the purpose to eliminating any threat to international peace and security, of which terrorism was declared as a prominent one.3 However the immediate response of the United Nations Security Council to the 9/11 incident cannot be considered the first ever reaction or effort of UN towards counterterrorism.
In fact, even before the 9/11, the counter terrorism measures and efforts of the UN has
1 SC/Res 1368(2001) 12th September, 2001. 2 Resolution 1373, S/Res/1373 (2001) 28th September 2001. 3 Ibid. 119 not only demonstrated its keen interest in the area of terrorism, it has also shown how critical the need to stem the tide of terrorism in international relations. Its sustained interest in effectively combating terrorism is obvious in the many multilateral treaties, the resolution and the subsequent Global Counter Terrorism Strategy adopted to address various forms of terrorism which has become rife in the last three decades.
A succinct review some of these counter terrorism efforts of the UN as follows:
3.1.2 UN Counter Terrorism Conventions All UN decisions or instruments do not carry the same weight. The level of importance attached to them depends on what kind of document they appear in and which body of the UN has issued them. For instance, the Security Council resolutions are taken more seriously than the General Assembly resolution and are mandatory on member states, while treaties which are legally binding between state signatories attach with more seriousness. However, the General Assembly4 cannot legally compel governments to act on its decisions. However, its recommendations carry the weight of world opinion.5 Because issues of terrorism are of grave concern to the UN, they often emanate as treaties/conventions or resolutions of the Security Council or
General assembly and less from commissions.
UN Conventions cover all legally binding international agreements which are distinguishable from international customary rules and general principles of international law. Although conventions are binding upon states who are parties to it, sometimes, they are adopted by international organisation by way of a resolution. In such a case, it is incorporated as an operational principle of such group or
4 The General assembly is deliberative organ which proceeds via recommendations rather than binding decision. Certain resolutions of the Assembly may assume a quasi-legislative role. While they cannot create direct legal obligations for member states, they can embody a consensus opinion about what the law is so that, indirectly they become evidence of international law. See Sand. P & Klein. P. , Bowett‘s Law of International Institution, (London: Sweet and Maxell, 2001) 29 5 Intergovernmental and Negotiations and Decision making at the United Nations- the NGLS guide to the NGOs. NGLS, UN Non-Governmental Liaison Service, 4 120 organisation. With the end of cold war, governments and states turned to the UN to deal with ethnic, nationalist and international conflict that often pose a threat to international peace and security. The UN deals with these conflicts by way of conventions or treaties, agreements, charters, protocols and resolutions, declarations, plans for action and sanctions through its principal organs, agencies and commissions.
Prior to the adoption of resolution 1373 (2001)6 and the establishment of the Counter-
Terrorism Committee, the international community had already promulgated 12 of the current 16 international counter-terrorism legal instruments. However, the rate of adherence to these conventions and protocols by United Nations Member States was low.
As a result of the attention focused on countering terrorism since the events of 11
September 2001 and the adoption of Security Council resolution 1373 (2001), which calls on States to become parties to these international instruments on counter terrorism, the rate of adherence has increased: some two-thirds of UN Member States have either ratified or acceded to at least 10 of the16 instruments, and there is no longer any country that has neither signed nor become a party to at least one of them.
In fact, between 1963 and 2004, under the auspices of the United Nations and its specialized agencies, the international community developed 19 international counter- terrorism instruments which are open to participation by all Member States. Suffice it to say that both the General Assembly and the Security Council has also focused on terrorism as an international problem within the last three decades and have continued
6 UNSC/Res. 1373 ( n .186) 121 to address the issue intermittently through resolutions and declarations. Here are some of the major United Nations Instruments7 on Counter Terrorism:
3.1.2.1 Convention on Offences and Certain Other Acts Committed On Board Aircraft, 1963 i. Applies to acts affecting in-flight safety
ii. Authorizes the aircraft commander to impose reasonable measures,
including restraint, on any person he or she has reason to believe has
committed or is about to commit such an act, where necessary to
protect the safety of the aircraft; and
iii. Requires contracting States to take custody of offenders and to return
control of the aircraft to the lawful commander.
3.1.2.2 Convention for the Suppression of Unlawful Seizure of Aircraft, 1970 i. Makes it an offence for any person on board an aircraft in flight to
"unlawfully, by force or threat thereof, or any other form of
intimidation, [to] seize or exercise control of that aircraft" or to attempt
to do so
ii. Requires parties to the convention to make hijackings punishable by
"severe penalties"
iii. Requires parties that have custody of offenders to either extradite the
offender or submit the case for prosecution; and
iv. Requires parties to assist each other in connection with criminal
proceedings brought under the Convention.
7Security Council Counter- Terrorism Committee, 16 International Legal Instruments,
3.1.2.3 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal Convention), 1971 i. Makes it an offence for any person unlawfully and intentionally to
perform an act of violence against a person on board an aircraft in
flight, if that act is likely to endanger the safety of the aircraft; to place
an explosive device on an aircraft; to attempt such acts; or to be an
accomplice of a person who performs or attempts to perform such acts
ii. Requires parties to the Convention to make offences punishable by
"severe penalties"; and
iii. Requires parties that have custody of offenders to either extradite the
offender or submit the case for prosecution.
3.1.2.4 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 1973 i. Defines an "internationally protected person" as a Head of State,
Minister for Foreign Affairs, representative or official of a State or
international organization who is entitled to special protection in a
foreign State, and his her family; and
ii. Requires parties to criminalize and make punishable "by appropriate
penalties which take into account their grave nature" the intentional
murder, kidnapping or other attack upon the person or liberty of an
internationally protected person, a violent attack upon the official
premises, the private accommodations, or the means of transport of
such person; a threat or attempt to commit such an attack; and an act
"constituting participation as an accomplice"
123
3.1.2.5 International Convention Against the Taking of Hostages, 1979 i. Provides that "any person who seizes or detains and threatens to kill, to
injure, or to continue to detain another person in order to compel a third
party, namely, a State, an international intergovernmental organization, a
natural or juridical person, or a group of persons, to do or abstain from
doing any act as an explicit or implicit condition for the release of the
hostage commits the offence of taking of hostage within the meaning of
this Convention"
3.1.2.6 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, Supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 23 September 1971 i. Extends the provisions of the Montreal Convention to encompass terrorist
acts at airports serving international civil aviation.
3.1.2.7 International Convention for the Suppression of Terrorist Bombings, 1997 i. Creates a regime of universal jurisdiction over the unlawful and intentional
use of explosives and other lethal devices in, into, or against various
defined public places with intent to kill or cause serious bodily injury, or
with intent to cause extensive destruction of the public place.
3.1.2.8 International Convention for the Suppression of the Financing of Terrorism, 1999 i. Requires parties to take steps to prevent and counteract the financing of
terrorists, whether direct or indirect, though groups claiming to have
charitable, social or cultural goals or which also engage in illicit activities
such as drug trafficking or gun running;
ii. Commits States to hold those who finance terrorism criminally, civilly or
administratively liable for such acts; and 124 iii. Provides for the identification, freezing and seizure of funds allocated for
terrorist activities, as well as for the sharing of the forfeited funds with
other States on a case-by-case basis. Bank secrecy is no longer adequate
justification for refusing to cooperate.
3.1.2.9 International Convention for the Suppression of Acts of Nuclear Terrorism, 2005 i. Covers a broad range of acts and possible targets, including nuclear power
plants and nuclear reactors;
ii. Covers threats and attempts to commit such crimes or to participate in
them, as an accomplice;
iii. Stipulates that offenders shall be either extradited or prosecuted;
iv. Encourages States to cooperate in preventing terrorist attacks by sharing
information and assisting each other in connection with criminal
investigations and extradition proceedings; and
v. Deals with both crisis situations (assisting States to solve the situation) and
post-crisis situations (rendering nuclear material safe through the
International Atomic Energy Agency (IAEA).
On the part of the UN General Assembly, here are some of the resolutions that have come out of General Assembly8 deliberations. They Include:
A/70/L.55 | 1 July 2016 - The United Nations Global Counter-Terrorism Strategy Review
A/RES/68/276 | 24 June 2014 - The United Nations Global Counter-Terrorism Strategy Review
A/RES/68/187 | 18 December 2013 - Technical assistance in implementing international conventions and protocols on the fight against terrorism
A/RES/68/178 | 18 December 2013 - Protection of human rights and fundamental freedoms while countering terrorism.
8 UN and Counter Terrorism, Resolution by UN General Assembly,
A/RES/68/119 | 16 December 2013 - Measures to eliminate international terrorism
A/RES/67/99 | 14 December 2012 - Measures to eliminate international terrorism
A/RES/66/282 | 29 June 2012 - The United Nations Global Counter-Terrorism Strategy Review
A/RES/66/178 | 19 December 2011 - Technical assistance for implementing the international conventions and protocols related to counter-terrorism
A/RES/66/171 | 19 December 2011 - Protection of human rights and fundamental freedoms while countering terrorism
A/RES/66/105 | 9 December 2011 - Measures to eliminate international terrorism
A/RES/66/50 | 2 December 2011 - Measures to prevent terrorists from acquiring weapons of mass destruction
A/RES/66/12 | 18 November 2011 - Terrorist Attacks on Internationally Protected Persons
A/RES/66/10 | 18 November 2011 - United Nations Counter-Terrorism Centre
A/RES/65/221 | 21 December 2010 - Protection of human rights and fundamental freedoms while countering terrorism
A/RES/65/74 | 8 December 2010 - Preventing the acquisition by terrorists of radioactive sources
A/RES/65/62 | 8 December 2010 - Measures to prevent terrorists from acquiring weapons of mass destruction
A/RES/65/34 | 6 December 2010 - Measures to eliminate international terrorism
A/RES/64/297 | 8 September 2010 - The United Nations Global Counter-Terrorism Strategy
A/RES/64/235 | 14 January 2010 - Institutionalization of the Counter-Terrorism Implementation Task Force
A/RES/64/177 | 24 March 2010 - Technical assistance for implementing the international conventions and protocols related to terrorism
A/RES/64/168 | 22 January 2010 - Protection of human rights and fundamental freedoms while countering terrorism
In addition to the GA resolutions, here are some of the Security Council Resolutions:
Resolutions by: UN Security Council:9
9 UN and Counter Terrorism- Resolution by the Security Council,
S/RES/2199 (2015) | 12 Feb 2015 – Security Council condemns trade with Al-Qaida- associated groups, threatens further targeted sanctions.
S/RES/2195 (2014) | 19 Dec 2014 – Security Council urges Member States to ramp up efforts to combat transnational crime and terrorism.
S/RES/2133(2014) | 27 Jan 2014 – Security Council urges cooperation to tackle kidnapping for ransom by terrorists, in first-ever resolution.
S/RES/2129 (2013) | 17 Dec 2013 – Security Council extends mandate of UN Counter-Terrorism Committee Executive Directorate for four years.
S/RES/1988 (2011) | 17 Jun 2011 – Security Council decides to separate sanctions regime on Al-Qaida and Taliban.
S/RES/1989 (2011) | 17 Jun 2011 – Security Council decides to separate sanctions regime on Al-Qaida and Taliban.
S/RES/1904 (2009) | 17 Dec 2009 – Security Council adopts new measures to fine- tune decade-old sanctions regime on Al-Qaida, Usama bin Laden and the Taliban.
S/RES/1805 | 20 Mar 2008 – Mandate of Counter-Terrorism Committee Executive Directorate (CTED) extended until 31 December 2010.
S/RES/1787 | 10 Dec 2007 – Extension of Counter-Terrorism Committee Executive Directorate (CTED) mandate.
S/RES/1631 (2005) | 17 Oct 2005 – UN cooperation with regional organizations in maintaining international peace and security.
S/RES/1624 (2005) | 14 Sep 2005 – Prohibition of incitement to commit terrorist act.
S/RES/1618 (2005) | 4 Aug 2005 – Condemnation of terrorist attacks in Iraq.
S/RES/1611 (2005) | 7 Jul 2005 – Condemnation of terrorist attacks in London.
S/RES/1566 (2004) | 8 Oct 2004 – Creation of working group to consider measures against individuals, groups and entities other than Al-Qaida/Taliban.
S/RES/1535 (2004) | 26 Mar 2004 – Creation of Counter-Terrorism Committee Executive Directorate (CTED).
S/RES/1530 (2004) | 12 Mar 2004 – Condemnation of bomb attacks in Madrid.
S/RES/1516 (2003) | 20 Nov 2003 – Condemnation of bombings in Istanbul.
S/RES/1465 (2003) | 13 Feb 2003 – Condemnation of bomb attack in Bogota, Colombia.
S/RES/1456 (2003) | 20 Jan 2003 – Declaration by Foreign Ministers on combating terrorism.
S/RES/1450 (2002) | 13 Dec 2002 – Condemnation of terrorist attacks in Kenya. 127
S/RES/1440 (2002) | 24 Oct 2002 – Condemnation of hostage taking in Moscow.
S/RES/1438 (2002) | 14 Oct 2002 – Condemnation of bombings in Bali.
S/RES/1377 (2001) | 12 Nov 2001 – Ministerial declaration on the global effort to combat terrorism.
S/RES/1373 (2001) | 28 Sep 2001 – Creation of Counter Terrorism Committee (CTC).
S/RES/1368 (2001) | 12 Sep 2001 – Condemnation of 11 September attacks against the United States.
A/RES/64/118 | 15 January 2010 - Measures to eliminate international terrorism.
A/RES/64/38 | 12 January 2010 - Measures to prevent terrorists from acquiring weapons of mass destruction.
A/RES/63/185 | 3 March 2009 - Protection of Human rights and Fundamental Freedoms while countering terrorism.
A/RES/63/129 | 15 January 2009 - Measures to eliminate international terrorism.
A/RES/63/60 | 12 January 2009 - Measures to prevent terrorists from acquiring weapons of mass destruction.
A/RES/62/272 | 15 September 2008 - The United Nations Global Counter-Terrorism Strategy.
A/RES/62/172 | 20 March 2008 - Technical assistance for implementing the international conventions and protocols relating to terrorism.
A/RES/62/159 | 11 March 2008 - Protection of Human Rights and Fundamental Freedoms while countering terrorism.
A/RES/62/71 | 8 January 2008 - Measures to eliminate International Terrorism.
A/RES/62/46 | 10 January 2008 - Preventing the acquisition by terrorists of radioactive materials and sources.
A/RES/62/33 | 8 January 2008 - Measures to prevent terrorists from acquiring weapons of mass destruction.
A/RES/61/171 | 1 March 2007 - Protection of Human rights and Fundamental Freedoms while countering Terrorism.
A/RES/61/172 | 1 March 2007 - Hostage-taking.
A/RES/61/86 | 18 December 2006 - Measures to prevent terrorists from acquiring weapons of mass destruction.
A/RES/61/40 | 18 December 2006 - Measures to eliminate International Terrorism. 128
A/RES/60/288 | 20 September 2006 - The United Nations Global Counter-Terrorism Strategy.
A/RES/60/158 | 28 February 2006 - Protection of Human Rights and Fundamental Freedoms while countering terrorism.
A/RES/60/78 | 11 January 2006 - Measures to prevent terrorists from acquiring weapons of mass destruction.
A/RES/60/73 | 11 January 2006 - Preventing the risk of Radiological Terrorism.
A/RES/60/43 | 6 January 2006 - Measures to eliminate International Terrorism.
A/RES/59/290 | 15 April 2005 - International Convention for the Suppression of Acts of Nuclear Terrorism.
A/RES/59/195 | 22 March 2005 - Human Rights and Terrorism.
A/RES/59/191 | 10 March 2005 - Protection of Human rights and Fundamental Freedoms while countering terrorism.
A/RES/59/80 | 16 December 2004 - Measures to prevent terrorists from acquiring weapons of mass destruction.
A/RES/59/46 | 16 December 2004 - Measures to eliminate international terrorism.
A/RES/58/187 | 22 March 2004 - Protection of Human Rights and Fundamental Freedoms while countering terrorism.
A/RES/58/174 | 10 March 2004 - Human Rights and Terrorism.
A/RES/58/81 | 8 January 2004 - Measures to eliminate International Terrorism.
A/RES/58/48 | 8 January 2004 - Measures to prevent terrorists from acquiring weapons of mass destruction.
A/RES/57/220 | 27 February 2003 - Hostage-taking.
A/RES/57/219 | 27 February 2003 - Protecting Human Rights and Fundamental Freedoms while countering terrorism.
A/RES/57/83 | 9 January 2003 - Measures to prevent terrorists from acquiring weapons of mass destruction.
A/RES/57/27 | 15 January 2003 - Measures to eliminate international terrorism.
A/RES/56/160 | 13 February 2002 - Human Rights and Terrorism.
A/RES/56/88 | 24 January 2002 - Measures to eliminate International Terrorism.
A/RES/56/1 | 18 September 2001 - Condemnation of terrorist attacks in the United States of America. 129
A/RES/55/158 | 30 January 2001 - Measures to eliminate international terrorism.
A/RES/54/164 | 24 February 2000 - Human Rights and Terrorism.
A/RES/54/110 | 2 February 2000 - Measures to eliminate International Terrorism.
A/RES/54/109 | 25 February 2000 - International Convention for the Suppression of the Financing of Terrorism.
A/RES/53/108 | 26 January 1999 - Measures to eliminate International Terrorism.
A/RES/52/165 | 19 January 1998 - Measures to eliminate International Terrorism.
A/RES/52/133 | 27 February 1998 - Human Rights and Terrorism.
A/RES/51/210 | 16 January 1997 - Measures to eliminate International Terrorism.
A/RES/50/186 | 6 March 1996 - Human Rights and Terrorism
A/RES/50/53 | 29 January 1996 - Measures to eliminate International Terrorism
A/RES/49/185 | 6 March 1995 - Human Rights and Terrorism.
A/RES/49/60 | 17 February 1995 - Measures to eliminate International Terrorism.
A/RES/48/122 | 14 February 1994 - Human Rights and Terrorism.
A/RES/46/51 | 9 December 1991 - Measures to eliminate International Terrorism.
A/RES/44/29 | 4 December 1989 - Measures to prevent International Terrorism.
A/RES/42/159 | 7 December 1987 - Measures to prevent International Terrorism.
A/RES/40/61 | 9 December 1985 - Measures to prevent International Terrorism.
A/RES/39/159 | 17 December 1984 - Inadmissibility of the policy of State terrorism and any actions by States aimed at undermining the socio-political system in other sovereign States.
A/RES/38/130 | 19 December 1983 - Measures to prevent International Terrorism.
A/RES/36/109 | 10 December 1981 - Measures to prevent International Terrorism.
A/RES/34/145 | 17 December 1979 - Measures to prevent International Terrorism.
A/RES/32/147 | 16 December 1977 - Measures to prevent International Terrorism.
A/RES/31/102 | 15 December 1976 - Measures to prevent International Terrorism.
A/RES/3034(XXVII) | 18 December 1972 - Measures to prevent International Terrorism. 130
Aside of these legal instruments from the various organs of the UN, the statement of
Kofi Annan, the then United Nations Secretary General provides an invaluable resource for the purpose of understanding where UN stands in the face of terrorism.
In the preface to the International Instruments Related to the Prevention of Terrorism, he describes the increasing danger faced by world community in these words:
Terrorism strikes at the very heart of everything the United Nations stands for. It presents a global threat to democracy, the rule of law and human rights and stability. Globalisation brings home the importance of a truly concerted effort to combat terrorism in all its forms and manifestations.10
The watershed of United Nations approach to Counter terrorism can be found clearly in none other document than the Security Council Resolution 1373(2001) where it declared that ―acts, methods and practices of terrorism were contrary to the purposes and principles of United Nations and in SC/Res 1368 (2001), it regarded any act of international terrorism as threat to international peace and security. It therefore calls on all member states to take necessary steps to prevent commission of terrorist acts. In addition to this, the council in res 1373 called on member states to fully implement
(domesticate) the relevant international conventions and protocols relating to terrorism, some of which we referred to in the preceding pages.
The United Nations by sounding this legislative announcement just after 9/11 attacks leaves no one in doubt that they expect states to use all legal means to stamp out the evil of terrorism but not outside the principles of rule of law upon which its legitimacy stands.
10 International Instruments Related to the Prevention and Suppression of International Terrorism (United Nations Publication, Sales No. E.01.V3) 131
More significantly, in one of its recent resolution, Resolution 2349(2017)11, adopted at its 7911th meeting on 31 March 2017, the SC directs its energy and focus on the security crisis brought about Boko Haram and other allied terror networks such as
ISIL in Lake Chad region which includes Nigeria, Chad, Niger Republic and
Cameroon. In that resolution, the SC reaffirms that terrorism in all forms and manifestations constitutes one of the most serious threats to international peace and security and that any acts of terrorism are criminal and unjustifiable regardless of their motivations, whenever and by whomever it is committed. Its expresses its determination to further enhance the effectiveness of the overall effort to fight this scourge at all levels. In the article one of that resolution, the SC condemns all terrorist attacks, violations of international humanitarian law and abuses of human rights by
Boko Haram in the region. It calls upon countries in the region to prevent, criminalise, investigate, and prosecute those who engage in such organised crimes like terrorism.12
More importantly, article 25 of the resolution makes a clarion call to states to develop a comprehensive and common strategy that effectively addresses the drivers that contributed to the emergence of Boko Haram with a greater focus on longer term development needs. This resolution also speaks to the greater need for active cooperation and coordination among states in their counter terrorism mechanism.
Deducing from these legal instruments especially, SC resolutions, it underscores a number of approaches for a successful counter terrorism strategy which are:
a. Robust law enforcement using the instrument of international instrument as
domesticated by states.13
11UN Security Council, Security Council resolution 2349 (2017) [on the situation in the Lake Chad Basin region], 31 March 2017, S/RES/2349 (2017),
b. Development of anti-terrorism models that advance the values of Human
Rights.14
c. Military or war Model as the last resort to the defeat of terrorism where the
threat has reached a threshold to undermine humanitarian values, peace and
security of the state.
d. Increased cooperation of states and capacity building so that no safe haven is
reserved for terrorists.
In view of this, the states have been called upon even more concretely since 9/11 to enact their anti –terrorism laws and take steps to co-operate with other nations in their various counter terrorism measures. These conventions and resolutions provide the basis for each state‘s criminal justice initiative. Terrorism as global problem in the eyes of the United Nations requires that each state should keep its house in order by doing all that is recommended under these conventions and resolutions to stem the tide of terrorist attacks and organisation.
Having declared terrorism like the 9/11 attacks as threat to international peace and security, the Security Council stepped further in the same Res. 1373 to organise a monitoring unit for the purpose of assisting states to comply with the resolution by establishing the Counter Terrorism Committee (CTC).15
14 SC/Res/1456 (20th Jan. 2003). 15 The Counter-Terrorism Committee (CTC) was established by Security Council resolution 1373 (2001), which was adopted unanimously on 28 September 2001 in the wake of the 11 September terrorist attacks in the United States. The Committee, comprising all 15 Security Council members, was tasked with monitoring implementation of resolution 1373 (2001), which requested countries to implement a number of measures intended to enhance theirlegal and institutional ability to counter terrorist activities at home, in their regions and around the world, including taking steps to: Criminalize the financing of terrorism, Freeze without delay any funds related to persons involved in acts of terrorism,Deny all forms of financial support for terrorist groups, Suppress the provision of safe haven, sustenance or support for terrorists, Share information with other governments on any groups practicing or planning terrorist acts, Cooperate with other governments in the investigation, detection, arrest, extradition and prosecution of those involved in such acts; and Criminalize active and passive assistance for terrorism in domestic law and bring violators to justice. The resolution also calls on States to become parties, as soon as possible, 133
To assist this committee in this effort, it therefore established by Res. 1535 (2004), the Counter Terrorism Committee Executive Directorate (CTED).16 Its main work was to enhance the committee‘s ability to monitor the implementation of the
Resolution 1373. CTED became fully operational by December 2005.
In addition to these critical efforts, the UN Secretariat then chaired by Kofi Annan in
July 2005, set up the Counter Terrorism Implementation Task Force (CTITF). The
Counter-Terrorism Implementation Task Force (CTITF) was established by the
Secretary-General in 2005 and endorsed by the General Assembly through the United
Nations Global Counter-Terrorism Strategy17, which was adopted by consensus in
2006.
The global counter terrorism strategy as outlined by Kofi Annan can be summarized by five letter ‗D‘ acronyms which are:
a. Dissuade people from resorting to terrorism or supporting it,
b. Deny terrorists the means to carry out an attack,
c. Deter states from supporting terrorism,
d. Develop state capacity to defeat terrorism,
to the relevant international counter-terrorism legal instruments. See.
e. Defend human rights in the struggle against terrorism.
The primary goal of CTITF is to maximize each entity‗s comparative advantage by delivering needed assistance to Member States for the purposes of implementing the four pillars of the Global Strategy.
The four pillars are:
a. Measures to address the conditions conducive to the spread of terrorism;
b. Measures to prevent and combat terrorism;
c. Measures to build states‘ capacity to prevent and combat terrorism and to strengthen the role of the United Nations system in that regard;
d. Measures to ensure respect for human rights for all and the rule of law as the fundamental basis for the fight against terrorism.18
As can be seen, the United Nations role in counter terrorism is extensive. The global reach and the various legislative tools as well as the expertise of the United Nations as exposed can be of immense assistance to arriving at more effective and effectual model for counter terrorism, notwithstanding the lack of any universally acceptable definition given under these instrument or agencies. What is striking is that none of these conventions or resolution is exhaustive. Each complements and develops from the other. Any comprehensive approach to the study of models of counter terrorism must therefore not ignore these instruments in order to extrapolate the enduring approach of the World community.
3.2 Regional Initiatives- European Union (EU), African Union (AU), ECOWAS, Arab League, Organisation of American States (OAS) This section focuses on the efforts of regional and sub-regional bodies in countering terrorism in their regions and beyond their boundaries. The invaluable importance of regional arrangements is that such closely related cultures subject to the same
18 About the Task Force,
3.2.1 European Union (EU) Terrorism is not a new phenomenon in Europe. It poses a threat to the Europe‘s security, to the values of their democratic societies and to the rights and freedoms of
European citizens. The terrorist threat is increasingly diverse and geographically diffused. In spite of the concerted efforts by European nation states to combat terrorism, the threat remains significant, complex, and very unpredictable. Between
2009 and 2013, there were 1010 failed, foiled or completed attacks carried out in EU member states, in which 38 people died.19 In addition, several European citizens have been kidnapped or killed by terrorist groups around the world. The phenomenon of fighters from Europe travelling to different locations to fight the jihad, and the security threat they may pose inside the EU when they return, are also likely to persist in the coming years. Since these threats do not recognise borders, they must be confronted at both a national and international level.
3.2.1.1 EU Strategy The EU counter-terrorism strategy20 aims to combat terrorism globally while respecting human rights, and to make Europe safer, allowing its citizens to live in an area of freedom, security and justice. The European Union member states are committed to jointly fighting terrorism and providing for the best possible protection for its citizens. To this end, in 2005 the Council adopted the EU counter-terrorism
19 EU fight against Terrorism,
Respond. Across these pillars, the strategy recognises the importance of cooperation with third countries and international institutions.
The "Prevention" pillar aims to combat radicalisation and recruitment of terrorists by identifying the methods, propaganda and the instruments used by terrorists. Although these challenges lie with the Member States, the EU helps to coordinate the national policies, determine good practice and share information. The priorities identified concerning prevention are to:
i. develop common approaches to spot and tackle problem behaviour;
ii. hold in check incitement and recruitment in key environments (prisons, places
of worship, etc.);
iii. develop inter-cultural dialogue;
iv. explain European policies better;
v. promote good governance, democracy, education and economic prosperity
through assistance programmes; and
vi. Continue research in this area and share analysis and experiences.
3.2.1.2 Protection The "Protection" pillar aims to reduce the vulnerability of targets to attack and to limit the resulting impact of attack. It proposes to establish collective action for border security, transport and other cross-border infrastructures. Member States have the Schengen Information System II (SIS II) and the Visa Information System (VIS), as well as the FRONTEX agency to maximise the effectiveness of border controls. In parallel to these instruments, they are required to exchange their passenger data and to use biometric information in identity documents.
With a view to increasing transport security, Member States must together examine the weak pots of transport systems and enhance the security of roads, trains, airports 137 and seaports. The EU wishes to assess the threat and its vulnerability. It is a matter of devising a work programme, methods of protection against attacks and a European programme for critical infrastructure protection. Member States must also continue their efforts towards cooperation in the fields of non-proliferation of chemical, biological, radiological and nuclear materials (CBRN).
3.2.1.3 Pursuit The aim of the third pillar is to pursue terrorists across borders, while respecting human rights and international law. The EU wishes first and foremost to cut off access to attack materials (arms, explosives etc.), disrupt terrorist networks and recruitment agents and tackle the misuse of non-profit associations. The second aim of pursuing terrorists is to put an end to sources of terrorist financing by carrying out inquiries, freezing assets and impeding money transfers (which also concerns the
―protection‖ aspect). The EU has also implemented legislation on money laundering and the financing of terrorism. The third aim is to put an end to the planning of terrorist activities by impeding the communication and dissemination of terrorists' technical knowledge, especially via the Internet.
Member States make the necessary instruments available to obtain and analyse information. They prepare joint analyses and exchange information through Europol and Eurojust. Each Member State reports on how it has strengthened its capabilities and on its national mechanisms.
The instruments used to respond to these objectives are:
i. the analyses carried out by the Joint Situation Centre (SITCEN) and Europol;
ii. the European arrest warrant and the European Evidence Warrant;
iii. the Joint Investigation Teams;
iv. the principle of availability of law enforcement information; 138
v. VIS and SIS II (for better information access);
vi. the Financial Action Task Force (FATF), of which the Commission is an
active member and which provides recommendations, a large number of
which are implemented by European legislation.
3.2.1.4 Response The risk of terrorist attacks cannot be reduced to zero. It is for Member States to be able to deal with them when they occur. The response systems to terrorist attacks will often be similar to those in place to manage natural, technological or man-made disasters. This implies that full use should be made of the existing structures available to European civil protection mechanisms. An EU database lists the resources and assets which Member States could mobilise in the case of a terrorist attack. In the event of an attack, it is vital to:
i. exchange operational and policy information rapidly and ensure media
coordination (in the case of a cross-border incident);
ii. ensure solidarity, assistance and compensation of the victims of terrorism and
their families at national and European levels;
iii. provide assistance to EU citizens in third countries;
iv. protect and assist civilian and military assets on EU crisis management
operations.
The statement however summarizes the EU approach and model to counter terrorism:
The 2005 EU Counter-Terrorism Strategy based on prevention, protection, pursuit and response and the updated Terrorism Action Plan provide the strategic framework for the development of the EU‘s counter-terrorism policy and actions internally and externally. The EU promotes a criminal justice approach on counter-terrorism while protecting human rights.21
21European Union External Action,
Although, there had existed Europeans Convention on the Suppression of Terrorism which opened for signature on 27th Jan. 1977, the Council of Europe deemed it necessary to strengthen their resolve in the fight against terrorism reflecting the EU strategy outlined above. It therefore came up with the Council of Europe Convention on the Prevention of Terrorism, (Warsaw Convention), in 2005.22 This new
Convention is the first international treaty covering both the prevention and the control of money laundering and the financing of terrorism. The text addresses the fact that quick access to financial information or information on assets held by criminal organisations, including terrorist groups, is the key to successful preventive and repressive measures, and, ultimately, is the best way to stop them. The convention reaffirmed the essential principles already streamlined in the EU anti-terrorism strategy. It emphasised the human rights approach to counter terrorism as safeguards in every anti-terrorism approach, underlined the importance of EU states for inter co- operation. It also requires states to domesticate these principles in their counter terrorism criminal law, while criminalizing not only terrorist activities but also public provocation to terrorism, recruitment and training of terrorists. In all these, a critical comment on this cannot be bereft of the fact that while Terrorism is considered a symptom in the Europe of the 21st Century, no much effort or energy has been built in to address the root cause, which has seen many European Muslim youths radicalizing, going to Syria to join ISIS or pledging allegiance to ISIL and standing as homegrown terrorist within the European states, a more worrisome development than threats from outside of their boundaries.
22Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism, Treaty no. 198, 16/05/05.
3.3 African Union (AU)
Continental efforts in preventing and combating terrorism have a long history. In
1992, the Organization of African Unity (OAU), meeting at its 28th Ordinary Session, held in Dakar, Senegal, adopted a Resolution on the Strengthening of Cooperation and
Coordination among African States23 in which the Union pledged to fight the phenomena of extremism and terrorism. At its 30th Ordinary Session held in Tunis,
Tunisia, in June 1994, the OAU adopted the Declaration on the Code of Conduct for
Inter-African Relations24 in which it rejected all forms of extremism and terrorism, whether under the pretext of sectarianism, tribalism, ethnicity or religion. The declaration also condemned, as criminal, all terrorist acts, methods and practices, and expressed its resolve to enhance cooperation to combat such acts. These efforts culminated in the Convention on the Prevention and Combating of Terrorism,
1999,adopted by the 35th Ordinary Session of the AU Summit, held in Algiers,
Algeria, in 14thJuly 1999.It came into force in December, 2002, having been ratified by 30 states shortly after the 9/11 attacks and the SC resolution 1373 which enjoined all member states to domesticate anti- terrorism conventions of the UN. This convention has currently ben ratified by 43 states but with 50 signature deposits of member states.
It was the first African instrument for the prevention and combating of Terrorism. The convention made an honest attempt to offer a definition of terrorism25 in order to
23 AHG/Res.213 (XXVIII) 24 AHG/Del.2 (XXX) 25 Art 1(3): ―Terrorist act‖ means: (a) any act which is a violation of the criminal laws of a State Party and which may endanger the life, physical integrity or freedom of, or cause serious injury or death to, any person, any number or group of persons or causes or may cause damage to public or private property, natural resources, environmental or cultural heritage and is calculated or intended to: (i) intimidate, put in fear, force, coerce or induce any government, body, institution, the general public or any segment thereof, to do or abstain from doing any act, or to adopt or abandon a particular standpoint, or to act according to certain principles; or (ii) disrupt any public 141 afford a common framework for counter terrorism measures in their domestic counter terrorism laws, a development not found in the European Convention. The AU also took into consideration the principles of AU charter relating to security, stability, development of friendly relations and co- operation among member states. It also acknowledges the basic principles of international law and resolutions of UN to eliminate terrorism. In the preamble to that AU convention, it condemns terrorism in all its forms as unjustifiable and makes known its resolve to combat both state and non-state forms of terrorism. In its article 2(a) where it enjoins states ―to review their national laws and establish criminal offences for terrorist acts as defined in this
Convention and make such acts punishable by appropriate penalties that take into account the grave nature of such offences‖26; it clearly demonstrates that effective counter terrorism is the prerogative of domestic/ national law enforcement. By this, it signals that the best counter terrorism model is that of rule of law with deference to principle of sovereignty in International law.
In addition to the Algiers Convention, there followed a Protocol27 to the Convention which was adopted in 2004. The protocol conferred on the Peace and Security
Council of the African Union, the responsibility for implementing regional and intercontinental counter terrorism instruments as well as harmonising and coordinating efforts in the prevention and combating of terrorism. Prior to that, the service, the delivery of any essential service to the public or to create a public emergency; or (iii) create general insurrection in a State. (b) any promotion, sponsoring, contribution to, command, aid, incitement, encouragement, attempt, threat, conspiracy, organizing, or procurement of any person, with the intent to commit any act referred to in paragraph (a) (i) to(iii). 26 Art 2(a) AU Convention for the Suppression and Combating of Terrorism http://www.peaceau.org/uploads/algiers-convention-terrorism.pdf (13/08/16) 27 The Protocol recognizes the growing threat of terrorism in the continent and the growing linkages between terrorism, drug trafficking, transnational organized crimes, money laundering, and the illicit proliferation of small arms and light weapons. The Protocol aims to give effect to Article 3(d) of the Protocol Relating to the Establishment of the Peace and Security Council of the African Union, which states that the objective of the Council, inter alia, is to ‗co-ordinate and harmonize continental efforts in the prevention and combating of international terrorism in all its aspects‘. The Protocol will enter into force following the deposit of the 15th instrument of ratification. To date, 12 states have ratified the Protocol See http://www.peaceau.org/en/page/64-counter-terrorism-ct#sthash.CE1KyM85.dpuf 142
Plan of Action (2002)28 which followed on the heels of AU convention, provided framework and roadmap for African states to implement international counter terrorism measures as provided in the AU convention. As part of the implementation of the 2002 Plan of Acton, the African Centre for the Study and Research on
Terrorism (ACSRT), was established in 2004 in Algiers to serve ―as a structure for centralizing information, studies and analyses on terrorism and terrorist groups and to develop Counter-Terrorism capacity building programmes. The ACSRT also provides a forum for interaction and cooperation among Member States and regional
Mechanisms.‖29 The Centre plays an important role in guiding the AU‘s CT efforts and works in collaboration with a number of regional and international partners to ensure coherent and coordinated CT efforts in the continent.
As part of the implementation of the relevant provisions of the 2002 AU Plan of
Action on the Prevention and Combating of Terrorism, which entrusts the
Commission of African Union with providing advice on matters pertaining to counter- terrorism action, including preparation of model legislation and guidelines to assist
Member States, the Commission developed the African Model Law on Counter
Terrorism, which was endorsed by the decision [Assembly/AU/Dec.369(XVII)] adopted by the 17th Ordinary Session of the Assembly of the Union, held in Malabo, in July 2011. The Model Law is developed to assist Member States in implementing the provisions contained in the various continental and international counter-terrorism
28 To give concrete expression to the commitments and obligations of Member States under the 1999 Convention and the other international CT instruments, the AU High-Level Inter-Governmental Meeting on the Prevention and Combating of Terrorism in Africa, held in Algiers in September 2002, adopted the AU Plan of Action on the Prevention and Combating of Terrorism. The Plan of Action adopts practical CT measures that substantially address Africa‘s security challenges, includes measures in areas such as police and border control, legislative and judicial measures, financing of terrorism and exchange of information. -
3.4 Arab League The Arab Convention for the Suppression of Terrorism (1998) defines terrorism as:
Any act or threat of violence, whatever its motives or purposes, that occurs for the advancement of an individual or collective criminal agenda, causing terror among people, causing fear by harming them, or placing their lives, liberty or security in danger, or aiming to cause damage to the environment or to public or private installations or property or to occupy or to seize them, or aiming to jeopardize a national resource.30
In this definition, which appears rather broad and over inclusive of many forms of violence short of terrorism under international instruments, it does appear to purposely ignore the possibility of state sponsored terrorism or the state supported terrorism and the reason cannot so farfetched. Aside of the definition provided in this convention, another important landmark of this instrument is that it incorporates some specific UN conventions as part of the convention and mentions them exhaustively which implies that those not mentioned are not considered as part of the Arab league instrument for purposes of compliance. In addition, it specifically excludes all cases of struggle by whatever means, including armed struggle, against foreign occupation and aggression for liberation and self-determination, in accordance with the principles of international law, shall not be regarded as an offence.31 In this connection, it excludes the Palestine struggle to reclaim their homeland from Israel as not coming within the purview of this Convention. The Convention furthermore subjects human rights and humanitarian principles of international law to the tenets of Islamic law which is recognised as the core value of the member of the league. The counter
30 Art. 1(2) Arab Convention for the Suppression of Terrorism,
3.5 Economic Community of West African States (ECOWAS) The threat of terrorism in West Africa is enormous and poses daunting challenges to not only security management in the region but also political stability and economic development. Thus, whether as a result of civil wars or terrorist activities the abundant supply of small arms, ammunition, light weapons and explosives has played a crucial role. Circulation of small arms and light weapons within the region since the end of the cold war has made easy the escalation of tensions between groups in disagreement. Bloody massacres and massive human displacement become quick problem solutions when black market gun running is rampant.
West African leaders have vowed to leave no stone unturned in their fight against terrorism. On 27 and 28 February 2013, this vow was embodied in the Political
Declaration on a Common Position against Terrorism, which included a Counter-
Terrorism Strategy and Implementation Plan, adopted by the Authority of Heads of
States and Government of the Economic Community of West African States
(ECOWAS) at its 42nd ordinary session in Yamoussoukro, Cote d'Ivoire. The
Strategy is the result of an inclusive process that began in 2009 and has involved national, regional and international experts, civil society and media organisations. The
Institute of Security Studies in Africa highlights that the principal purpose of the
Declaration and Strategy is to prevent and eradicate terrorism and related criminal acts in West Africa, with a view to creating conditions conducive to sound economic development and ensuring the wellbeing of all ECOWAS citizens. The plans also 145 seek to give effect to regional, continental and international counter-terrorism instruments and to provide a common operational framework for action.32
Military coups, internecine conflicts, mercenary activities and authoritarian regimes have exposed West Africans to different incarnations of terrorism. The recent intensification of terrorist attacks in the region, particularly following the escalation of the Niger-Delta conflict in Nigeria and the resurgence of Boko Haram in the same
Nigeria, as well as the occupation of northern Mali by terrorist groups in 2012, have alarmed the entire global community. These developments have exposed the fragility of West African states and the profound threat that terrorism poses to peace, stability, development and territorial integrity. In addition, terrorist groups in the region have tended to form alliances with al-Qaeda and likeminded groups, as well as with transnational criminal networks such as drug traffickers and arms smugglers. In the light of these circumstances, there is an urgent need to prioritise preventive measures.
It is in the context of these considerations that the Declaration and Strategy were adopted. The Declaration and Strategy constitute the first major ECOWAS policy framework documents adopted specifically to deal with the problem of terrorism. In the Strategy, member states unequivocally condemned terrorism and related offences such as incitement to and financing of terrorism and as well, horns in, the principle that a terrorist attack in one member state constitutes an attack on all. It addresses the threat of terrorism resting on three main pillars: Prevent, Pursue and Reconstruct.
According to Ewi, a senior research fellow at the African Institute of Strategic Studies
(ISS) in Pretoria, South Africa, the second pillar emphasizes and promotes a rule-
32 The new ECOWAS Counter-Terrorism Strategy and its implications for West Africa
Some of the major features of the Strategy include: ECOWAS Counter-Terrorism
Coordination Unit; ECOWAS Arrest Warrant; and ECOWAS Black List of Terrorist and Criminal Networks. The Strategy also calls for the adoption of an ECOWAS
Counter-Terrorism Training Manual. In the opinion of Ewi, ―If operationalised, the
ECOWAS Arrest Warrant, for example, will strengthen cross-border cooperation among law enforcement agencies and eliminate safe havens for terrorists and other criminals. In particular, it will enable ECOWAS states to pursue terrorists across borders and so help prevent a Mali-like crisis in neighbouring countries.‖34
3.6 Organisation of American States (OAS)
Terrorism continues to be one of most critical threat facing both the Western
Hemisphere as well as the entire global community. The OAS and its member states have, therefore, developed comprehensive policies to work together closely in order to combat the threat of terrorism in the hemisphere. The Inter-American Convention against Terrorism adopted on June 3, 2002 by AG/Res 1840 (XXX 11-02/02), seeks to prevent the financing of terrorist activities, strengthen border controls and increase cooperation among law enforcement authorities in different countries.
The OAS in their resolve to combat the menace of terrorism establishes the Inter
America Committee in Terrorism (CICTE) which plays an important role in carrying out efforts for the purpose of combating terrorism. The main purpose of the Inter-
American Committee against Terrorism (CICTE) is to promote and develop cooperation among member States to prevent, combat and eliminate terrorism, in
33 A. M. Ewi, The New ECOWAS Counter-Terrorism Strategy and its Implications for West Africa 13 March 2013
Convention Against Terrorism, and with full respect for the sovereignty of states, the rule of law, and international law, including international humanitarian law, international human rights law, and international refugee law.
It is necessary to observe that the Inter-American Convention against Terrorism adopts most of the major anti-terrorism instruments of the United Nations earlier mentioned in the previous chapter, and consequently makes them applicable to member states signatories unlike the Arab league convention which chose just a few.
For the purposes of establishing offences covered under this convention, it departs from providing a definition and towards adopting the terrorist offences established under these major anti-terrorism UN instruments referred above. The Convention while recognising terrorism as a criminal phenomenon, builds its anti-terror model on a tripod of prevention, combat and elimination, while respecting human rights, rule of law and fundamental freedoms. Giving the more established economic and banking practices of the hemisphere, it emphatically requires member states to cooperatively work to prevent, combat and eradicate the financing of terrorism which may include robust regulatory domestic banking regimes which may involve seizure of funds and assets of terrorists and their networks, border control measures, denial of asylum and refugee applications, and stringent money laundering regimes.
3.7 The Problem of Policing and Prosecution of Terrorists There is a fact which is almost indisputable so far in our study of terrorism. That fact is that there is universal condemnation of crime of terrorism even in the absence of any unanimous definition by states and international organisations. Even if one leans on the universality of the concept of terrorism, any reference to who a terrorist is or what a terrorist threat represents depends on who you are talking to in some respect. 148
This explains the background behind the exclusion of some seemingly terrorists‘ organisations and nationalist struggles especially in the Arab world and some parts of
Africa with terrorist tactics as outside the domain of terrorism. The inclination of this research is to police terrorism through the identification of acts or activities that constitute terrorism. This is equivalent to hunting the lion by following his footmarks and antecedent, otherwise, the lion might be very difficult to track in the jungle.
Police work is essentially a domestic law affair although the current trend especially with respect to terrorism being a trans-boundary crime in the way and fashion it presents itself; an increasing cooperation work between states and regions might mean a more effective police action. An effective police action against terrorists or its threats must begin therefore with a domestic law definition of terrorism. The major functions of this definition according to Young35 include: to provide for a designation process whereby persons or entities are certified as a terrorist or a terrorist organisation. The second function is to identify the elements of many terrorist offences. The third function is to allocate responsibility within the government as to who has the role to police terrorism. The fourth function is to delimit and legitimise the nature of response to the problem. Of more concern to us here is the first and the second. The first is important because it would be a chase of the wind to conduct a police action without clear identity of the criminals. Hence Young concludes that,
―Such a designation often permits asset seizure or freezing of assets, heightened monitoring, questioning and detention.‖36 The second function which focuses on the elements of the offence of terrorism serves to provide clear information regarding the constituent components of the unlawful conduct.
35 Rueven Young, ‗Defining Terrorism: The Evolution of Terrorism as a Legal Concept in International Law and Its Influence on Definitions in Domestic Legislation‘, Boston College of International and Comparative Law Review, (Vol. 29), (Issue 1) 69. 36 Ibid. 149
The invasive nature often associated with policing terrorism (mere because of the carnage it brings to communities), as well its trans-boundary effect, awakens the sensitivity and the sensibilities of persons, scholars as well as organisations to the measures often adopted by states to counter it. Sometimes it relates to who has jurisdiction to prosecute those accused of terrorism, sometimes, it relates to the nature of evidence adduced or expected in order to convict or the nature of treatment given to those detained for terrorism related offences. It is therefore important to have clear parameters of the concept of terrorism and what constitute terrorism in order to protect the public as well as facilitate the apprehension and punishment of terrorists.
The existence of the known parameters also enables the law enforcement mechanism to make proper distinction in relation to other forms of organised crime, short of terrorism.
The essence of counter terrorism measures is not just to capture, prosecute and punish terrorists. It is essentially to prevent it, otherwise understood, terrorism would never be eliminated because the injury associated with terrorist attacks would have taken place and policing the culprits would seem like a medicine after death. It is more important to capture them before they attack, than it is to capture and punish them after they have attacked more so where the currency of terrorism presents itself in suicide attacks and person willing to attack others to the point of sacrificing their lives. There is therefore more credit in police action against terrorism where the focus is to prevent and frustrate any future plans to commit a terrorist act. The problem with this approach is that it requires more use of complex intelligence policing than meets the eye which is lacking in many places like Nigeria where terrorism is common placed. Europe and other regions of the western hemisphere are also grappling with terrorism but the type that was perpetrated on 9/11. 150
Today‘s concern is that of home grown terrorists who have radicalised and that of foreign terrorist fighters and radicalized extremists travelling to and from Syria/Iraq, with clear allegiance to known terrorist‘s organisations. The problem posed by this currency is that they possess the capacity to travel un-detected as to their intention, with American and European passports aiding and abetting their evil intention. What is even more worrisome is that the recruitment into many terrorists network is no longer by physical interaction as in the days of Al Qaeda, but more by internet and social media mechanism. Counter terrorism police networks like the Interpol are therefore focusing their energies on the use and benefit of modern communication technologies that facilitate recruitment and spread of terrorist messages and ideologies. In this connection, the cooperation and exchange of information among police organisations cannot be underestimated in the current fight against terrorism.
According to the Newsletter of the Counter Terrorism Implementation Task Force of the United Nation, this exchange of information is designed to promote the dismantling of networks and to frustrate their travel to and from conflict zones.37 This newsletter highlights that given the sophisticated use of modern communication technologies and the currency of foreign terrorist fighter, that no country can counter the phenomenon alone. In the face of the spread of violent extremism giving rise to more frequent terror attack in Europe and Africa, the UN Security Council Resolution
217838 calls on member states to engage local communities and non-governmental actors to develop strategies for countering violent extremism. It advocates for the empowerment of families, women, religious and cultural leaders and civil society to tackle the conditions conducive to spread of violent extremism. Herein, the UN draws
37 Newsletter of the Counter Terrorism Implementation Task Force (CTITF) of the United Nation, The Beam,[fall 2015], Vol. 9. 38SC/Res. 2178 (2014). 151 attention to some of root causes of terrorism which may extend to social, economic and political factors not being addressed in many anti-terrorist measures.
The UN endeavors to provide assistance to and cooperation with governments with serious issues of terrorism for the purpose of providing technical assistance to counter the new sources of insecurity being exploited by terrorist networks. What the UN does through its CTITF is maximise policing of terrorists by providing capacity building assistance in the area of adopting new technologies to face the increasing sophistication of terror attack. A terrorism sensitive law enforcement needs therefore to strengthen its capacity to adapt to new technologies available to track and monitor the activities of suspects in the physical and cyber space, raise awareness and develop narratives to counter radicalization and violent extremism which lead to modern day terrorism.
The greater part of criminal law is established and enforced under the national law of individual states. While it is generally recognised that many terrorist acts fall within the jurisdiction of the domestic law for prosecution purposes; it is not out of place that in the light of several forms of conflict and the development of humanitarian sensitivity of modern international law, a body of international criminal law has emerged in the light of which international law has come to prescribe certain acts as crimes in some of its instruments. In the same vein, it has also developed procedures thereto by way of tribunals established to try certain defined crimes. These crimes have to be regarded as international crimes and regulated by the developing system of international criminal law. In the light of the need to advance the system of
International criminal law, the international system has also established the
International Criminal Court (ICC) to try such named crimes defined under the statute of International Crime. International criminal law therefore includes those aspects of 152 substantive international law that deal with defining and prosecuting and punishing international crimes as well as the various mechanism and procedures used by states to facilitate international cooperation in the investigation and enforcement of national criminal law. However, international law has defined a few crimes prescribing only crimes generally viewed as serious threat to the interests of the international community as a whole or to its most fundamental values
In many instances where serious crimes that threaten the interests and values of the international community, it sets up ad hoc Criminal Tribunals, defines its power and jurisdiction enabling it to try and punish such international crime. This is reason for the creation of ad hoc International Tribunal for the Former Yugoslavia (ICTY)39 and
Rwanda (ICTR). ICTY was established to try persons responsible for serious violations of international humanitarian law ( Breaches of Geneva Conventions (laws of war- Jus in Bello), genocide, war crimes and crime against humanity) committed in that territory during the armed conflict in the former Yugoslavia. The tribunal is located in Hague, in the Netherlands.
The international Criminal Court for Rwanda was established by the UNSC
Resolution 95540 in 1994, to prosecute persons suspected of Rwandan Genocide and other serious violations of international law in the territory of Rwanda and nearby states during the Rwandan conflict. It is located in Arusha, Tanzania. Before it was disbanded and its role taken over by the ICC, the tribunal succeeded in trying about
50 cases and handing down necessary punishments to convicted persons.
Recognising that the pursuit of international criminal law on ad hoc basis has not been very satisfying for want of very clearly defined norms, the UN established its
39 About the ICTY,
Statute).
A great deal of our argument has established that terrorism is first and foremost a matter for domestic law enforcement hence the penchant for many resolutions of the
United Nations requiring states to create comprehensive regimes for anti-terrorism.
Again, the UN itself recognises that the cardinal principle of international law is sovereignty of states which entails each state‘s jurisdiction over its own territory and citizens. Following this understanding, states have also enacted their various anti- terrorism law with a definition which although may differ in specifics with other definitions in some international documents but have the major elements of terrorism which are the use or threat of use of violence, indiscriminate targeting of civilians and political purpose.41 The individual states naturally assume the first obligation to prosecute crimes of terrorism as defined under their domestic national laws. But the question is whether this duty excludes the jurisdiction of international criminal law?
Before proceeding to answer this question, it is important to establish that the international community has vested interest in the prosecution of individuals suspected of committing acts of international terrorism for the reason that since 9/11, the scale and methods of crimes of terrorism has exponentially multiplied and drastically changed respectively. Unfortunately, there is no forum in international system to specifically deal with the prosecution of crimes of terrorism. Although there have been a number of legal measures from the international community to suppress terrorism, it has failed to exploit critical opportunities to extend and bring terrorism
41A. Cohen, Prosecuting Terrorist at the International Criminal Court: Re- evaluating the Unused tool to Combat Terrorism,Michigan State International Law Review, [2012]Vol. 20.2, 219-257. 154 into the ambit of international criminal law. Some of the transnational terrorist attacks were adequate to attract the establishment of special tribunals like the likes of
ICTY or ICTR in order to prosecute the suspects. Some of these examples include the massacre of Israeli Athletes in the 1972 Munich Olympic Games where eight
Palestinian members of the terrorist organisation- black September took hostages and later murdered eleven Israeli athletes.
Also, there was the Pam- Am flight 103 bombing which exploded over Lokerbie,
Scotland killing all the persons on board. Investigation revealed the involvement of
Libyan government and Libyan intelligence personnel. Libya later surrendered two suspects who were tried under Scottish anti-terrorism criminal law and admitted responsibility for the attack and began paying reparations to the families of the victims.
Again, the terrorist attack of September 11, 2001(9/11) which was the largest in history, took the United States into armed conflict in Afghanistan leading to the capture of many persons linked to Al Qaeda, the terrorist network responsible for the attack.
Regrettably, the response in each of these events was different. It ranged from a single state operating in covert operation, to international sanctions mechanism, to full scale war. In the absence therefore of an ad hoc tribunal for the trial of these suspects of these terrorist incidences by the International Community which would have been welcome given the outrage associated with them, the window available for their prosecution where national courts are inept, was to invoke the jurisdiction of ICC, even though it entered into force in 200242, much later after these offenses have been committed. Thus, even if these acts were committed after 2002, following the Rome
42 Rome Statute ICC, Art. 11- The Court has jurisdiction only with respect for crimes committed after the entry into force of this statute. 155
Statute, ICC may not expressly assume jurisdiction because it does not expressly have jurisdiction to entertain crimes considered acts of terrorism although it does not expressly exclude it. Under the Rome Statute, the ICC does not have jurisdiction over acts of terrorism as a distinct offense simply because the proposals to include it, was rejected by majority of state parties during the negotiation because of lack of any unanimous definition of what constitutes terrorism.43
Cohen argues that the lack of acceptable definition should not stand in the way of employing a workable definition and move along with the prosecution of terrorists in the ICC. Article 5 of the Rome Statute of ICC provides for the specific crimes within the jurisdiction of the court. These crimes include the crime of genocide,44 crimes against humanity,45 war crimes46 and the crime of aggression. As terrorism become more international in nature with more disastrous results, there is a growing need for an international cooperation to combat it not only in the realm of policing but also in arena of prosecution. Since the Rome Statute indicates clearly in its Article 1, that ICC will exercise jurisdiction only for the most serious crimes of international concern47, it is being proposed notwithstanding that the ICC will often defer to national jurisdictions as indicated in Art. 17,48 nothing precludes the ICC from assuming jurisdiction to entertain terrorist crimes brought to it under the crimes of genocide in Article 6 and crimes against humanity in Article 7 bearing in mind that the crime of terrorism is most talked about phenomenon in international criminal law.
43 D. A. Mundis, Prosecuting International Terrorists, Paper presented at the Seminar on International Law and Terrorism, Sept. 24-26, 2002 organised by International Institute of Humanitarian Law in co- operation with George C. Marshal Centre, 223. 44Rome Statute ICC, July 17, 1998, art. 6. 45 Ibid art. 7. 46 Ibid art. 8. 47 Ibid art. 1. 48 Ibid art. 17- ICC can gain jurisdiction only when domestic legal systems are unwilling and genuinely unable to carry out an investigation or prosecution of an accused person. 156
The elements of these crimes are so to say on all fours with the common element of terrorism as practiced by modern forms of terrorism propelled by religious extremism.
However, in any event, the jurisdiction will be limited to natural persons since ICC is precluded from entertaining claims against a state.49 The less complicated road will not be to include terrorism as independent crime within the jurisdiction of ICC, but to expand the interpretation of the existing provisions notably Article 1, Article 6 and 7, and extend the jurisdiction of ICC to include terrorism as part of the existing crime under the jurisdiction of the ICC. Employing the purposeful interpretation rules for treaties and legislations, Article 1, expressly indicates that the purpose for the establishment of ICC was for the prosecution of most serious crime of international concern. Terrorism is at that threshold and nothing precludes its inclusion as an existing crime within the established crimes under ICC jurisdiction as already argued.
The major contribution of the preceding section was to provide an international framework under the auspices of the UN for counter terrorism. However, as was seen, the UN counter terrorism became the platform for eventual counter terrorism engagements as subsequently seen in the regional initiatives of the EU, AU,
ECOWAS, ARAB LEAGUE and OAS. In addition, the chapter underscored some problems associated with policing and prosecuting people accused of terrorism under international law citing the inability of the ICC to assume jurisdiction for lack of unanimous definition of terrorism amongst states because of political undertones associated with certain species of terrorist acts.
3.8 Counter-Terrorism Response Models 3.8.1 The Rule of Law Model The adoption of written constitution amongst states was a clear index for the disapproval of dictatorship in all its forms. In the medieval and post medieval period
49Ibid, art. 25 157 there were monarchs in almost all Western Europe who operated under the theory of divine right of Kings. They believed themselves to be divinely instituted, they established the laws that govern the people, but they themselves are above the law and cannot be compelled to obey the laws they have made. In many instances, these monarchs were dictators and therefore ruled by force and intimidation, since they can make and unmake the law.
However, when democracy and the rule by representation became the norm acceptable to a greater number of states at the beginning of 19th century and further developed in the 20th century, no one person was the repository of the law, but the entire elected assembly. Laws were then made which regulated people‘s relationship with one another and the state. This was the evolution of the rule by law rather than by the whims and caprice of one person or family. Later, the transition was made from the rule by law to rule of law, when states began to place emphasis on certain principles like equal access to the court of law, human rights, restraint on the sovereign and predictability in the legal system. In this light, democratic theorists placed significant emphasis on the rule of law as a crucial component of effective democracy wherein rulers are bound to follow established procedures and legal rules which significantly constrain their personal discretion.
Thus understood, rule of law emphasises consistency any less than substantive content. The primary role of the rule of law is to impede tyranny and is designed to protect against arbitrary intrusions on individual liberty. The rule of law also requires that schemes of repression and restraint on people‘s liberty be implemented openly rather than pronounced by a ruler. The implication of this is that rulers must act according to legal procedure, which means they must rule through legislature and the courts. Willingness to abide by the law is pivotal to the concept of the rule of law. 158
The rule of law therefore is powerful means of legitimizing authority, which is why under certain circumstances it serves the dictators as well as democrats. In this light,
Tamanaha remarks as follows: ―The historical rule of law tradition, with its emphasis on restraining state tyranny, would indicate that formal legality should apply at least in those areas subject to severe government coercion that is at a minimum in the context of criminal punishment.‖50
Aristotle proceeding from naturalistic origin of state imagined the state as composed of individuals ruled by law: ―It is evident that the state is a creation of nature and that man is by nature a political animal. And he who by nature and not by accident is without a state, is either a bad man or above humanity; he is like the tribe less, lawless and heartless one.‖51 Aristotle herein argues from natural law that the human society is meant to be composed of law minding persons. These persons are naturally conscious of the fact that a lawless state is a non- existent entity, since man belongs to the state by nature for sake of his specific end. The purpose of the regulations or law in the state is to enable the rulers of the state to secure the general end of the citizen which is good life. It must be understood that Aristotle goes beyond formal legality to include substantive legality, in the sense that rule of law must include some measure of morality and goodness in its content.
In the light of this, Thomas Aquinas defines law as ―an ordinance of reason for the common good and made by him who has care of the community and promulgated.‖52
The social contract theorist, notably, John Locke developed the theory of social contract53 to describe the relationship that exists among the members of a given
50B. Tamanaha, On the Rule of Law: History, Politics and Theory (Cambridge University Press, 2004) 97-98 51 Mckeon Richard (ed), The Basic Works of Aristotle, „The Politics‟, bk1ch.2, ( Modern Library New York, 2001) 1129. 52 Bigongiari Dino (ed), The Political Ideas of St Thomas Aquinas, (Hafner Press New York, 1953) 9. 159 society who have surrendered their liberties and have given up certain freedoms to the sovereign in exchange for a reasonable protection. In many modern states, this social contract is embodied in the constitution. Locke concludes that ―whosoever has the legislative or supreme power of any common wealth is bound to govern by establishing standing laws, promulgated and known to the people, and not by extemporary decrees; by indifferent and upright judges, who are to decide controversies by those laws…‖54 The supreme power can however rest on a person who is referred to as the sovereign, bound to follow established procedures and legal rules.
The social contract theory of John Locke provides a political justification for why people subject themselves to the sovereign and not to the uncertain rule of the state of nature. The social contract theory provides the theoretical atmosphere for the development of the rule of law in modern democratic practice. The rule of law is designed primarily to protect against these arbitrary intrusions on individual liberty by the sovereign. The rule according to contemporary understanding means that:
Government in all its action is bound by fixed rules and announced beforehand-rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan individual affairs on the basis of this knowledge.55
In the contemplation of the rule of law tradition, the restraint on tyranny of the sovereign,
53 The social contract theory of Locke is represented as follows: ―But though men when they enter into society, give up the equality, liberty, and the executive power they had in the state of nature, into the hands of the society, to be so far disposed of by the legislative, as the good of the society shall require yet it being only with an intention in every one the better to preserve himself his liberty and property;(for no rational creature can be supposed to change his condition with an intention to be worse) the power of the society, or legislative constituted by them, can never be supposed to extend farther than the common good; but is obliged to secure every ones property by providing against those defects…that made the state of nature so unsafe and unease‖ see,Laslett Peter (ed), Locke: The Two Treatise of Government, Cambridge, University Press) 353. 54P. Laslett (ed), Locke: The Two Treatise of Government, (Cambridge University Press, 1960) 353. 55W. Scheurerman , Economic Globalization and the Rule of Law (1999), Constellations, Vol.6, No 1,4. 160
…went beyond the idea that the government must enact and abide by laws, to include the understanding that there were certain things the government or sovereign could not do. The limits imposed by law were substantive, based upon natural law, shared customs, Christian morality, or the good of community.56
In line with Dicey‘s57 elaborate analysis of the Rule of law, intellectual convention have defined the rule of law as requiring that a state action rests on these legal norms:
1) general in character 2) relatively clear 3) public 4) prospective 5) stable.58 The requirement of the generality of law occasioned by the rule of law principle taps into the theory of legal rationality espoused by Max Weber. In Weber‘s analysis of law in a modern state, he introduced the basic concepts of formal and substantive rationality of law. For Weber,
The legal order is rational to the extent that it represents an integration of all analytically derived legal propositions in such a way that they constitute a logically, internally consistent and at least in theory, gapless system of rules, under which it is implied, all conceivable fact situation must be capable of being subsumed lest their order lack an effective guaranty.59
While formal legal rationality of law refers to the systematic character of legal order, substantive legal rationality operates when the decision of legal problems is influenced by norms like ethical imperative and expediential rules, different from those obtained through logical generalization. Weber‘s emphasis on logical rationality
56 B. Tamanaha (n.50), 96. 57 Albert Venn Dicey (Feb.4, 1835-April 7, 1922) was a British jurist and constitutional theorist who wrote ‗An Introduction to the study of Law of the constitution (1885).In this his first but major work, Dicey warned that freedom was under attack by modern incursions against the Rule of law. He summarized the rule of law under three heads: 1) the absolute supremacy or predominance or regular law as opposed to the influence of arbitrary power; 2) Equality before the law or equal subjection of all classes to the ordinary law of the land administered by the ordinary courts; and 3) The law of the constitution is a consequence of the rights of individuals as defined and enforced by the courts. see alsohttp://en.wikipedia.org/wiki/Rule_of_law . 58Scheuerman (n.50). 59 Gary Boucock, The Specific and Particular Rationalism of Modern Authority: The Problematic Relation between Modern Freedom and Domination, In G.Boucock (ed), In the Grip of Freedom: Law and Modernity in Max Weber (University of Toronto Press, 2000) 42. 161 makes for a high sense of stability and predictability in the legal order. It diminishes the probability of extrinsic elements attaining significant influence on the legal order.
According to Weber‘s analysis, ‗where juridical formalism prevails, the procedure of a lawsuit becomes a peaceful contest bound to fixed rules of the game…thus the formal rationality of the law guarantees only the formal rights of the interested parties‘60 The unbridled emphasis on formal legality by Weber must not be understood to mean that he relegated the place of substantive legality in the society.
He was rather more concerned with the economic order in the society, much less the political order. Thus for him, as concerns the economic order, it suffices to have formal legality.
The guarantees of the principle of rule of law as obtainable in many modern democracies and indeed in international law must be understood to include the guarantees of the formal and substantive rationality of law. If anything, both provide a reasonable assurance for a gapless legal system, where individual rights and obligations are stipulated much more in generalizations than in particulars; and the preponderance of arbitrary authority is considerably in its lowest ebb.
In respect of law of war, conduct of war and human rights in all circumstances, the principle of rule law has further been extended from domestic corridors to international ambience.
The Nuremberg trial of War criminals following the horrible events of the 2nd world war demonstrates the initial commitment of states to the applications of acceptable human rights and humanitarian standards. In the area of human rights, there have developed several legal instruments for which states have committed themselves under treaties in the international scene, not only to promote human rights but also to
60 R. Bendix, Max Weber, An Intellectual Portrait, (University of Clarendon Press London 1977) 399. 162 cooperate with their international enforcement. The ICTY, the ICC, the Pinochet trial, the Slobodan Milosevic prosecution, and the trial of Charles Taylor of Liberia speak volumes to the accountability of state leaders to violations of the rule of law, especially as it affects human rights.
In the light of these developments, one can speak of international rule of law.
International rule of law in this sense would mean, the effort of states to adopt rules and regulations meant to measure their commitment to international value system in many areas of common international concern that affect human existence. The implication of this state of affairs is that when states who are primary subjects of international law under the post Westphalia dispensation advertently violate the standards and values contained in international regulations (customary law and treaty obligation), they are indeed casting a slur on the international rule of law and undermining the legitimacy of international law.
However, the difficulty of conceptualizing international rule of law becomes apparent when one reflects that the obligation to obey international rules is more of a political question than legal. The theory of the sovereignty and independence of states, (an inviolable rule in the Westphalian system), when pushed to its limits stands out as defense for the choice to obey or disobey international legal regulations. However, if states can lay claim to this international principle to secure a privilege, it is worthwhile too, that they ought not to be selective of other principles that create obligations, especially where those obligations are customary in nature. Today, when international lawyers discuss international rule of law, they often do so in the context of attitude of states to their international human rights obligations. Incidentally, it is most developed area of international law, and yet the most controversial and most commonly violated by states. 163
The events of 9/11 and the prevalence of terrorists in armed conflict created an opportunity for the true test of international rule of law especially in respect of international human rights compliance by super-powers. The post-world war policy of the international community reaffirms this commitment to the rule of law in the international arena. In the words of Purvis, ―…the devastation wrought by the two world wars elicited a new found dedication on the part of the international community to the idea that international relations should be governed by law and not by dictates of power and force.‖61
In the 2002 National Security Strategy of the US, the Bush administration reaffirmed its resolve to promote human dignity and the Rule of law, which includes its obligations under international law.62 But as has been argued by Trevor Purvis, the defense of the rule in this case is focused on the advancement of the US interests as is evident in the unilateral prosecution of the war against terrorism and the treatment of persons captured during the offensive against terrorism in various parts of the world.
Trevor concludes that:
The tenor of principal statements of American foreign policy since 9/11 suggests an administration myopically focused on a world ordered in accordance with US interests and undermines any assertion that its pursuit of those interests via the Bush doctrine can be squared with a remotely defensible concept of international law. For all its attendant talk of the rule of law, democracy and good governance, the present administration has shown itself quite content to engage in egregious violations of international law and severely to trample the human rights and civil liberties of its citizens and resident aliens, let alone those of foreign states and their citizens.63
Nevertheless, the rule of law on the international scene would become a mere postulate if its dictates are violated or subjected to the interest and security whims of states as we find in the theory of unlawful enemy combatant conjectured by the
61Trevor Purvis, Looking For Signs in an International Rule of Law, (Unpublished Essay)128. 62 The National Security Strategy of the United States Of America (Sept, 2002) 3. 63 Trevor Purvis ( n.61) 140. 164
American government to qualify the prisoners of aftermath of 9/11.The Authorized
Use of Military Force (AUMF) passed by the US congress in 2001 following
September 11 attacks was the basis for President Bush‘s exercise of unilateral authority to classify all non-citizens reasonably believed to be al Qaeda members or have participated in the terrorist activities as enemy combatants. These persons mostly held in Guantanamo prison are to be tried by the military commissions or detained indefinitely and perhaps for life until the President himself determines that the global war on terrorism has ended. Following the US Supreme Court decision in Hamdan v
Rumsfeld64 which was among the cases that went to court, the Military Commissions were held to be illegal and unconstitutional since a congressional approval was needed and it violated the procedural requirement of the 1949 Geneva Convention
(GC). In this case, the SC ‗Ratio Decidendi‟ manifested its tenacity to the rule of law in domestic and international fora.
Bob Yates has this to say: ―The Hamdan decision by the majority is clearly a historic support for the rule of law in American military and criminal law systems… including international law obligation.‖65
In October 17, 2006, the President signed into law the already passed Military
Commission Act (MCA) 2006, empowering the president to legitimize the violations of liberty and dignity of a great number of the detainees in Guantanamo prison. The
MCA 2006 was apparently in violation of a number of fair trial provisions which are substantive inalienable rights under the International Bill of rights and the Geneva
Conventions (GC). In the overall analysis of the new law, it was intended discretely to undo all the positive recommendations for protection of the rights of the ‗enemy combatants‘ achieved in the Supreme Court decision in Hamdan v Rumsfeld.
64Hamdan v. Rumsfeld, 548 U.S. 557 (2006) 65 Bob Yates, From Hamdan to ―Unlawful Enemy Combatants‖: The Military Commissions Act, The Chicago Lawyer, (Law Bulletin Publ. Co.), Nov. 2006. 165
Considering that the US is bound by a number of international covenants including the Torture Convention, the GC and the International Covenant on Civil and Political
Rights, their counter-terrorism operations raise lot of questions for their acclaimed allegiance to rule of law ( at the substantive end) and for international law in general.
In defense of their wanton neglect and disregard for human rights and humanitarian law, they regarded the circumstances warranting such disposition as a ‗state of exception‘ that demands special regime for its regulation.
Arguably, the American government employed this theory of ‗exception‘ as a national excuse to justify any derogation from acceptable international rule of law or conduct.
Such states of exception may include the nature of which the US and the rest of the world find themselves since the events of September 11 attacks. Regrettably therefore, the doctrine of ‗Enemy Combatants‘ advanced by the US to address the conflict with terrorist post 9/11, cannot stand the test of any legal analysis using the narrative of the rule of law which represents the post-world war paradigm of the international community.
Advancing the position that the armed conflict with the al Qaeda insurgents was an unprecedented situation unknown to international law, justifying the violation of the human rights of those combatants in Guantanamo or Abu Ghraib and violation of the laws of war on the pretense of state of exception may still not be tenable. Max Weber appears to provide a justification for the need for special regulation in times of war.
He avers that:
In time of wars, the powers of a leader are much greater than those of a judge or law prophet or priest in times of peace. A conquering war leader can readily increase his authority at the expense of tradition, because war disrupts the existing social order and so proves that tradition is not in fact inviolable.66
66 R. Bendix (n.60) 396. 166
In the context of our discussion, the concept of the rule of law obligates states involved in conflict, international or non-international not only to properly grant legal status to combatants within allowable provisions of the law, but also to determine their rights in the light of domestic laws of the state involved applying at the same time guidelines stipulated by laws of the war and humanitarian principles. Thus as asserted:
One of the measures individual states could adopt to enhance respect for international law, was the recognition within the national legal system of the principle of the primacy of international law over national law and the obligation for all organs of the state to ensure, within the limits of their competence, that national law was in line with obligations of international law.67
The purpose of this is to achieve fairness and promote justice even in the prosecution of combatants whether they be insurgents or otherwise. Indeed every armed conflict recognizable under the law must be adjudged in the light two legal regimes, namely: domestic law enforcement principles and international law of war. None must be seen to compromise the other. On the face of it, the ‗theory of enemy combatant‘ indeed rendered or relegated the international laws of war as subsidiary to national security interests.
If the rule of law was to prevail in international law, powerful states should as much be ready to be accountable to a number of their domestic security policies that trump international rules, in the present case, the international humanitarian laws of war and accepted human rights standards under international law. Thus, response to events such as international terrorism must take into account the existing international legal rules. Such line of conduct will not only enhance the greater legitimacy of
67US Fed News, Countries Describe Relevance For Them of Rule of Law as Legal Committee Begin Debate on National, International Implications, October 17, 2006. 167 international law among developing countries, but would also lend credibility to the claims of the aggrieved party.
3.8.2 The War Model: Between National Security and Liberty Since 9/11, the struggle against terrorism is understandably unique in several ways as a result of the sheer scope and number of attacks witnessed in many parts of the world. There is upsurge of pressure for states to resort to extraordinary counter- terrorism measures necessary to re-establish national security. The campaign against terrorism has pitched the struggle to advance national security against the day to day constraints of the law intended to preserve guaranteed rights of criminals masquerading as terrorists. The war model concludes that contemporary actors of terrorism bear the distinctive warlike features reflecting internationally coordinated attacks of enormous destructive effect. The consequence of such attack is that adequate response from affected states must be framed in terms of highly militarized measures in the worst case or sophisticated law enforcement measures to say the least.
Thus, in the light of new challenges posed by contemporary forms of terrorism, the idea of global war on terrorism would seem to be the new appropriate rhetoric considered suitable to confront the unprecedented challenge. Dinah Pokempner remarks on the rationale of the War model when he suggests that, ―This war is asserted as necessary because law enforcement is portrayed to be an inadequate response.‖68 The war paradigm as the appropriate response to terrorism can be historically traced to the so called Shultz doctrine which has come to dominate the
United States policy on anti-terrorism and which later transformed into the Bush doctrine following response to 9/11 attacks by the U.S Bush led government.
68 D. Pokempner, ‗The New Non State Actors in International Humanitarian Law‘,[2006] 38, George Washington International Law Review Geo. Wash. Int‟l L Rev. 551@ 553. 168
The approach adopted by Mr. George Shultz is instructive at this juncture. He was a former United States Secretary of State who on confronting the growing frustration over the inability of the United States to effectively counter the accelerating frequency and violence of terrorism attacks in the 80‘s, advocated that the U.S must be ready to use military force to fight terrorism and retaliate even before the facts are known. He predicted that the increased terrorist attacks against U.S strategic interests around the world in the years ahead would necessitate a willingness to combat it using military force.69 The implication of this approach is that there is broad right of states to use force against terrorist threats at home and in foreign countries. Shultz advocated the use of military force not only against terrorists but also against states that support, train and harbor terrorists.
The official flashing of this war paradigm was on January 15, 1986 when in a speech at the National Defense University, Mr. Shultz stated as follows: ―A nation attacked by terrorists is permitted to use force to prevent or pre-empt future attacks, to seize terrorists or to rescue its citizens, when no other means is available.‖70 While the U.S was developing a theoretical framework for the war model of anti-terrorism, Israel was actively putting into action the tenets that underlie this doctrine with its regular military offensive against terrorism in and beyond its borders in Lebanon, Syria, and
Iraq and Palestinian territories. The flagrant demonstration of this philosophy can be found in no other clear incident than the bombing of the Palestinian Liberation
Organisation (PLO) headquarters located in Tunisia on October 1, 1985. Israel claimed that they were responding to alleged terrorist attacks by the PLO.
69 J.N. Maogoto, Walking an International Law Tightrope: Use of Military Force to Counter Terrorism- Willing the Ends, 31 Brooklyn J. Int‟I L 405 @431. 70 G. Shultz, U.S Secretary of State, Low Intensity Warfare: The Challenge of Ambiguity, Address before the Low Intensity Warfare Conference. (Jan. 15, 1986), in 25 I.L.M. 204, 206 (1986). 169
To make good its new policy, following the bombing of Le Belle Discotheque in
West Germany on April 5, 1986, a popular spot for off duty American service men and women by terrorists suspected to be Libyan sponsored, President Reagan responded to this threat by bombing military targets in Tripoli and Benghazi on April
14, 1986. In defence of this attack against another sovereign interest, he relied on the self defence exception under Article 51 of the UN Charter as the legal basis for the attack. Again following the Bombing of U.S embassies located in Kenya and
Tanzania in August 7, 1998, the Clinton led administration responded on August 20,
1998 by launching several cruise missiles from U.S warship directed at Al Qaeda training camps in Afghanistan and Sudan, with the explanation that the strikes against the terrorist related facilities in those locations were necessary because of the imminent threat they presented to the U.S national security. Like Reagan, Clinton justified its response by claiming that the strikes were justified under the inherent right of self defence consistent with article 51 of UN Charter. However both the
Israel‘s attacks as well as that by the United States of America were vigorously condemned by the International community as contrary to international law, describing them as acts of aggression and unable to meet the threshold of self defence exception under article 51.
Furthermore on 11 September, 2001, a band of terrorists believed to be part of al
Qaeda carried out the worst terrorist attack in modern times. This attack was widely condemned by UNSC who however acknowledged that new strategies are to be developed for the new realities of terrorism.71 Following these declarations, President
Bush declared in no mean words signaling a clear anti-terror paradigm that would be discussed for decades in these words: ―Our war on terror begins with al Qaeda, but it
71 Valeriy Kuchisky, Ukrainian Representative to the United Nations Security Council, U.N SCOR, 56th sess., 4370th mtg at 3-4, U.N. Doc. S/PV. 4370 (2001). 170 does not end there. It will not end until every terrorist group of global reach has been found, stopped and defeated.‖72
Amidst a swell of international support,73 and in resort to the claim of self defence, military action was launched in Afghanistan as a pre-emption of further attacks by terrorist based in that state and subsequently in Iraq as belonging to the axis of evil in support of terrorism and for possession of weapon of mass destruction which could be handed to terrorists for use against American interests. Expanding on the strategic aspects of the doctrine, President Bush echoed that there was need to take the battle to the enemy, disrupt his plans and confront the worst threats before they emerge.74 On these strides, The Bush doctrine was clearly premised on a war approach against the menace of terrorism and therefore was strong advocate of pre-emptive and preventive strikes against terrorists and states that support terrorists, a strategy permissible under international law on the strength of self defence exception under Article 51 of the
UNC, given the blanket prohibition of the use of force by states under article 2(4) of the UNC. The post 9/11 new aggressive war campaign against terrorism, although began with multilateral condemnation of terrorism, did not sustain that support because of the eventual unilateral decision regarding the details of that war especially in Iraq as well as in the treatment of the detainees in the course that conflict.
It is however necessary to address the question of justification of the war that ensued after 9/11, given the general prohibition of the use of force in international relation of states, and the circumstances that states faced with terrorists. The United States argues
72 George W. Bush, Address to a Joint Session of the Congress on the United States Response to the Terrorist Attacks of September 11(Sept. 20, 2001) available at:
ICJ unequivocally stated that the right of self defence under article 51 accrues in the event of an armed attack and that it is a traditional requirement of self defence that a triggering event justifying a military response has already occurred or at least was imminent. In this situation, terrorism qualifies as that event. It serves little purpose to argue either for or against whether the rubric of international law has been followed by states who tow the war model in response to terrorists‘ threats.
Scholars76 are however agreed that international terrorism presents a threat for which traditional theories for the use of military force are inadequate to deal, and were unanticipated when the UN Charter was drafted. Consequently, there is a call to develop new strategies within the international system to deal with terrorism given the reality that international law restricts the use of military force to actions in self defence.
The justification for the war approach against international terrorism can also be evaluated from moral and political perspective. Although the theory of just war predates the Westphalia system of international relations, it is currently considered as part of the regime of Charter of United Nations, at least in its overt restraint to the use of force in the settlement of international disputes. Retiring from a legal approach, one is constrained to look not only to the UNC recourse to war rules which has been sufficiently discussed citing the legal conditions but also to traditional moral principles dating from medieval era. The recourse to war, Jus ad bellum has been a subject matter of discussion amongst philosophers and political theorists alike. Just war theory found its origins in the philosophical works of Aristotle, Cicero Augustine,
75Nicaragua Case.Military and Paramilitary Activities (Nicaragua v. U.S, (1986) I.C.J. 14, p.34 (June 27) 76 Jackson N Maogoto (n.69) 298. 172
Aquinas, Grotius, Suarez and Vitoria. According to some authors, the concept of Jus ad bellum has a long pedigree dating back to St Augustine.77
The overriding norm behind the just war theory lies in the normative and permissive grounds for undertaking in belligerency in the first place which according to scholars like Locke and Rousseau belong to the state of nature. Thus, the core and controversial proposition of just war theory is that, sometimes states can have moral justification for resorting to armed force. It is often discussed in the context of requirement for a morally justifiable ground for engaging in warfare, i.e. the moral permissibility of going to war or continuing in fighting a war. From a moral perspective the most commonly recognised elements or conditions for a just war later developed by Thomas Aquinas in his Summa Theologiae78 are: Proper Authority Just
Cause and Right Intention.
Proper or Legitimate Authority: This signifies that only head of a polity or a sovereign can properly command the waging of war. In other words, private persons have no business waging war. In the framework of terrorism, only the state attacked is permitted under this schema to take up arms against the offending group. The philosophical reason is that the care of the republic is entrusted to the sovereign who has the responsibility to look after the state, kingdom or province. This responsibility includes authority to use force not only against domestic criminals but against outsiders who can harm the polity. In the modern political arrangement, there is nothing that requires the leader of the polity to be a single individual rather than a constitutionally empowered group operating according to some fixed decision procedure, such as parliament or congress.
77 War, Schemas, and Legitimation: Analyzing the National Discourse About War [2006], Harvard Law Review,(May) 119, No. 7, 2099-2120 @ 2106. 78 J. Boyle, Responding to Terror: Just War Doctrine and the Military Response to Terrorism, [2003] The Journal of Political PhilosophyVol. 11, number 2, 153-170. 173
Just Cause: This means that a state must go to war for an appropriate reason, which mostly exists when it is responding defensively to an attack by another. The Vatican
Council II in its Document on the Church in the Modern World recognises that the complexity of the modern world and the intricacy of international relations, cause incipient wars to develop into full scale conflict by new methods of infiltration and subversion. It also acknowledged the many cases of terrorist methods employed as new strategies of war. It therefore concludes that as long as the danger of war persists, governments cannot be denied the right of lawful self defence, once all peace efforts have failed.79 There is a duty imposed on state leaders who share the burden of public administration to defend the interests of their people and to conduct such grave matters with a deep sense of responsibility. The requirement of just cause therefore is grounded on the threat or injury suffered by the state or its citizens arising from an aggression of a group or another state. Fagothey concludes that ―in every case, it must be the violation, attempted or accomplished, of nation‘s strict right.‖80 Some invalid reason for the prosecution of war therefore includes glory and renown, envy, apprehension of growing rival, maintenance of balance of power, jealousies between monarchs.81 In all situations, the Vatican Council fathers recommend and place restriction to war only in exercise of the right of self defence.82 Additionally, the war model proponents argue strongly that preventing and preempting an impending terror attacks by means of war strategies can be a just cause, hence the legitimation of both the war strategy in Afghanistan and Iraq following the 9/11 incident and now in Syria
(against the ISIL) and in Nigeria (against the Boko Haram).
79 Vatican Council II, Pastoral Constitution of the Church in the Modern World (Gaudium et Spes, No. 79, (7 Dec. 1965). 80 A. Fagothey, (S.J), Right and Reason, Ethics in Theory and Practice based on the Teachings of Aristotle and St Thomas Aquinas (2nd edn. Tan Books and Publishers, Inc. Rockford, 1959)563. 81Ibid 564. 82 Ibid. 174
Some correlative factors to the just cause requirement are as follows: a) that there must a sufficient proportion between the good to be accomplished and the accompanying evil. Thus only the most serious reasons can make war permissible. b)
That war be the last resort- which means that before a state takes to war, it must have exhausted every peaceful means consistent with its dignity such as negotiation, mediation, diplomatic pressure, economic sanctions. The elimination of these options or avenues will stand as a proof that war is unavoidable. c) There must a fair hope of success. This is not in the sense of moral certitude since as agreed by some authors, this element does not contain bright line categories83 and fortunes of war involve too many unpredictable elements.84 The essence of this element is that any state going in to war needs to have reasonable chance of success.
Right Intention: Thomas Aquinas expressing this third requirement for a just war writes: ―It is necessary that the belligerents should have a rightful intention, so that they intend the advancement of the good and the avoidance of evil.‖85 By this, he rejects and denounces those wars that are waged for motives of aggrandizement or cruelty and advocates for those with the object of securing peace, of punishment of evil doers and uplifting the good.86 Defensive wars are characterised in this category and they are often fought with moderation which is blameless. Austin Fagothey opines that a nation is fighting a defensive war if its sole purpose is to protect itself against actual and imminent aggression, even if its defense assumes the appearance of an attack. Defensive wars in this sense are adjudged to be just and include a defense against a future evil to prevent it from happening and not just against past evil to remedy it. Fagothey subscribes to this approach when he suggests that, ―the advantage
83War Schemas and Legitimation (n.77) 2109. 84Ibid. 85St Thomas, Summa Theologica, II-II, q.40.a.1. 86 A. Fagothey (S.J), Right and Reason, Ethics in Theory and Practice based on the Teachings of Aristotle and St Thomas Aquinas (2nd Edn) (Rockford: Tan Books and Publishers, Inc., 1959) 559. 175 of striking the first blow is so great in modern warfare that no nation, not even on merely defending itself, can afford to give this edge to the enemy.‖87 Moralist like
Fagothey seem to think vociferously that moral certitude of the enemies intention is sufficient, such that nation need not wait until it is actually attacked before defending itself.
From the political perspective, the war model approach may find theoretical justification in the writing of the Carl Schmitt who confronted political discourse with the idea of the Partisan which includes a diverse array of recent guerilla movements, irregular fighters in the modern political discourse. Scheuerman describes their mode of warfare as fundamentally irregular and as well they neglect the traditional laws of war.88 For Schmitt, Partisan war takes the form of vicious cycle of terror and counter- terror. In further describing the Partisan, Scheuerman remarks that in contrast to both common criminals and most ordinary soldiers, the partisan is an intensely political creature, possessing an intimate relation to some kind of fighting, warring, or politically active party or group. Given the flagrant disregard of the law of war, its political motivations, and terrorist‘s modes of violence, the modern terrorist networks can be regarded as the modern day partisans. The only adequate response to such partisan is counter terror according to the political rhetoric of Schmitt. Against the backdrop of this political rhetoric, the response of Israel and United States in the war language, and their treatment of these terrorists ( the detainees not treated as regular combatants and therefore not subject of any known status under IHL), in the course of the conflict can be approximated to the response against the Partisan.
87Ibid. 561. 88 W. E. Scheuerman, Carl Schmitt and the Road to Abu Ghraib, [2006] Constellations Vol. 13, No. 1, 110. 176
The practice of states like the U.S and Israel in its counter-terrorism operation to sweep under the carpet the obligations created by the doctrine of humanity as epitomized in common article 3 is reflected in its adoption of doctrine of ‗state of exception‘ to describe the war with the al Qaeda and other similar conflicts. In fact, the mere fact of giving the conflict in question an exceptional status, predisposed these states to perceive the enemy as a special kind of enemy, which I must say differs from the kind of enemy in many armed conflict as described by Carl Schmitt in ‗The
Concept of the Political‘. According to him, the concept of the political presupposes the enemy concept. So long as states remain political entities, the battle for survival of the state necessitates the friend –enemy dynamics. The enemy must be understood in the political context and no more. Hence Schmitt describes the enemy in these words
―The enemy is not merely any competitor or just any partner of a conflict in general.
He is also not a private adversary whom one hates….The enemy is solely the public enemy. The enemy is hostis not inimicus.‖89
Furthermore, Schmitt maintains that the enemy need not be hated personally. In the public sphere then, the most extreme consequence of enmity is war. War therefore gains its validity in the public sphere and within the context of the political. In the absence of war, the enemy ceases to be, and assumes some other designation less than a friend. It is in this context that Schmitt admits that the principle of humanity has no place in the concept of the political but outside of it. The invitation of principle of humanity is valid to the extent the enemy ceases to be what he is chosen to be, and becomes for instance a captive or a prisoner, having lost all of its enemy powers. To have understood Schmitt in this way, implies that his theory can be used to critique these states in the way they treat captured terrorists. It will not be an exaggeration to
89 Carl Schmitt, The Concept of the Political, (Translation and with introduction by George Schwab), (The University of Chicago Press,1996) 28. 177 say that the Bush led government carried the enemy concept in the aftermath of the
9/11 to unprecedented heights, even as the actual war has long ended.
However, in recognising the existential necessity of the war within the concept of the political, Schmitt unfortunately seems to have forgotten the absurdities and horrors of warfare. This is perhaps why the principle of humanity was not accorded any relevance in the realm of the political but outside of it. In the present times, the physical absurdities of war have demonstrated that the principle of humanity remains relevant across political and non-political seasons within the state. The net effect of such a war paradigm in the campaign against terror is to displace a range of rights under a state of emergency regime leading to detention without trial, reduced legal process and the use of lethal force with far fewer restrictions and with flagrant disregard for the dignity of the human persons even in the time of war.
The doctrine of human rights presupposes that certain inalienable rights belong to the category of beings who shares the character of humanity. It is also to make some assumptions founded on natural law theory that these rights belong to human being, because their nature predispose them to the claim of these rights. The doctrine of humanity as it relates to war, although not properly developed by Hugo Grotius finds its earliest expression in his book, ‗On the Law of War and Peace.‘90
The doctrine of humanity is a principle originally developed from natural law, according to which persons should be treated with equality and never with scorn, even when they are taken captive as prisoners of war, war criminals or so called irregular combatants. Although, Grotius justifies war as well as killing at war, grounding his arguments on natural law, he also holds that the right of killing enemies in just war
90 H. Grotius, On the Law of War and Peace, (Kessinger Publishing, USA, 1996), 287. 178 must be tempered with moderation and humanity. He laid down the most explicit rendition of the doctrine of humanity in these words:
For it would be truly a violations of common justice to abuse, by wanton cruelty and rigor, the power over those, whom fortune has put into our hands, by reducing them from high condition, in which she had placed them before; their former enmity is forgotten. Because it is the characteristic of bravery to esteem opponents as enemies while contending for victory, and to treat them as men, when conquered, in order to soften the calamities of war, and improve the terms and relations of peace.91
Following the steps of Grotius, Fyodor Martens in 1899 laid down the so called
Martens clause found in article1, Para. 2 of the Additional Protocol 1 that ―for cases not covered by humanitarian law, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.‖92 Having laid down the kernel of this principle of humanity which underlies every conflict among states or entities, it virtually became the substratum and spring board for the detailed development of other attendant principles bordering on entitlements of combatants during any armed conflict.
In the present circumstances, a number of these principles have been incorporated into multilateral treaties governing armed conflict and are also recognised as principles of customary international law. As principles of customary international law, given the fulfillment of the requirement of ‗opinio juris‟, that is evidence of general practice accepted as law, they create binding obligation for states. One of the many rules of international humanitarian law that has attained the status of international custom, creating such international obligation is the common article 3 of the GC. The
International Court of Justice (ICJ) in the Nicaragua case states that:
91Ibid. 289. 92
Article 3 which is common to all four Geneva Conventions of 12 August 1949 defines certain rules to be applied in the armed conflict of non-international character. There is no doubt that these rules also constitute a minimum yardstick… and they are rules which, in the court‘s opinion, reflect what the court in 1949 called elementary considerations of humanity.93
Also the ICTY in the Tadic case stated categorically that this rule, i.e. article 3 of
GC94, ―reflect elementary considerations of humanity applicable under customary international law to any armed conflict whether it is of internal or international character.‖95 As can be seen in the specific details of art 3 of GC, these elementary principles of humanity apply both in peace and in war time.The conduct of the U.S together with some its allies, to note, the state of Israel in their recurrent onslaught against terrorism must be judged using the indicators found in the common article 3 of the GC.
The doctrine of the State of Exception as expounded by Agambien plays out significantly in how the United States perceived the al Qaeda suspects domestically and internationally after the 9/11 attacks. Having personalised the enemy, it created a legal black hole, which according to Agambien ―radically erases any legal status of
93 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US), 1986 I.C.J. 4 para.114 (Judgment of June 27) Merits. 94Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.(2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.The application of the preceding provisions shall not affect the legal status of the Parties to the conflict. 95Prosecutor v Dusko Tadic, No.IT-94-1-AR72, para. 102 (Oct. 2, 1995). 180 the individual, thus producing a legally unnamable and unclassifiable being‖96, the doctrine of humanity notwithstanding. To mention but few instances, a number of legislations like The Detainee Treatment Act 2005 that were enacted to determine the detention status of this captives constructively moved for an indefinite detention.
Hence, ―the suspects were entirely removed from the law and from judicial oversight.‖97
Agambien refers to the State of Exception as the ―state‘s power immediate response to the most extreme internal conflict…which allows for the physical elimination not only of political adversaries but of the entire categories of citizens who for some reasons cannot be integrated.‖98 One immediate character of the state of exception is that the constitutional form of government is suspended and emergency rule constructively enthroned under the absolute control of the executive. What Agambien describes as the global civil war in contemporary politics, the U.S government dramatizes in its counter terrorism operations against al Qaeda.
The theoretical reasoning at the root of what has happened with al Qaeda detainees is that the war situation declared by the U.S corresponds to state of exception as found in the Agambien‘s thought. The exercise of the executive power of the President in containing the crisis of terrorism reflects an absolute emasculation and usurpation of the legislative powers in a democratic fashion. In that circumstance, the executive order radically erased the legal status of the individual, thus producing legally amorphous persons, whose rights were neither recognizable under the GC nor under the US law. The only relevant fact therein remained that they are ‗enemies‘, though not in the political sense as Schmitt thought, but as understood in the state of emergency/exception as theorized by Agambien. They were called ‗unlawful enemy
96 Agambien Giorgio, The State of Exception as a Paradigm of Government, 3. 97Ibid.4. 98Ibid. 2. 181 combatants‘, a term unknown under the law and therefore (they) remained in the domain of legal anonymity; could be killed, tortured, denied Habeas corpus relief and due process in trial and detained indefinitely.
In a rather interesting fashion, Agambien presents a historical account of the practice of the State of Exception among states beginning with the Weimar republic. In his account, what stands out is that the executive order in a state of exception functions primarily to compromise the essential liberties of people, presenting the unconventional situation like terrorism, as a legitimate excuse for the exercise of such absolute or full powers inadvertently granted by the parliament.
In the Authorisation for Use of Military Force‘ (AUMF) against terrorists, the joint resolution of the U.S congress generally provides that:
…the president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organization, or persons.99
It was on the basis of this parliamentary authorization that President Bush arguably established Military Commissions to try the so called enemy combatants in a manner rather incompatible and contrary to the established procedures of fair trial and due process. Arato ironically argues that:
It would be obviously nonsensical to claim that commissions should not in principle violate due process as ordinarily understood, since their very point and reason for existence would be to provide trials where due process is to be weighed against other urgent and extraordinary public considerations, especially public safety and security.100
99Congressional Record, 15th September 2002. 100 Arato Andrew, The Bush Tribunal and the Specter of Dictatorship, Constellation, [2002]Vol. 9,No. 4, 459. 182
It is however not the common understanding that the congressional authorization includes or refers to the judicial and quasi-judicial powers exercised by the President via the military commission. Nevertheless, the real issue seems to be whether those powers were incidental to the ―necessary and appropriate force‖ referred to by the
AUMF or to be regarded as surplus power, for which express congressional approval is needed. The AUMF expressly refers to force and does indeed have nothing to do with judicial or quasi-judicial procedures.
There is no doubt that the event of Sept. 11 necessitated a period of extraordinary emergency, but it is also doubtful that the executive response to the status of the initial detainees of that crisis followed international law or domestic law. To mitigate the illegality on the domestic front, the MCA was passed in 2006 which merely remedied the domestic loopholes, without due regard to the demands of doctrine of humanity and other international obligations under international law. Thus, true to the
Agambien‘s theory, ―a sovereign state will defend itself against its enemies using extraordinary means with or without explicit constitutional authorization…permitting the suspension of habeas corpus and mass imprisonment of enemies and abrogation perhaps of all other rights‖101 William Scheuerman maintains that ―In the spirit of
Carl Schmitt, influential voices in the administration interpret the executive branch‘s authority to determine the fate of the accused along lines of a legal black hole in which unmitigated discretionary powers necessarily holds sway.‖102
Given therefore the unconventional nature of the war against the al Qaeda network, it seems the most appropriate thing to do was to put them beyond the reach of both the international law and the domestic law. The unique nature of the war against terrorism was clearly expressed by Alberto Gonzales, the US Attorney General, in his
101Ibid 470. 102 W. Scheuerman, Carl Schmitt and the Road to Abu Ghraib, [2006], Constellations, Vol.13, No. 1, 118. 183 memorandum to the President Bush on January 2002 when he states that the war against terrorism represents a new kind of war for which the existing legal rules are inappropriate since the Geneva Convention arose in the context of the traditional clash among nations. This scenario which pushed for inauguration of new paradigm in this kind of conflict incidentally ‗reduced the prisoners to bare life and all legal protections…visibly withdrawn from them…and relegates the treatment of prisoners to a matter of policy not law.‘103 The space as well as the state of exception created or ushered in by the conflict in question however differed in their relationship to lawful authorization.
While the ‗condition of exception‘ that was inaugurated before the Supreme Court decision in Hamdan v Rumsfeld was contested as unlawful and ultra vires, the
‗condition of exception‘ after the passage of the MCA following the decision in
Hamdan, was merely to legitimise the exception, and positively advance the domestic policy on detainees of the ongoing war against terror as ‗enemy combatant‘, and was nothing close to render it contrary to any law. Herein, the post MCA directive reflected a situation, wherein legislation served the interest of promoting the executive‘s national domestic policy of cracking down on persons connected with actors of 9/11 at the expense of international rule of law. Describing this state of affairs, Christiane Wilke writes: ―the treatment of these enemies is dictated by policy concerns and not by their right as persons. They are accordingly beyond the law: they are governed by the law without being constituted by the law as persons with rights.‖104
103 Gregory Derek, Vanishing Points: Law, Violence and Exception in the Global War Prison, (2006),( Unpublished Excerpt 2007). 18. 104 Christiane Wilke, War v .Justice: Terrorism Cases, Enemy Combatants and Political Justice In US Courts, [2005], Politics &Society, Vol. 33, No. 4, 639. 184
Such political legislative maneuver dealt an incisive assault to the legitimacy of international legal obligation. Indeed, it does seem to confirm the conclusion of some thinkers like John Austin that international law is no law, since it cannot be enforced by a sovereign, as it was not established by a sovereign. Moreover, the sovereign, herein the executive, is at liberty to abrogate the law and is himself not bound by the law. In the present circumstance, the US executive have assumed the role of international sovereign, who is neither limited by law of war, nor bound by it. Thus in the words of Derek Gregory, ―It reduced international law to another decisionism, when (they) knew very well that international law imposes obligations rather than merely invites approval.‖105
Although the allocation of rights to the victims and detainees of armed conflict has continued to be a problem in international humanitarian law, there has never been a time when it raised a lot of dust and controversy than when some members of the Al
Qaeda were captured in the conflict that ensued in response to the September 11 terrorist attack on the world trade center in New York city and the Pentagon. Acting pursuant to the ‗Authorized Use of Military Force‘, (AUMF), President Bush ordered the invasion of Afghanistan, in which a number of suspects including Salim Ahmed
Hamdan was captured. On November 13, 2001, to follow up with the legal issues associated with this capture, the US executive also issued a military order that governed the Detention, Treatment, and Trial of certain Non-citizens for whom the president determines ―there is reason to believe that he or she is or was member of al
Qaeda or has engaged in terrorist activities aimed at or harmful to the United
States…and shall when tried, be tried by a military commission.‖106 Along with
105 Gregory Derek, Guantanamo Bay and the Space of Exception, (2007),Unpublished Paper 106Thomas Gore, Commission Control: The Court‘s Narrow Holding in Hamdan v. Rumsfeld spurred Congressional Action but Left Many questions unanswered. So what happens next? [2007]58 Mercer L. Rev. 741@743, (quoting the Military Order of November 13, 2001). 185 others, Hamdan was declared subject to the November 13 order in July 2003.On the application of his counsel who opted for a speedy trial under the Uniform Code of
Military Justice (UCMJ)-which afforded a number of legal protections-, it was ruled that he was not entitled to any protection under the UCMJ.
Before the Military Commission initiated the proceeding against Hamdan in the commission, he filed an Action for Mandamus and habeas corpus challenging the president‘s authority to try him by military commission in the US District Court of
Western District of Washington. Subsequently, the case was transferred to the district court for the District of Columbia, which not only stayed the commission‘s proceedings but also granted the relief sought by Hamdan. At the Court of Appeal, the judgment of the District Court was reversed but at the Supreme Court, without ruling on the relief of habeas corpus, it was held that the Military Commission established to try Hamdan was unconstitutional.
The jurisprudence in Hamdan v. Rumsfeldneeds to be understood against the backdrop of US policy space regarding the status of al Qaeda suspects who were a non-state terrorist group engaged in armed conflict considered unconventional under international law of war. The American government classifiedthem as enemy combatants and detained them indefinitely pendingthe determination of the ‗global war on terrorism‘. Drawing from the doctrine of ‗State of Exception‘, the U.S authorities made very sweeping rules and decisionsregarding the treatment of the so called enemy combatants. Hence, they were held in Guantanamo bay prison indefinitely, a place constituting a legal black hole for the application of U.S lawsand were tried by the military commission which guarantees no procedural protection unlike the Geneva Convention or the UCMJ. Succinctly, Wilke describes it as follows: ―While the war on terror provides some rationale for creating exceptions 186 from the rule of law for an indeterminate period of time, the status of Guantanamo bay legitimizes a spatial exception from the rights normally accorded to detainees under the US control.‖107 Baher Azmy provides a legal clue to the historical foundations of these policies when he asserts that: ―The keystone of the administration‘s 2001 position that courts have no jurisdiction over Guantanamo, as well as its current position that no constitutional rights apply there …is the 1950 case ofJohnson v. Eisentrager.‖108
In that case,109 Eisentrager, and a number of prisoners who were German nationals have been tried and convicted of war crimes by a military commission, and transferred to Germany to serve their sentences. They filed for writs of habeas corpus against their military custodians, challenging the legality of their trial and imprisonment under article 1 of the constitution, the Fifth Amendment and the
Geneva Conventions governing the treatment of the prisoners of war. The court held that enemy aliens whose offences, capture, trial and imprisonment occur outside the territorial jurisdiction of the United States do not have a legal entitlement to access
US courts to challenge their detention. In the words of the court: ―These prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offences, their capture, and their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States.‖110
The American government purported to relate the enemy aliens in Eisentrager‘s case with the al Qaeda prisoners in Guantanamo and consequently assumed that they are outside any procedural protection under the US law. However, the real facts of the
107 C. Wilke, War v. Justice: Terrorism cases, Enemy Combatants and Political Justice in the US Courts [2005] Politics and Society, Vol.33, No. 4, December, 637-669 at 645. 108 Azmy Baher, Constitutional Implications of the War on Terror: Rasul v. Bush and the Intra- Territorial constitution, [2007], 62 N.Y.U. Ann. Surv. Am. L. 369, 378. 109Johnson v. Eisentrager 339 U.S. 763 (1950). 110Ibid. 778. 187
1950 case which was seemingly forgotten was that the captives involved were nationals of a state with which the US was formally at war, as opposed to non-state terrorist group in the 2001 conflict, ―who did not fit the classic definition of enemy aliens and engaged in illicit warfare against the US.‖111 Consequently, it can beargued with some measure of certainty that the precedent in Eisentrager is inapplicable, more so when it is considered that the legal status of Guantanamo is not exactly the same with the military base where the German nationals were held.
So far then, the American government has erroneously relied on Eisentrager, to conclude that the prisoners in Guantanamo are equally alienated from their laws.
While the status of Guantanamo according to the lease agreement conveys ‗exclusive jurisdiction and control‘ to the US government, and ‗ultimate sovereignty‘ to the
Cuban government, it was then reasoned that ―the critical legal feature of Eisentrager is this country‘s lack of sovereignty in Germany, so that a parallel lack of ultimate sovereignty over Cuban land even with jurisdiction and control makes Guantanamo similarly out of reach by US courts.‖112 While the argument emphasizes the apparent similarity between these two politico-geographical spaces, it turned blind sight to the hollow differences that exist both in the circumstances of the detention, the category of persons detained (who are nationals of states with whom the US is not formally at war and therefore do not fit the status of enemy aliens according to Eisentrager) and the nature of conflict leading to the imprisonments. It is a case of choosing the more favorable side of the story, to enable the administration advance its pre-conceived policies. From all intents and purposes, the Cuban laws have no effect on
Guantanamo. Thus, the only legal authority is the US. The claim to the legal vacuum of the Guantanamo is therefore unfounded and merely an exercise in legal casuistry.
111 C. Wilke (n.104) 646. 112 A. Baher (n.108) 382. 188
The question of jurisdiction of the US court to entertain habeas corpus writs was also the core issue in the case of Rasul v. Bush113 and Hamdi v. Rumsfeld.114 In the former case, the Supreme Court reversed the District Court decision, which held that the judiciary had no jurisdiction to handle wrongful imprisonment cases involving foreign nationals. It thus established that the U.S court system has authority to decide whether foreign nationals held in Guantanamo bay were rightly imprisoned. Although it did not rule on the propriety of their imprisonment which was a major prayer in that suit, the whole case, save for the Supreme Court decision, puts in perspective the tenure of the space of exception in which the US government has in fact designated for the detainees at Guantanamo. Contrary to the argument advanced by American government, ―it reaffirmed that habeas corpus as a substantive source of rights and specifically held that fundamental constitutional rights apply to the US territory in
Guantanamo.‖115 While the detainees in Rasul case were foreign nationals, Hamdi was a US citizen incarcerated under similar circumstances, but also detained indefinitely as an illegal enemy combatant without access to an attorney or the court system. In reversing the judgment of the lower court, the Supreme Court held as per
Justice O‘ Connor that:
Although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that citizen held in the United States as an enemy combatant be given meaningful opportunity to contest the factual basis for that detention before a neutral decision maker.116
113542 U.S. 466 (2004). In this case the petitioners challenged the U.S. government practice of holding in indefinite detention foreign nationals captured in Afghanistan during the war against the Taliban and the al Qaeda. The detainees have been designated enemy combatants and did not have access to counsel, the right to a trial or knowledge of the charges against them. 114542 U.S. 507 (2004). 115 A. Baher (n.108) 394. 116Hamdi V. Rumsfeld(03-6696) 542 U.S. 507 (2004)
This position of American government in this case establishes that the enemy concept as espoused in the political ideology of Carl Schmitt remains the defining policy that informs the attitude of the U.S government as they deal with the detainees connected with the 9/11 attacks and the war following it. The enemy concept as revealed in the case potentially limits the citizenship rights and the obligations assumed by the U.S under the various international treaties. In these cases, the court did not hesitate to condemn the illegality of these detentions. In the case of Rasul, the court made reference to the opinion of Justice Robert Jackson in a 1953 case condemning executive lawlessness in these words: ―Executive imprisonment has been considered oppressive and lawless…no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land.‖117 Determined to reject the decision of the court in respect of the right to apply for Habeas corpus by
Guantanamo prisoners and reaffirm its policy with regard to the status of the ‗enemy‘, the Congress at the behest of American government enacted the Detainee Treatment
Act of 2005 (DTA), to the effect that, ―No court, justice or judge shall have jurisdiction to hear or consider an application for writ of Habeas corpus filed by or on behalf of an alien detained at Guantanamo Bay, Cuba.‖118 Against the backdrop of this new legislation, Hamdan challenged the legality of the military commissions to override fundamental procedural safeguards, while praying for the habeas corpus relief.
The Military Commission in which Hamdan was to be triedwas established as a military tribunal for the investigation and punishment of violations of the Laws of war and as a supplement to the court martial. While the court martial was meant to try military personnel and certain specific offences under the code, the military
117 Steven C. Welsh, ‗Supreme Court Guantanamo Decision‘
The military commission convened to try Hamdan and other detainees contained a number of controversial procedural limitations. They include among other things: 1) the accused could be excluded from and prevented from learning what evidence was presented during any part of the proceedings that the presiding officer decided to close for national security interests. 2) The presiding officer had discretion to a) admit any evidence he deemed to have probative value to a reasonable person and b) deny the defendant‘s access to classified and protected information if he determined that doing so would not result in denial of fair trial.
In Hamdan v Rumsfeld, one questions the power of the President to convene a military commission which subverts a number of established procedural and evidential principles in criminal trials under the U.S laws and International
Conventions, and consequently compromising the legal rights of detainees like
Hamdan. Against the backdrop of the procedural problems associated with the military commission, the district court argued that ―the military commissions procedures that allowed Hamdan to be convicted without being present for his full trial violated article 3 of the Geneva Convention.119
By this decision, the District Court makes the fair trial provisions as important as they are indispensable for the criminal justice system. It merely speaks the language that the rule of law both at domestic level and international arena must not only be respected but also adhered to. However, the life of that verdict was short, because the
Court of Appeal reversed the decision and argued alongside the government positions following the precedentin Johnson v. Eisentranger. It held amongst other things that:
119Hamdan v. Rumsfeld, 548 U.S. 557 (2006) 191
The Geneva Convention does not confer upon Hamdan a right to enforce its provisions in court. Even if the Geneva Convention could be enforced in court, this would not assist Hamdan….One problem for Hamdan is that he does not fit the article 4 definition of a ‗prisoner of war‘ entitled to the protection of the convention…Another problem for Hamdan is that the 1949 convention does not apply to al Qaeda and its members. The convention appears to contemplate only two types of armed conflicts. The first is an international conflict. The second type of conflict, covered by common article 3 is a civil war-that is an armed conflict not of international character.120
The immediate conclusion which can be reached in the circumstances is that presidency of George W. Bush following 9/11 event in 2001 placed more premium on the preservation of state security over the need to respect the most fundamental human rights guarantees like the right to liberty, which have become obligations under customary international law and perhaps Jus Cogens, admitting of no reservation whatsoever. The justification for this position can be found in the precedence set in the Quirin case.121
The Quirin‟s case concerned the capture of eight German marines who after burying their uniforms on the beach, slipped into the coast of Long Island and Florida in 1942, feigning civilian status while continuing to be combatants. In its decision, designating them as unlawful combatants, a hybrid between the prisoner of war (POW) status and civilian status, the court ―created a new legal status category in order to explain why the eight were not entitled to the privileges of either the combatant status or the civilian status.‖122As unlawful combatants, ―they are subject to capture and detention and are subject to trial and punishment by military tribunals for acts that render their belligerency unlawful‖123
120Salim Ahmed Hamdan v. Donald H. Rumsfeld et al, United States Court of Appeal for the District of Columbia Circuit.Decided on July 15, 2005, No. 04-5393. 121Ex parte Quirin, 317 U.S 1(1942) 122 Wilke Christiane, Law‘s Enemies: Enemy Concepts in U.S. Supreme Court Decisions (2007), Studies in Law, Politics, and Society, Vol. 40, 41-77@ 56. 123Hamdan v. Rumsfeld (n.119). 192
Although, the Quirin case charted the course for the identification of such unlawful belligerency, and the procedure for the trial in a military commission, it never provided adequate guidelines for the procedural restraints applicable in such military commissions as found in the commission established to try Hamdan. In line with the enemy principle, the creation of this hybrid having no foundation in international law of war, made it possible for the U.S government to muzzle their rights without fear of being assailed. Their status as enemies makes more meaning and overrides whatever rights they should have had as human persons deserving to be treated with dignity. As in the Quirin case, just like the enemy status overrides their citizenship, in Hamdan, their enemy status override their status as person entitled to a set of basic rights even as unlawful enemy combatants so described.
The Supreme Court further inquired whether Guantanamo detainees who have been designated for trial by military commission can obtain judicial enforcement of common article 3 of the Geneva Convention. While disagreeing with the Court of
Appeal, it concludes too that the conflict in question is a non-international conflict, the nature of which article 3 contemplates.
Common article 3, by contrast, affords some minimal protection, falling short of full protection under the convention, to individuals associated with neither a signatory nor even a non-signatory power who are involved in a conflict in the territory of signatory. The latter kind of conflict is distinguishable from the conflict described in common article 2 chiefly because it does not involve a clash between nations (whether signatories or not).124
Common article 3 requires that Hamdan be tried by a regularly constituted court affording all the judicial guarantees. And the commission established to try Hamdan cannot be described as such, given the definition of such court as a court established and organised in accordance with laws and procedures already in force in the country.
124Hamdan v. Rumsfeld, U.S.( 548 U.S 557 (2006) 193
The Unified Code of Military Justice (UCMJ), the Court Martial procedures and the
Geneva Convention are to be recognised as the laws in force from where the United
States government should have drawn from in establishing such military commission for the trial of Hamdan. Thus when article 21 and 36 of the UCMJ command that military commissions should apply principles of law and rules of evidence generally recognised in the trial of criminal cases in the United states district courts, it was not only commanding that the rule of law override policy interest, but also that international human rights standard be observed in such war related trials. In other words, in this situation, it was expected that such procedural protection in the Geneva
Convention and the court martial be strictly applied for Hamdan and others.
Much as the decision in Hamdan was a recorded victory for international humanitarian law and human rights, it created loopholes which triggered the birth of these two legislations namely: Detainee Treatment Act (DTA)2005 and Military
Commissions Act (MCA) 2006 that reflect the government‘s counter-terrorism position. These legislations designated the suspects/detainees as unlawful enemy combatants and endorsed the violation of the fundamental procedural guarantees and rights afforded in common article 3 of GC.
3.8.2.1 Detainee Treatment Act 2005 The war against terrorism which concretely began in Afghanistan and subsequently extended to Iraq led to the capture and detention of ‗enemy combatant‘, whose treatment and rights were not only obscured in fact but also in law. Both internal and external memoranda written by legal experts revealed a number of controversial interpretations of international law and domestic law which led to ambiguities in the standards for detainee treatment. 194
The scandal of Abu Ghraib125 and the habeas corpus application on behalf of the prisoners in Guantanamo which inundated the US court system necessitated the enactment of the Detainee Treatment Act of 2005. It was thought that this law will remedy the ambiguities and provide guidelines as to the detention status of prisoners associated with the war against terrorism. It was also thought that the essence of this legislation is to ensure a reasonable protection of rights of the prisoners as concerns their access to justice in the US Court or tribunals. Although the DTA ought to be commended for its prohibition of torture as provided in s.1002 and s.1003 of the act, there are other provisions that tend to compromise the access to justice which the prisoners would have had under Geneva Convention or other international human rights instruments. The reference being made here regards precisely the right to habeas corpus application in the event of detention without trial, which is a right preserved both by the US constitution and international law. In s.1005 (a) (1)(A), the
DTA provides for the Combatant Status Review Tribunal (CSRT) which operates to determine the status of the detainees held at Guantanamo. Meanwhile the operational procedure of the CSRT is to be established at the direction of the Secretary of defense.
If anything, the CSRT has been acclaimed as a tribunal which denies the most fundamental safeguards. Hafetz describes the CSRT as follows:
The Combatant status review tribunal (CSRT), an ad hoc tribunal that denies fundamental safeguards, including a neutral decision maker, assistance of counsel, and the right to see and confront the government‘s evidence…allows for the use of evidence secured by torture if it deems the evidence ‗reliable126
125 Abu Ghraib was the prison in which the majority of prisoners captured during the US war against the Saddam Hussein government. In May 2005, to the greatest chagrin and scandal to the entire world, it was found that the prisoners were given CID (cruel, inhuman and degrading) treatment by the US authorities, contrary to the state‘s responsibility under the Torture Convention and Geneva Convention. 126 Hafetz Jonathan, ‗What the Detainee Treatment Act Really Means for Guantanamo Detainees‘
Thus to eliminate any judicial inquiry and further muzzle other regular constituted courts from entertaining habeas corpus application or matters related to the detention of the prisoners as provided in the s. 1005(e)1-2 of the DTA, is to play hypocritical to the international demands of the fair trial and principle of rule of law. The DTA should therefore be seen as a deliberate effort to undermine and render useless the
Supreme Court decision in Rasul v Bush, which held that the Habeas Corpus writ extends to Guantanamo and not limited to the US territory as purportedly assumed in
Hamdi v Rumsfeld.
However, the appellate limited jurisdiction given to the Court of Appeal to
‗determine the validity of the any final decision of a CSRT that an alien is properly detained as an enemy combatant,‘127 cannot be trusted to do adequate justice, since there was no fair hearing in the first place in CRST. Moreover, the court is limited as to the claims it has been allowed under the law to examine. Hence it is agreeable that,
Section 1005 limits the remedy available to detainees who seek to challenge their status under the Geneva Convention…and limits the ability of the detainees to access the domestic U.S legal system. Overall, the Detainee Treatment Act of 2005 is a feeble and incongruous attempt to restore America‘s credibility as a country that does not practice or condone torture and the use of cruel, inhuman or degrading treatment or punishment.128
Thus while the U.S international image on torture was positively enhanced, its concept about fair trial and emasculation of the judiciary defines its disregard for both international principles of fair trial and its unilateral policy that the judiciary and the legislature are meant to serve the interest of the executive in matters related to war.
This is apparent in the description of the CSRT by Hafetz as ―a veritable rubber stamp
127S.1005(e)(2)(A), DTA 2005. 128Arsalan Suleman, Recent Developments: Detainee Treatment Act of 2005.
On the surface, it opposes torture of the detainees in Guantanamo, but deep down, it remains one of the legislations in the U.S history that sets out to checkmate the wide jurisdiction of the court because of its relentless effort to enthrone rule of law and fair hearing and condemn unwarranted detention without trial. The enactment of the DTA speaks volumes about the peculiar space of exception under which the ‗enemy‘ was placed as the law contrived all conceivable maneuvers to treat them accordingly.
3.8.2.2 Military Commissions Act (MCA) 2006 There is no better way to describe the historical basis and foundation of the MCA
2006, than in the words of Jack Beard as follows:
Following the Supreme Court‘s decision in Hamdan v Rumsfeld which found that military commissions designed by the Bush Administration were inconsistent with the requirements of both the Uniform Code of Military Justice (U.C.M.J.) and the law of war as incorporated in that statute, the U.S. Congress attempted to fashion a compliant charter for these commissions through the Military Commissions Act of 2006.130
Some aspects of this piece of legislation made it reflective of the war model approach as identified in the post 9/11 counter-terrorism measures. The Act makes positive effort to comply with the common article 3 as shown in the s.3, 948b(f) which provides that a military commission …is a regularly constituted court, affording all the necessary judicial guarantees which are recognized by civilized peoples for purposes of common Article 3 of the Geneva Convention.
129 Hafetz (n.126) 130J. Beard, The Geneva Boomerang: The Military Commission Act of 2006 and U.S. Counter-Terror Operation [2007] A.J.I.L, Vol.101: 56. 197
However, the provision of s.948 (g) of the same section which disentitles alien enemy combatants under trial by the commission from invoking the Geneva Convention as a source of rights proves that although common article is applicable to them, not all sections of the article may be invoked under this circumstance. Thus, the enumeration of some of the guarantees under common article 3 in another section of the Act131 to the exclusion of others establishes that only the items enumerated were meant to apply in the trial by the military commission. In essence, the laws got mixed up in the pick and choose game as to which items of the Geneva Convention and laws of war would be relevant to the trial of enemy combatants. The Geneva Convention is corporate treaty, whose sections apply to various types of conflicts and various categories of persons, mutatis mutandi. It is either that a section like common article applies entirely or it does not apply. An Act of the Congress cannot be used to disintegrate a law accepted more or less as customary international law. A congressional Act therefore may not choose to deviate or fall short of established principles of law.
By this choose and drop game, the American government has unfortunately assumed the position of authentic interpreter of international law and the obligations arising therefrom. Clearly expressed, s.6a (3) of the MCA provides that ‗the president has the authority for the United States to interpret the meaning and application of the Geneva
Convention…‘The Act provides unlimited power to the President making the principle of separation of powers in a federal structure like the United States appear as ridiculous as it is taken as an armchair postulate particularly in the war against terrorism.
131 See s.6 (d) MCA2006. It outlines a number of grave breaches of common article 3 and excludes the fundamental guarantees found in it. In fact article 6(a) specifically provides that the enumerated items constitute violations of common article 3 and that no foreign or international source of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions enumerated in subsection d. 198
Furthermore, a more invasive tenure on the right of these terror suspects-non-state groups can also be found in the combined reading of the MCA and the DTA in matters relating to the Habeas Corpus application. As already seen, the DTA makes the CSRT the ultimate authority that declares a person an unlawful enemy combatant, while excluding the district courts from entertaining any habeas corpus for those crop of prisoners (in Guantanamo). The decision of the tribunal is subject to appeal at the court appeal but based on limited ground of appeal. The MCA on the other hand regulates the trial of alien unlawful enemy combatants for violations for laws of war.132 The implication is that if a certain unlawful enemy alien declared so by the
CSRT, is not susceptible to trial under the MCA (as many Guantanamo prisoners are), then they will be indefinitely detained without recourse to Habeas Corpus relief as provided in s.7(e)1 of MCA133, until the President considers that they are no longer a threat or when he considers that the war on terrorism is over.
Thus Bob Yates describes the Act in these words: ―It is designed so that a non-
American designated by the President as an unlawful enemy combatant has no remedy; he‘s closed out of the courts. Remedies are at the heart of the respect for law.
If you don‘t have a remedy, you are without human rights.‖134 More surprising and perhaps scandalous is that in spite of the U.S Supreme Court ruling in both Hamdan v
Rumsfeld and Rasul v Bush, that these persons are entitled to habeas corpus relief under the US Constitution and international human rights instruments, the Act still proceeded to make the Habeas Corpus relief inapplicable to them, on the pretext of applying the rule in Geneva Convention applicable to the POW upon capture, i.e. to
132 See s.948b MCA. 133 No court, or justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. 134 Yates Bob, From Hamdan to “Unlawful Enemy Combatant‘: The Military Commission Act (2006), Chicago Lawyer, November 2006. 199 be detained and never to be released until the end of the hostilities. Although the al
Qaeda detainees may be categorized as unlawful combatants, no ground exists to call them PoWor to charge them for war crimes. They may be charged as civilians‘ involved in terrorist activity or criminal armed attack, (a variety of non-international conflict). And like every other human persons, they deserve the protection of the law
(common article 3) for humane and fair trial in any domestic jurisdiction. Of the many problems and the inappropriateness of this Act, Jack Beard concludes:
The MCA has provided enough leeway for U.S military commissions to become regarded as ―kangaroo courts‖ and perhaps be allowed to consider evidence obtained through the use of coercive interrogation practices. Other contradictions of the law of war derive from the redefinition by Congress of some Geneva Convention offenses and prohibitions to resemble domestic crimes, its addition of new ones and omission of others, its rejection of international sources of law, and its conflation of the rules applicable to international and non-international conflicts.135
Be it as it may, it is not entirely wrong to conclude that the MCA whose avowed aim was to make the Military Commission compliant with court martial procedures and the Geneva Convention (Common Article 3 procedures), subsequently became the most outstanding tool for the violation of the values it was established primarily to protect. The plausible explanation for this can be found in the national security policy of the American government post 9/11 which chose to disregard the fundamental human rights and international law obligations, as long as it serves their security interest. And for the detainees, their enemy status overrides their status as persons whose fundamental rights may be compromised without apology. Responding to the overarching impact of the war model to anti- terrorism, Upendra Acharya draws the following analysis:
The subsequent open endorsement and naked pursuit of a war on terror is a convenient and expedient shift from terrorism as a crime to
135 J. Beard (n.130). 200
terrorism as an act of war. It is convenient and expedient because the notion of a war on terror allows a state to use force against another state in self defence if there is any link or connection with terrorism based on unilateral or coalitional determination. At the same time captured individuals can be brought into domestic criminal systems and tried in domestic courts or even military tribunals. Investigation by torture, lacking due process, may also be justified without regard to international humanitarian law.136
3.8.3 Human Rights/International Humanitarian Law Response Model International law employs the ‗Right‘ terminology to describe the act of war and the conduct of it. This is manifest in the use of the technical terms of „Ius ad Bellum and
Ius in Bello, to refer to the right to make war and the right in the conduct of warfare respectively. The need to protect the rights of those engaged in warfare or for detainees emerging from it therefore seems obvious from the language used to describe it. In some quarters, warfare is considered as a barbaric act excusable only in the state of nature, and hence the right during warfare and the right following warfare are not strictly right, but which according to Habermas is ―arbitrary freedom that is accorded the subjects of international law in the state of nature that is the lawless condition of their external relations.137 However, it may still be claimed that the criminalization of certain acts undertaken at war, presents itself as mitigation of this lawless condition of war. The absurdity that is therefore associated with warfare, that seems to exclude the regime of ‗rights‘ and locates it within the state of nature, appears mitigated in the context of the humanization of warfare prevalent in international relations today.
It is a given that conflict leading to war is unavoidable in international relations.
Explaining the inevitability of conflict in the society, Spinoza relates it to human
136 U. D. Acharya, War on Terror or Terror Wars: The Problem in Defining Terrorism [2009] Denv. J. INT‟L L. & Pol‟Y, Vol. 37:4, 653- 679 @670. 137 J. Habermas, The Inclusion of the Other, Studies in Political Theory, (The MIT Press Cambridge, Massachusetts, 1998) 167. 201 imperfections. He avers that, ―Passion displaces reason and consequently men, who out of self-interest ought to cooperate with one another in perfect harmony, engage endlessly in quarrels and physical violence. The defectiveness of man is the cause of conflict.‖138 The analogy drawn from this argument as it relates to states is that ‗wars among states are then as inevitable as are the defects in the nature of man.139 The defect as applicable to states is to be located in the policies obtainable among states or groups which push them to resolve conflict by way of violence rather than by peaceful means. War then is often defined as ―act of violence intended to compel our opponent to fulfill our will‖140
It is impossible not to have armed conflicts in the world because in some circumstances, they are a necessary means towards peaceful resolution of differences.
Philosophers as well jurists have not only reflected on conditions precedent to just war or conflict, but also have endorsed it as the acceptable principles for the enforcement of certain rights at war.
Habermas echoes Carl Schmitt when he says that ―the right to go to war is constitutive of the sovereignty of states.‖141 This makes it an imperative for states to act responsibly in the conduct of the war. In the absence of this responsibility, the theory of a just war cannot be conceived. Otherwise put, because only the states can uphold law and order even in war, they enjoy the monopoly over the means of violence.
Following this principle, various kinds of belligerent activities unleashed by terrorists or insurgents or militants in the modern times may never be considered just, hence illegal, since the question of accountability is absolutely ruled out. International law
138 Waltz Kenneth, Man, the State and War, a Theoretical Analysis, (Columbia University, New York 1954) 162. 139 Ibid. 140 Stanford Encyclopedia of Philosophy,
The rights belonging to the combatants are therefore not judged according to whether the rules for the conduct of war were observed or not by the enemy state. The rationale for these rights is not only for the purpose of humanizing warfare, against the backdrop of mitigation of the fatal consequences of armed conflict, but also to illustrate that war is not an end in itself, but a means to achieving some ends in international relations. These rights take the form of granting immunity to combatants from being killed or tortured or humiliated in certain circumstances of helplessness during conflict.
It must be conceded that ―many of the rules developed by the just war tradition have since been codified into contemporary international laws governing armed conflict such as the United Nations Charter and the Hague and Geneva Conventions‖143 Thus the law of armed conflict incorporated in these instruments were meant to regulate aspects of the struggle for life and death between contestants who operate on the basis of equality. So long as there is fair play, it is permissible to cause suffering and death.
In the absence of that fair play, the infliction of pain, suffering and death is but a violation of the rights of the enemy. Behind these rules, I find the overwhelming influence of the principles of humanity and the chivalry rules of the mediaeval times.
Meron writes: ―Chivalry and the principles of humanity created a counterbalance to
142 Art 51 of the UNC. 143 Stanford Encyclopedia of Philosophy, War (n.140). 203 military necessity, serving as a competing inspiration for the law of armed conflict.
Indeed, tension between military necessity and restraint on the conduct of belligerents is the hallmark of that law.‖144
Although the reality of the battlefield remains very bloody and catastrophic, it is often mitigated by these normative developments and elaborate standards that promote accountability and playing according to rules. This is to ensure that fair treatment is given to the enemy combatants during the conflict and as detainees after the conflict.
In international relations, the universal acceptance of these normative developments may well be illustrated by the tenacity of the tribunals that functioned in many post- conflict judicial initiatives. There was the Nuremberg trials established to do justice on account of the Nazi atrocities and violations of the laws of war before and during the 2nd world war; and the International Criminal Tribunal for Yugoslavia and
Rwanda (ICTY&R) which was created to try the atrocities committed during the internal conflicts in Yugoslavia and Rwanda respectively by regular armed forces and rebels alike.
The observance of these norms which encourage restraint in armed conflict admits of no distinction between the regular armed forces, the non-state actors or rebel armed forces. These rules apply across board, although it raises the problem of reciprocity for those groups of combatants not contemplated by the rules, for e.g., ISIL, Al
Qaeda, Boko Haram, Niger Delta Avengers and the Hezbollah, who cannot be contained in the Westphalia state-centered humanitarian regulations.
The human rights model to counter-terrorism challenges the position that in the wake of the terrorist attacks since 9/11, that some adjustments in our scheme of civil liberties is inevitable. And as we have seen in some countries, the courts have proved
144Theodor Meron, The Humanization of Humanitarian Law [2000]AJIL, Vol. 94, No. 2) 243 204 reluctant to oppose reductions in civil liberties in times of war or war like emergency like terrorist incidences. While this position acknowledges the society‘s need for protection from harm and overall security of the state, it sees no justification for the appeal to national security being used as a cloak for arbitrary and oppressive action on the part of the government against suspects and ordinary citizens.
Put in the context of the current trend of terrorism, where the issue of the homegrown terrorist have become the new normal, the concern is not such much the Syrian and the Iraqi battlefields under the siege of ISIS, but more with these networks calling for and directing via social media homegrown terrorists in the west to carry out attacks.
Hence in the more recent past, we have witnessed blown up airports in Brussels and
Istanbul; mow down pedestrians in Nice, France; a massacre in Bangladesh, attempted IED explosion in Canada, a suicide bomb attack in drinking parlours and night clubs in France and U.S, a car bomb explosion at police check point in Turkey and at markets and churches in Nigeria; blown up gas and oil facilities in Nigeria - the list goes on.
This model however does not subscribe to the tendency to tradeoff any counter terrorism measures with the protection of human rights. The question that challenges this model is how to balance human rights and national security especially in the period of emergency, like in the event of terrorism? The state of France is currently embroiled in such controversy as the government has banned the wearing of Burka covering for Moslem women in order to effectively reduce suicide bombing by women hiding bombs in those head gears which has become a new normal for terrorism. Some French activist have claimed that rather than create peaceful co- existence with moslem communities, it has created tensions and demonstration 205 coming from the women Moslem community claiming that it is a violation of their rights.
A number of scholars and states are in this matrix of mainstreaming human rights protection in the battle against terrorism. Grayling argues that it is a mistaken belief that the right way to defend society against terrorism and crime is to dismantle some aspects of civil liberties.145 He insists that civil liberties exist to protect individuals against arbitrary use of state power. He premises his argument on the pedestal that terrorism opposes liberal social values of democratic societies and since it is clear that it cannot overthrow these societies built on these values, it adopts a measure targeted at punishing them through these terror antics. So the background of an atmospheric reaction that seeks to undermine these values implies ―ceding a moral high ground to the terrorists.‘146
Russian President Vladimir Putin signed into law recently a package of so-called anti- terrorism measures. The U.S. Commission on International Religious Freedom strongly condemns these measures and says that, under the guise of confronting terrorism, they would grant authorities sweeping powers to curtail civil liberties, including setting broad restrictions on religious practices that would make it very difficult for religious groups to operate. Critics are of the view that neither these measures nor the currently existing anti-extremism law meet international human rights and religious freedom standards.147 This law gives the authorities the right to survey what you do online, so they could monitor your emails and do things like that.
145A. C. Grayling, Liberty in the Age of Terror, A Defence of Civil Liberties and Enlightenment Values, (Bloomsbury Publ. co. London 2009) 1 146 C. J. Dakas, Nigeria‘s Anti- Terrorism Laws and Practices: The Imperative of Mainstreaming Human Rights into Counter- Terrorism Administration, being a Paper delivered at the expert workshop organised by the Nigerian Coalition on the International Criminal Court (NCICC) in Abuja, May 14, 2013. 147 Russia‘s Anti- Terror Law Condemned,
This law is also an attempt to prevent radicalization within homes and the spread of extremism but the law essentially equates religion to extremism and religious people to terrorists.
The United Nations General Assembly in its resolution on Human Rights and
Terrorism148 in the year 2000 expressed solidarity with victims of terrorism and condemned all acts, methods and practices of terrorism, in all its forms and manifestations, as activities aimed at the destruction of human rights, fundamental freedoms and democracy, threatening the territorial integrity and security of States, destabilizing legitimately constituted governments, undermining pluralistic civil society and having adverse consequences for the economic and social development of
States.Itcalls upon States to take all necessary and effective measures in accordance with relevant provisions of international law, including international human rights standards, to prevent, combat and eliminate terrorism in all its forms and manifestations, wherever and by whomever committed.
Also the UNSC followed suit with another resolution in 2003; and in the Article 6 of the document implores States to ―ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law.‖149
In one of the most recent document of the UN General Assembly150 on promotion and protection of Human Rights and fundamental freedoms while countering terrorism, the special rapporteur on the subject identifies certain basic issues of interest falling
148 UNGAOR, UN.Doc.A/RES/54/164 (24 February 2000). 149 UNSC Resolution: S/RES/1456 (2003)
Furthermore, Kofi Annan, (the then secretary of the UN) maintains that compromising human rights cannot serve the struggle against terrorism.151
Reaffirming these concerns, the report of the Human Rights Council of the UN notes that ―States should ensure that their counter-extremism measures do not have a negative impact on civil society‘s rights to freedom of association, expression,
151 Kofi Annan, A Global Strategy for Fighting terrorism‘, Keynote Address to the Closing Plenary of the International Summit on Democracy, Terrorism and Security, 8-11 March, 2005, Madrid, available at:
This research singles out Canada and its judiciary for their vigorous protection of human rights in the face of its anti-terrorism campaign. In the case of Suresh v.
Canada,153 the major issue canvassed was whether deportation on the basis of mere membership in an alleged terrorist organization unjustifiably infringes the Charter
Rights of free expression and free association. The appellant is a Refugee under
Refugee Convention 1951 from Sri Lanka who has applied for landed immigrant status. In 1995, the Canadian government detained him and commenced deportation proceedings on security grounds, based on the opinion of the Canadian Security
Intelligence Service that he was a member and fundraiser of the Liberation Tigers of
Tamil Eelam, an organization alleged to be engaged in terrorist activity in Sri Lanka, and whose members are also subject to torture in Sri Lanka. The Federal Court, Trial
Division upheld as reasonable the deportation certificate under s. 40.1 of the
Immigration Act and, following a deportation hearing, an adjudicator held that the appellant should be deported. The Minister of Citizenship and Immigration, after notifying the appellant that she was considering issuing an opinion declaring him to be a danger to the security of Canada under s. 53(1)(b) of the Act, issued such an opinion on the basis of an immigration officer‘s memorandum and concluded that he should be deported.
Although the appellant had presented written submissions and documentary evidence to the Minister, he had not been provided with a copy of the immigration officer‘s memorandum, nor was he provided with an opportunity to respond to it orally or in
152A/HRC/31/65 (29 April, 2016) Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.
Act infringed ss.7(2)b) (b) and (2)d of the Canadian Charter of Rights and
Freedoms.The court held among other things generally that to deport a refugee, where there are grounds to believe that this would subject the refugee to a substantial risk of torture, would unconstitutionally violate the Charter's s. 7154 guarantees.
By this decision Canada subscribes to the human rights model by leaning on the approach that international law rejects deportation to torture (in line with the ICCPR), even where national security interests are at stake. This is the norm which best informs the content of the principles of fundamental justice under s. 7 of the Canadian
Charter of rights and freedoms and anything that subscribes to the view of deportation to torture is unconstitutional.
In another case of Charkaoui v. Canada,155 the Court held that Immigration and
Refugee Protection Act (IRPA) unjustifiably violates s.7 of the Charter by allowing the issuance of a certificate of inadmissibility based on secret material without
154 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 1552007 SCC 9, [2007] 1 SCR 350. The respondent ministers signed a security certificate against C under S.77(1) of the Immigration and Refugee Protection Act. C was then arrested and detained. Before the scheduled date of the fourth review of C‘s detention, counsel for the ministers informed the judge at an in camera hearing that they had recently taken cognizance of a document that should have been disclosed to C at the outset of the proceedings but had not been disclosed because of an oversight. The document consisted of a summary of two interviews C had had with CSIS officers. The judge ordered that the summary be disclosed to C‘s counsel forthwith. At this same hearing, counsel for the ministers filed fresh allegations about C that were based on information that was not in his file when the ministers signed the security certificate. The next day, the judge disclosed a summary of this new information to C. The detention review hearing was adjourned and C was granted a postponement. C then filed a motion to exclude the new evidence. He also requested that the complete notes of the two interviews conducted by CSIS be disclosed to him together with the recordings of the interviews. But the ministers informed the judge that there were norecordings inthe file and that notes of interviews are, in accordance with an internal policy of CSIS, systematically destroyed once the officers have completed their reports. Alleging that his right to procedural fairness had been violated, C filed a motion for a stay of proceedings, in which he asked that the certificate be quashed and that he be released. In the alternative, he asked that the new evidence be excluded. The Federal Court and the Federal Court of Appeal dismissed the applications. The S.C allowed the appeal. Available at<:http://scc- csc.lexum.com/scc-csc/scc-csc/en/item/5482/index.do> accessed 27/08/16. 210 providing for an independent agent at the stage of judicial review to better protect the named person's interests.
By its very nature, the security certificate procedure can place these rights in serious jeopardy. To protect them, it therefore becomes necessary to recognize a duty to disclose evidence based on s. 7 that goes beyond mere summaries. Investigations by
Canada Security Intelligence Service (CSIS) play a central role in the decision on the issuance of a security certificate and the consequent removal order.
The consequences of security certificates are often more severe than those of many criminal charges. To uphold the right to procedural fairness of people in criminal‘s position, CSIS should be required to retain all the information in its possession and to disclose it to the ministers and the designated judge. In all, it can be concluded that the Canadian Judiciary has taken the human rights route in the treatment of the suspected terrorists even though it recognises that exceptional circumstances might justify a departure from the prevailing norm.
States must accept that human rights are not just a luxury to be sacrificed in times of tension. They are inalienable and states cannot subjectively choose to protect certain rights or the rights of certain people. The obligation to respect these rights applies to those who may be at risk of terrorism as well as to those who may be suspected of terrorism. This model urges that the temptation to abandon the core values of a democratic society under counter-terrorism measures on the pretext of defending them must be avoided. It is therefore a mistaken belief to think that the fight against terrorism is incompatible with the respect and strict compliance with human rights and in fact respect for human rights facilitates global counter terrorism efforts as counter terrorism measures that violate human rights may indirectly trigger the violence they are meant to check. 211
In the same vein, this framework was applied in the United Kingdom case of Othman
Abu Qatada.156 This case addresses the problem ofStates often faced with how to deal with individuals who are a risk to national security as well as terrorist suspects specifically when they cannot be deported to their home country due to the risk of torture or ill treatment. In order to get around this dilemma, governments have increasingly sought to secure diplomatic assurances from states that the individual who will be deported will receive a fair trial and not be subjected to ill treatment.
In that case, the scheme in the theory allows the UK to expel suspects with guarantees they will not be mistreated or tortured in their home country. Abu Qatada was deported to his home state, Jordan after eight years of legal battle for his jihadist‘s tendencies and links with al Qaeda terrorist network. The UK therefore developed the policy framework which it calls ‗‘Deportation with Assurances (DWA), which allows her to remove those who threaten to do her harm while meeting international human rights obligations. The significance of this case law is that it shows that even when an individual is considered a risk to national security, the UK Government prefers to prosecute them as opposed to deportation when there is a grave risk of ill treatment or torture.
156Othman (Abu Qatada) v UK (2012) 55 EHRR 1, 189- The applicant, O, was born in Jordan and claimed that it would be a breach of his rights under the ECHR if the UK deported him to Jordan. O resisted deportation under Articles 2, 3, 5 and 6 of the ECHR. O had been successful in gaining UK asylum, a year after arriving in the UK in 1993. The charges against O was received in absentia in Jordan and related to conspiracy to cause explosions. O stated that the evidence connected with these convictions were extracted from his co-defendants through torture, there was compelling evidence in support of this claim. It was the UK Government's understanding that the ECHR excluded deporting terrorist suspects to Jordan and a memorandum of understanding was negotiated with Jordan. Jordan assured the UK that the treatment of deportees would be consistent with the Convention. The UK ordered the deportation of O. he Appellant made an application to Special Immigration Appeals Commission (SIAC) and the Court of Appeal who allowed O's appeal on the grounds of Article 6 . However in a further appeal to the House of Lords, O's complaints were rejected and O made a further appeal to the Strasbourg Court who concluded that there was no: Violation of Article 3 of the ECHR, Violation Article 3 of the ECHR, in unification with Article 13 of the ECHR, ,Violation of Article 5 of the ECHR.
212
This framework therefore recommends a cautious balance between the efforts to fight terrorism with the fundamental requirements to respect and ensure respect for basic human rights such as extrajudicial killing, impartial investigations, torture, rendition without rights, harsh interrogation techniques such as water boarding and fair hearing provisions. The image of cautious balance also implies that the government has the duty to take lawful and proportionate measures for the purpose of preventing real and immediate threats to lives and property arising from terrorist violence.
The Human Rights Framework pursuant to art. 4 of the International Covenant on
Civil and Political Rights ( ICCPR), recognises that measures derogating from obligations assumed under this Covenant, during times of emergency and that threatens the life of the nation may be adopted as required by the exigency of the situation. However, there is reservation to the effect that such derogation might not be extended to right to life, torture, forms of cruel and inhumane treatment and fair trial provision and presumption of innocence. In other areas of derogable civil liberties,
Grayling allows for a ―temporary and careful limits on certain liberties only in times of genuinely serious threat.‖157 Thus, a permanent reduction of derogable civil liberties is unacceptable even in the emergency measures following terrorist situations or attacks. Often states extend these derogations indefinitely on the pretext that these derogations are ―predicated on an indefinite, limitless war on terrorism or the hypothetical threat of future attack.‖158
Questionable resort to derogation clauses under the pretext of responding to terrorists threats considered as exigencies of the situation are therefore frowned at under this framework. Kenneth Watkin while recognising the special challenge which the increased levels of violence associated with terrorism have presented to Human
157Grayling (n.145) 23. 158 D. Pokempner, Terrorism and Human Rights: The Legal Framework (n.68) 21. 213
Rights advocates, insists however that the goal of this paradigm is ―strict control not only of force intended to kill, but also of any unintended outcome involving deprivation of life.‖159
On the other hand, where anti-terrorism has gone beyond law enforcement measures and has snowballed into a full scale conflict, the human rights model advocates that rather than extend human rights norms to armed conflict scenario, the appropriate measure is to apply the lex specialis of humanitarian law. Force applied in accordance with humanitarian law could not result in extralegal killing since it would not tantamount to arbitrary deprivation of life. IHL on its own has a different accountability structure from the strictly human rights matrix. Whether the conflict where in terrorists are involved is regarded as international or non-international conflict,160 the accountability structure of IHL makes it imperative for the observance
159 K. Watkin, Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict [2004] A.J.I.L, Vol. 98, No. 1 (Jan) 1-34@ 17. 160 The 1949 Geneva Conventions provide different regimes of protection for individuals or groups involved in armed conflict. However this depends on the nature of conflict in issue. It makes express provision while giving deference to conflicts categorized as international and non-international. This implies that armed conflict under the regime of international humanitarian law must be understood under two broad categories, namely, international conflict and non-international conflict. While the definition of international conflict refers specifically to conflict between states contemplated under the Westphalian system of international relations; the definition of non-international conflict has been a subject of much debated scholarship given the reluctance of states to make room for the application of international humanitarian law in their internal crisis, the consequence of which has the tendency to compromise their sovereignty. The provision of the common article 3 of the GC appears to be the first official mention of non-international conflict in international humanitarian law. It provides the basis for the application of international humanitarian law to conflicts that are indeed not interstate. While it is not subject to debate that internal conflict like civil wars or wars of national self-determination are contemplated by the common article 3, it is however, a matter of intense debate that armed conflict involving non-actors like the al Qaeda or the Hezbollah as afore described, would receive similar description. The basis of this position is that it is easily defensible to describe all civil wars as non- international conflict, but it is not equally arguable to qualify every conflict occurring in the territory of a state as non-international. The challenges posed by non-state actors in post- modern international law truly shows that non-state entities confined within the geographical boundaries of particular state are capable of sustaining armed conflict against other foreign states. These non-state entities mostly are capable of transnational violence potentially causing widespread damage to foreign interests enough to attract military attack in response to their violence. The wording of common article 3 in its reference to ‗conflicts not of international character‘ has often been interpreted very widely to include all conflicts that are not inter-state. For instance, ―the International Court of Justice and the International Criminal Tribunal for the Former Yugoslavia…interpret the phrase ―conflict not of international character‖ as being residual, covering any armed conflict that is not inter-state. This may be interpreted to mean that the conflict like that engaged in with the al Qaeda belongs to the category of non-international conflict, even though it cannot be regarded as an internal conflict. 214 of most basic guarantees found in the common article 3161 of the Geneva Conventions which governs the conduct of hostilities (jus in Bello).
This body of law established the minimum standards of humane treatment for internal armed conflicts as well as for non-international armed conflicts. Hence, whereas human rights norms apply in peace time where the measure is more of law enforcement; IHL minimum begins where the counter – terrorism has upgraded to that of armed conflict. The enjoyment of rights should not depend on the capacity or incapacity of the other to reciprocate. States are not expected to be judges in their own case, so much as to disqualify others from the enjoyment of certain rights under IHL.
On the other hand, for states who have detained persons of that category, international human rights law and international law oblige them to provide minimal fundamental rights protection. It is hence recommended that state security policies or domestic regulations should not prejudice the enjoyment of these protections, given their obligation under to international law.
The court in the Tadic162 case argued that if the common article 3 would apply even in the context of a purely internal conflict, and then a fortiori it would apply to a conflict with a transnational dimension in which the principle of non-intervention would have less force. Thus if the states dealing with civil unrest are not much less scared about the applicability of common article 3 to the conduct of their internal affairs, much less would they be scared for its application to terrorists whose armed activities are often transnational. It must be admitted that there are a number of conflicts involving terrorists that are merely non-international i.e. undoubtedly internal, e.g. Nigerian
161 Humane and non-discriminatory treatments are two important protections offered under this provision. The Geneva Conventions 1949 have been ratified by a considerable number of States (196 states including all the member states of the UN) and also that article 3 has been claimed to be declaratory of customary international law on this point. However, this article is applicable to the situation of non-international armed conflicts in a limited way as circumscribed in the provision. 162Prosecutor v Dusko Tadic, No.IT-94-1-AR72, para.102 (Oct.2, 1995. 215 army assault on Boko haram and Niger Delta Avengers. But there are also others that are more than non-international in structure. The reason is that they are transnational in the constitution of its membership. Such globalized armed conflict admits of application of IHL guarantees.
It is instructive to highlight the significance and essence of common article 3 of the
GC as it connects IHL in general. As expressed by the ICJ in Nicaragua case, article 3
―…defines certain rules to be applied in the armed conflict of non-international character …and these rules constitute minimum yardstick …and these rules reflect what the court in 1949 called elementary considerations of humanity.‖163 Again the court in the previously cited case of Tadic referred to the same provision as embodying ‗certain minimum mandatory rules‘ which are applicable under customary international law to any armed conflict.
However, in the adjudication of some of the cases involving non-state entities terrorist, Israel sends the clear message that there are no clear answers in international law with regard to the status of such persons. Although it invokes the GC in the protection of civilians in these conflicts, it avoids the same Convention in the treatment of the individuals captured in such conflict. It relies more on its domestic laws, insisting that these conventions were not designed to deal with a fight against terrorism of the type conducted in the ‗Rainbow‘ operation. While it could be conceded technically that the Law of War as it exists today in the GC does accommodate the non-state entities- terrorists fighters like the Al Qaeda, ISIS, the
Hezbollah or the other terrorist groups at least in the allocation of status, it is also not legally correct to brand them with strange extra-legal names, making them liable to the harsh and inhuman treatment of the detaining power.
163Case concerning Military and Paramilitary activities in and against Nicaragua (Nicar. v U.S), 1986 I.C.J. 4 para.114 (Judgment of June 27) (Merits). 216
The true legal position from the above analysis is that so long as such conflict with terrorists is adaptable to the character of non-international conflict, it suffices also to claim privileges which are available in the instruments that govern conflict, their amorphous combatancy notwithstanding. Pigeonholing them in or out of the known categories of lawful combatants, unlawful combatant or civilians, is critical to not according them the minimal protection under the law of armed conflict.
3.8.4 Anti- immigration Model- Donald Trump Alternative A popular strategy for combating the menace of terrorism in many countries especially in the western hemisphere has been the emphasis on preventing terrorists from entering or remaining in the country. The dominant approach to realizing this objective is enacting restrictive immigration laws or engaging in tighter enforcement of existing immigrations rules. Where the existing laws are not restrictive enough to give vent to the required tighter enforcement, it often calls for urgent reforms of the immigration legislations.
In the light of such philosophy and policy driving the political space, people suspected of involvement in terrorism or terrorism related charges are removed from such countries for what were previously overlooked as simple violations of immigrations laws. The paradox that rolls out of this policy space is not only that immigration is the major driving force of globalisation for which every country is beneficiary but also that international migration is one of the most potent strategy employed by the terrorists in achieving geographical reach of their activities of causing injury, death and fear on the innocent civilian population. Thus, the September 11, 2001 hijackers and their collaborators have been portrayed as enemies of globalisation. 217
The aim of immigration policies is to facilitate the entry of foreigners whose presence is desired and to identify and deter the entry of unwanted foreigners. The most notable of unwanted foreigners into many countries of the western hemisphere are people suspected to have terrorist inclination, connection or in sympathy with their ideologies. The 9/11 attacks continue to be the watershed for the many counter terrorism measures including the anti-immigration model. In respect of this model, because the 9/11 perpetrators were non-citizens, the policy response inevitably includes immigration measures.
As has been demonstrated in this research, it is not in doubt that that since 9/11, the predominant terrorist group and incidences has been typically Islamic fundamentalist individuals who were immigrants and have settled in Western Europe and Parts of
United States. In a research conducted on this subject matter, Robert Leiken writes,
―the sharp rise in casualties corresponds to the emergence of Islamist terrorism.‖164
Thus, these Islamic fundamentalist groups are convinced that to strike at the Western hemisphere, they must rely on infiltration through immigration as well as domestic terrorist cells which has been awakened by indoctrination via the internet and new recruitments through terrorist websites.
While the territorial measures to prevent terrorism cannot be met by stringent immigration policies, at least immigrations policies targeted at foreigners engraved with diligent scrutiny can be of immense help in excluding and disqualifying applicants with contacts to terrorists or are suspected of any links with terrorists groups.
164 R. Leiken, ‗Europe‘s Mujahideen, Where Mass Immigration meets global Terrorism,‘ April 2005.
In essence, there is an increasing rhetoric to foster policies for aggressive regulation and reduction of immigration as a viable option for meeting the challenges posed by terrorism fueled by Islamic immigrants. This is the rhetoric that Donald Trump, the
President of the United States elected on the platform of the Republican Party in
November 2016, peddled on his campaign trail as his major anti-terror policy, hence
Donald Trump Model of anti-terrorism. The currency of this model has reached critical mass especially in the spade of series of recent terrorist attacks in 2015/16 by single individuals (lone wolf) or persons mainly of Moslem extraction/ immigrants with links to foreign terrorist groups in both United States and Western Europe.
Prior to the current enhanced anti-immigration approach to counter-terror campaign, a good number of countries considered it needful after 9/11 incidence to strengthen their immigration laws in order to reduce the chances of terrorism that has been facilitated by apparent sloppy immigration policies. The Bush Administration on whose watch 9/11 attacks happened took several steps in the immigration policy direction in the aftermath of the attacks.
The first tool was the enactment of USA- Patriot Act 2001- Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001.165 The USA PATRIOT Act contains a number of immigration provisions that will improve the United States of America‘s ability to identify and either exclude or prosecute aliens with terrorist ties. It is equally clear, however, that this new law represents only a first step in the immigration-policy reforms that are
165 The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), signed into law on October 26, represents the U.S. government‘s primary legislative response to the terrorist attacks of September 11. Patterned after a proposal developed by the Department of Justice, this new law (Public Law No. 107-56) focuses mainly on reinforcing the arsenal of tools available to the Central Intelligence Agency, the Federal Bureau of Investigation, and federal prosecutors for identifying and disabling terrorist networks operating both within and outside the United States. Available at:
Thereafter the USA Patriot Act, followed the Enhanced Border Security and Visa
Entry Reform Act (EBSVERA) of May 2002, which changed the US visa issuance procedures and put in place stringent measures and scrutiny programs aimed at excluding persons suspected to have any links with any terrorists groups. Also, the
Act established tracking systems, which requires foreign visitors to be photographed and fingerprinted at the border before they enter United States.
In all, these legislations favoured more intrusive tactics on citizens as well as foreign visitors in its campaign against terror and this follows from the overarching model of the ongoing war against terrorism which has been the regime‘s paradigm. These policies resulted in the adoption of unduly harsh and restrictive control measures which came close to profiling in the issuance of visas, significant adverse impact on refugee admissions and authorisation given to border officials to second guess visa grants and to exclude entrants upon arrival.
166 S. 201 USA Patriot Act, 2001- Amends the Federal criminal code to authorize the interception of wire, oral, and electronic communications for the production of evidence of: (1) specified chemical weapons or terrorism offenses. 220
Hence Joan Fitzpatrick remarks as follows: ―Certain aspects of these inadmissibility and deportation grounds operate on an assumption of ―guilt by association.‖ Often the only evidence that an individual may be engaging in terrorist activity is his association or communication with persons believed by law enforcement officials to be terrorists.‖167 In view of these anti-immigration bent to counter-terrorism, it was observed that a ―hundreds Arab and South Asian men were arrested and removed from the United States, usually for immigration violations that previously would have been overlooked.‖168 These measures are justified by a claimed state of war.
Against the backdrop of the uncertainty and security concerns after post 9/11 attacks,
Canada introduced some immigration reforms as a counter terrorism measure. The introduction of Kingston Immigration Holding Centre (KIHC) and the Security
Certificate mechanism169 are Canadian examples of global post 9/11 shift towards extraordinary situations where sovereign power renders aspects of law inapplicable in response to perceived necessities brought about by state of crisis (terrorism). The detention based on the security certificate is indefinite and terminates with the successful deportation of the detainee. The KIHC was designed and constructed exclusively to house security certificates detainees. Given the Judicial activism of the
Canadian Judges and the human rights paradigm that pervades every aspect of
Canadian life, the Supreme Court170 declared that the security certificate are of no
167 J. Fitzpatrick, Terrorism and Migration, ASIL Task Force Papers on Terrorism, 2002, 7. 168 Philip Martin, International Migration and Terrorism: Prevention, Prosecution and Protection, UC- CCP Seminar, March 5-6, 2004
Charter.
Donald Trump‘s rhetoric on counter terrorism has been a penchant towards this paradigm. He advocates that United States must wage an unrelenting ideological fight if it is to defeat terrorism and the Islamic State. He said he would temporarily suspend immigration from ―the most dangerous and volatile regions of the world‖ and judge allies solely on their participation in America‘s mission to root out Islamic terrorism.171 He proposes to bar anyone from parts of the world where terrorism breeds. He insists that he would call for ―extreme vetting‖ of immigrants that would include requiring them to respond to a questionnaire with an ―ideological test.‖172
His proposal came short of requiring all Muslims Americans to be registered in a single data base. Since he became the President of the United States in Jan. 2017, he has signed a number of executive orders reflective his anti-immigration approach to counter terrorism. On 27 Jan, 2017, just a week after his inauguration as President, he signed an executive order titled ‗Protecting the Nation from foreign Terrorist Entry into the U.S‘. In section 2 of that order, he notes that, ‗It is the policy of the United
States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.‘173
He insists that in order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding
171 New York Times, Donald J. Trump, the Republican Presidential nominee, discussed the rise of global terrorism and the Islamic State and the necessity of combating it. Aug 15, 2016.
Upon frustration of the 27 Jan. 2017 executive order by Federal Courts, he signed the
March 6, 2017 order where he temporarily banned visa issuance to citizens or immigrants from Iran, Libya, Somalia, Sudan, Syria, and Yemen and suspends the entire U.S. Refugee Admissions Program for at least 120 days. In all, his counter terrorism policy appeared to reflect an anti- immigration centric approach which is also reflective of the immediate post 9/11 policy of United States Government.
The German government also tightened its naturalization procedures after 9/11 by requiring applicants to disclose any past crimes on the understanding that if such crimes are later discovered, German citizenship can be revoked.174
The downside of counter- terrorism migration policies is that they often target short term security gain that involves over emphasis on profiling and exclusion, deporting of persons at the cost of long term political and international benefit that should involve monitoring, diligent screening before admission and issuance of visas. The former would often focus on admission and exclusion by reviewing nationality and religious affiliation of intending immigrants.
In addition to these anti-immigration policies following 9/11, such measures have also not shown any deference to the rule of law procedures and human rights
174 P. Martin (n.168). 223 directives as these administrative detentions and exclusions are not amenable to domestic judicial supervision. In summary, it does appear that the anti-immigration policy of many states in their counter terrorism efforts tend to conflict with the principles of international human rights and refugee law which restricts the expulsion of persons who may face grave human rights violations upon return.
Article 3175 of the Convention against Torture and other Cruel, Inhuman and
Degrading Treatment or Punishment, Article 33 (1) of the 1951 Convention relating to the Status of Refugees,176 and Article 7 of the ICCPR impose absolute bars to return in certain circumstances and states must respect these principles. However there appears to be no clear rules for control measures or safeguard in cases of detention, which can be applied to persons who have reasonable grounds to fear torture, but who may pose a danger to the host state or other states because of their terrorists‘ ties or activities. Concerned States often err on the side of indefinite detention rather than deport them to face cruel treatment.
3.8.5 Negotiation Model (ADR) Article 2(3) of the UN Charter provides that in pursuit of such purposes (of the UN), states ‗shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. Also, Article 33 of the UN Charter states that any dispute that is likely to endanger the maintenance of international peace and security should first be addressed through negotiation,
175 Art 3- United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention),( 10th Dec. 1984)-
Negotiation, so recommended is one of the means for resolving disputes. The menace of terrorism in these times have provoked a discussion on whether negotiation can be an effective model for the end of violence caused by all forms of terrorism without prejudice to the varying ideologies and goals of these groups.
Onuoha describes Negotiation, ―as a dialogue or discussion designed to resolve disputes and produce an agreement on matters of mutual concern.‖177 Another author, also defines it as ―the process whereby the parties within a conflict seek to settle or resolve their conflicts.‖178 Negotiation therefore is a process of managing and resolving conflicts when there is still a channel of communication between the disputing parties. The major objective of negotiation is to persuade, convince and cajole the opponent to agree to terms for the purpose of deescalating an existing conflict. In negotiation, parties to the conflict respond to some critical element which is: make demands and concessions and respond to changing signals and arrive at negotiated outcomes or disagree.179 In negotiation therefore parties address their demands and proposals to each other for the purpose of reaching an agreement and changing the behaviour of at least one actor.
The proponents of this model as a counter terrorism approach are of the view that because conflicts are inevitable in human relations; and wars have been waged against
177 J, Onuoha, Negotiation and Mediation Process, in Miriam Ikejiani-Clark, (ed.) Peace Studies and Conflict Resolution in Nigeria, A Reader,( Spectrum Books Ltd Abuja 2009) 111. 178 Miall, Hugh, Ramsbotham and Woodhouse, Contemporary Conflict Resolution: The Prevention, Management and Transformation of Deadly Conflicts, ( Polity Press Cambridge, 1999) 14. 179 J. Onuoha (n.177) 113. 225 terrorism throughout centuries with little lasting effect to resolving them; one way to diffuse terrorist conflict with less deleterious effect is to tow the way of negotiation.
This approach draws energy and oxygen from the philosophy that successful conflict management requires tolerance for diversity. However, the atmosphere and the degree of tolerance towards diversity will vary with issues and the actors involved. The world is preoccupied with the question of whether or not it is useful and justified to negotiate with terrorists, the people who are responsible for some of the most heinous crimes of violence directed against unarmed civilians in the name of whatever political ideology. The problem is multi-dimensional, so the word ―useful‖ relates to the political aspects of it, whereas ―justified‖ relates to the moral side of the dilemma.
Peter Neumann presents some argument against this model when he remarks as follows:
The argument against negotiating with terrorists is simple: Democracies must never give in to violence, and terrorists must never be rewarded for using it. Negotiations give legitimacy to terrorists and their methods and undermine actors who have pursued political change through peaceful means. Talks can destabilize the negotiating governments‘ political systems, undercut international efforts to outlaw terrorism, and set a dangerous precedent.180
In practice however, democratic governments often negotiate with terrorists. The
British government maintained a secret back channel to the Irish Republican Army even after the IRA had launched a mortar attack on 10 Downing Street that nearly eliminated the entire British cabinet in 1991. In 1988, the Spanish government sat down with the separatist group Basque Homeland and Freedom (known by its Basque acronym ETA) only six months after the group had killed 21 shoppers in a supermarket bombing. Even the government of Israel—which is not known to be soft
180P. R. Neumann, Negotiating with Terrorists, Foreign Affairs, [Jan/Feb. 2007] Vol. 86, No. 1,128. 226 on terrorism—has strayed from the supposed ban on negotiating with terrorists in
1993, it secretly negotiated the Oslo accords even though the Palestine Liberation
Organization (PLO) continued its terrorist campaign and refused to recognise Israel‘s right to exist. In the light of the foregoing, Neumann therefore argues that when it comes to negotiating with terrorists, there is a clear disconnect between what governments profess and what they actually do.181
However, the inelasticity of the ―no negotiations‖ policy of many countries notwithstanding what happens behind closed doors has obstructed any logical assessment of how best to conduct such negotiations. The burning questions therefore still remain and they are: How can a democratic government talk to terrorists without jeopardising the integrity of its political system? What kinds of terrorists are susceptible to negotiations? When should negotiations be opened? The key objective for any government contemplating negotiations with terrorists is not simply to end violence but to do so in a way that minimizes the risk of setting dangerous precedents and destabilizing its political system. The circumstances in each situation are vastly different. But whatever the particular ideological or geographic background, no negotiations process can even get started without strong indications that the terrorists are serious about ending their armed struggle. While it is easier and more justified to initiate negotiation with so called terrorist of nationalist struggle and separatist movement, given that their goal are clearly political, it may not be so easy to initiate such negotiation with terrorists with extreme religious views not only because their goals are elusive but also the leadership, level of cohesion and authority base are not streamlined or homogenous. Moreover, more often than not, they lack firm territorial base. ISIL, Al Qaeda, Boko Haram have global aspirations but no firm territorial base,
181 Ibid. 227 and there is no clearly defined territory in which its aims could be satisfied through constitutional means. Under these conditions, Neumann argues that opening negotiations would be a counterproductive move: it would provide them with political legitimacy while undermining both moderates across the Muslim world and the negotiating governments themselves.182
Where negotiation would create a viable alternative to the resolution of the crisis created by terrorist tactics, Neumann suggests that democratic governments should hold out the promise of giving terrorists a stake in the political process, but only if the terrorists agree to play by democratic rules. Negotiations can sometimes be an exit strategy for terrorists who have second thoughts about their campaigns. But governments must always be clear that a full commitment to democratic principles is the price terrorists will have to pay. In such situations, concessions are to be made to address the stated demands and their personal fate. Neumann calls this, primary and secondary concessions. Primary concessions would relate to the terrorists‘ stated demands, secondary concessions to their personal fate. Both sets would be negotiated in parallel, but whereas secondary concessions would be discussed in direct negotiations between the government and the terrorists, primary concessions would have to be part of a broader process that would subject the terrorists to a democratic mandate, secured through elections for a constitutional assembly or a similar body.
Terrorists seeking primary concessions aim to alter the political arrangements under which the state operates, and no self-respecting democracy can allow a small group of once-violent conspirators to impose constitutional change, even after it has ostensibly renounced violence. On the other hand, terrorists will have little incentive to engage in negotiations unless they feel constitutional change is at least a possibility. The only
182 Ibid. 228 way to resolve this tension is to grant primary concessions only in the context of a broader settlement involving all the major parties and in which the terrorists participate on the basis of a democratic mandate so that the concessions become an extension of the polity‘s will.
The purpose of secondary-track talks is relatively straightforward: to ensure an orderly demobilization of the terrorist group. This is especially true of negotiations on personal-related matters, which often lead to amnesty-like arrangements for prisoners and terrorists on the run.
It may not be farfetched to argue that the effort of the Nigeria government in the last couple of years in their dealings with the Niger Delta Crisis was a subtle application of the negotiation model. The regime of then President Shehu Yaradua opened up with the amnesty programme which gave opportunities to the Niger Delta militants to attend higher education and acquire skills that will make them employable and at the same time ensuring an unconditional amnesty for those militants. Furthermore in dealing with terrorist with elusive ideologies like the Boko haram or ISIL, negotiation is sometimes necessitated for moral or political reasons which have to do with exchanges of terrorists for innocent captives. Democracies, whereby soldiers and civilians are kept in captivity, can explore the option of negotiations with the captors in order to bring about the release of hostages. Arguably, deals of exchange with terrorists can be negotiated and conducted only when all other means of operations are exhausted for no avail. The state of Nigeria is currently embroiled in this controversial situation of entering into negotiation with Boko Haram for the release of the Chibok girls some of whom may still alive in their custody. Recently, Boko haram has released a number of the kidnapped Chibok girls as well as Dapchi school girls through a negotiation process apparently conducted by the Red Cross resulting in a 229 payment of ransom as well as exchange of Boko haram detainees in the federal prisons.
While it is clearly very convenient politically to adopt slogans such as ―never negotiate with terrorists,‖ as it may seem to be the political and moral high-ground, but being right and clever are not always compatible. Sometimes it is clever to negotiate with terrorists, just sometimes, so this model advocates.
In summary, this section has explored the five outstanding models of counter terrorism as extrapolated from the practice of states within the post 9/11 platform. The war model and the human rights model stood out and both have been subjected to extensive critical analysis by many thinkers as seen in this work. The last two models
– the negotiation model and the anti-immigration though not as prominent have remained a subtle approach often incorporated by states as ancillary to their mainstream counter terrorism approach. It is a settled position of this work that effective counter terrorism measures must incorporate the various aspects of these models in order to effectively confront the challenge posed by the hydra headed nature of terrorism. 230
CHAPTER FOUR
TERRORISM AND THE NIGERIAN EXPERIENCE
In this chapter, the research focuses attention at some of the historical aspects, causes and impact of terrorism in Nigeria, while highlighting a few outcome of unstructured survey on terrorism in Nigeria conducted in the course of the research. The focus of the chapter on Nigeria provided a fitting space for a study of the Nigeria counter terrorism initiatives respecting the legal regime and the other measures in place, making critical comments on the inadequacy of those measures. It also reviews some of the challenges faced in combating terrorism in Nigeria.
4.1 Historical Dimension and Causes of Terrorism in Nigeria Non-state actors comprise the bulk of active terrorist organizations. Their primary motivators distinguish these organizations. Although many of these groups have overlapping and competing motivators, it is important to understand the primary reason for their existence, especially if we are to resolve the underlying issues that give rise to them. Most non-state terrorist groups are primarily motivated by political ideology, by some form of ethnic or sectarian nationalism or by religious extremism.
The threat of terrorism flows with political movements and conflicts around the world. Some nations are exempt from its ravages while others are plagued by it.
Historically, the early forms of terrorism, typified by the zealots were motivated primarily by religious factors. By the 19thcentury and the rise of nationalism as a key political force, the religiously motivated groups declined while those motivated by nationalism increased. It wasn‘t until the 1980s, after the Islamic Revolution in Iran, that the resurgence of religiously motivated terrorism resurfaced. Understandably, in 231 this contemporary era, the adaptation to various forms of identity ostensibly under threat of assimilation (particularly religious, cultural or ethnic-national identities) and the conflicts over water, oil and other precious resources tends to trigger groups to form and perpetrate political violence in the name of their causes. It must be clearly understood that there is no one type of terrorism or terrorist. There is no single cause that unites them all. The only single variable that is common is their willingness to resort to violence. The sources and causes that motivate people to such acts vary and change over time.
In Nigeria, non-state terrorist groups are distinguishable by their primary motivation identified through political ideology, ethno-nationalism and religious extremism. An author paints this picture of violent conflict in Nigeria in these apt words: ―Nigeria presents a complex of individual as well as crisscrossing and recursive identities of which the ethnic, religious and sub-ethnic (communal) are the most salient and the main bases for violent conflicts in the country.‖1These ethno-regional and ethno- religious conflicts which seemingly have metamorphosed into terrorism related violence unfortunately has historical, geographical and political origins. The state of affairs evolved from old structures of the Nigeria federation where identities were shaped by leaders of the dominant ethnic groups- Hausa/Fulani in the northern region
(predominantly moslem), Igbo in the eastern region and Yoruba in the western region, amidst other minority tribes especially in the Niger Delta, who have continued to exert considerable impact in the violence narrative in Nigeria, given the oil rich resources of the regions. In a sense then, many a conflict in Nigeria can be described as either ethno- regional or ethno- religious.
1E. Osaghae & R.T.Suberu, A History of Identities, Violence and Stability in Nigeria, CRISE (Centre for Research on Inequality, Human Sexuality and Ethnicity), Queen Elizabeth House, University of Oxford) Working Paper. No. 6, Jan. 2005. 232
In the northern part of Nigeria, the causal factors of terrorism related incidences has always been traced to the religious and ethnic differences between the Moslems and
Christians against the backdrop of lack of political will by the Moslem political elites of the county, while in the Southern part of Nigeria, in the words of Ayuba Isyaku:
Domestic terrorism can be traced to the socio cultural and economic differences among ethnic nationalities within the environment against the activities of multi-national companies and its corporate social responsibility to the host communities and the rivalry that existed between the south over the north dominance and influence.2
This is reflective of the idea often borrowed from Marxist ideology3 that while economic and social factors are more common causes of conflict; political and institutional factors such as the structure of the state, discriminating political institutions and intergroup politics and ethnicity are also critical.4 It can therefore be argued in view of the preceding dynamics that the logical consequence of use of
2 A. Isyaku, Terrorism: A New Challenge to Nigeria‘s Stability in the 21st Century [2013]International Affairs and Global Strategy, Vol. 12.
Against the backdrop of the prevalence and currency of terrorism in global politics, it has also manifested itself in Nigeria, in such a way that we can now speak of domestic terrorism. Although the activities of these different ethnic or religious are unarguably terroristic in character, their label as terrorists sometime creates a confusion because, international law at least makes a distinction between war of national self- determination or economic struggles for resource control and other forms of use of violence which are senseless and solely targeted against civilians.
Undoubtedly, terrorist violence has become a common phenomenon in Nigeria and has posed great challenge for national security. Although, there have been several incidents of religious and ethno related violence in Nigeria, it is only within the last decade that terrorism as a concept is being used to characterise them, a reaction which tends to go with the current global sensitivity to the menace of terrorism. For instance, the Maitatsine uprising of the 1980‘s was never understood in the context of terrorism. There were also many previous religious conflicts in the Northern Nigeria that involved violence as well as the first use of improvised explosive device (IED)- letter bomb that targeted and killed Dele Giwa, (then Editor of Newswatch magazine) in October 1986, which were all terrorist acts but was never described as terrorism.
Terrorism became a common vocabulary in Nigeria‘s political landscape with the incipient agitation from the people of Niger Delta Region which became a national concern with their attendant kidnappings, extortion and bombing of oil wells and facilities in the region. The youths of Niger Delta organised themselves under the 234 umbrella of many named organisations with the same agitation to compel the
Government of the day to take positive steps for ameliorating the environmental, social and political problems of the area.
The first of its kind was the agitation of Niger Delta Volunteer Force under the leadership of Isaac Boro group in 1965. They organised coordinated attacks, breaking oil pipelines and took some security men hostage. Subsequently, other similar organisations that arose include Movement for the Emancipation of Niger Delta
(MEND), Movement for the Survival of the Ogoni People (MOSOP), and more recently the Niger Delta Avengers (NDA), Niger Delta volunteer Force (NDVF).
These groups are famous for hostage taking, kidnapping of oil workers and wealthy men for ransom, exchange of fire power with government forces, pipeline vandalisation and destruction, oil theft etc. The increasing rate of these terrorist activities especially since President Buhari took over power signaled a new dimension to the crisis as these groups are bent on crippling the already ailing Nigeria economy by using terrorist activities to paralyse the oil exploration and business in Nigeria.
Suffice it say that the Niger Delta Militants which has increased astronomically in frequency had no other reason for their terrorist attacks than the exploitation of their naturally oil rich land with uncomplimentary development of the region with the attendant pollution of the environment and their water, affecting their major means of livelihood, which is fishing and agriculture.
Apart from these incidences of insurgency or militancy in the Niger Delta region,
Nigeria has also experienced the emergence of various ethnic militants such as
O‘odua people‘s Congress (OPC), Movement for the Actualisation of Sovereign State of Biafra (MASSOB), Independent People of Biafra (IPOB), Arewa Youth
Consultative Forum, to mention but a few. Although the activities of some of these 235 latter groups are confrontational in nature, in most cases, they fell short of any description of them as terrorism.
With the rise of Islamic militancy and fundamentalism in the Northern part of Nigeria, a new wave of violence snowballed into a series of terrorist related incidences caused by the Islamic group called Boko Haram. This religious group was founded in 2002 by Muhammed Ali who was later killed in a shootout with the military in
2003.Oyebode tracing the history of this dreaded terrorist group says:
The Jamā'at Ahl as-Sunnah lid-Da'wah wa'l-Jihād5 , otherwise known as Boko Haram emerged in the Nigerian Landscape in 2002 when a group of young Islamic fundamentalists denounced the city of Maiduguri in North East Nigeria as irredeemably corrupt and then moved to Kanama, a village in the neighbouring Yobe State, not too far from Niger, where they set up a separatist community based on rigid Islamic principles.6
The group later regrouped under the new leader, Mohammed Yusuf, who recruited many talakawas- (unemployed youth) and almajiris (students of Quranic schools), indoctrinating them that western education and education of women is sin. Also due to the strategic location of their central place of command, which is Yobe and Borno states, some of the militants consist of foreign nationals of Chad, Cameroun, Mali,
Somalia and Sudan which has led some people to conclude that Boko Haram has metamorphosed into a regional terrorist sect. In line with this, Yinka Olomojobi remarks, ―Its ideology centered on Boko (western education) as haram (unlawful). In reality, the crux of these jihadists is that it seeks to abolish Nigeria secular system of government and establish a sharia law in the state.‖7 The real jihad of the Boko Haram
5 People committed to the propagation of prophets‘ teaching and Jihad. 6 A. Oyebode, Legal response to the Boko Haram Challenge: An Assessment of Nigeria terrorism)Prevention) Act, 2011, A Paper delivered at the Oxford Round Table, Holden at Harris Manchester College, University of Oxford , England , July 22-26, 2012. 7 Y. Olomojobi, Islam and Conflict in Northern Nigeria (Malthouse Press Ltd Lagos, 2013) 222. 236 sect became an unsettling feature of the Nigeria story after the extrajudicial killing of
Yusuf, their leader on July 30, 2009. Although the Nigeria government came up with counter security measures, it was unable to undermine the violence wrought by Boko haram which increased both in intensity and geographical spread. It gradually became obvious that Boko Haram has some external and international influence from foreign terrorist groups like al Qaeda and Somali militant group, the Al Shabbab and much later ISIL, a fact which would help to account for the growing sophistication of their attacks using powerful explosives and Improvised explosives Devices (IEDs). Thus
Solomon Hussein writes, ―The quality of explosives used also demonstrates Boko haram‘s increasing sophistication.‖8
With time, from 2009, Boko Haram engaged in a numerous incidences of brazen and heinous attacks in Nigeria targeting many churches, public places, police stations, government facilities and schools. They also engaged in kidnappings, suicide bombing, beheadings, extortion and arson, rendering many homeless and displaced, thereby creating a complex refugee problem in Nigeria for many villages of the North
East of Nigeria. Their brazen attack on the United Nations office in Abuja on August
26, 2011, gave vent to the belief that their choice of targets has gone beyond local targets to include targets with global reach simulating other Islamic terrorist groups like Al Shabbab and ISIL. Apart from these brazen attack on a facility with international spectrum, Nigeria had previously entered into a register of nations harboring terrorists when on Dec 25, 2009, Umar Abdultallib, a Nigerian, attempted to detonate an explosive concealed in his undergarment in a flight en route from
Nigeria- via- Netherland to Detroit (United States). Since then, it has become certain that Boko Haram has caught international attention. Thus, many foreign governments
8 S. Hussein, Counter- Terrorism in Nigeria, Responding to Boko Haram [2012] Rusi Journal,Vol. 157. August/September, No. 4, 6-11@ 8. 237 have warned their nationals of the worsening security situation in Nigeria while some others are pledging their support to Nigeria in the ongoing campaign against the menace of Boko Haram.
It is not without doubt that these Boko Haram insurgences in the Northern Nigeria as well as the activities of the Niger Delta militants are the latest scenario of acts of terrorism in Nigeria. According to Ayuba Isyaku, ―The tactics, strategies and mode of operation adopted by these terrorist are similar and professional in line with terrorist ideologies and practices found elsewhere around the world.‖9
In discussing the cause of terrorism in Nigeria, this research engages the theory of recognition as expounded by Axel Honneth where he explains the basis of conflict and resistance in modern political systems. Honneth argues that key forms of exclusion, insult and degradation violate self-confidence and self-respect and therefore generate negative emotional reactions which make terrorists to see themselves as self-appointed crusaders against this perceived oppression to engage in political action aimed at liberating themselves out of the this crippling situation of passively endured humiliation.10
Honneth highlights that today‘s real borders are not between nations but between powerful and powerless, free and fettered, privileged and humiliated. Thus, terrorism seems to be triggered by the great asymmetry among different social and political entities. Cheng remarks that, ―this discrepancy becomes so intense that terrorists‘ outbreaks seem to be a concretization of what Honneth calls the moral protest of the oppressed launched against the dominating powers.‖11 He then argues that the purpose
9A Isyaku, (n.2). 10 Sinkwan Cheng, Terrorism, Subaltern and the Politics of Recognition: Rethinking Hegel and Honneth[2014], Journal of Law and Conflict Resolution, June Vol. 6(3), 56-66. 11Ibid 59. 238 of critical philosophy is to investigate social problems in their historical context with emancipatory intent. In his understanding of the cause of terrorism, Honneth traces the root by locating the source of conflict and social progress in the struggle for recognition.
Honneth‘s theory while acknowledging that in the tactical short term, we should reactively defend ourselves against terrorism, through forceful means if necessary, but in the strategic long term, we must proactively deal effectively with the underlying, deep-rooted causes and conditions of the problems that result in terrorism. Otherwise we will have a never-ending supply of recruits for martyrdom. For example, for years
Sri Lanka's government tried and failed to stamp out the terrorism of the separatist
Liberation Tigers of Tamil Eelam with brute military force. Sixty thousand people died in the fighting and a host of senior politicians, including a Prime Minister of
India, were killed by some 200 suicide attacks. Now Ranil Wickremasinghe, who won election as Prime Minister for the second time on a pro-peace platform ( to break down the many ethnic barriers in the country and bring the warring LTTE to the negotiating table for peace talks) is getting some results by addressing the root causes of the violence—deprivation in Sri Lanka's northern and eastern regions and the aspiration of the ethnic Tamil minority there to rule itself.
Deniis Sandole observes in this connection that, ―While there seems to be a plethora of short-term military and law enforcement responses to terrorism, there does not seem to be much in the way of long-term "conflict transformation" or "peace building.‖12 Quite simply, this means that the "War on Terror" as presently waged is not only not likely to succeed, but is likely to exacerbate the problems it is meant to
12 Dennis J. Sandole, Causes of Terrorism, in William Cunningham, Terrorism, Concepts, Causes and Conflict Resolution. New York: US Defense Threat Reduction Agency, 2003. 239 address. The implication of this is that among the cause of unending terrorism is lack of sustainable and counter-productive counter terrorism measures. For example the fight against terrorism, especially as it is currently being waged against Islamic terrorism in many jurisdictions using the war model approach and less of nothing of peace building, will likely radicalize increasing numbers of people in the Muslim world and heighten their approval of the use of violence in fighting the national interests. It is in this light that a few persons engaged in a roundtable discussion with respect to the best model for combating terrorism in Nigeria are of the opinion that
Nigeria government must buffer security agencies and law enforcement machinery, separate politics from counter terrorism, establish proper negotiation systems, address the demands of the Niger delta people and expand the amnesty program by including more rehab programs, seek the cooperation and assistance with international community and other nations, strengthen the anti-corruption campaign as terrorism feeds on corruption, procure effective modern communication and security equipment for the purpose of tracking terrorism in the cyberspace, create employment and create more access to education for the people of Northern Nigeria where the attraction to religious fundamentalism is high, robust awareness campaign on the evils of terrorism and community based security arrangements in order to prevent and track terrorism from the grass roots.
There emerges therefore two schools of mainstream thought regarding the spread and motivation for terrorism namely: liberal and conservative. Each offers divergent views as to the nature, causes and solutions of terrorism. While the liberal school believes that there are necessary conditions that give rise to terrorism, the conservative school believes there is no justification for the terrorist‘s reprehensible acts. Most governments are conservative in their analyses of terrorism. Their 240 counterterrorism policies reflect this bias. Rather than focusing on long-term solutions or eliminating the preconditions that may give rise to terrorism, they choose to use force to counter the threat. In many cases, this is successful, at least in the short term.
However effective these resources are in dealing with the tactical and immediate responses to terrorism, they do little to resolve the underlying socio-economic, political and cultural conditions that give rise to terrorism as theorised by Honneth.
This work aligns more with the liberal view and agrees with Honneth that unless the underlying causes of terrorism are addressed, the current campaign against terrorism, significant success cannot be achieved in reducing the menace and the attraction that terrorism often presents.
In Nigeria, the Niger Delta militancy no doubt has roots in the environmental degradation of the area without commensurate developmental projects and significant impact on the life of the people of the region. This agitation has raged for too long and been suppressed. It is no longer possible to ignore these grievances owing to the resort to militancy and terrorist tactics in order to seek and attract recognition. Honneth‘s theory would describe this as a moral protest of the oppressed launched against the dominating powers in order to liberate themselves from the ongoing oppression and neglect. The crusaders consider themselves martyrs for their community and they sight oppression and exclusion as excuse for terrorism as they are convinced that they are not getting a fair share of the resources accruable from oil exploration in the Niger
Delta region. Such conditions, when coupled with a sense of injustice and narrative of victimhood that is exploited by terrorists create a toxic environment for terrorism to thrive.
In the case of Boko Haram, the cause can be traced to poverty and lack of proper education. However, some people trace the root of terrorism to the perceived 241 oppression and denigration of Islam by the global west and western values. The
President of Iran, Dr. Hassan Rouhani in his statement to the United Nations General
Assembly remarks that, ―Terrorism germinates in poverty, unemployment, discrimination, humiliation and injustice.‖13 He advises that to uproot terrorism, we must spread justice and development and disallow the distortion of divine teaching to justify brutality and cruelty. In the heat of sustained Boko Haram insurgency under
President Goodluck Jonathan and in a bid to craft a solution to the problem, the
Presidential Committee on Security Challenges, headed by Ambassador Usman
Galtimari, made significant recommendations to the effect that ―unemployment and high rate of illiteracy in North eastern Nigeria are significant factors that generate militant Islam.‖14 It has also been canvassed on many discussion forums that poverty, political motivation, religious convictions and monetary compensation are some of reasons motivating people or groups to engage in acts of terrorism. In view of that an effective model of counter terrorism must address the fundamental factors leading to poverty and religious fundamentalism, part of which is unemployment, social neglect and perceived marginalization.
Although, seeds of terrorism existed in many parts of Middle East and places where
Moslem adherents are predominant because of gross infrastructural inadequacies, Dr
Rouhani insists in addition that the strategic blunders of the West in the Middle-East,
Central Asia have turned these parts of the world into a haven for terrorists and extremists. Some of these blunders include the creation of al Qaeda and Taliban to fight the Russians in Afghanistan; military aggression in Iraq; the current intervention in Syria and use of sanctions against Islamic regimes, which tend to attract deep
13 Dr. Hassan Rouhani, The President of the Islamic republic of Iran, Statement Before the 69th Session of the UN General Assembly, 25 September, 2014. 14Olomojobi, (n.7). 242 hatred for those imposing them by the ordinary folks. While this thought position is not entirely correct as accounting for the root cause of terrorism, it may be true to the extent that it could account for the difficulty of eliminating terrorism in its entirety in
Moslem countries by the use of these strategies mentioned. Thus expressed, these strategies have fanned the spread of terrorism, rather than cut out its spread and intensity.
However, the quest for power, recognition and personal notoriety amongst extremists are also some of the driving force of Islamic terrorism. Ishola Balogun15 writes that
Islamic terrorism is not about religion, it is about self-acclaimation in the pursuit of personal aggrandizement. It was also suggested in the same article that the educated twist the Quran to get power and control the weak minded people. Thus, when you have few educated people and a mass of the uneducated people in a given society, then there is trouble because the educated ones will use the power of what they know to exploit the uneducated and weak minded people.
It is also believed that being ignorant of the true teaching of Islam are responsible for the current global terrorism especially the Boko Haram insurgency in Nigeria. As
Balogun affirms, ―They are taught a very radical and misrepresentation of Quran and
Hadith and most often than not, they are sent on a mission of no return of killing other innocent people.‖16 Thus, these extremist under the guise of protecting and advancing their religious values, indoctrinate and misinterpret the Quran for the weak and uneducated, who are then used to engage in violence in order to satisfy their quest for power and control. It is therefore believed in mainstream Islam that, ―these people are masquerading under the guise of a divine religion to perpetuate their diabolical
15 Ishola Balogun, Terror Attacks: How Terrorists Recruit, Radicalise Youths, Saturday Vanguard Newspapers, Nov. 21, 2015, 11. 16 Ibid. 243 agenda, as Islam is seen as generally a religion of peace, which forbids you to attack people.‖17
4.2 Impact of Terrorism in Nigeria The threat of terrorism and its many incidences in Nigeria has undoubtedly impacted many aspects of Nigerian life. Terrorism in Nigeria brought about by Boko Haram and the Niger Delta Militants brings great instability to the smooth running of a country. It may possibly lead to disintegration of the country at large. It creates unnecessary fear and suspicion in the minds of people and breeds ethnic distrust amongst the various tribes that are already suspicious of each other. As Isyaku puts it:
― The threat incurred by terrorist act in Nigeria have profound security and economic implication and the corporate existence of Nigeria, as the united and indivisible entity have been threatened to a level of mistrust and mutual suspicion.‖18
Also notable over the past year, 2016 is the major intensification of the terrorist threat in Nigeria by these two prominent groups. Nigeria witnessed the largest increase in terrorist deaths ever recorded by any country, increasing by over 300 per cent to 7,512 fatalities (and counting).19 Here is a brief chronicle of the major incidences of terrorism in Nigeria:
July 26–29 - 2009 Boko Haram uprising, nearly 1,000 people are killed in clashes between Boko Haram militants and Nigerian soldiers throughout northern Nigeria, beginning the Boko Haram Islamist Insurgency in Nigeria.
September 7, 2009 - Bauchi prison break, 5 people are killed and 721 inmates are freed from prison in Bauchi by suspected Boko Haram gunmen.
17 Ibid. 18 A. Isyaku (n.2) 21. 19Global Terrorism Index (GTI),
December 31, 2010- Abuja attack, a bomb attack outside a barracks in Abuja kills four civilians. May 29 - May 2011 northern Nigeria bombings, 15 people are killed in
Abuja and Bauchi after bombs explode in several towns in northern Nigeria during
Goodluck Jonathan's swearing in as the new president.
June 16 – 2011- Abuja police headquarters bombing, at least two people, the perpetrator and a traffic policeman, are killed in a failed bombing of Abuja's police headquarters. It is Nigeria's first instance of a suicide bombing.
August 26 – 2011- Abuja United Nations bombing, 21 people are killed in a bombing attack on a United Nations compound in Abuja.
November 4 – 2011- Damaturu attacks, between 100 and 150 people are killed in a series of coordinated assaults in northern Nigeria.
December 25, 2011- Nigeria bombings, 41 people are killed by Boko Haram bomb attacks and shootings on Christian churches. April 8 - April 2012 Kaduna bombings, 38 people are killed following a bombing at a church in Kaduna.
June 17 - June 2012 Kaduna church bombings, 19 people are killed following bomb attacks against three churches in Kaduna.
August 7, 2012 - Deeper Life Church shooting, 19 people are killed when Boko Haram gunmen raid a church in Kogi State. December 25 - December 2012 shootings in Nigeria, 27 Christians are killed in Maiduguri and Potiskum by suspected Boko Haram militants.
December 28, 2012-- Another 15 Christians are killed in the village of Musari by unknown gunmen.
March 18 – 2013- Kano bus bombing, between 22 and 65 people are killed in Kano by a car bombing.
April 16 – 2013- Baga massacre, 187 people are killed in Baga in Borno State. It is unclear whether the Nigerian military or Boko Haram is responsible for the massacre.
June – 9, 2013- children are killed in Maiduguri and 13 students and teachers are killed in Damaturu by Boko Haram.
July 6, 2013 - Yobe State school shooting, more than 42 are killed by Boko Haram gunmen in a Yobe State school.
September 19, 2013 - Benisheik attacks, 161 are killed in attacks blamed on Boko Haram.[12]
September 20, 2013 - An Abuja shootout leaves 7[13]-9[14] killed. 245
September 29, 2013 -Gujba college massacre, more than 50 students are killed in Yobe State by Boko Haram gunmen.
January, 14, 2014–35 people are killed in a bombing by Boko Haram militants in Maiduguri, Borno State.
January 31, 2014 - 11 Christians killed in Chakawa by Boko Haram militant
February 14, 2014 - Borno Massacre, 121 Christian villagers killed by Boko Haram militants in Konduga, Borno State.
February 15, 2014 - Izghe attack, 106 killed the village of Izghe, Borno State by Boko Haram gunmen.
February 15, 2014 - 90 Christians and 9 Nigerian soldiers are killed in Gwosa by Boko Haram.
February 24, 2014 - Dozens killed as Boko Haram again raids Izghe.
February 25, 2014 - Federal Government College attack, 59 male students killed in a school massacre in Yobe State.
April 14 - April 2014 Abuja bombing, over 88 people killed in a twin bombing attack in Abuja.
April 15, 2014 - Chibok schoolgirls kidnapping, 276 female students in Borno State are kidnapped by Boko Haram.
May 1 - May 2014- Abuja bombing, 19 killed in Abuja by a car bomb.
May 5 – 2014- Gamboru Ngala attack, at least 300 people are killed in the twin towns of Gamboru and Ngala in Borno State by Boko Haram militants.
May 20 - 2014 Jos bombings, at least 118 villagers are killed by car bombs in the city of May 27 - May 2014 Buni Yadi attack, 49 security personnel and 9 civilians are killed during a Boko Haram attack on a military base in Yobe State.
May 30 - The third emir of Gwoza, Idrissa Timta, is assassinated during a Boko Haram ambush.Jos.June 1 - 2014 Mubi bombing, at least 40 people are killed by a bomb in Mubi, Adamawa State.
June 2 - Gwoza massacre, at least 200, mostly Christians, are killed in several villages in Borno State by Boko Haram.
June 20–23 - June 2014 Borno State attacks, at 70 people are killed and 91 women and children kidnapped by Boko Haram militants in Borno State.
June 23–25 - June 2014 central Nigeria attacks, around 171 people are killed in a series of attacks in the Middle Belt of Nigeria.
July 18 - At least 18 are killed by a Boko Haram attack in Damboa, leaving the town almost destroyed. 246
July 22 - 51 people are killed by Boko Haram in Chibok
November 2 - Kogi prison break, 99 inmates in Kogi State are freed by suspected Boko Haram rebels.
November 3–10 - 2014 Yobe State attacks, a double suicide bombing in Yobe State kills 15 Shiites on the 3rd and 46 students on the 10th.
November 25 - Over 45 people are killed by two suicide bombers in Maiduguri, Borno State.
November 27 - Around 50 people are killed in Damasak by Boko Haram militants.
November 28 - 2014 Kano bombing, at least 120 Muslim followers of the Emir of Kano, Muhammad Sanusi II, are killed during a suicide bombing and gun attack by Boko Haram. The 4 gunmen are subsequently killed by an angry mob.
December 6, 2014 - Minna prison break, 270 prisoners are freed from a prison in Minna. Boko Haram is not suspected to be involved in the attack.
December 10, 2014 - At least 4 people are killed and 7 injured by female suicide bombers near a market in Kano.
December 11, 2014–30 people are killed and houses are destroyed by Boko Haram militants in Gajiganna, Borno State.
December 13, 2014- Gumsuri kidnappings, between 32 and 35 are killed and between 172 and 185 are kidnapped by Boko Haram in Borno State.
December 22, 2014- Gombe bus station bombing, at least 27 people are killed at a bus station by a bomb in Gombe State.
December 28, 2014- Cameroon clashes, 85 civilians, 94 militants, and 2 Cameroonian soldiers are killed following a failed Boko Haram offensive into Cameroon's Far North Region.
January 2, 2015 - Boko Haram militants attack a bus in Waza, Cameroon, killing eleven people and injuring six.
January 3, 2015 -Baga massacre, Boko Haram militants raze the entire town of Baga in north-east Nigeria. Bodies lay strewn on Baga's streets with as many as 2,000 people having been killed. Boko Haram now controls 70% of Borno State, which is the worst-affected by the insurgency.
January 3, 2015 - Fleeing villagers from a remote part of the Borno State report that Boko Haram had three days prior kidnapped around 40 boys and young men.
January 28, 2015, 2015 - Boko Haram fighters killed 40 people while on a rampage in Adamawa State. 247
February 15, 2015 – A suicide bomber kills 16 and wounds 30 in the Nigerian city of Damaturu.
February 24, 2015 - Two suicide bombers kill at least 27 people at bus stations in Potiskum and Kano.
April 5, 2015 - Boko Haram militants dressed as preachers killed at least 24 citizens of Kwafaja Village in Borno State, with some reports claiming that up to 50 were killed.
April 9, 2015 - Members of Boko Haram entered the village of Dile in Borno State, killing 20.
April 17, 2015 - While soldiers were evacuating the town of Gwoza in Borno State, militants entered the town and slit the throats of at least 12 townspeople.
6 January, 2016 - Boko Haram gunmen raided Izageki village in northern Nigeria, close to Sambisa Forest, Boko Haram's hideout and killed at least two people. The gunmen pursued fleeing civilians and another militant armed with a suicide belt blew himself near a market, killing another five people.
13 January, 2016 - A suicide bomber blew himself up inside a mosque at Kouyape, close to the Nigerian border. The blast killed twelve people and wounded another one. The attack occurred at dawn and was attributed to Boko Haram although it didn't officially claim responsibility.
27-28 January, 2016 - Weekend rampage with a total death toll of at least 65 people and twice that number injured. Affected areas were various villages in Dalori and outskirts of Maiduguri, the capital of Borno Province. Residents say the death toll was even higher, with as many as 100 dead.
30 January - At least 86 people are killed and hundreds others injured in an attack by Boko Haram militants on Dalori Village some 4 kilometers from Maiduguri, Nigeria.
26 March, 2016 - At least four people were killed during a Boko Haram raid in the remote village of Tumpun near Lassa in Askira/Uba Local Government Area.
4 June, 2016 - At least 32 people were killed and 67 injured after hundreds of members of Boko Haram attacked the city of Bosso and area in Niger. Many places in the city were torched and shot at. There were also several deaths and injuries of the attacker's side.
17 June, 2106- At least 24 people were killed and at least 10 injured after Boko Haram militants attacked a funeral Kuda, Nigeria.
23 January, 2017 - Boko Haram invaded a village, killed eight people and abducted an unspecified number of women and children in Borno State.
29 January, 2017 - Boko Haram attacked a convoy of motorists along a recently secured highway, in Borno state, Nigeria killing at least seven people and injuring many others. 248
30 January, 2017 -Fifteen people were killed by Boko Haram militants in Maiduguri, Nigeria.
2 June, 2017 - 11 people are dead after two suicide bombers attacked a camp for those displaced by Boko Haram extremist violence in the region.
8 June, 2017 - At least fourteen persons were killed and 24 were injured as Boko Haram suicide bombers staged multiple attacks targeting mosques where Muslim worshippers were praying. The attack occurred while soldiers were trying to repel another group of Boko Haram fighters, who were trying to invade the city.
3 July, 2017 -Boko Haram Islamist militants killed nine people and abducted dozens more in southern Nigeria.
11 July, 2017 -Boko Haram have publicly executed eight villagers in northeast Nigeria who opposed the enforcement of its hardline form of Islam. Also, Four Boko Haram suicide bombers killed 19 people and injured 23 in the northeast Nigerian city of Maiduguri.
Boko Haram has become the most deadly terrorist group in the world having pledged its allegiance to ISIL (also known as the Islamic State) and now brands itself as the
Islamic State's West Africa Province (ISWAP) in March 2015. Their violent activities have brought about not only negative image to Nigeria but also caused significant social, political and economic impact to the smooth running of the country.
The costs of containing terrorism as well as the direct cost of terrorism are significant.
For example, the daily short fall in the supply/sale of crude oil caused by bombing oil facilities in the Niger Delta is direct cost of terrorism resulting in grave economic loss to Nigeria. While the cost sustained in providing security through the use of
―Crocodile Smile‖ to those oil fields in Niger Delta region reflects the cost sustained in containing terrorism.
The violence associated with terrorism also tends logically to discourage potential investors from bringing their investments into the country. Hence, this author(s) cannot agree less in his remarks as follows, ―However, for very large terrorist events or countries with very high levels of terrorism, there can be very notable economic 249 impacts on economic growth and foreign direct investment (FDI).‖20 In countries prone to frequent levels of terrorist attacks like Nigeria, foreign investors shy away from bringing their investment for fear of inadequate security affecting them personally or their investments. Terrorism can potentially affect economic growth as such attacks can increase uncertainty and insecurity which limits investments and diverts foreign direct investment (FDI). In other words, due to decreased levels of human mobility to and from these troubled and terror ridden areas, (ad intra and add extra), investment and business transactions are adversely affected and economic growth and activity significantly reduced.
The numerous unanticipated waves of terrorist bombing episodes have also impacted the social and personal lives of individuals. Given the wide scale of destruction of lives and properties in the Northern Nigeria by Boko Haram terrorist activities and kidnaping, a lot of people live in abject fear and their mindset are dominated by fear of terrorist attack. The result is that people have become wary of attending religious places of worship and other public places with little or no security in the region.
Furthermore, terrorism operations lead to government expenditures on defense activities in order to provide protection for possible targets and institute proactive measures to capture terrorists and their assets. This increased government spending on security can crowd out more growth-enhancing public and private investments. Thus, as terrorist activity increases, insecurity within societies also increases with governments responding by increasing spending on counterterrorism enforcement, national security agencies and the military.
20 Khusrav Gaibulloev & Todd Sandler, The Impact Of Terrorism and Conflicts on Growth In Asia( 2008)
Terrorist activity is a significant driver of refugee activity and internal displacement.
Certainly we know that countries and regions where violent extremism is rife —
Syria, Iraq, Afghanistan, Northern Nigeria, to name a few– are among the top countries displacing significant numbers of people. In northern Nigeria, for example,
Boko Haram has kidnapped women, forcibly recruited children and men, and besieged entire villages, forcing immediate evacuation. Archbishop Tomasi, the
Permanent Observer of the Holy See to the United Nations, in this regard maintains that, ―Due to the violence of new forms of terrorism and the breach of international humanitarian law, the international community faces the challenge of responding to the influx of refugees fleeing these troubled areas to find a safe haven.‖21
There is no doubt in the minds of many people22 that Nigeria is experiencing an adversarial impact of terrorism which is inimical to sustainable development. People have been killed, properties worth millions of naira destroyed, significant number of villages displaced, economic activities disrupted, and development projects stalled and oil exploration which is the main stay of Nigeria economy frustrated, all on account of terrorist activities. There is therefore no better moment to discuss the more effective model for counter terrorism than now. There is need to evolve a more nation specific model to address the menace of terrorism in Nigeria as the current wave of domestic terrorism in Nigeria has crippled the socio-economic and political progress of the region and of the country in general.
21 Statement by His Excellency Archbishop Silvano M. Tomasi, Permanent Observer of the Holy See to the United Nations and Other International Organizations in Geneva at the 29th Session of the Human Rights Council Panel on the Effects of Terrorism on the Enjoyment by All Persons of Human Rights and Fundamental Freedoms Geneva, 30 June 2015.
4.3 A Review of Nigerian Terrorism Prevention Regime and Counter Terrorism Measures Although different shades of terrorist activities existed in Nigeria over the years, terrorism never reached a critical mass and never became a matter for serious discussion among the populace and the politicians until the attacks of the Boko Haram militants became very rife and unsettling. Prior to 9/11 attacks, the United Nations has at various times come up with several conventions with respect to responding to a spade of terrorist activities that have the potential to threaten international peace and security. Nigeria is a signatory to these conventions already highlighted in chapter three of this work. It is worthy to note that post 9/11 approach to terrorism heightened the need for state parties to increase efforts in the fight against terrorism.
Res. 1373 of Security Council which followed on the heels of 9/11 attacks obliges all state parties to ensure that any person who participates in the financing, planning, preparation of terrorist acts or in supporting terrorist acts is brought to justice and ensure that in addition to any other measures against them, such terrorists acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorists acts.23 Subsequently, on 8
September 2006, the United Nations General Assembly also adopted the Global
Counter-Terrorism Strategy. The strategy is a unique global instrument to enhance national, regional and international efforts to counter terrorism. Byits adoption, all member states agreed for the first time to a common strategic and operational approach to fight terrorism. At that, it was not only sending a clear message that terrorism is unacceptable in all its forms and manifestation, but also resolving to take practical steps individually and collectively to prevent and combat it. Those practical steps include a wide array of measures ranging from strengthening state capacity to
23UNSC Resolution, S/RES/1373 (2001), par. 2(e). 252 counter terrorist threats to better coordination of United Nations system‘s counter- terrorism activities.
However, prior to the establishment of this Counter terrorism strategy of the UN, the first direct mention of terrorism as a criminal activity came into the penal register of
Nigeria legal system with the enactment of the Economic and Financial Crimes
Commission (Establishment etc) Act,24(EFCC) Cap. E1 of 2004. In that monumental legislation, the offence of terrorism appears in section 16. However, the legislation provided a definition of terrorism in the interpretation section- Section 46. It may be reasoned that for lack of any meaningful and devastating terrorist events in the country at that time, terrorism was considered more of a financial crime that has connection with some of the already defined crimes found in the Nigeria criminal and penal code, than a crime with a specialty of its own. Hence the definition of terrorism in EFCC Act (2004) as follows:
Terrorism means:
(a) any act which is a violation of the Criminal Code or the Penal Code and which may endanger the life, physical integrity or freedom of, or cause serious injury or death to, any person, any number or group of persons or causes or may cause damage to public property, natural resources, environmental or cultural heritage and is calculated or intended to-(i) intimidate, put in fear, force, coerce, or induce any government, body, institution, the general public or any segment thereof, to do or abstain from doing any act or to adopt or abandon a particular standpoint, or to act according to certain principles, or(ii) disrupt any public service, the delivery of any essential service to the public or to create a public emergency, or(iii) create general insurrection in a State; (b) any promotion, sponsorship of, contribution to, command, aid incitement, encouragement, attempt, threat, conspiracy, organization or procurement of any person, with the intent to commit any act referred to in paragraph (a) (i), (ii) and (iii).25
24EFCC Act, Cap. E1 of 2004. 25 S. 46 of EFCC (Establishment, etc. Act.) 2004, Cap. E1. 253
In furtherance of that definition provided in the interpretation section, Section 15 of the Act provides for offences relating to terrorism and criminalises certain acts that interconnect with the definition of terrorism and financial malfeasance. These offences are as follows:
(1)A person who willfully provides or collects by any means, directly or indirectly, any money from any other person with intent that the money shall be used or is in the knowledge that the money shall be used for any act of terrorism, commits an offence under this Act and is liable on conviction to imprisonment for life. (2)Any person who commits or attempts to commit a terrorist act or participates in or facilitates the commission of a terrorist act, commits an offence under this Act and is liable on conviction to imprisonment for life. (3) Any person who makes funds, financial assets or economic resources or financial or other related services available for use of any other person to commit or attempt to commit, facilitate or participate in the commission of a terrorist act is liable on conviction to imprisonment for life.26
Under this law, there is no second guessing that the counter terrorism model so endorsed is rule of law model with specific focus on law enforcement model of crime prevention. The reason can be found in no other place than in the fact that the devastation and evil impact of terrorism was yet to sound an ominous note in the jurisdiction, considered trivial to warrant a rethinking of another model notwithstanding the events at the world stage.
Under the Money Laundering (Prohibition) Act27 of 2011 (as amended), terrorism appears in s.16 of the Act where it creates eligible offences under the Act to include the conversion or transfer of funds obtained by participation in organised crime, terrorism or terrorist financing, etc.28 Although, the Act makes no effort to provide a definition of terrorism, but provides a subtle description of terrorist financing in s.24
26Ibid. s. 15. 27Money Laundering (Prohibition) Act2011, Act No. 11. 28S.15 (2), Money Laundering (Prohibition) Act, No. 11, 2011. 254 where it considers terrorist financing as financial support in any form of those who engage or encourage the offence of terrorism. The lack of definition of terrorism in that legislation may not be unconnected with the fact that the previous financial offences regime, (the EFCC Act) has provided a definition, and the courts and the law enforcement officers will be presumed to derive some guide from the EFCC Act, owing to the close relationship between the two legislations.
With terrorism becoming a daily occurrence in Nigeria and urgent need to conform to the directives of the United Nations in many of its resolutions and counter terrorism programs, the need was felt in Nigeria for legislation on the prevention of terrorism but not without ethno- political squabbling that punctuates most critical issues in the
Nigerian polity. When the Bill was proposed earlier after a wave of much insurgency and terrorist tactics employed by Niger Delta groups, and religious fundamentalist in the early 2000‘s, it met with stiff opposition at the National Assembly despite the prevailing circumstances.
One of the reasons for denouncing the proposed Bill was that it contained an open ended definition of terrorism with the potential of subsuming the activities of the
Niger Delta and Islamic militants under its definition. In the words of Boye, ―the proposed bill harbors some certain ambiguities which prevented it wider acceptance… and it was aimed only at certain organisations or associations of which it did not specify.‖29 Thus while the Niger Delta people opposed the Bill on the ground that it is an attempt to criminalise their struggle for equitable distribution of the money accruing from oil exploration, the Islamic adherents believed that the bill was a
29Raji R. Boye, ‗Nigeria Anti-Terrorism Law and Global Security‘
Mohammed Bello Adoke, the then AG of the Federation while confirming that
Nigeria has ratified 18 international instruments aimed at counter-terrorism, remarks that Nigeria had drawn inspiration and guidance from the UN Counter Terrorism
Strategy and the work of the UNCTITF particularly its prescription to the effect that there must be a justice system that guarantees due process rights regardless of the offence.30 In addition to the prescription of Res. 1373 cited above, Nigeria intent on following words with appropriate action and to ensure that our counter-terrorism efforts are founded on the rule of law, enacted the Terrorism Prevention Act of 2011.
It is worthy of mention that the major catalyst that necessitated the enactment of the legislation was the high frequency of the terrorist attacks by Boko Haram between
2010 and 2011.
Solomon Arase, the then Inspector General of Nigeria, observes that ―Between
September 2010 and May 2011, Boko Haram successfully carried out over fifty attacks.‖31 In view of these experiences, the Bill was hurriedly presented by the executive and swiftly passed on May 2011 with overwhelming majority votes in both legislative houses but with obvious errors and problems attendant to it. This necessitated a review within two years, hence the Terrorism Prohibition (Amendment)
Act was passed in 2013 to further strengthen the regime on anti-terrorism. In the
Amendment Act, more than 20 sections were either deleted or substituted.
30 Counter-terrorism: Nigeria ratifies 18 UN treaties, says AGF, Jan 19, 2015.
One important feature that runs through the legislation, considered relevant in this work, is the need to provide adequate safeguards for the protection of human rights in the global war against terror. The Act provides for measures for the prevention, prohibition and combating of acts of terrorism, the financing of terrorism in Nigeria and for the effective implementation of the Convention on the Prevention and
Combating of Terrorism and the Convention on the Suppression of the Financing of
Terrorism and also prescribe penalties or punishment for violation of its provisions.
The amended version further makes a provision for extra-territorial application of the
Act and strengthens terrorist financing offences.32
The key provisions of the law include:
1) Makes the office of the National Security Adviser the national coordinating body for all security and enforcement agencies under this Act33. 2) Makes the Attorney General of the Federation the authority for the implementation and administration of the Act.34 3) Offers law enforcement agencies the responsibility for gathering intelligence and investigation of offences under the Act.35 4) Provides the powers for the law enforcement agencies to effectively carry out their intelligence gathering and investigation functions.36 5) Provides a special class of offences against internationally protected persons.37 6) Detention for a renewable period of 90 days (upon an ex-parte court order) of individuals being investigated for suspected terrorist activity.38 7) Protection of informants and witnesses.39 8) Provides that the maximum punishment for violation of any provision of the Act is death sentence40, although the highest prescribed penalty running though the Act is life imprisonment. 9) The federal high Court located anywhere in the country has the jurisdiction to try all terrorist offences regardless of the location of the offence.41 10) Any officer of duly authorized security agency may apply to the court for a warrant to initiate investigation into terrorist offence.42
32 s.17, TPA (Amendment Act) 2013 33s.1(A) 1 of the TPA ( Amendment Act) 2013. 34 Ibid s.1(A)2. 35Ibid 1 (A) 3. 36 Ibid 1(A)4& 1(A)5. 37 Ibid. s.1(3) a. 38 Ibid. s.27(1). 39Ibid. s33 & s.34. 40 Ibid. s32(2). 41Ibid. s.32. 42Ibid. s.24. 257
In the light of the new amendments therefore, the office of the National Security
Adviser will be the co-coordinating body for all security and enforcement agencies.
Also, the Attorney General of the Federation is to ensure conformity of Nigeria‘s counter-terrorism laws and policies with international standards and United Nations
Conventions43, as well as maintain international co-operation required for preventing and combating international acts of terrorism.
Also, amendments to Sections 26 to 29 of Terrorist Act produced a new Section 28 which allows appropriate law enforcement or security officials to detain suspected terrorist for a period not exceeding 48 hours without having access to any person or a medical officer. Also, the Act gives the police and security forces powers to seal off a property or confiscate vehicles without a search warrant. It should be observed that the Act contains necessary procedural safeguards sufficiently adapted to balance the human rights framework of presumption of innocence and national security protection.
The definition of terrorism provided by the Act appears very inclusive by the accommodation of the Mens Rea and the Actus Reus of terrorism. The Act treads on an unconventional layout for the definition of crime and tows a peculiar path by commencing the definition with the intention of the act (which constitutes terrorism) followed by the various physical acts that tantamount to terrorism. In defining terrorism, S. 1(3) of the TPA (Amendment) Act provides as follows:
In this section: "act of terrorism" means an act which is deliberately done with malice, aforethought and which: (a) May seriously harm or damage a country or an international organization; (b) is intended or can reasonably be regarded as having been intended to— (i)unduly compel a government or international organization to perform or abstain from performing any act; (ii)seriously intimidate a
43 Ibid. s.28(1). 258
population; (iii)seriously destabilize or destroy the fundamental political, constitutional, economic or social structures of a country or an international organization; or (iv)otherwise influence such government or international organization by intimidation or coercion; and; (c) involves or causes, as the case may be— (i)an attack upon a person's life which may cause serious bodily harm or death; (ii)kidnapping of a person; (iii) destruction to a Government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property, likely to endanger human life or result in major economic loss; (iv)the seizure of an aircraft, ship or other means of public or goods transport and diversion or the use of such means of transportation for any of the purposes in paragraph (b) (iv) of this subsection ; (v) the manufacture, possession, acquisition, transport, supply or use of weapons, explosives or of nuclear, biological or chemical weapons, as well as research into, and development of biological and chemical weapons without lawful authority ; (vi) the release of dangerous substance or causing of fire, explosions or floods, the effect of which is to endanger human life; (vii) interference with or disruption of the supply of water, power or any other fundamental natural resource, the effect of which is to endanger human life ; (d) an act or omission in or outside Nigeria which constitutes an office within the scope of a counter terrorism protocols and conventions duly ratified by Nigeria.44
This definition in an attempt to bring in everything fails to provide a precise meaning of terrorism. It rather describes but does not define. It itemises the content of terrorism but fails to put terrorism in its special genre of crime in the light of contemporary circumstance or situation. The outstanding feature of this definition can be located in the fact that the offence of terrorism not only excludes accidents, protests or demonstrations provided that no harm is intended. The element of malice, afterthought, harm, intimidation and political objective are not only essential but necessary to conclude that a certain criminal act is a terrorist offence.
44 S.3 Terrorism Prevention( Amendment Act), (TPA) Act No 10, 2013. 259
Furthermore, the Act creates a window to enable both individuals and corporate bodies liable45 for terrorist offences as stipulated under the definition section.
However, the problem associated with corporate liability for terrorism is the difficulty of proving malice and intention for a corporate body, a situation that may warrant the opening of the veil of incorporation in order to uncover the individuals behind the mask parading as a corporate body.
The Amendment Act introduces a new element into the legislation by not only criminalising positive acts of terrorism by participating, assisting (accessory) or inducing but also negative acts of omission that is reasonably necessary to prevent an act of terrorism.46 Thus individuals as well as corporate entities may be held liable for the offence of terrorism where they omit to do an act that is reasonably necessary to prevent the commission of terrorism. The new S. 1(A) of the Act introduces a three layered level of authorities involved in the counter terrorism project. These are: the
Office of the National Security Adviser (NSA), the Attorney General and the Law
Enforcement Agencies. Each of these layer of authority is empowered under the Act with specific duties. As may be expected, the NSA is at the top the pyramid with the power to ensure the effective formulation of counter terrorism strategy for the country while coordinating the work of the other relevant security, law enforcement and intelligence agencies in the counter terrorism project.
The Attorney General is empowered under the Act in s.1 (A)2 to see to the effective implementation and administration of the Act and enhance the existing legal framework to conform to international standards under the United Nations road map.
His office is also to oversee the effective prosecution of all terrorist offenders. The
45S.1(2) TPA (2013). 46Ibid s. 1(2)c. 260
Act therefore contemplates that all necessary procedural safeguards for criminal prosecution should be in place otherwise, Nigeria will run fowl of international obligations under ICCPR.
The law enforcement agencies are further empowered under the Act47 to adopt measures in order to prevent and combat and investigate terrorism. The Act empowers them in certain circumstances to detain for specified period any person suspected of terrorism, search premises, install devices for detection, intercept communication, seize, freeze or maintain custody of terrorist property and use reasonable force for the purpose of combating and preventing terrorism. In all, the Act gave the law enforcement agencies the omnibus powers to do all that is necessary to prevent, detect, investigate, eliminate, and prosecute terrorist activities in Nigeria.
In addition to other relevant provision of the Act that criminalise terror supportive activities like terrorist meetings, attacks against internationally protected persons, providing support to terrorists, harboring terrorist and hindering arrest of terrorists, training, etc, the Act prescribes various penalties for these different offences under the Act. The maximum sentence is death sentence and the least is 5 years depending on the severity of the offence and discretion of the Judge, considering the circumstances of the case.
Nigeria against the backdrop of this new legislation and with the increasing rate of incidences of terrorism adopted a number of measures to eliminate, detect and combat terrorism. A review of the legal regime would be incomplete without highlighting some of these measures in the light of subsisting legal framework of TPA. The appropriate question to ask is whether the counter terror measures adopted by Nigeria squares up with the provisions of TPA.
47S.1(A) 3 TPA (2013). 261
With the unrelenting surge of armed attacks and horrendous killing of civilians by the
Boko Haram sect predominantly in the north eastern Nigeria, it has become clear that the pandemic of terrorism often associated with the Western world is very much a
Nigerian‘s problem. These attacks by Boko Haram and Niger Delta Militants, their coordinated nature and impact speak to the unprecedented and exceptional character of the threat and as is reasonable to argue, would demand exceptional measures to counteract.
However in the heat of this series of violence orchestrated by these groups in Nigeria, the Buhari led government which came into power in May, 29 2015, has temporally relocated the defence headquarters to Maiduguri, the centre of the conflict amidst criticisms. Before now, the previous effort led by his predecessor Mr. Jonathan
Goodluck, under General Ihejirika‘s command was termed genocide following the
Bama, Maiduguiri incident. The Bama incident occurred on Tuesday May, 7, 2013 when suspected members of Boko Haram unleashed terror on residents, many of whom were killed. The casualties included 13 officers of the Nigeria Prisons Service who were killed during a raid on the Bama prisons by the terrorists. About 105 inmates of the prisons were set free by the insurgents. Twenty-one of the invaders were said to have been killed by soldiers and many others were arrested.48
Following this Boko Haram horrific violence, the Joint Task Force (JTF) of Lt Gen
Ihejirika carried out a raid on the terrorist and unleashed equal violence predicated on self defence. On account of this, reports were received from the two committees on
Security and Legal Matters of the Northern Elders forum, regarding extra-judicial killings by soldiers in Bama and the act of strangulating civilians in Giwa Barracks using an underground detention centre, while depositing the corpses in hospital.
48
There is no doubt that the Military were in the legitimate exercise of their duty to capture and arrest Boko Haram militants, however, it may have been possible that they crossed the human rights line. Without prejudice to the propriety of what happened at Bama, what stood out in all these at the end of day is that there is a general feeling that every terrorist deserves to die giving the extent of pain and anguish they unleash on the innocent population. This pattern of thinking would explain the extra judicial killing in Bama of captured terrorist as well as the detention of many terrorist who have been captured during this heated campaign against Boko
Haram without any concrete plans of prosecuting them expeditiously.
This approach though not officially endorsed by the Nigerian Government appears to be similar to the model employed by the US in designating the suspected terrorist as unlawful combatants with little or no protection under the human rights law or international convention of armed conflict. Thus, the main line rhetoric is to let them die of harsh treatment in the detention centers while awaiting a trial day that may never come. Akin Oyebode captures the moment in these words:
Trials of a number of cases involving terrorism have not disclosed full regard for procedural safeguards such as presumption of innocence, right to counsel, fair hearing, etc., which are the hallmarks of modern criminal jurisprudence. There is considerable misgivings in certain quarters regarding the treatment meted out to detainees accused of terrorists acts, some of whom have since died in incarceration.49
This work subscribes that Nigeria must distance itself from the US post 9/11 model of placing terrorists in legal position where it leaves them vulnerable to the whims and caprice of the executive arm. It rather should tends towards the adoption of a pattern of action that resonates with international principles and robust human rights as enshrined in the constitution. This approach would put Nigeria in the map of states
49 A. Oyebode (n.6). 263 that respect rule of law but also as one that is unwilling to allow the trade-off of national security upstage that of human rights in an institutionalized fashion. This work aligns with Jeremy Waldron when he maintains that the reasons for punishing them (terrorists) are reasons of justice not security and those reasons of justice may not be as separable from the scheme of civil liberties that we are currently trading of.50
With regard to the judicial attention to the crime of terrorism under the prevailing legislation, it is proper to observe that there is evidently a paucity of cases or decisions by Nigeria courts in this area. The TPA empowers the Federal High Court51 with the exclusive jurisdiction in the prosecution of terrorist offences. In spite of the thousands of terrorist activities and consequential arrests of people suspected of terrorism, only a few convictions have been recorded. The guess for this prevailing judicial attitude to terrorism is that there is a reluctance by the law enforcement agencies responsible for prosecution to push to courts cases bordering on terrorism,
There is subtle preference to discourage judicial process and to endorse administrative detention similar to what the situation was in the post 9/11 United States of America.
In all, it demonstrates the slow pace of the judicial system, including a lack of a timely arraignment of persons suspected and detained on terrorists‘ charges. An online report maintains that the Nigerian army confirmed that 504 people were in its custody in connection with the Islamist Boko Haram sect. Of those, 350 suspected
50J. Waldron, Security and Liberty: The Image of Balance, The Journal of Political Philosophy [2003] Vol.11, No.2, 191-210 @ 210. 51 S.32 (1) TPA states as follows: The federal High court shall have sole jurisdiction to try an offence and impose the penalties specified in this Act. 264 terrorists have been recommended for trial at a federal court for terrorist activities in the northeast.52
Worthy of note is that some of the cases that have been successfully prosecuted and convictions obtained were based on the offences under the EFCC Act and the
Criminal Code and other allied criminal offences legislations. The case of Federal
Republic of Nigeria v. Charles Tombra Okah and three others53 gains attention in this regard. The third accused, Edmond Ebiware was convicted pursuant to Section 40(b) of the Criminal Code for failure to disclose an act of treasonable felony in respect of
October 1st, 2010 bombing. Meanwhile, trial of Charles Okah and two other person is still on going. It has been five years since their arraignment and detention in Kuje prisons, Abuja Nigeria, having been denied bail in an application that was finally determined at the Supreme Court of Nigeria.
Another case that was predicated on terrorism charges provision of the EFCC Act is the case of Federal Republic of Nigeria v. Shuaibu Abubakar and five others.
According to the charge sheet, the accused person, ―between June 4 and July 12, (both dates inclusive) at various locations in Suleja, Niger state, Azare, Nasarawa state and the FCT, did engage in an act of terrorism by encouraging through training persons now at large, the use of arms and ammunition, and the preparation, planting and detonation of improvised explosive devices for the purpose of terrorism and thereby committed an offence contrary to section 15 (2) of EFCC Act 2004 and punishable under the same section of the Act.54
522014 Report on Terrorism: Nigeria Judiciary under Fire,
In the proceedings that followed, they were denied bail and remanded to the custody not to the Federal prisons but to the Department of State Security (SSS) at the request of the prosecution counsel. However, they were to be granted an unfettered access to the lawyer of their choice for the purpose of enabling them to prepare for their defence. After the course of the trial, the first four accused persons were in July, 2013 sentenced to life imprisonment, the fifth was acquitted for want of evidence and the sixth was sentenced to ten years imprisonment.
In a more recent ongoing case predicated on the TPA 2011( as amended in 2013),
Justice R.A Mohammed of the Federal High Court sitting in Abuja on 30 Sept. 2016, ordered trial-within-trial in the terrorism charges against two Nigerians, Abdullahi
Mustapha Berende and Saidi Adewumi, accused of recruiting new members for an
Iran based terrorist organization.55 The two accused persons were said to have collected the sum of 3000 Euros and $20, 000 from a terrorist group in order to source and train terrorist-minded Nigerians fluent in English language. According to a six count charge preferred against them by the Federal Government, the duo, had on or before September 2011 and December 2012, at Tehran in Iran, rendered support to the group via provision of materials and terrorism trainings on use of firearms and other weapons. The Federal government told the court that some of the persons that benefited from their training, among whom included Suleiman Olayinka Sake and
Aminu Mohammed Yusuf, are currently at large. Their alleged offence is punishable under section 5(1) and 8 of the Terrorism Prevention (amendment) Act, 2013. The purpose of the trial within a trial was to determine the veracity of the evidence
55Recruitment of terrorists: Court orders trial-within-trial on case against 2 Nigerians,
Notwithstanding the due process provided under the TPA(as amended), Nigeria has also adopted other administrative measures and approaches at different times in order to combat and checkmate the spread of terrorism. More prominent feature of Nigerian anti-terrorism measure is the robust militarization of anti-terrorism campaign.
Professor Dakas corroborating this view observes that: ―A recurrent feature of counter terrorism responses in Nigeria is the frequent deployment of soldiers of civil authority.‖56 Explaining further, he concurs that the military is increasingly taking a lead role in the law enforcement response to Boko Haram. The problem with this approach as he gleaned from the Amnesty International report is that it is questionable whether military equipment and training corresponds to the requirement of law enforcement, taking into account the law enforcement standards that should reflect an international human rights framework as the military are generally trained for operations in situations of armed conflict where more permissive standards of the use of force apply under IHL. In responding to the conflict in Bayelsa, ODI,57 the government deployed soldiers against the perceived perpetrators and the soldiers
56C. J. Dakas, Nigeria‘s Anti- Terrorism Laws and Practices: The Imperative of Mainstreaming Human Rights into Counter- Terrorism Administration, (being a Paper delivered at the expert workshop organised by the Nigerian Coalition on the International Criminal Court (NCICC) in Abuja, May 14, 2013). 7 57Odi. Youths protesting the presence of policemen in the village, had seized seven of them and slaughtered them. Then, again, another five were sent to their early graves. The situation appear to have gone out of control. An enraged President Olusegun Obasanjo gave the Bayelsa State Governor, Chief Diepreye Alamieyeseigha, two weeks to fish out the cop killers and restore peace to the area. The Governor threw up his hands in defeat. By Nov. 19th, 1999, the President lost his patience and invoked emergency powers. Forty-eight hours later, the rural town of Odi was levelled. Only a church and a bank building survived the operation. People were either dead or in hiding in the bushes. The instructions given to the troops were clear, specific and unambiguous- that is, dislodge perpetrators of violence, restore law and order and apprehend suspected murderers. The soldiers commanded by one Lt.- Col. Agbabiaka clearly overshot their brief. Over 300 were reported killed in the most widely condemned military action. The commander justified their offensive as a defensive action. see Osita Nwajah, Nigeria: Obasanjo Condemned For The Situation In Nigeria
Delta and has not in any way dwindled the agitation of the Niger Deltans who have constituted themselves in more sophisticated fashion as to be described as a terrorists group within the framework of this research and Nigeria political landscape. In the light of this, it is arguable that the resort to strong arm tactics by the interested parties, least of all the government, is the most wrong of conflict management strategies. If anything, violent expressions in response to such conflicts end up pulling everybody into a whirlpool of endless disorder, pressure and carnage.
Responding to the Boko Haram attacks, in June 2011 the government of President
Goodluck Jonathan set up a special military task force in Maiduguri consisting of
Army, Navy, Air Force and DSS and the Police. The Objective of joint military force according to H. Solomon, was, ―to allow resources to be pooled, to prevent duplication and to allow for free flow of information between the different parts of the security services.‖58 However, as assessment needs to be conducted as to whether these objectives have been achieved or undermined by many constraints systemic to the Nigeria‘s political and constitutional structure.
Also military check points have been put in place in many strategic places in the country especially areas prone to frequent terrorist attacks such as Abuja, towns in
North East of Nigeria, towns in Bayelsa and Rivers state and more recently in South
Eastern states with the growing agitation of the Biafra Organisations. Following the carnage of the Boko Haram in Borno, while a state of emergency was declared in
58 S. Hussein (n.8) 7. 268 states like Borno, Niger and Plateau, Yobe States in 2011, a curfew was imposed in states like Adamawa, with thousands of soldiers deployed to enforce these rules.
In furtherance of the counter terror campaign, borders between northern Nigeria and neighboring states were closed and closely monitored by military personnel in order to prevent, ―perpetrators of terrorist‘s atrocities from escaping into neighboring countries as well as trying to prevent Boko haram from receiving reinforcements of foreign jihadi elements in the region.‖59
Apart from the law enforcement approaches, the Federal Government of Nigeria has also used dialogue and negotiation approaches to counter- terrorism. In addition to negotiations60 which often happen when nationals or foreign nationals are kidnapped either by Niger Delta Militants or by Boko Haram, there is the ongoing Amnesty
Programme which was put in place by late President Yaradua in 2009 and continued by Former President G. Jonathan for the Niger Delta Militants. The amnesty programme was aimed at ensuring unconditional pardon and cash payments and eventual rehabilitation programs to Niger Delta Militants who lay down their arms within a sixty day period. According to a source, a major demand by the Militants in the Niger Delta, which was also supported by a government appointed committee, was that, ―Niger Delta States should receive 25% of the country‘s oil revenue, as
59 Ibid. 60 A more recent example is the subterranean ongoing negotiation for the release of the Chibok girls who were kidnapped by the Boko Haram on April 12, 2014. The negotiation terms include the swap of Chibok girls for some key Boko Haram prisoners. Twenty one of them were earlier released last October (2016) after negotiations between Boko Haram and the Nigerian government. Another 82 were released on May 5, 2017 following negotiation and swap of top commanders of Boko Haram. See
The amnesty program has been popularly commended as a step in the right direction by media and civil society organisation as one effective measure towards solving the
Niger Delta Crisis. In the Vanguard edition of September 13, 201662, the Coordinator of the Program, Brigadier Paul Boroh observed that the programme has transformed over five million lives in the Niger Delta and has helped tremendously in bringing stability to the region. He revealed that that the amnesty office has also designed a 12- month programme to train and establish cluster farms to re-integrate 10 000 registered in the programme.
As it is appears that the Amnesty programme has made considerable in roads into reduction of the terrorism in the Niger Delta but without some inherent problems that relates to the sustainability of the programme, there are doubts that the same measure can be extended and be expected to be effective with the Boko Haram militancy given the different motivational narratives of the sect. Unlike Boko Haram, that is religion- based terrorism, Niger Delta militancy is ethnic based and its narrative is grounded on a struggle for management of indigenous resources or at best for eco justice for the region.
Since the enactment of the TPA (as amended) by Nigeria, the country‘s counter terrorism measures has also been re-enforced by international actors that includes the
United Nations and United States of America. Within the framework of the Counter terrorism implementation task force (CTITF) Integrated Assistance for Countering
61 Bukola A. Adeniyi, Terrorism in Nigeria: Groups, Activities and Politics[2010], International Journal of politics and Governance Vol.1, No. 1. 62 Amnesty Programme transforms 5m lives in Niger Delta- Boroh, Vanguard Newspaper, Tuesday, September 13, 2016, 4. 270
Terrorism (I-ACT) initiative, UNESCO, CTITF and UNCCT implemented a joint project on conflict prevention and countering the Appeal to terrorism in Nigeria through education and dialogue.
The aim of the project is to enhance capacity building activities in Nigeria for the prevention of terrorism, support conflict prevention, promote peace and social cohesion of vulnerable communities and develop narratives that counter radicalization and violent extremism. In view of this project, town hall meetings has been held, national conferences of stakeholder of traditional leaders from across the country has been organised, as well as workshops for government and civil society representatives aimed at capacity building on countering violent extremism that was held in Abuja between 27-31 October 2014.
Another significant aspect of I-ACT programme is the assistance provided for a push for the improvement of the judicial system for a speedy delivery of justice63 as well as support to the law enforcement community to enhance its capacity and role in preventing terrorism and this would include technical assistance. Some of the workshops anchored under the I-ACT looked at how to build resilience to radicalization within the civil society and outlined de-radicalisation and rehabilitation programmes. The workshop also highlighted an understanding of community policing as a way to address proactively conditions conducive to terrorism, by creating a bridge between law enforcement and local communities.64
The United States government has also restated its commitment to assist Nigeria in it counter terror initiatives. Under President Jonathan administration, the government engaged a U.S. army-led combat training for Nigerian soldiers which was aborted in
63 The Beam, Newsletter of the CTITF and UNCCT, Vol. 9, Fall 2015, 9. 64 The Beam, Newsletter of the CTITF, Vol. 7, Summer- Fall 2013, 14. 271
2014 for some unexplained reasons but the training has since resumed under President
Buhari. The resumed training program is part of a broad U.S. strategy against the terror group and part of the new deal the Obama administration entered with President
Muhammadu Buhari during his official trip to America last July. Ms. Thomas-
Greenfield, the American Assistant Secretary of State for Africa, restates as follows:
―Our counter Boko Haram Strategy is an integrated, interagency effort to help Nigeria and its neighbors in their fight to degrade and ultimately to defeat Boko Haram.‖65
The Assistant Secretary emphasised the importance of mainstreaming human rights in the war on terror, and emphasised that it is in the American interest to assist
Nigeria in deescalating the menace of terrorism in the region but that ―Nigeria and
Lake Chad Basin countries must address the drivers of extremism that gave rise to
Boko Haram, these drivers include weak, ineffective governance, corruption, lack of education, and lack of economic opportunities and jobs for the burgeoning young population.‖66 In addition to entering into partnership with United States, Nigeria has been promised various levels of support by some other western nations like France,
United Kingdom and Israel67 in its fight against terrorism.
In addition to all these counter terrorism efforts by Nigeria, there is also the Nigeria
Terrorism Prevention Regulations (Freezing of International Terrorists Funds and other Related Measures Regulations 2011). This regulation was made pursuant to s.39 of the TPA by Mr. Bello Adoke, the then Attorney General of Nigeria who was intent on pursuing the counter terrorism objectives of UN especially as found in resolution
1373 of the UNSC which requires all member states to freeze the assets and prevent
65 Ladi Olurnyomi, US resumes training of Nigerian troops for anti-terror war, Feb. 12, 2016.
Nigeria.
Although this regulation speaks to the UN Convention for the Suppression and
Financing of Terror (1999), it fails to address the peculiar situation of Nigeria with the prevalence of terrorism incidences being orchestrated by Boko Haram and Niger
Delta Militants. An amendment of this regulation is urgently needed for it to achieve its desired objective of starving the terrorism of the necessary funds and arms which is the oxygen that gives its vibrancy.
4.4 Challenges of Combating Terrorism in Nigeria There is no gainsaying the fact that Nigeria is a mosaic of ethno- religious- linguistic groups, the result of which in most part, one‘s ethnic and religious consciousness in the midst of the power struggle by ethno –religious groups, trumps the commitment and concern for a common good of entire country. In the prevalent atmosphere of ethnic consciousness and the struggle for political power amongst the ethnic groups of
Nigeria, the campaign against terror has assumed a complicated dimension. There is the tendency amongst regions or ethnic groups to sanction their ethnic struggle as legitimate in the context of the prevailing political atmosphere where politics is played with deference to ethnic interests and patronage rather than to national interests. The Nigerian society is perceptually disaggregated into disparate defined ethnic units, such that it is not possible to conduct an assessment of any national effort without ethnic bias and manipulation.
Regrettably, the question confronting every average public servant of today‘s Nigeria is not how will my work and effort benefit Nigeria as a country but how can my ethnic group or my miniature group benefit from my efforts? Thus, it is a question of 273 many individuals seeing their government official as holding necessary key or opportunity for their ethnic survival or profit. In this connection, Okwudiba Nnoli describes the consequences of this state of political affairs as follows; ―Under these circumstances, interactions across communal lines were selective and guarded.
Mutually rewarding relationships were possible only with members of the same as criptively defined group.‖68 The resultant ethnic identification which defines social and political interactions makes it more difficult for people or regions to unite against common problems like confronting the menace of terrorism. The tendency is a narrative that interprets any measure or legislative effort initiated to wrestle a known social issue as move against an ethnic group because of the greater involvement of that group with that social menace. In a sense, Nigerians are more likely to define themselves in terms of their ethnic affinities than any other identity. Otherwise expressed, stratified ethnic identities have stunted political discourse in Nigeria and have caused many to believe that they have longstanding enemies within the borders and therefore more responsibility to the survival of their lineage than their country.69
In parts of the Northern Nigeria often referred to as the Hausa Fulani North, religious identity has become more critical than even the ethnic identity, such that any aspersion on Muslim religion touches a core part of their identity.
It can be argued that this ethnic-religious manipulation and consciousness has become a cog and a challenge in the wheel of the efforts by the Nigeria State to combat terrorism. The evidential content can be attested to in the period leading to the passage of the TPA in 2011 as well as military engagement against Boko Haram by
General Ifejirika led offensive during the Presidency of Goodluck Jonathan.. The
68 O. Nnoli, Ethnic Politics in Nigeria, (Fourth dimension Publishing co. Ltd Enugu 1978) 137. 69 E. Anowai, Amalgamation of Nigeria: Unity or Conformity? in Linus Okika, ( Ed), The Nigeria Project, The Politics, the Problems, The Challenges and Prospects, Pope John Paul II Memorial Lecture Series, 2014, 78. 274
Bama incident occurred on Tuesday May, 7, 2013 when suspected members of Boko
Haram unleashed terror on residents, many of whom were killed. The casualties included 13 officers of the Nigeria Prisons Service who were killed during a raid on the Bama prisons by the terrorists. About 105 inmates of the prisons were set free by the insurgents. Following this violence, the Joint Task Force (JTF) of Lt Gen Ihejirika carried out raids on the terrorist hideouts and arrested a good number while killing some in the heat of self defence. Subsequently, the Northern Elders Forum came up with a report accusing Ihejirika of extra-judicial killing and genocide, following the story that people were strangulated by soldiers in underground detention centers in
Giwa Barracks. The counter insurgency measures under the command of General
Ihejirika at Bama in Maiduguri were termed genocide by the great majority of the
Northerners merely because General Ihejirika happens to be from the Southern extractions. This narrative is a clear proof that the ethnic- religious factor stands clearly against any progress anticipated in the Nigeria‘s campaign terrorism. While most Niger Delta and people from the South East geopolitical zone justify the bombings spree of oil installation in the region as a legitimate struggle of oppressed people; the Hausa Moslem show sympathy to the Boko haram, even to the extent of providing financial support and safe haven for them in some places under the pretext of promoting their religious sentiments and beliefs. The likelihood of misjudging any military incursion to stem the tide of terrorism in these places is high, since either the religious sentiments stand as an obstacle for the popular support or ethnic patronage would drive another to speak from two sides of the mouth.
As important as knowing where and who the terrorist are is gaining adequate knowledge about the financial support networks of these terrorist be it Niger Delta armed groups of Boko Haram. There are speculations that Boko Haram financial 275 supporters point to prominent northern businessmen and religious leaders as well as various gulf charities. Hussein Solomon has therefore suggested that ―Unless these financial support networks can be disrupted, Bok haram will continue to grow.‖70
This explains why even in the fight against terrorism, corruption is often mentioned as a big setback to any meaningful campaign against terrorism. It has been suggested on many fronts that Boko Haram which compares with ISIL in many ways has been treated with kid gloves and many believe that the sect‘s activities thrive because there is no cohesive strategy for combating the group.71 The lack of cohesive strategy is not unrelated to the corrupt tendencies of political and public office holders who have not shown any seriousness in the fight against terrorism. Rather than treat it as a priority, recent events have shown that the reason for the poor success rate in the campaign is that terrorism in Nigeria like most other emergencies has been seen as an opportunity to make money, appropriate public wealth and score cheap political points against the incumbent who ever it may be. Hence it was laughable during the Jonathan
Goodluck‗s regime that in a situation where we have Northern sons as Security
Adviser, Minister of Defense and Inspector General of Police, yet terrorism has taken over the country. It was therefore an embarrassment to conclude that Nigeria forces do not have the capacity to curtail the insurgency anywhere in the country when huge amounts of money are voted for the Military yearly in the budget. Thus, it has been canvased that given the huge budgetary allocation to security and defence,72 the military has the capacity to reverse the insurgents but for the pandemic corruption in
70 S. Hussein, (n.374) 8. 71 Who can stop the Boko Haram Rage, The Saturday Guardian Newspapers, August 30, 2014, 44. 72 Doyin Okupe, the Presidential Assistant on public affairs in 2014 was quoted as saying that in 2014, the federal Government made budgetary provision in excess of N1trillion naira for the military and other security agency, an amount which in about 22 percent of our entire national budget for the year. See Saturday Vanguard, August 30, 2014, 44. 276
Nigeria.73 The lack of success at containing the activities of Boko haram can therefore be linked to sabotage by political elites through their corrupt practices of diverting the funds meant for defence and purchase of adequate weapons to fight the armed groups to bolster their political base and satisfy their political goals. In these circumstances, it has brought about occasional mutiny in the military where soldiers have refused to be deployed to the war thorn areas citing reason of inadequate weaponry and apparent sabotage of military intelligence by senior officers in the military, serving the interest of the insurgent groups but pretending to be on the side of the counter terrorism.
At this point, some comments must be made regarding the lack of proper intelligence infrastructure that characterise the Nigerian security organs or institutions. A greater success stands to be achieved where the security organs are properly equipped with modern gadgets as are found in other places with similar challenges of terrorism.
Terrorist groups have grown more sophisticated employing modern means of technology and communication to facilitate their activities. It is obvious that Nigeria‘s current security infrastructure is ill equipped to deal with the terrorist threat posed against her citizens. A robust intelligence infrastructure would enhance the information power of the security agencies and give them more access to the organisation and structure of these terrorist groups and consequently more success in preventing attacks and de-escalating the potential damage or injury from their activities. The incapacity of the security agencies to gather sufficient intelligence given the lack of adequate equipment for information gathering or forensics investigation and terrorist‘s data base for necessary profiling cripples and poses a great challenge to counter terrorism.
73Who Can Stop the Boko Haram Rage, Guardian Newspapers (n.437)15. 277
Counter terrorism measures tend to be less successful and even breed more terrorist threat because in many cases the Nigerian‘s Government approach to terrorism is often treating the symptoms of the disease without addressing the cause. This is very evident in places like Niger Delta, where the root cause of terrorism has been traced to the lack of adequate infrastructure and inadequate compensation for the environmental damage. Suffice to say that the successive governments rather than make sound effort to meet the reasonable demands of these groups, by swarming the region with infrastructural development, more often than not, would settle the militants and their leaders, and consequently breed more terrorist threat from other rival groups in the region citing the same problems.
In summary, this chapter made extensive effort to capture and uncover the menace of terrorism as Nigeria continues to grapple with it as major problem to both national and economic development. Boko Haram and Niger Delta Militants were clearly identified as the prominent terrorist organisations in Nigeria with greater impact in the
North east of Nigeria and the South-South geo political zone respectively. The counter terrorism regimes in Nigeria epitomised in the TPA (as amended) and EFCC
Act and Money Laundering Act which was uncovered in the preceding analysis demonstrates sufficient good faith of Nigeria in dealing with terrorism. However, sufficient challenges systemic to the ethno religious content of Nigeria political geography constitutes huge obstacle to any meaningful counter terrorism efforts notwithstanding the support of the foreign governments as well as the UN towards capacity building for counter terrorism initiatives.
278
CHAPTER FIVE
FILLING THE GAPS-TOWARDS AN INTEGRATIVE MODEL OF COUNTER TERRORISM
This chapter takes from the information provided from the preceding pages to propose a Just Peace making model which it considers more comprehensive and integrative against the backdrop of failed or inadequate models so far reviewed in this work. This proposal also underscores the criminal justice paradigm to counter terrorism and highlights possible solutions towards a more effective counter terrorism in the21st century and beyond, by focusing on terrorism financing, information technology dividends and enhanced international cooperation and demography. This chapter also features the place of the victims in the counter terrorism matrix.
5.1 Towards an Integrative Model of Counter-Terrorism-A Just Peace Making Theory Violent extremism of terrorist nature often defy resolution when tackled with military measures without more. This work proposes an approach that underscores the social dimension to the crisis while paying close attention to the security implications. In this respect, it may not be erroneous to maintain that where violent extremism and terrorism are defined primarily as a national security issue, governments risk imbalanced responses that rely heavily on the security agencies. Responses that are heavily skewed towards punitive measures and legal remedies fail to address the drivers and underlying factors that cause violent extremism in the first place.
However, only a myopic understanding of security as one of force involving the military, power and surveillance, undermines the social dimension to all conflicts and its de-escalation and eventual resolution. 279
The military tactic without more although may decrease the ability of terrorists to carry out effective attacks. However, they also ―ideologically inflame and impose negative economic externalities on the terrorists‘ sympathizers, making individuals more willing to mobilize.‖1 The government faces a trade-off; it must balance the security benefits of counterterrorism against the costs in terms of mobilizing potential terrorists.
Security needs to include the interests of people, rather than just the immediate interest of the state to quell violence. A clearer and unequivocal attainment and interrogation of security in the context of terrorism prevention must contemplate a paradigm shift that endorses a counter terrorism measure with a justice and fairness content for long term results. Bueno de Mesquita affirms this position as follows: ―the dilemma is that counterterrorism tactics that increase short-run security may diminish long-term security by fanning the flames of conflict (e.g. border closing, bombings that kill innocent bystanders and destroy infrastructure, curfews etc.)‖2
The model of Just Peace Making which is being mainstreamed herein offers some reason to believe that counter terrorism policies that promote development and focus on rehabilitation may decrease violence in countries suffering from terrorist conflicts.
Hence, policies that improve the economic situation of potential terrorists are expected to decrease mobilization and thereby undermine the ability of the terrorist organization to recruit more people especially high quality operatives. Just peace
1 Ethan Bueno de Mesquita, The Quality of Terror, American Journal of Political Science[July-2005] Vol. 49, No. 3, 515–530 @ 516. 2 Ethan. B. de Mesquita, The Political Economy of Terrorism: A Selective Overview of Recent Work, Feb. 8, 2008. Available at:
Just Peacemaking model underscores the importance of treating terrorism as international crime. This approach would delegitimize terrorism at the international scene and by international authority and not only by one country. What this achieves is that it reduces the political rhetoric to terrorism and de-clutters it from any religious bias or ethnic bias that often beclouds any ostensible support from people or groups.
For example, it would bridge the divisions between the West and Islam by identifying common norms in international law, where the emphasis on counter terrorism is on law and justice and not on indiscriminate use of force as in war.
The tripod of this approach to counter terrorism are: rule of law, justice and sustainable socio-economic development, a belief that the spiral of violence brought about by terrorism would be brought to the lowest ebb when justice and socio- economic empowerment are promoted, enhanced and positively pursued. The thrust of this approach and that of the researcher is that no amount of retaliatory and indiscriminate force will give us the security we desire in this era of terrorism.
Extensive and inclusive counter terrorism must be a step further than mere military or police action and must necessarily address the factors upon which terrorism feeds and the factors that militate against effective terrorism prevention such as unwillingness to develop international networks in the fight against terrorism against the backdrop of realist perspective of international relations.
For the realist, people are generally viewed as engrossed in their self-interest and political relations are fundamentally about conflict. In global politics, the relevant
3 G. Stassen, Just Peacemaking , Ten Practices for Abolishing War, (2nd edn. The Pilgrim Press Cleveland 1998) 10. 281 actors are states which essentially seek for their national interest at all times in anarchic environment lacking a world government or police force. Military power is the guarantor of survival. Based on this assumption, faced with potential conflict, states have to choose what trajectory to follow based on their own self-interest and in most times they choose the way of armed conflict because that is an opportunity to maximise power and the authority of the state. Furthermore, realists believe that international law and international alliances cannot be relied on to guarantee security, as state actions are not bound by enforceable rules. The realist position appears to have metamorphosed into the neo- realist thesis that emphasise the individual interests of states but not at the expense of agreed rules made by those states, Neo realism asserts that:
States in the international system are like firms in the market… in which the actors‘ optimal strategy depends on the other‘s actor‘s strategies. Like markets, the international system arises from the behaviour of individual actors pursuing their own interests. Contrary to each other‘s interest, however the collective structure they create constrains their pursuit.4
Neorealist thinking does not prevent states from entering into negotiation or cooperation but while focusing on security as the prime concern, states enter into negotiations so long as it prevents other states from enjoying exploitable advantages.
Clearly expressed, ―Cooperation occurs not for altruistic reasons but because it is in the interests of the states to cooperate. Cooperation is simply another reflection of self-help.‖5
However, the more acceptable paradigm of international relation that serves our interest in this research is the liberal institutionalism model. The line of this school of
4 D. Madar, Canadian International Relations, (Prentice Hall Canada Inc. Scarborough 2000), 18 5 A. Sens & P. Stoett, Global Politics: Origins, Currents and Directions, (4th edn/ Nelson Education Ltd USA 2010). 17. 282 thought is that in spite of the differences in the gains that states seek for themselves in an anarchic international system (which are not considered crucial), states still find it expedient to reach agreements and to cooperate in a number of areas and ways.6
Recent events have shown that the world is developing a network of relationships that bump national interests by cooperating with other nations resulting in more positive results for states. This model argues that sharing common interests in stability and other relationships makes it imperative for states to take joint action to address collective problems. Joint action may take the form of rules and procedures which enables them to achieve the needed collective results and coordination, sharing information and expertise to formulate common policies.
Just peacemaking theory accentuates the values of pacifism and marries it with the paradigm of just war in the anti- terror campaign. The essential interests of the pacifist is to make peace, while the purport of just war model is to resort to armed operation as a last resort for the purpose of restoring just and enduring peace. Just peacemaking model as far as counter-terrorism is concerned emphasises that resort to force in human affairs can never be a sufficient response, because it often erodes the values of human rights and disregards all significant procedures and regulations of international relations.
The transnational impact and networks of terrorism have further exposed the need for terrorism to be combated not only by nations acting alone but by international cooperation of nation states. International cooperation implies acting under a canopy of rules as well as procedures and propelled by values that characterise the international legal structure, i.e. human rights and rule of law. Just peace making
6 Madar (n.4) 19 283 model argues strongly that ―relying on armies is not enough, we need effective practices that restrain violence and create movement in the direction of justice.‖7
Integrative model of Just peacemaking admits of deterrence formula that focuses on diplomatic strategies for the purposes of counter terrorism. Deterrence involves the act of influencing behaviour by manipulating an adversary‘s cost –benefit analysis. It has been contended in this research that military power over terrorism has not proven to lead to successful deterrence. Another complementary aspect of deterrence is diplomacy. Diplomacy does not dispense with necessary military response especially following large scale terrorist attack. The immediate outcome of military action following a terrorist incident is a temporary reprieve to the civilian population.
In line with this position, Munoz and Crosston state that ―simply targeting individual terrorists and their networks is temporarily effective at quelling activities but ultimately leads to greater resolve in terrorist organisations and legitimise their actions to local populations.‖8 Counterterrorism will therefore require and involve greater emphasis on diplomacy focused on ‗nation building and local cultural/political partnerships which would allow a legitimate vision providing terrorist to alternate pathways.‘9 The outcome of this approach can be found in the local de- legitimatisation of terrorist operations and eventually at international spheres. It is believed that no terror operation can be successful without local support and cooperation notwithstanding the transnational planning involved.
Munoz and Crosston, the scholars who have amenably advocated for this approach are of the view that diplomatic counterterrorist deterrence must remain a priority for
7 G. Stassen, (n.3) 12. 8 M. Munoz & M. Crosston, Diplomatic Counterterrorist Deterrence, Moving beyond Means [2015] Air and Space Journal, [July-August] 16. 9 Ibid. 284 policy innovation especially in weak nations currently inundated with terrorists, such as Iraq, Syria, Yemen, Nigeria and Afghanistan. The authors argue that the lack of diplomatic counterterrorism deterrence became widely evident following the declared success in Iraq and victory over al Qaeda. However, the rebranding of al Qaeda and emergence of ISIL have led many analysts to believe that withdrawal from Iraq was premature and that lack of diplomatic counterterrorism deterrence in-country precipitated the rise of this new and more dangerous threat.
In Nigeria as in other terror prone nations, to ensure that the military efforts to counter terrorism do not amount to a wasted effort and resources, the government must not ignore the need for counterterrorist deterrence strategies that is inclusive and integrative. The function of this will be ―to de-legitimise terrorist organisations while simultaneously offering citizens alternate pathways that carry local legitimacy.‖10 The approach being advocated herein will go a reasonable extent to prevent terrorist and other non-state actors from perpetrating terrorist events by disrupting and destabilizing the legitimacy of terrorist organisations capabilities and confronting their threat of mass casualty terrorism at the local level in a nonmilitary manner.
The success of this approach cannot be guaranteed unless one understands the conditions that gave rise to the terrorist group within the context of the cultural, economic, political and historical conditions of the environment in which a non-state actor terrorist actor develops. The significance of this is that a clear sense of the potential appeal, strength and longevity of the group will be obtained leading to appropriate diplomatic deterrence model most suited to the situation.
Responding to the transnational threat of terrorism and its new models of attack that include lone wolf attacks, kidnappings and strikes on civilians and public places, the
10Ibid. 17. 285 model being proposed acknowledges and suggests that it is evidently difficult to prevent attacks when the most explicit strategies are reactive by way of military response. A more preemptive counter terrorist deterrence strategy that seeks to enlist local population and co-opt them positively to the anti-terrorist agenda and interest of global peace promises to be effective. The profound strength of this model is that it seeks to improve the economic, social and political aspects of the region where terrorism flourishes resulting in the alteration of the location towards positively preventing terrorists from operating unimpeded.
The model is designed to wear down the enemy from within by undermining his local arena. What it does to the terrorist network is that it creates major obstacles for them and their infrastructure, support networks, financial flows and other means of support over the long-term. These obstacles must come in the form of viable alternatives to terrorism alliances which must be reflected in the establishment of institutions and programs that replace the terrorist social security assurances, offering career opportunities for people in those regions or communities who neither support nor allow extremists to operate in or run their communities.
The potential benefit of this strategy is to render individuals who belong to the extremist groups or are sympathetic to their cause as outcasts and enemies of the community. In this sense, partnering with the local authorities rather than establishing a unyielding in –country military presence would appear to be cost effective, less offensive to the region and reduce the spread of extremism that often blossoms in the presence of perceived military intrusiveness. This research herein advocates that for effective counter terror crusade that more resources should be allocated to projects designed to build up the civil society and advance legitimate alternatives to terrorist recruitment rather than to military strategies. 286
De-radicalisation and rehabilitation programmes also remain an essential component of this model. The program is intended to assist recruited terrorists to renounce their terrorist‘s affiliations without conditions and reenter the society with little or no stigmatization. The role of religion in many conflicts in Nigeria has assumed a worrisome dimension such that people exploit the religious differences in Nigeria to exacerbate terrorist conflict especially in the North East of Nigeria. Omale notes that
―Radical Islamism suffocates conventional Islamic beliefs with a diet of anger, hate and intolerance among young men, who perhaps are already convinced of being outcasts and are intoxicated by teaching that not only entrench this difference further but demands that they despise the society they leave behind.11 The picture painted here approximates to the menace of radical Islamism extremism in Nigeria epitomised in the activities of the Boko haram group.
In Nigeria, the regime of Shehu Yaradua took to this approach by the introduction of the amnesty program for the Niger Delta Militants. It was continued by the Goodluck
Jonathan who popularized it and made Militancy in the Niger Delta region unattractive throughout his regime of six years. The program12 offered considerable assistance to the militants who were ready to surrender their arms and reintegrate into normal life. Many were given the opportunity to obtain job skills and technical education in both local and oversea institutions with a promise of better sustainable jobs thereafter.
It is acknowledged that tremendous success was recorded in the area of deescalating terrorism and militant activities in the Niger Delta during the regimes mentioned, the
11 D. J. Omale, Terrorism and Counter Terrorism in Nigeria: Theoretical Paradigms and Lessons for Public Policy, Canadian Social Science, [2013] Vol.9, No. 3, 96-103@ 101. 12 There were similar successful programs in Europe during the 1980‘s when Spain pardoned members of the ETA Basque separatists organisations and again when Italian government offered leniency to members of the Red brigades in exchange for information that led to the apprehension of non- reformed members. See Munoz & Crosston (n.447) 22. 287 story appears to have changed in the recent times since the baton was changed to Mr.
Buhari. Not only has terrorism risen to the greatest levels in the Niger Delta- (stories of pipeline being blown up, oil wells and facilities being attacked resulting in the paralysis of the economic mainstay of Nigeria) - the Buhari regime appears less interested in any other model of anti-terrorism except by way of military strategy. The
Operation Crocodile Smile- a military styled operation though combined with free medical outreach to the communities - recently launched in the Niger Delta region rather than stem the tide of terrorism, has created tension and further increased suspicion on the part of the people towards the government perhaps as a result of over militarization of the scheme.
However, it stands to be tested whether de-radicalisation approach would achieve desired results in North East of Nigeria to stem the activities of the Boko haram and delegitimise their operations. As already hinted, de-radicalisation measures would include among other things, a robust political and developmental capacity in the region which is considered effective enough to counter the spread of radical- violent ideology of the group. Some civil society organisations have tapped into this necessity to engage in de-radicalisation program as one effective mode of countering extremism.13 Recently no fewer than 200 Islamic clerics comprising of local Almajiris teachers from Adamawa, Borno and Yobe states commenced training on how to counter radicalisation message of the Boko haram group. The training was organised by the Centre for Democracy and Development and sponsored by Japanese government. In that exercise, the clerics who comprised of Imams, scholars and proprietors of Almajiris schools were trained on how to identify and contain Boko
Haram ideologies and their extremism in their areas.
13 Umar Yusuf, Boko Haram: 200 Islamic clerics on Counter-radicalisation training in N- East, Vanguard Newspaper, Monday, November 14, 2016, 16 288
Just peace making also contemplates the necessity and importance of criminalising terrorist acts rather than terrorist groups. In this connection, it calls for a standardization of legal framework for the purposes of achieving legitimacy at the international sphere in the counter- terrorism campaign.
G. Okeke expresses this idea in these words: ―A prudent and skillful application of legal tools by multiplicity of nations in curbing the menace of terrorism reveals the comity approach in tackling the problem.‖14 Not only are states called upon to synergize with international community in creating an all-embracing sustainable definition of terrorism thereby condemning terrorism as an international crime prosecutable at the international criminal court, but also, to positively enhance their legal and judicial institutions to enable expeditious trial and conviction reflecting all the fundamental rights guarantees expected in the criminal adjudication process or justice system.
The function of this component is to admit of justice for the victims of terrorism, while seeking for lasting peace in the regions notorious for terrorist incidences, because it is believed that peace making alone within the anti-terror dynamics is inadequate to effectively address terrorism, there must be just element to peace making, which is contained in the limited military operation to deescalate terror activities, prevent them and in the efficient use of legal tools to speak to the criminality of the terrorist activities in a predictable and legitimate way, given the demands of every democratic society and international law obligations.
The drop down of this component is that judicial oversight that entails prohibition of grave violations of human rights in the counter-terror operations would help to ensure
14 G. N Okeke, The United Nations Security Council Resolution 1373: An Appraisal of Lawfare In the fight Against Terrorism[2014] Journal of Law and Conflict ResolutionVol. 6(3), 39 @ 40 289 compliance with international law, reminding states that counter-terror measures must always comply with international law. Just peacemaking model does not admit of a counter- terrorism measure that legalises special and indefinite detention measures and interrogating techniques of people suspected of terrorism or affiliated to terrorist organisations beyond what the international standards approve or recommend. These measures short of human rights standards cannot even be supported even under emergency measures.
Just peacemaking therefore lays claim that its objective is to demobilize the terror network and efficiently ground its operations in a more sustainable way employing the tools enunciated above. It achieves this by focusing on the intelligence driven policing, social and economic empowerment of the regions, standardized law enforcement measures, and controlled military operation. All these are to be done in tandem with denying terrorist of the platform for their ideology to thrive using many tools including media coverage since terrorism thrives on publicity which indirectly causes people to panic and fear with a potential that it will result in the acquisition of legitimacy within a community favorable to their cause.
Munoz and Crosston suggest that open and cooperative communication between the government and global media is a critical element in any counterterrorist deterrence strategy used to delegitimise terrorists operations.15 The overarching impact of this dynamic of just peacemaking model which incorporates a diplomatic deterrence measure to it, is to rely less on reactive military force and more on preemptive intelligence gathering, rule of law, cooperation with media, domestic security alongside the building of civil society alternatives to terrorist organisations effective
15Munoz & Crosston (n.8), 23. 290 to diminish the widespread appeal of terror affiliations and memberships to these organisations.
An essential practice and part of just peacemaking in countering terrorism is what a group of authors termed Cooperative Conflict Resolution (CCR).16 This practice focuses on the proactive co-working of parties in conflict for the purpose of developing creative solutions that each of the parties can affirm, support, approve and follow through with the aim of ending the conflict or at best de-escalating it.
According to these authors, ―Conflict resolution is a ―shared enterprise, an active partnership in problem solving, in order to device mutually beneficial outcomes.‖17
The outlook of CCR is to potentially transform all inexorable deadlock to a deluge of possibilities and consequently convert one‘s adversary to a partner. The immediate success of CCR would be actualisation of a situation where fighting enemies become
―quarrelling partners and deadly conflict become non-lethal controversy‖.18 Properly exploited, CCR localizes and relativizes people‘s differences in such a way that parties are enabled to attend more to common concerns rather than become entrenched in their differing positions and goals.
Every conflict including terrorist conflict contemplates conflicted goals and aspirations of the parties involved. Terrorism is a special kind of conflict with a certain nuance to violence. In our study of terrorism so far, we have seen that there can be many causes of terrorism and many forms of it too. The implication of this state of affairs is that there can never be a one size fits all solution to stop terrorism.
Every terrorism is unique- location specific and solution specific.
16 D. Steele, S. Brion-Meisels, G. Gunderson, & E. L. Long Jr., Use Cooperative Conflict Resolution, in Glen Stassen (ed), Just Peacemaking, Ten practices for Abolishing War (2nd edn),(Pilgrim Press Cleveland 1998), 63. 17 Ibid. 18 J. Moltmann, The Experiment Hope, ed. and trans. with a foreword by M. Douglas Meeks (SCM Press Ltd London, 1975), 175. 291
It has been shown that terrorism in Nigeria manifests itself in the North as religious based insurgency aspiring for the rigid application of sharia law and in the South-
(Niger Delta) as a people‘s struggle for resource control of the proceeds of the oil exploration in their region or at best, a quest for adequate compensation as a result of the displacement of communities and environmental degradation resulting from oil exploration in the Niger Delta region.
Given the nature of the latter brand of terrorism (Niger Delta), it is expected that CCR would be of immense benefit to the counter- terrorism success. This optimism is born of out of the striking principles that define and underlie CCR. In CCR, the parties must seek to understand the perspectives and needs of adversaries even when they disagree. They see cultural differences as resources rather than deficits and group histories and stories are tools utilized to discover basic needs behind any violent struggles and entrenched positions.
In CCR, the principle of ‗audi alteram partem‟- Hear the other party- is almost inviolable. There must always be the need to reserve opportunities to hear all voices to the conflict, the victim and perpetrator alike. The space for dialogue makes it possible to avoid demonization of the other party as all parties embrace the essential need for mutual solutions to the crisis. Furthermore, in moving away from any demonization of other rhetoric, the parties acknowledge their own responsibility in the creation and escalation of the conflict, while promising to be transparent in their negotiations respecting the needs and rights of the parties to participate in the transformation and transition process from crisis to lasting peace. In the words of the authors, participants in CCR ―encourage the brainstorming of multiple options before 292 attempting to select the best solution. They advocate criteria for decision making that are both fair and transformative, representing the full vision of shalom.‖19
CCR does not lose sight of force where it is necessary to forestall impending violence during negotiations. Force is necessary as a measure in CCR to separate, restrain and create inevitable space so that an alternative to violence and injustice can be found.
The overarching optimism of CCR is the ability to seek long-term solutions that help prevent future conflict with the attendant attainment of peace and justice in a simultaneous style. It is much deeper than mere management of conflict. The aim is to transform conflict by building a community which supports peaceful conflict resolution and not manage it. Thus far, CCR works to appease the interests of parties and can also be viewed as a crusade for justice for all by emphasizing ‗power with rather than power over‘20, cooperation rather than domination in order to confront mutual problems, reconcile basic interests rather than positions and rigid stances.21
Given the mutual benefit that a peaceful resolution of the Niger Delta terrorism can be to Nigeria and to people of the region, this work makes a strong advocacy that CCR as an extension of Just Peace-making portends to be a near perfect model to ending the crisis of terrorism in the Niger Delta region.
Omale22 recommends a multi sector approach to counter terrorism in Nigeria which he brands Meghalaya model. This model is adapted from the framework for combating trafficking in North-East Asia. It involves the government, law enforcement, judiciary and civil society organisations and is framed under the five
P‘s- Prevention, Protection, Policing, Press and Prosecution. The relevance of this to counter- terrorism in Nigeria is that ―they could fight the supply of terrorists, supply
19 D. Steele et al. (n.455) 65 20Ibid 77. 21Ibid 65. 22 D. J. Omale, (n.11) 99. 293 of mercenaries for terrorism and demand for terrorist network.‖23 Cross border terrorism can be prevented by cooperation and collaboration between states, hence the need to incorporate all relevant stakeholders and security networks. Though a comprehensive approach, this model neglects the cooperative element to any long- term solutions to conflict. It may succeed in deescalating terrorism violence by way of prevention and policing but it may never achieve a sustainable success to the issues of
Niger Delta. Nevertheless, the approach may work little success in the North- east of
Nigeria terrorism where the issues are related to religion, trans-border violence and network of terrorists because the emphasis of the model is more on maintaining security and coordination of agencies for these purposes identified.
5.2 Counter-Terrorism and Criminal Justice Paradigm At the heart of the administration of criminal justice, one can identify two competing models of criminal process which tend to define the values pursued or advanced by criminal administration policy makers for the purposes of checking, countering and fighting crime. The models are the Due process model and the Crime control model.
Any counter terrorism model would be inadequate and empty where it ignores a criminal justice approach to counter terrorism which goes to the root of any counter terrorism model. This research has identified terrorism as a criminal act with political undertones which often involves death and other serious threat to property with the intention to bring fear and bring about political or social change. To the crime of terrorism, the criminologist would pay attention to the social factor factors that could demotivate terrorist from carrying out or continuing in their campaign. In this context, the social response to crime takes the stage more than any other thing.
23 Ibid 100 294
A criminology of counter terrorism works on the assumption that the function of defining conduct as criminal is separate from the process of identifying and dealing with persons as criminals. It is one thing to identify a conduct such as a terrorist conduct as a criminal act based on the substantive law, it is yet another to work out a process for dealing with persons who has committed those crimes. Regarding the former, only the prescriptions of the law are relevant for definition and identification of the crime purpose. While the latter is concerned with the treatment of the criminal after he has been identified as the suspect who committed the crime in question. This distinction is important especially for crime such as terrorism which is an organised crime with social and political undertones that must not be ignored by policy makers.
Between the arrest and trial lies a series of events that are essential in the processing of criminals within most criminal justice system.
These events involve the actions of the police and the courts from detaining the suspect until the case enters a criminal courtroom for trial. Irrespective of the standard demands of criminal justice system, the treatment of criminals and the conduct of the criminal trial process by responsible agencies are inclined to follow from the overarching model adopted by the government in relation to the criminal act itself.
Where the criminal act attracts an opprobrious reaction from the policy makers, often the due process model gives way for the crime control model. While, ―the crime control model tends to de-emphasize the adversary aspect of the process; the due process tends to make it central.‖24
At the same time, while it is agreeable in general for both models that the degree of scrutiny and control must be exercised with respect to the activities of law
24 Herbert Packer, Two Models of the Criminal Process, in Joseph E. Jacoby (ed), Classics of Criminology (2nd edn/ Waveland press Inc., Illinois 1994) 299. 295 enforcement officers, the crime control model tends to pay lip service to these ideals as is evident in the treatment of the people suspected of terrorism. The crime control model also informs the apparent overlook of limits on police power to detain and investigate crimes of terrorism without regard to due process.
Due process and human rights provision in the criminal justice system set down the basis for arrest and detention outside of which the law officer would be over reaching himself. The Due process model of crime prevention and by extension to counter terrorism is designed to accentuate the highly structured set of procedures which must be followed in order to secure a fair and impartial trial of the suspect or the defendant.
It emphasises the adversarial nature of the criminal process.
Due process model straddles around strict observance to the formal provisions of criminal process because it believes that, ―The combination of stigma and the loss of liberty that is embodied in the end result of the criminal process is viewed as being the heaviest deprivation that government can inflict on the individual‘… seen in themselves as coercive, restricting and demeaning.‖25
This model therefore argues that because of its penchant to exposing persons to these coercive powers of the state, the criminal process must be open to controls that prevent it from operating with maximal tyranny. One of the means of achieving this is by the operation of the doctrine of presumption of innocence, which means that a person cannot be held to be guilty merely by showing that based on reliable evidence, he did factually commit the offence. A person is to be held to be guilty if and only if these factual determinations are made in procedurally regular fashion and by authorities acting within their competences duly allocated to them.26 Procedure here
25Ibid 304. 26Ibid 305. 296 refers to the various rules designed to safeguard the integrity of the process such as the obtaining of evidence, as well as to jurisdictions, venue of trial, statute of limitation and double conviction.
In theory and in practice, due process model advocates will be unwilling to accommodate the admission of illegally obtained evidence which is often rife in terrorism investigation and trials. Again, due process model where strictly applied in serious cases like terrorism may result in the release of the factually guilty even in cases where in spite of the illegality would still have led the judge to enter a guilty verdict for the defendant.
The Nigeria system as well as other jurisdictions appears to overlook some of these restrictions having put crime control over due process model within the counter terror crusade. The Crime Control Model is based on the proposition that the repression of criminal conduct is by far the most important function to be performed by the criminal process. The operative principle for this model is that ―the failure of law enforcement to bring criminal conduct under tight control is viewed as leading to breakdown of public order and thence to the disappearance of an important condition of human freedom.‖27
Crime control model therefore requires that great emphasis be provided to the competence with which the criminal process operates to investigate crimes and criminals, decide culpability and guarantee appropriate removal and punishment of persons convicted of crime. By extension, it is arguable to maintain that crime control model is a deterrence based criminal justice system as it portends to introduce policies for the purpose of securing the greatest certainty of capture, legalising indefinite detention, swiftness of prosecution, severity of punishment in case of conviction. The
27Ibid 300. 297 overarching goal is the prevention of future crime. Thus, more emphasis is given to the protection of the society and the law abiding public than the protection of the individual rights of the defendants or suspects.
To effectively realize this intended objective, more powers may have to be given the security agencies through appropriate legislation or policy framework in the areas of pro-active policing, investigation, apprehension and incapacitation of terrorists (where necessary) in order to ensure that suspected criminals are caught and brought to justice. Crime control advocates would push for more stringent conditions of making bail by suspects of terrorism awaiting trial, since keeping the suspects in detention would reduce the chances of these suspects organising for further terrorism activities, on the ground they (suspects) pose great threat to the society. It therefore serves a better purpose for crime control if the system keeps these suspects locked up while their trial is in progress.
Crime control model therefore adopts a Selective Incapacitation28 philosophy, which this author considers suitable for effective counter terror campaign in Nigeria. This approach must not be meant to apply to all offenders and to all offences in the criminal justice system. Goff insists that, ―A key feature of this approach is that individuals are considered dangerous not only because of their deeds in the past but because of the crimes they are likely to commit in the future.‖29
While admitting the potential pitfalls and problems of such policy framework for criminal justice system, which speaks to the legitimacy of such approach as a legal sanction especially in the context of the constitutional provision on civil liberties which embodies our values as a democratic society; the way out of this quagmire is
28 C. Goff, Criminal Justice in Canada( 3rd edn./Thomson/Nelson, Canada 2004) 67. 29 Ibid. 298 that the system must admit a wide discretional power to the judges to refuse bail under our criminal legislation where charges are related to terrorism because of the serious danger these suspects pose to the overall security of the entire society.
As rightly put by G. N Okeke, ―It takes law fare to wage a legitimate warfare against terrorism or any other vice… and military alliances with its political and economic undertones without legal backing would have overwhelming negative consequences.‖30 Okeke therefore recommends that budding alliances with attendant horizontal agreements and prudent application of these legal tools by comity of nations to demonstrate a comity approach to the campaign stands to proffer greater legitimacy to the fight against the menace of terrorism. A well thought out legal tool at the international level reflecting the crime control model would not only prevent and protect people from terrorist threats but will facilitate policing, prosecution of terrorists‘ activities.
5.3 Information Technology, Terrorism Financing and Financial Institution’s Role in Combating Terrorism When governments like Nigeria or Paris are challenged by the menace of terrorism on astronomical scale with considerable frequency in occurrence, one of the most pressing policy issues becomes the adequacy of allocation of resources for effective and optimal counter terror outcomes. In many cases involving recent terror incidence in Europe and Africa, it has been shown that when terrorists observe an increase in a particular counter terrorism program, they tend to switch tactics, devising new tactics that are less affected by the government efforts. For instance, when the hysteria was so much on aviation industry in the post 9/11 period, resources was allocated to airport and airline security across the globe, but then terrorists made a shift by
30 G. N. Okeke (n.14) 40 299 attacking inbound transportation systems, tourist sites, international centers, and embassies and other enemy interests abroad.
They also began to utilise resources available to globalisation, which is the upscale communication technology by recruiting home grown terrorists via the internet encouraging them to carry out lone wolf attacks. At the same time, the electronic mode of banking facilitated by modern technology was also exploited by organisations and individuals for the purpose financing terrorism. It is obvious therefore that any legal system that fails to accord a primal role to information technology for effective and comprehensive counter terrorism measures will be sidestepping a very significant aspect of terrorism in the present 21st century.
Granted that information technology (internet) is a welcome positive revolution, it has affected every aspect of life, for some of them, in a negative way. For instance, it has facilitated the spread and ease with which terrorism is financed and terrorists recruited. Nigeria has also not been spared these negative impacts of information technology as regards the financing of terrorism, spread of its agenda and the publicity that it feeds on in order to achieve its desired effect. An enormous amount of threats coming from terrorist organisation happen in the cyber space. Also the financing of terror by organisations masquerading as charities also happen more predominantly through bank transactions which also employ the benefits of instant transfer of funds made possible by present day information technology.
The fallout of this trend is that counter terrorism efforts must also migrate its efforts in a more proactive and adaptive way into policing the cyberspace31 in order to counteract the challenges posed by the complex and evolving menace of financing
31 Cyber space refers to the electronic medium of computer networks in which online communications takes place. See Joshua. E. Alobo, Terrorism, Kidnapping and Cybercrime in Nigeria (Abuja: Diamond real Resources Consult, 2013), 159. 300 and spread of terrorism through the medium provided by modern information technology paraphernalia.
Apart from using the internet and modern means of information technology to facilitate terrorism, it is apt to make some necessary connection between cyber space, cybercrimes and cyber terrorism. Crimes committed using the cyberspace mechanism and outfits are technically called cybercrime. Activities carried out over the internet become a cybercrime when they involve activities which are considered illegal, criminal and are prohibited under the law regulating such activities in the cyberspace and involve abuse and misuse of computer and information data. Alobo describes
―cybercrime as criminal activities committed through the use of electronic media.‖32
However, when illicit activities are carried out or committed in the cyberspace with the intention to disrupt the free flow of information, distort cyberspace networks and the data stored therein, and for the purpose of causing harm or threat of serious harm in order to achieve a political purpose, it is called cyber terrorism.
Cyber terrorism is therefore a form of cybercrime. In this instance, the target is the cyber space not the physical space or individuals. This is dissimilar to employing the gains of internet technology and utilising them as an accessory to finance and facilitate the spread of terrorism. While the latter is not itself a criminal act, its end result is criminal, the former is intractably criminal hence termed cyber terrorism. The common denominator in these two themes is that internet has been used directly as viable tool in the case of cyber terrorism and indirectly in the case of spread and aiding terrorism to commit terrorism crimes (a form of cybercrime) respectively.
32J. E. Alobo, Terrorism, Kidnapping and Cybercrime in Nigeria(Diamond real Resources ConsultAbuja, 2013)167. 301
Cyber terrorism which is convergence of terrorism and cyberspace constitutes a major threat to critical national infrastructures such as the security systems, embassy networks, email servers, aviation control systems with deleterious consequences which speaks to the fact that tomorrow‘s terrorist may be able to do more damage with a keyboard than with a bomb. Cyber terrorism is an attractive option for modern terrorists,33 who value its anonymity, its potential to inflict massive damage, its psychological impact, and its media appeal. Unfortunately, invasive inroads in the military campaign on terror is likely to make terrorists turn increasingly to unconventional weapons, such as cyber terrorism. And as a new more computer- savvy generation of terrorists comes of age, the danger seems set to increase.
Although cyber terrorism does not entail a direct threat of violence, its psychological impact on anxious societies can be as powerful as the effect of terrorist bombs.
Combating cyber terrorism must therefore be given priority if a comprehensive counter terrorism model is to be contemplated. In this context, Gabriel Weimann34
33 The Appeal of Cyber terrorism for Terrorists: Cyber terrorism is an attractive option for modern terrorists for several reasons. • First, it is cheaper than traditional terrorist methods. All that the terrorist needs is a personal computer and an online connection. Terrorists do not need to buy weapons such as guns and explosives; instead, they can create and deliver computer viruses through a telephone line, a cable, or a wireless connection. • Second, cyber terrorism is more anonymous than traditional terrorist methods. Like many Internet surfers, terrorists use online nicknames—‖screen names‖—or log on to a website as an unidentified ―guest user,‖ making it very hard for security agencies and police forces to track down the terrorists‘ real identity. And in cyberspace there are no physical barriers such as checkpoints to navigate, no borders to cross, and no customs agents to outsmart. • Third, the variety and number of targets are enormous. The cyber terrorist could target the computers and computer networks of governments, individuals, public utilities, private airlines, and so forth. The sheer number and complexity of potential targets guarantee that terrorists can find weaknesses and vulnerabilities to exploit. Several studies have shown that critical infrastructures, such as electric power grids and emergency services, are vulnerable to a cyber-terrorist attack because the infrastructures and the computer systems that run them are highly complex, making it effectively impossible to eliminate all weaknesses. • Fourth, cyber terrorism can be conducted remotely, a feature that is especially appealing to terrorists. Cyber terrorism requires less physical training, psychological investment, risk of mortality, and travel than conventional forms of terrorism, making it easier for terrorist organizations to recruit and retain followers. • Fifth, as the I LOVE YOU virus showed, cyber terrorism has the potential to affect directly a larger number of people than traditional terrorist methods, thereby generating greater media coverage, which is ultimately what terrorists want. See Gabriel Weimann, United institute of Peace, Special Report, 119, Dec. 2004 available at:
Cyber terrorism may also become more attractive as the real and virtual worlds become more closely coupled. For instance, a terrorist group might simultaneously explode a bomb at a train station and launch a cyber-attack on the communications infrastructure, thus magnifying the impact of the event. Unless these systems are carefully secured, conducting an online operation that physically harms someone may be as easy tomorrow as pulling a trigger. Realizing the potential danger of cyber terrorism after the 9/11 attacks, President Bush created the Office of Cyberspace
Security in the White House and appointed his former counterterrorism coordinator,
Richard Clarke, to head it.
Cyber terrorism and other forms of terrorism facilitated by the cyberspace constitute a new threat and challenge in this era of terrorism. In recognition of this, the international community has turned some of its focus to the development of principles, necessary for the enforcement of international obligations for the suppression of financing of terror as well as to the issues related to countering the use of the internet for terrorist purposes. These efforts speak to the fact that the effective counter terrorism measures must contemplate a crusade against financial support of terrorism which cannot be won inside the boundaries of individual countries working alone, a situation made possible by the fluidity of the internet with its digital ability to
303 blur differences in time and geographical location embedded in e-commerce content of banking relations and transactions. (The world has become a global village via the internet and business activities are conducted at the speed of light through the instrumentality of computer networks.35)
The new information technologies (IT) and the Internet are more often used by terrorist organizations in conducting their plans to raise funds, distribute their propaganda and secure communications. The convicted terrorist Ramzi Yousef, the main planner of the attack on the World Trade Centre in New York stored detailed plans in encrypted files in his laptop computer for aircraft destruction in the United
States. The terrorist organizations also use the Internet to ―reach out‖ to their audience, without need to use other media such as radio, television or holding various press conferences. The internet also helps individuals acting as terrorists (lone wolf) to engage in terrorist activities. In 1999, a terrorist-David Copeland killed 3 people and injured 139 in London. He did this with the help of bombs placed in three different locations. At his trial it was discovered that he used Terrorists Manual
(Terrorist Handbook - Forest, 2005) and How to Make a Bomb (How to Make Bombs
-2004), which he had downloaded from the Internet.36
The Counter Terrorism Committee established by Security Council is the body saddled with the duty to monitor cyber security and it appears tremendously in the UN
Global counter terrorism strategy. The goal is not only to counter terrorism in all its forms and manifestations on the Internet, but also with more active approach to use the Internet as a tool for countering the spread of terrorism.
35Alobo, (n.471) 159. 36 Mitko Bogdanoski & Drage Petreski, Cyber Terrorism– Global Security Threat [2013] International Scientific Defence, Security And Peace Journal. July 2013 .
The collaborative approach to countering the use of internet for purposes of facilitating terrorism would oblige countries to closely monitor web pages of the terrorist and extremist organizations and to exchange information with other governments in the international scene and other relevant forums. It also demands a more active and pro-active participation of civil society institutions and the private sector in preventing and countering the use of the internet for terrorist purposes. In the
UN system, the International Telecommunication Union (ITU) has the highest responsibility for the practical aspects and applications of the international cyber security. The purpose of the organization is to develop confidence in the use of cyberspace through enhanced online security. Bogdanoski and Petreski37 identify some of notable examples of cyber terrorism which cut across cyber threats to Sri
Lanka, India, China, Romania and Palestine.38
Apart from the use of internet for offensive operations, the terrorist can effectively use the cyberspace for secure communications. Immediate concerns also include the use of cyberspace by terrorists for covert communications, for wire transfers, terrorist instructions hidden online and web encryption messages by terror groups.
37Ibid 6. 38 In 1988, a terrorist guerrilla organization, within two weeks, flood embassies of Sri Lanka with 800 email-s a day. The message which was appearing was ―We are the Internet Black Tigers and we are doing this to disrupt your communications.‖ Department of Intelligence characterizes the attack as the first known terrorist attack on government computer systems. Internet saboteurs in 1998 attacked Web site of the Indian Bhabha Atomic Research Centre and stole e-mails from the same center. The three anonymous saboteurs through online interview claimed that they protest against recent nuclear explosions in India. In July 1997, the leader of the Chinese hacker group claimed that temporarily disallowed Chinese satellite and announced that hackers set up a new global organization to protest and prevent investment by Western countries in China. Romanian hackers on one occasion managed to intrude into the computer systems controlling the life support systems at an Antartic research station, endangering the 58 scientists involved. Fortunately, their activity is stopped before any accident occurred. During the Kosovo conflict, Belgrade hackers conducted a denial of service attack (DoS) on the NATO servers. They ―flooded‖ NATO servers with ICMP Ping. During the Palestinian-Israeli cyber war in 2000 similar attack has been used. Pro-Palestinian hackers used DoS tools to attack Israel‘s ISP (Internet Service Provider), Netvision. Although the attack was initially successful, Netvision managed to resist subsequent attacks by increasing its safety messages, typically used for diagnostic or control purposes or generated in response to errors in IP operations. 305
Many governments in an effort to check cyber terrorism and other forms of terrorism facilitated by the use of cyberspace has set limits by way of legislative frameworks for monitoring telephone calls, surveillance and monitoring e-mails and bank accounts and even introduced legislations permitting Security Intelligence Agencies to intercept electronic mail of persons suspected of terrorist activities with the aim of an attack directed against the preparation and planning of terrorist acts. In some situations, the law even allows the terrorist property to be frozen or taken away.
Legislative frameworks both at the international and domestic sphere must work from two prongs of directing efforts first at countering the use of internet for terrorist purpose and secondly suppressing the financing of terror.
In the first case, one has to note that terrorists have employed the use of internet by disseminating their data and information through the use of websites hosted by them.
The legislative arrangement has to be structured in such a way that the identity challenges prevalent in cyberspace architecture are surmounted for the purposes of leveraging robust cyberspace law enforcement for counter terrorism ends. No longer will people hide under the anonymous character of online activities as they can be traced using the means of numeric identification via internet protocol address which invariably lead to the real geographical location of the criminal or terrorist. Where it is impossible to achieve this kind of attribution to online activities, counter terrorism in this age of technology stands to be frustrated without achieving great results. Hence the Counter Terrorism Implementation Task Force (CTITF) recognises this fact when it concludes that:
Without attribution, it was impossible to determine if a particular cyber-attack or intrusion was the work of lone teenage hacker testing his skills, an international organised crime group seeking to commit a major financial fraud, a terrorist entity launching a denial of service 306
attack against a vital critical infrastructure or a nation state engaging in cyber warfare.39
The CTITF task force therefore makes a proposal for robust identity systems for all internet regulation systems for both at the international level and domestic level, while respecting the boundaries of human rights and data privacy. Again policy and legal measures that enhance the ability of authorities to respond to the challenges posed by terrorist anonymity on the internet must be adopted. Such measures would include requiring identification from those using cybercafé, purchasing SIM card for mobile technology as well as mandatory requirement for data retention by communication or internet providers.
The robust policing of the internet would also significantly address the use of internet as a tool for propaganda, radicalisation and recruitment. While some of the content in the websites would assist gaining insights into their activities for counter terrorist initiatives; some efforts where and when necessary should be made to pull down their sites, block access to the content of those sites through national firewall systems and content filtering systems. Recognising the prevalent difficulty of blocking terrorists‘ content in cyberspace, it has been proposed in some quarters40 for purposes of counter terrorism, to allow terrorist websites to remain operational in order to monitor the online activities for intelligence and law enforcement purposes and as well create opportunity to influence their discussions in online forums. What is considered expedient in this connection is endeavoring to maintain a balance between blocking the website of terrorist cells and allowing them to operate for counter terrorism intelligence and initiatives.
39 CTITF Working group on Countering the Use of Internet for Terrorists Purposes, Technical Issues
At the institutional level, Interpol has launched a unit in 2009 known as ―Monitoring
Assessment and Partners‖ (MAP). The goal of MAP is to monitor terrorist websites and disseminate any valuable information uncovered to national police forces around the world. Following the efforts of the Interpol, some governments have developed some similar initiatives for policing terrorist‘s activities on the cyberspace. Germany established a Joint Internet Centre- a multi-agency effort to gather information on terrorist activities in cyberspace; also the European Union Police Office (Europol), established a secure online portal known as ‗check the web‘ which allows police officials of the twenty seven EU members to share data uncovered online regarding terrorists‘ activities. Jurisdictions like Nigeria infested with incessant incidences of terrorism facilitated by the use of contemporary forms of communication need to develop such initiatives if any counter terror efforts would come to any measurable success.
Nigeria enacted the Nigeria Cyber Crime Act 2015 with the overall objective of securing and regulating the Nigeria cyberspace and bring it in line with international standards for the purposes of combating new forms of criminal activities prevalent on the cyberspace following recent communication methods. In addition to its objective of providing an effective and unified legal regulatory and institutional framework for the prohibition, prevention and detection, prosecution and punishment of cybercrimes in Nigeria, it seeks to promote cyber security, protect electronic communications, data networks and programs.
In section 18 of the Act, cyber terrorism was created as an offence. Thereat, it provides that any person who accesses or causes to be accessed any computer system for the purpose of terrorism as defined under Terrorism Prevention Act (TPA) 2011
(as amended), is liable to life imprisonment upon conviction. Any adequate 308 construction of cybercrime in Nigeria must be rooted in the definition of terrorism as enshrined in TPA (Amendment Act), 2013. It is one thing to establish the legal framework for such crime as cyber terrorism, it is yet another to set up the necessary institutional frameworks to monitor cybercrime for purposes of counter terrorism.
While it may be acknowledged that regulatory scheme for cyber space may have improved from what it used to be prior to enactment of Cyber Crime Act, 2015, the institutional capabilities remain inadequate to the task of suppressing cyber terror or in fact cybercrimes in general. The setting up of the Computer Emergency Response
Team (CERT) under the Cyber Crime Act 2015 as well as the Communication
Commission under the Nigerian Communications Act 2013 is a welcome development whose duties are to monitor the cyber space for intrusions and disruptions capable of hindering the proper functioning of the system networks. These agencies are empowered to respond to cyber threats that may affect the country‘s communication system including terrorism threats on the cyberspace. Interception is the key to effective counter terrorism. The strengthening of these agencies to achieve their optimal value will remarkably work success in the area of policing the cyberspace for purposes of terrorism prevention in Nigeria.
Following popular business trend, people and organisations including terrorists have turned to e-commerce as a means of raising funds for their activities. Mathew Levitt observes that, ―Investigation into al Qaeda sleeper cells in Europe in the wake of
September 11 revealed the widespread use of legitimate businesses and employment by al Qaida operatives to derive income to support both themselves and their 309 activities.‖41 Similarly, legitimate employment offers terrorists cover, livelihood and sometime useful international contacts.
Donations to terrorist causes are often made through electronic transfers and credit cards using various charitable organisations through which they solicit funds promising to use the money for philanthropic purposes. Other techniques are also used to raise funds online for their extremist activities. In addition to this, like other legitimate organisations, terrorist organization are also using social networking applications as the latest method for raising money for their activities. The CTITF report confirms this by asserting that:
There is substantial evidence that terrorist organisation are using the proceeds from traditional cybercrime, such as online credit card fraud, identity theft and telecommunications fraud to fund their operations. Even in the dawn of the internet revolution, terrorists were exploiting technology as a means of fundraising.42
In the light of this development, emerging technologies have facilitated the propensity of terrorists to hide and move money around the globe for the purposes of their operations. In another research conducted by Mark Cantor, it spells out that, ―The sources and methods of funding terrorism networks have grown widely diversified.
Among the sources are donations to charities, use of shell companies and otherwise legitimate business and narcotics trafficking.‖43 The use of charitable organisation for financing terror presents a sensitive challenge, hence effort must be made to discern between legitimate organisations and those hijacked by terrorists to divert funds and
41 M. A. Levitt, The Political Economy of Middle East Terrorism, [2002] Middle East Review of International Affairs, December, Vol. 6, No. 4, 51. 42 Ibid. 43 Mark Cantor, Effective Enforcement of International Obligations to Suppress the Financing of Terror, The American Society of International Law Task Force on Terrorism, ASIL Task Force Papers, Sept 2002. 310 support terrorism. Some government like the United States of America and Canada44 have hitherto in the past issued series of financial blocking orders targeting terrorist front companies or organisations and even raiding their offices for clues for terrorism support and financing.
The complicated and trans-boundary nature of modern vehicles for terrorist financing as well as the matrix of international, logistical, financial and coordinated operational mode of terrorist activity make it very difficult to counter through unilateral action of one state. What it means is that states must join efforts in the collective creation of measures to track and counter extremist activities fueled by funds meant to encourage such activities. There is need to establish a financial coalition that is intended to rehearse the regulation of financial institutions to levels that will effectively enable the implementation of rules for purposes of counter terrorism at the international level.
In 1999, the United Nations came out with an International Convention for the
Suppression and Financing of Terror.45 The Convention entered into force on 10th
April 2002. The Convention strives to cut off what can be regarded as the lifeblood of terrorism of all types, i.e. the provision of material, chiefly financial resources to terrorists. The objective of the Convention is to enhance international cooperation among States in devising and adopting effective measures for the prevention of the financing of terrorism, as well as for its suppression through the prosecution and punishment of its perpetrators. Any person commits an offence within the meaning of the Convention if that person by any means, directly or indirectly, unlawfully and willfully, provides or collects funds with the intention that they should be used or with
44 M. A. Levitt, (n.41) 58 45International Convention for the Suppression of financing of Terror, Adopted by the General Assembly of the United Nations in resolution 54/109 of 9 December 1999.
The Convention in addition to criminalization of terror financing, requires each Party to take appropriate measures, in accordance with its domestic legal principles, for the detection and freezing, seizure or forfeiture of any funds used or allocated for the purposes of committing the offences described. The Convention may be criticized for its lack of enforcement measures being adocument initiated from the General
Assembly and is dependent on the assent of state parties. The Convention though has a moral bite but is lacking in adequate sanctions and enforcement machinery provisions. The Security Council took over the translation of these obligations into effective administrative measures by the adoption of the resolutions that speak to terror financing.
Acting under chapter VII of the United Nations Charter, the UN Security Council adopted a number of strong enactments focusing on the financial aspects of terrorism which are binding on member states pursuant to Article 2547 and Article 48(1)48 of the
46Annex: Some of these treaties include among others the following: Convention for the Suppression of Unlawful Seizure of Aircraft, done at The Hague on 16 December 1970; Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation done at Montreal on 23 September 1971; Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on 14 December 1973; International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December 1979; Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 24 February 1988; Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome on 10 March 1988 and International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997. 47 The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. 312
Charter. One of the first of such resolution on suppressing terror financing was the
Resolution 1373 of September 28, 2001, enacted just a couple of weeks after 9/11 incident. Other similar resolutions of the Security Council which followed include
Res. 1377 (12 Nov. 2001), Res. 1390 (28 Jan. 2002). These latter resolutions obliges states to deny financial support and safe haven to terrorists and freeze assets and economic resources of named terrorists and organisations.
Though a general counter terrorism resolution emanating from the Security Council, in the operative part, Res. 1373 did commence its first article49 with a provision relating to suppressing the financing of terror while obligating states to deny safe heavens to those who finance or support terrorist act and further called on states to become parties to the Conventions and Protocols relating to terrorism. This is a bold and remarkable step because no act of terrorism can prosper without attachment to fiscal planning, logistics and support needed by the foot soldier to execute their violent activities.
The logic is that when terrorists are starved of funds with which to obtain lethal materials used for their terrorists activities, ―their power to operate against humanity
48 The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine. 49 Decides that all States shall: (a) Prevent and suppress the financing of terrorist acts; (b) Criminalize the willful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts; (c) Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities; (d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons. 313 is greatly restrained thereby rendering their nefarious designs inoperative.‖50 In the context of this kind of activities, money laundering regulations in many jurisdictions are subsisting not only to check corruption or other anti- fiscal policies and but also to ensure that huge sums of money do not go into the wrong hands which will potentially be used for terrorism related activities.
Okeke recommends that legal templates be adopted as tool for suffocating the financial tube that waters the illegality of all acts of terrorism. Thus he insists that
―using lawfare as weapon to control the disbursement of fund in order to check free access of fund by terrorists‘ organisations, is part of lawfare.‖51 As already noted,
Res. 1373 establishes a Counter Terrorism Implementation Committee (CTIF) to supervise the implementations of these requirement enunciated in most counter terrorism resolutions. As part of the mandate of CTIF, it seeks to identify with the school of thought who believes that targeting a wide array of groups and organisation funding and transferring terrorist funds is critical to counter terrorism but must be conducted as part of a well- coordinated international effort.52
In the wake of incessant violent terrorist attacks that appear unstoppable, the international community with the cooperation of powerful states and mutual cooperation of each other must develop joint measures to make the global economy less hospitable for terrorist financing, such measures like freezing the assets and the business interests of powerful individuals fingered as culprits wherever they are located in the global economy.
In Nigeria, as already noted in the previous chapter, the Money Laundering Act and the Terrorism Prevention Act as well as the Economic and Financial Crime Act
50 G. N Okeke (n.14) 43. 51 Ibid. 52Levitt (n.41) 59. 314
(2004) criminalise all forms of terrorism financing; however, the institutional capabilities for the task of suppressing terror remain inadequate. At the same time, the establishment of the Nigeria Financial Intelligence Unit (NFIU), (an operations unit of the EFCC), set up under the EFCC Act 2004 and Money Laundering Act (2004) is a step in the right direction. This unit is the Nigeria Arm of the Global Financial
Intelligence Units (FIU). Its major objective is to bring Nigeria in compliance with combating of money laundering and financing of terror. This agency requires all financial institutions and designated non-financial institutions under the law, to furnish the NFIU with details of their financial transactions.
However, much work is needed to be done at the national and at the international level to effectively counter all financing of terror related activities. States must be willing to embrace this dramatic change to financial disclosure and transparency of their banking practices with an attendant penalty for non-committal and non- implementing states by way of isolating them at the international financial centres and businesses.
Cantor recommends for example that financial institutions from non- implementing states could be denied the right to maintain permanent establishments and corresponding bank accounts in money centers like New York City, London, Toronto, and Paris…Tokyo.53
While it is agreeable that stemming the flow of terrorist financing will not stamp out terrorism, tackling it represents a critical and effective tool both in reacting to terrorists‘ attacks and engaging in preemptive disruptions efforts in order to prevent
53 M. Cantor, (n.43).
315 future attacks. Cracking down on terrorist financing denies terrorists the means to travel, communicate, procure equipment and conduct their violent operations.
Above all, effective and successful counter terrorism financing require as ofessence multilateral cooperation amongst nations. This cooperation must come in the form of capacity building for developing nations, technical assistance to areas fret with high tide of terror financing operations and sharing of data base by banking and law enforcement agencies of stakeholder countries.
To monitor the progress achieved by nations, benchmarks ought to be developed to measure progress with compliance with financial services regulatory and acceptable standards. Nations must therefore develop a rigid system to thwart all forms of terror financing by strict compliance to state regulations that draws from international legal commitments.
5.4 Victims of Terrorism in the Counter Terrorism Matrix The United Nations General assembly in its Res.64/168 in underscoring the importance of this subject urged United Nations relevant bodies to develop comprehensive programmes that effectively provide adequate treatment to victims of act of terrorism. Some of these programmes would include effective criminal prosecution of alleged perpetrators which must be seen as targeted at reducing the perception of victimisation and of impunity for terrorist‘s acts. Furthermore, granting victims equal and effective access to justice as well as highlighting the role of the victims and their surviving family members in criminal proceedings are also significant. United Nations Office on Drugs and Crime (UNODC) has been at the forefront in building capacity for member states for the purpose of actualizing these initiatives. 316
Jeffrey Feltman, the Under Secretary for Political affairs of the UN in his opening remarks during the Conference of Humans Rights of Victims of Terrorism held 11th
Feb 2016, remarks as follows: ―Far too many victims of terrorism all over the world have suffered in silence, a neglect that compounds their trauma and wounds. Victims of terrorism can count on the solidarity of the United Nations‖54 The Conference was organised by the United Nations Counter-Terrorism Centre (UNCCT) under the auspices of the Counter-Terrorism Implementation Task Force (CTITF) Working
Group on Supporting and Highlighting Victims of Terrorism and in collaboration with the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. The objectives of the conference were to raise awareness on the rights of victims of terrorism and to examine how
States can strengthen their national legislation, procedures and practices to better protect and support victims, their communities and their families. It brought together government representatives and experts from academia, civil society, international and regional organizations as well as victims associations.
The conference not only highlights the double duty of making the voices of victims heard; and to ensure that their human rights are fully respected but also underscores the fact that with their courage and commitment, they are saving others from experiencing the same suffering. Jeffrey insists at the same time that the victims of terrorism are the strongest, most sincere and most convincing allies we have in preventing others from being lured to terrorist and violent extremist groups.55
With the increasing terrorism incidences and causalities all over the world, the UN therefore draws the attention of all states and stakeholders to explore existing
5411 February 2016, UN Conference on the Human Rights of Victims of Terrorism, Under-Secretary- General for Political Affairs Jeffrey Feltman,
Basic Principles of Justice for Victims of Crime and abuse of Power‘56 which was approved by the General Assembly in 1985. As an international legal instrument, its provisions are not legally binding but merely serve as recommendations for member states. Such is regarded as soft law in international law. The declaration went as far as proposing measures necessary at both the national, regional and international levels in order to ensure access to justice, fair treatment, compensation and social assistance to victims of crime.
In this light, many regional bodies have taken this seriously and have come up with legal instruments to reflect these proposals. Some of these instruments come in the form of Framework Decision57 or Directives58 or Guidelines.59
The overriding narrative of engaging the victims in the counter terrorism strategy is that through ‗their unique experiences, they can bring a perspective that can shape the debate, counter hateful narratives both at the community level and on online forums, and influence attitudes which can assist in reaching out to marginalised and at-risk
56 A/Res/40/34 57 European Council Framework Decision 2001/220/JHA of March 2001 on the Standing victims in Criminal Proceedings ( 2001 European Council Framework Decision) 58 European Council Directive 2004/80/EC of April 2004 relating to compensation of Victims of Crime 59 Council of Europe Guidelines on the Protection of victims of Terrorists Acts,COMMITTEE OF MINISTERS Recommendation, Rec(2006)8 of the Committee of Ministers to member states on assistance to crime victims (Adopted by the Committee of Ministers on 14 June 2006 at the 967th meeting of the Ministers' Deputies). 318 communities‘,60 while at the same time addressing their needs in criminal justice processes, with appropriate confidentiality and witness protection measures in place, and through establishing coherent and multidimensional responses to reparations.
It must be seriously canvassed and enshrined in national policies that individuals who suffer in the hands of terrorists or survivors of terrorist incidences must be supported in their recovery not only in the immediate aftermath but also in the longer term because these are the innocent victims from what in effect is an attack on our society.
The horror of terrorist atrocities is that the most vulnerable and the least expecting are at risk.Hence, the victims must be assisted to seek damages from governments or other parties who may be connected to the incident but are arguably negligent.
In response to these, UNODC has come with a report tilted ‗the Criminal Justice
Response to Support victims of Acts of Terrorism‖. Earlier on in the document it reiterates that ―the criminal punishment of perpetrators is not enough, as with many criminal offences, reparation should be offered to victims and within the framework of the fight against terrorism, the victims must not be forgotten or regarded as collateral damage.‖61 It further underscores the absolute necessity of identifying the rights and needs of victims of acts of terrorism, to support them and provide reparation for the damage they have suffered and grant them a central role in the criminal proceedings.
In responding to the social problems attendant to victim of terrorism, Nigeria has set up Internally Displaced Person camps to assist a great percentage of citizens who have been displaced owing to Boko Haram carnage or resulting from communal or
60 Ibid 61 The Criminal Justice Response to Support Victims of Acts of Terrorism, UN, May. 2012.
320
CHAPTER SIX
SUMMARY OF FINDINGS, RECOMMENDATIONS AND CONCLUSION 6.1 Summary of Findings Adopting a counter terrorism policy and allocating resources to prosecute the policies so adopted may not be an uphill task for government because every government so committed to the security of its citizens would want to do all within its powers in democratic society to root terrorism in all its forms.
However, a major problem often systemic to most models of counter terrorism is carrying through with these models without creating adverse indirect effects.
Counter terrorism tactics have the capacity to advance immediate and often short term/long term security successes, but these tactics are often a tradeoff for other values considered inviolable in a democratic society. For example, how do we limit the freedom of individual terrorists, terrorist groups and support networks to operate unimpeded in a relatively unregulated environment, whilst maintaining individual freedoms, democracy and human rights?
Tiwari espouses this dilemma in these words: “The whole counter –terrorism strategy involves a democratic dilemma which consists of two parts. The first is how to be effective in counter-terrorism while still preserving liberal democratic values, and the second is how to allow the government to fulfill first and foremost its responsibility of protecting the lives of its citizens without using the harsh measures at its disposal.‖1
Today, counterterrorism, or the whole national and international system of responses designed to combat terrorism, includes a variety of tools ranging from diplomacy,
1Garima Tiwari, Counter Terrorism : A Democratic Dilemma, Available at:
Terrorism is both a global phenomenon and a pressing political problem. Counter terrorism is therefore confronted with these conflicting goals and courses of action namely: (1) limiting the freedom of individual terrorists, terrorist groups and support networks to operate unimpeded in a relatively unregulated environment versus (2) maintaining individual freedoms, democracy and human rights. Confronted with the current global trend which anticipates an increasingly open space, open social networking, open commerce and open attitudes (tolerant, as well as non-tolerant), one question that takes on more and more prominence is: doesn‘t an enhanced security environment as a result of counterterrorism measures play to some degree into the hands of the terrorists, i.e. since their central aim is to disrupt our democratic systems?
It is also important to see that in all democratic countries, a substantial majority strongly holds that no compromise of constitutional rights is acceptable. The importance of protecting human rights in creating effective counter terrorism measures cannot be minimized. Counter terrorism should never result in such conditions that promote stigmatisation measures that affect community rights leading to further marginalization and possibly radicalisation within those communities. Such measures rather than reduce the menace of terrorism are considered valid reasons conducive for the spread of terrorism amongst those communities. 322
The use of torture, arbitrary detention, inhumane and degrading treatment occurring in many jurisdictions in their fight against terrorism are therefore unsustainable for the model being advocated in this work. These measures not only violate human rights but also result in unreliable intelligence. The dilemma has often been that the threat of terrorism justifies any engagement in grave violations of human rights and cooperation with states that engage in such violations.
Combating and condemning terrorist activity wherever it exists following democratic limits as well as the extremist and violent ideology that accompanies it cannot be juxtaposed with ethnic, religious or political profiling. Counter terrorism measures may potentially face the dilemma of or the risk of racial and ethnic profiling, which is in clear violation of Convention on the Elimination of Racial Discrimination (CERD).
Terrorism should not be connected exclusively with particular racial, ethnic, cultural, religious or national group. The risk of racial profiling occurs in the creation of terrorist watch list, no fly lists, which though may serve a good purpose for purposes of counter terrorism intelligence, but must be balanced, with the risk of racial profiling, possible errors and privacy infringements.
However, it is very difficult to preserve and continue to affirm our democratic principles of religious or ethnic tolerance when confronted with the horror of the
Islamic State of Iraq (ISIS), Boko Haram or Niger Delta Militants. Some of these networks seek to create a ―pure Islamist state governed by a brutal interpretation of sharia. This brutality is designed to augment the image of its strength, to exhibit raw power and a sheer propensity towards revenge.
Be it as it may, the global nature of terrorism with its connection to violence perpetrated by radical/extremist Islamic groups cannot justify any stereotyping of 323 terrorists. The mistake of relating or identifying ethnic affiliations and religious values with terrorism must be avoided. In this connection, when politicians insist on differentiating those criminal groups from the core values of religious or ethnic identities, they are trying to arouse the consciousness of human solidarity. This consciousness is nothing less than attesting the value of culture in solving the issues of civilization such as terrorism.
Intelligence activity is crucial to provide advance warning and to mitigate new threats.
The problem today is to rebuild constructive partnerships with the private sector as well as with the general public. The prevailing expectations of privacy is reflected in the response of Apple when they said, ―Our commitment to customer privacy doesn‘t stop because of a government information request.2 The danger, as perceived by the public is that the data gathered by the security institutions are not protected from being used by policy preferences. Is it possible to turn privacy and security into a positive sum game? Is it possible to guarantee both?
There is no doubt that governments have the duty to protect the nation from terrorist violence. Yet, the legislature has the duty to protect the citizen‘s democratic rights from any unduly expansive and intrusive government surveillance. Counter terrorism has often involved extensive surveillance techniques resulting in unlawful interference with privacy, stopping short of interference on the right to privacy.
2
Article 17 of International Covenant on Civil and Political Rights (ICCPR) prohibits any arbitrary or unlawful interference with privacy subject to derogations considered serious enough to trump the right. Counter terrorism legislations that allow arbitrary violation of right to privacy may be challenged. This has been done in the recently in the case of Gillian and Quinton v. The United Kingdom3where the counter terrorism measures infringing on the right to privacy in the United Kingdom has been challenged in the European Court of Human Rights. The case arose out of s. 44 of
U.K Terrorism Act which broadly permitted public searches and seizures of person suspected of terrorism without distinction. Consequently privacy was patently forfeited for the purpose of fighting terrorism. In the case, the Court held that there is a clear risk of arbitrariness in the grant of such a broad discretion to the police officer.
There is, furthermore, a risk that such a widely framed power could be misused against demonstrators and protestors in breach of Article 10 and/or 11 of the
European Convention on Human Rights.
It must be admitted that the power of stop and search as a counterterrorism measure while being expedient must be exercised with reasonable restraint so as not to give impression that the right to privacy can be trampled at the altar of state and personal security. Privacy must be protected under a rigorous analytical framework that secures that any restrictions are adequately provided for in clear and precise provisions of domestic law, while ensuring that the measures are effective for the purpose they are intended to serve, necessary in a democratic society and proportionate to the real advantage gained.
34158/05 [2010] ECHR 28 (12 January 2010)): The case originated in an application (no. 4158/05) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (―the Convention‖) by two British nationals, Mr. Kevin Gillan and Ms. Pennie Quinton (―the applicants‖) on 26 January 2005. The completed application form was filed on 30 April 2007. The applicants alleged that the powers of stop and search used against them by the police breached their rights under Articles 5, 8, 10 and 11 of the Convention. 325
It is also clear that such laws can have a negative impact on the freedom of the press.
When privacy and freedoms are under constant pressure from the necessities of counterterrorism, we have the feeling of being in exactly the position that complies with the terrorists‘ wishes. Lawmakers can place sensible limits on surveillance and require a considerable amount of proof, before privacy is limited by intelligence and security interventions.
Effective counter-terrorist policy must include the role of the media. The media have great responsibility on how and which part of the stage is spotlighted and what stays in the dark. The aspect of censorship and ―the right to know‖ has to be carefully analyzed within the framework of democratic freedom.
In addition to these major finding of this research work, other outcomes have also been uncovered in relation to counter terrorism models as expanded above. These include:
1. The enactment of the Nigeria TPA was done in hasty manner that did not give
much room for public debate or judicial scrutiny. This explains the reason for
the lack of inclusion of rules that will address and deescalate the nature and
cause of terrorism specific to the country.
2. Is also observed that the definition of terrorism in many counter terrorism
legislations was broad. The ambiguity of these definitions was as a result of
the political undertone that attends to counter terrorism matrix. The broad
definition often makes it difficult to successfully and easily attain conviction
of the detained suspects hence leading to over detainment of suspects on the
pretext of ongoing investigation. 326
3. Predominant counter terrorism measures for example in Nigeria speaks more
to pre-trial investigation and detention procedures which infringe upon due
process, personal liberty, and limits on the length of pretrial detention. It has
been pointed out that suspects detained for terrorism are 100 times more that
person already convicted for the offence of terrorism. Counter terrorism
measures more often are focused more on decapitate (military force) or
capture without any serious resources expended on successful investigation,
trial and convictions. Hence, the process often trumps the presumption of
innocence that attaches to all criminal prosecution process in a democratic
society.
4. Some jurisdictions like United States preferred to engage special courts and
procedural rules that infringe upon judicial independence and the right to a fair
trial in their initial counter terrorism measures.
5. It is also observed that because of over militarisation of counter terrorism,
there seems to be a lack of sufficient oversight of police and prosecutorial
decision-making to prevent arbitrary, discriminatory application of rules for
suspected terrorists as we find in the United States following September 11
incident and in Nigeria following the Boko Haram carnage since 2009.
6. Radical Islamic terrorism does not stem from one individual or a single
organization, but it is an international network with global reach, which
includes activists from different backgrounds.
7. Fighting the terrorism threat is an international demand not just a domestic
option because of the religious drive often associated with some types of
terrorism threat as well as the uncompromising dedication to spread their
message coupled with the global reach of the members with a willingness to 327
employ non-conventional weapons.Thus, a sustained synergy is needed
amongst states and civil society groups and international organisation in order
to record more sustainable counter terrorism initiative.
8. Effective counterterrorism strategies are often hindered by an inability to sever
ties between the terrorist organizations and the countries that support them
because of a lack of an international consensus on how to define terrorism.
This inconsistency impeded cases of extradition and muddied the water on
assigning responsibility. Additionally, governments, politicians, states
sponsoring terrorism, and journalists may refer to the same incident in
absolutely contradictory terms while others use the term to identify events that
have nothing to do with terrorism.
9. Counter-terror policies has to be more and more a long-term strategy capable
of fighting terrorism on many fronts as the eradication of terrorism may not be
achievable for a long period of time.
10. The research also uncovered that lack of political will engendered by corrupt
and unpatriotic leaders especially in Nigeria who appear not to believe in
counter- terrorism project but believe more in the religious and ethnic agendas
is big obstacle to effective and comprehensive approach against terrorism in
all its forms. In a similar vein, ethnic and religious prejudices constitute big
obstacles to effective counter terrorism measures and its implementation.
6.2 Recommendations 6.2.1 Human Rights Compliant Counter Terrorism Framework Counter terrorism framework does not just need a strong all-encompassing law, but strict implementation and vigilance with respect for human rights. Boko Haram traces its notoriety to the gruesome extrajudicial murder of Yusuf, their leader in the hands 328 of Nigeria police. There has to be proper safeguards against misuse and abuse of law as well as clear cut definitions of crimes and penal provisions to avoid excessive discretionary powers. Transparency and judicial oversight of state counter terrorism measures must be promoted to ensure state compliance with international human rights and states should realize that counter terrorism measures are not outside the realm of international law standards.States must recognise the possibility for human rights abuses under counter- terrorist measures and acknowledge the risk of fostering extremism through measures meant to fight terrorism. They must therefore be proactive in adopting measures that both protect these rights and effectively deescalate terrorism and its attraction to young people.
6.2.2 Capacity Building and Better Policing Mechanisms Most experts have suggested strengthening policing from the grass root level, enacting tough laws and speedy trial of cases would go a long way in preventing and controlling terror attacks in Nigeria and terror prone regions because the terror attacks are often carried out with the help of some local elements. Then again the external factors like politicisation of the police force and law enforcement agencies especially in Nigeria should be checked to ensure their effectiveness.
6.2.3 Emphasis on the Criminal Justice Model rather than War Model It is generally assumed that the ‗criminal justice model‘ is the better option for democracies to overcome the ‗democratic dilemma‘ they face. Terrorism inevitably involves the commission of a crime. Since democracies have well-developed legislations, systems and structures to deal with crime, the criminal justice system should be at the heart of their counter-terrorism efforts in order to achieve sustainable counter terrorism goals. It would be necessary to introduce reforms that would incorporate and balance safeguards with the security concerns within criminal justice system of Nigeria and other places facing terrorism. 329
6.2.4 Diplomacy and Public enlightenment united against Terrorism Public diplomacy is needed to win ‗hearts and minds‘ and to mobilize the media in countries where international cooperation in law enforcement is not yet very successful. Sometimes, the battle for hearts and minds must be fought on the diplomatic forum. National leaders need to engage vigorously their subjects on the problems of terrorism and work positively to diminish factors that encourage and incite persons to get involved in terrorism.
The national security interests of the western states often collide with their commitment to promote democracy and human rights. To ameliorate the root causes of terrorism and to deter recruitment of terrorists, public diplomacy on the international arena deserves to be well-funded. Democratic leaders coming from all democratic countries in the world or from the battlefields in the non-democratic authoritarian countries have the capacity to raise the awareness of the people and media on the necessity of international cooperation in counter-terror issues. They have the experience and the ability to express purpose and determination for purposes of counter terrorism.
6.2.5 Positive Counter Terrorism Propaganda and Proportional Military Response when necessary Depressive sentiments in the form of ―Terrorist are winning‖ should never be allowed to prevail in the analysis of terrorism, as that would engender the application of even illegitimate means in a democratic society in order to counter it. Counter terrorism is not a full scale war. Hence, proportionate measuresjust enough to deescalate and reduce its fatal impact are needful. Merely shifting the military base to regions most prone to terrorism as recently done in President Buhari regime in
Nigeria sounds the ominous note that counter terrorism is all about war or military operation and nothing else. 330
States should not brand opposition groups as terrorists just to find excuse for carrying out ethnic or religious cleansing on the population.Military operation following a terrorist incident should be a temporary reprieve to the civilian population and not a veritable solution to the problem, since terrorism is a symptom of something much deeper that mere manifest violent outburst in the form of murder, arson or suicide attack.
6.2.6 International Cooperation of States Because of the big gaps existing between developed and developing or undeveloped nations, to have joint projects on issues other than health or education is rare.
Terrorism should be treated as a joint interest, precisely because it is essentially a destructive phenomenon. It is propelled by a destructive energy of a very special kind, because it cannot be brought into the service of life, as it is always in the service of death. This international cooperation should be reflected in the policing of the Internet and use of new methods of communication that facilitate the spread and the easy reach of terrorist messages and propaganda as well as make it easier for them to obtain funding from their members abroad.
6.2.7 Focusing attention on the Victims of Terrorism as an essential part of Counter Terrorism Matrix As terrorism confronts the existing order of states, it has also become a foremost vector for destabilizing people‘s lives in awful and extended proportions by displacing them from their homes and work. This is a new stage, if not era, of both terrorism and counterterrorism. Counter terrorism must therefore necessarily focus on protecting, serving and winning the support of the victims ofterror by way of programs intended to rehabilitate them and ameliorate the social and physical injury resulting from terrorism violence alongside combating extremist groups and individual terrorists. 331
More work is needed to be done by Nigeria Government in the area of people internally displaced (IDP) by the Boko Haram activities. There are unconfirmed reports that internally displaced peoples camps (IDP camps) are one of the worst places to stay as there are reports of human rights abuses, rape and substandard level of maintenance irrespective of the funds from both national resources and international funnels.
6.2.8 Weapons Control and International Community This research further recommends that counter terrorism measures should be extended to effective policing for control of weapons and sale of guns and bombs to failed states where terrorism thrives in a large scale. International community should put concrete controls to the commercial sale of arms and weapons and be able to monitor commercial exchange of oil for arms especially with the Arabia peninsula where terrorism thrives considerably and there is oil in great supply.
6.2.9 Strengthening Social Security especially for Minorities/Unemployed to discourage further Recruitment of New Members Create long-term plans to establish formidable institutions, provide social and economic development, develop security framework and instruments of peaceful negotiation required to solve the problems that gave rise to violence in the first place.
This would include creating stable communities in those places considered breeding ground for terrorism and allows terrorist to operate or are complicit by their silence or inaction, so as to make terrorism less attractive to those purported marginalized constituencies. In this connection, the Nigerian government should direct some attention to the social conditions in the Niger Delta region by engaging with their environmental concerns. Also, attention shall be focused on the social, economic and moral development of the youths in the north east of Nigeria where Boko Haram thrives. 332
6.2.10 Judicial Reform It is also recommended that states where terrorism is rife should create special courts to conduct trials of person suspected of terrorism. This would make it possible to speedy dispensation of justice for suspects and for victims. In Nigeria such a special court should have coordinate jurisdiction with the Federal High Court. The purpose of this is to prevent further congestion of the Federal High Court who has the jurisdiction to try terrorism cases under the current TPA (2013) as amended. This will facilitate expeditious prosecution of terrorism cases with the result that the length of time during which suspects would be in detention while the trial is ongoing will be reduced forestalling further violation of their fundamental rights.
6.3 Conclusions Terrorism is a threat which most states are facing today. We can only defeat terrorism in the long term by preventing the next generation of terrorists from emerging. States should strive to reduce the breeding grounds of terrorism.
The discussions of the models for counter terrorism have exposed two predominant models which overlap with other models outlined. These models are the law enforcement approach and the war approach which derives from the competing rhetoric of the terrorist violence either as crime or as armed conflict. The first approach emphasizes the tools of criminal investigation (including legal protection and rights and restrictions on the intelligence-gathering process that safeguard civil liberties) and due process. Post 9/11 United State of America rhetoric predominantly canvasses a war fighting approach. This approach views terrorism essentially as a military threat that requires the use of force to defeat the enemy, both because of the nature of terrorism and in the last two decades because a new terrorism had emerged whose perpetrators did not believe in bargaining. Both the law enforcement approach and the war fighting approach necessitated intelligence gathering and effective 333 diplomacy and cooperation with other states. This is not to argue that either the law or war approach precludes actions that would be constitutive of the other approach but rather to understand that the underlying approach was defined by the contraption of the problem as either military or criminal and assumptions about the viability of negotiating or bargaining with the terrorist.
The attacks of September 11 profoundly altered the debate and the responses which followed and continued to define policy considerations and choices. The immediate response following September 11 was to frame the attacks primarily as a military problem and thus President Bush declared the global war on terror (GWOT). The approach emphasized attacking the perpetrators of 9/11 and their supporters. In addition, the administration seized the opportunity to emphasize the differences in their approach from that of the Clinton administration which they criticized for its soft and restrained law enforcement concerns. The approach led to full scale military operations against Afghanistan and Iraq under the banner of the war on terror. This change in approach also resulted in the shifting of counterterrorism coordination and resources from the Department of Justice and the Department of State to the Defense
Department, a shift that dramatically reduced the importance of the Justice
Department, the FBI and the Department of State in counterterrorism policy and actions. There have been numerous critiques of not only the decisions to declare war on Iraq and Afghanistan, but also the war metaphor and counterterrorism approach, both emphasizing its rhetorical (i.e. communicative) and tactical problems and why it has often been counterproductive.
The war on terror approach raised expectations, justified excesses, escalated fear, and framed the problem as one that requires resolution rather than management. Critics generated a series of still unanswered questions: How will we know when we have 334 won the war on terror? How do we know when our enemies are vanquished? How long do we have to go after the last attack to declare victory? Moreover, by disparaging a law enforcement–legal approach and by privileging the military approach, the war metaphor was intended to make it seem that contraventions of civil liberties and democratic processes and values were necessary as long as the war continued. By so doing, it focused its attention primarily on military actions- most of which were clear tactical successes (killing, capturing terrorists, destroying safe havens etc.) and paid less attention on the impact of these actions (and the policy as a whole) on the audiences of the counterterrorism actions, who gradually became less supportive of such military tactics because of its collateral and counterproductive effect. Pope Francis in his 2017 New Year message makes a passionate appeal in this regard as follows:
Violence is not the cure for our broken world. Countering violence with violence leads at best to forced migrations and enormous suffering, because vast amounts of resources are diverted to military ends and away from the everyday needs of young people, families experiencing hardship, the elderly, the infirm and the great majority of people in our world. At worst, it can lead to the death, physical and spiritual, of many people, if not all.4
The Pope insists that violence cannot achieve any goal of lasting value and would often lead to retaliation and cycle of deadly conflicts that benefit only a few warlords.
The Pope therefore recommends as with this research, ‗an ethics of fraternity and peaceful coexistence between individuals and among peoples which cannot be based on logic of fear, violence and close-mindedness but on responsibility, respect and sincere dialogue.‘5
4Nonviolence: A Style of Politics of Peace, Message of His Holiness, Pope Francis for the Celebration of the 50th World Day of Peace, 1 January 2017. 5 Ibid. 335
This work has advocated for a shift of attention to policing the issue rather than continue to fight a war with the primary goal being to address it in a way that most effectively balances costs and benefits rather than achieving victory once and for all.
Effective counter terrorism mechanism for democracies lies not in bizarre trade-offs of our fundamental freedoms, but in finding synergies, common goals and harmonious paradigms amongst all stakeholders.
336
BIBLIOGRAPHY Textbooks Adams. M. David, (Compilation), Philosophical Problems in the Law, (2nd Edn, Wadsworsth Publ. Co., Belmont 1996).
Adebayo, A. M., Administration of Criminal Justices System in Nigeria, (Princeton Publ. Co. Ikeja, 2012).
Agambien Giorgio, State of Exception (The University of Chicago Press Chicago, 2005).
Aid M. M., Intel Wars, The Secret History of the Fight against Terror (Bloomsbury New York 2012).
Alobo, Joshua, Terrorism, Kidnapping and Cybercrime in Nigeria( Diamond Real Resources ConsultAbuja 2013).
Amadi, S. George , Police Powers in Nigeria (Afro Orbis Publishing coNsukka, 2000).
Ani Laura, Use of Force Against Terrorism, in Epiphany Azinge (ed), Laws of Wars and Use of Force,( NIALS, 2014).
Anowai, E., Amalgamation of Nigeria: Unity or Conformity? in Linus Okika, ( Ed), The Nigeria Project, The Politics, the Problems, The Challenges and Prospects, (Pope John Paul II Memorial Lecture Series2014).
Arendt, Hannah ,On Violence ( Harcourt IncOrlando1970).
Azinge, Epiphany & Laura Ani (eds), Laws of War and Use of Force(Nigerian Institute of Advanced Legal Studies, Lagos 2014).
Barkawi, Tarak, Globalization and War(Rowman & Littlefield Publ. IncNew York 2006.).
Barnett, Michael & Finnemore Martha, Rules for the World, International Organizations in Global Politics, (Cornell University PressIthaca 2004).
Sargent Lyman Tower, Contemporary Political Theories, A Comparative Analysis, (7th edn.)(Brook/Cole Publishing co, Pacific Groove 1987).
Bennis, P., Understanding ISIS and the New Global War on Terror- A Primer(Olive Branches Press, M.A.2015).
Bigongiari, Dino (ed), The Political Ideas of St Thomas Aquinas (Hafner Press, New York 1953)
Bold, George, Theoretical Criminology,(2nd ed. Prepared by Thomas Bernard), (: Oxford University PressNew York 1979). 337
Boucock, Gary, The Specific and Particular Rationalism of Modern Authority: The Problematic Relation between Modern Freedom and Domination, in G. Boucock (ed), in the Grip of Freedom: Law and Modernity in Max Weber (University of Toronto Press 2002).
Browlie, Ian (ed), Basic Documents in International Law, (5th edn). (Oxford University PressNewYork 2002).
Bush, George W., Decision Points. (Crown PublishersNew York 2010).
Burghardt, J. Walter, Justice, A Global Adventure, (Orbis BooksMaryknoll2004).
Brecher, Jeremy, Jil Cutler, Brendan Smith, In the Name of Democracy –American War Crimes in Iraq and Beyond, ( Metropolitan BooksNew York 2003).
Cairns, R., Way, Dimensions of Criminal Law, (3rd edn), (Emond Montgomery Publ.Canada 2002).
Compendium of the Social Doctrine of the Church, Ottawa, Ontario, (Canadian Conference of Bishops Publications 2005).
Croft, Stuart, Culture, Crisis and America‟s War on Terror, (: Cambridge University Press 2006).
Cusimano, Maryann K. (ed), Beyond Sovereignty – Issues for Global Agenda,(Bedford/St MartinsBoston 2000).
Dicey, A.V., Introduction to the Study of the Law and the Constitution (5th edn).Macmillan &Co Ltd London 1897).
Dinstein, Yoram, War, Aggression and Self-Defence (4thedn: University PressCambridge 2005).
Diehl, F. Paul, The Politics of Global Governance- International organizations in an Interdependent World,(2nd edn. Lynne Rienner PublishersLondon2001).
Dworkin, Ronald, Taking Rights Seriously (Harvard University PressCambridge 1978).
Dyzenhaus, David & Ripstein Arthur (eds.), Law and Morality, Readings in Legal Philosophy (2nd edn. University of Toronto Press 1998)
Dugdale, A. M, Furmston, M. P., Jones S. P & C. H. Sherin C. H., ‗A‟ Level Law(ButterworthLondon 1996).
Eso, Kayode, Further Thoughts on Law and Jurisprudence (ed. by John Ademola Yakubu) (Spectrum BooksIbadan, 2003).
Fagothey, A., (S.J), Right and Reason, Ethics in Theory and Practice based on the Teachings of Aristotle and St Thomas Aquinas (2nd Edn Tan Books and Publishers, Inc., Rockford 1959). 338
Foucault. Michel, Discipline and Punish, the Birth of Prison, translated from French by Alan Sheridan (Vintage Book, New York1995).
Forsythe, David P., Human Rights in International Relations (Cambridge University Press 2000).
Freeman. M.D.A,Lloyd‟s Introduction to Jurisprudence (6th edn Sweet & Maxwell LtdLondon 1994).
Freeman, Michael, ‗Order, Rights, and Threats: Terrorism and Global Justice‘ in Richard Ashby Wilson, ed. Human Rights in the War on Terror‘ (CambridgeUniversity Press 2005).
Freeman, M. D. A., (ed), Current Legal Problems 1996, Vol. 49, Part 2: Collected Papers, (Oxford University Press New York 1996).
Forsythe, D., Human Rights in International Relations (Cambridge University Press 2000).
Gewirth, Alan, The Community of Rights, (The University of Chicago Press 1996).
Grayling, A. C, Liberty in the Age of Terror-A Defence of Civil Liberties and Enlightenment Values (Bloombury Publ.London2009).
Green, Philip (ed), Key Concepts in Critical Theory(Humanity BooksNew York 1999).
Goff, C., Criminal Justice in Canada (Third edn, (Thomson/NelsonCanada 2004).
Grotius, Hugo, On the Law of War and Peace, ( Kessinger Publishing Rare Reprints, U.S.A 2005).
Harris, D. J., Cases and Materials on International Law (5th edn Sweet and Maxwell London 2000).
Hart H. L. A., Law, Liberty and Morality(Stanford University Press (Reprinted) 1996).
Habermas, Jurgen, Between Facts and Norms (Contributions to a Discourse theory of Law and Democracy) translated by William Rehg ( MIT PressCambridge, 1998).
Habermas, Jurgen, The Inclusion of the Other, Studies in Political Theory, ed. by Ciaran Cronin and Pablo Greif (The MIT PressCambridge), 1999).
Halstead, Peter, Unlocking Human Rights (Hodder Education, U.K 2009).
Holzgrefe, J. L (ed.) & Keohane Robert (ed.), Humanitarian Intervention, Ethical, Legal and Political Dilemmas, (Cambridge University Press 2003). 339
Hugh Miall, Ramsbotham & Woodhouse, Contemporary Conflict Resolution: The Prevention, Management and Transformation of Deadly Conflicts (Polity PressCambridge 1999).
Ike, Obiora (ed.), The Fantasy of Human Rights (CIDJAP PublicationEnugu 1997)
Jacoby, Joseph (ed), Classics of Criminology (2nd edn. Waveland Press Inc.Prospect Heights 1994).
Karsh Efraim, Islamic Imperialism- A History, (Yale University PressLondon2007).
Kapoor, S. K., International Law and Human Rights (18th Edn. Central Law Agency Allahabad 2011).
Laselet Peter, (ed), Locke, Two Treatises of Government (Cambridge University Press 1988).
Locke, John, Second Treatise on Government, (ed. by C. B Macpherson) (Hackett Publ. Co, Inc.Indianapolis 1980). (originally published in 1690)
Long, D. E., Countering Terrorism beyond Sovereignty, in Maryann K. Cusimano (ed.), Beyond Sovereignty, Issues for a Global Agenda(Bedford/St MartinBoston 2000).
Luban, David, ‗Eight Fallacies about Liberty and Security‟ in Richard Ashby Wilson (ed), ‗Human Rights in the War on Terror‘ (Cambridge University Press 2005).
Madar, Daniel, Canadian International Relations, (Prentice Hall Allyn and Bacon PressScarborough, Ontario 2000).
Maritain, Jacques, The Rights of Man and the Natural Law(Ignatius PressSan Francisco 2011).
Mckeon Richard, (ed), The Basic Works of Aristotle, „The Politics‟, bk.1, ch.2 (Modern LibraryNew York2001).
McKinnon, Barbara, Ethics, Theory and Contemporary Issues (4th edn. Thomson, Canada 2004).
Mill, John Stuart, On Liberty and other Essays, (Kaplan Publishing, (foreword by Jonathan Riley)New York2006).
Moltmann, J., The Experiment Hope, (ed. and trans. with a foreword by M. Douglas Meeks) (SCM Press Ltd. London 1975).
Murphy, John F., Punishing International Terrorist: The Legal Framework for Policy Initiatives (Rowman & Allanheld Publ.New Jersey. 1985).
Nwabueze, B. O., Democratisation (Spectrum Law Publ. Ibadan1993).
Nnoli, Okwudiba ,Ethnic Politics in Nigeria.(Fourth Dimension Publ. Enugu 1980). 340
Ogbu Nnamani Osita, Human Rights, Law and Practice in Nigeria, An Introduction (CIDJAP Press Enugu 1999).
Ojomojobi Yinka, Islam and Conflict in Northern Nigeria (Malthouse Press Ltd Lagos 2013).
Olaknami, Jide & Co. (ed), Anti- Corruption Laws (7th edn. LawLords PublicationsAbuja 2012).
Onuoha, J., Negotiation and Mediation Process, in Miriam Ikejiani-Clark, (ed.) Peace Studies and Conflict Resolution in Nigeria, A Reader (Spectrum Books LtdAbuja 2009).
Packer, H, Two Models of the Criminal Process, in Joseph E. Jacoby (ed), Classics of Criminology (2ndedn Waveland Press Inc.Illinois 1994).
Philippe, Sands & Pierre, Klein, Bowetts Law of International Institutions (5th edn.Sweet & MaxwellLondon2001).
Rawls John, Political Liberalism (Columbia University Press1993).
Rawls John, A Theory of Justice (Harvard University PressCambridge (Revised Edn. 1971).
Reus- Smith Christian, The Politics of International Law, (Cambridge University Press 2004).
Redmond P. W. D., General Principles of English Law, (6th edn.Longman Group LtdLondon 1990).
Roberts, Adam & Guelf, Richard, Documents on the Laws of War (3rd edn). (University PressNew York2000).
Shaw, M. N., International Law (4th edn. Cambridge University Press 1997).
Shearer I. A., Starke‘s International Law(11th edn. ButterworthsLondon 1994)
Schmid Alex P. & Janny de Graaf, Violence as Communication: Insurgent Terrorism and the Western News Media (Sage Press Beverly Hills CA 1982).
Schmid Alex, P, The Problems of Defining Terrorism, in Encyclopedia of World Terrorism, 12, (Martha Crenshaw & John Pimlott (eds.) 1997).
Schmitt, Carl, The Concept of the Political (University of Chicago Press 1996).
Sens, Allen & Stoett, Peter, Global Politics, Origins, Currents and Directions (4th edn.Nelson Education LtdU.S.A2010).
Stassen, Glen (ed.), Just Peacemaking, Ten Practices For Abolishing War,( 2nd edn.The Pilgrim Press Cleveland 2004).
Stuart, D. et al, Learning Canadian Criminal Law (10th edn.ThomsonCanada 2006). 341
St Thomas, Summa Theologica, II-II, q.40
Stubbs, Richard & Underhill Geoffrey, (eds.), Political Economy and the Changing Global Order (McClelland & Stewart Inc.Toronto1994).
Sweet, William (ed), Philosophical Theory and the Universal Declaration of Human Rights, (University of Ottawa PressOttawa 2003).
Tamanaha, Brian, On the Rule of Law: History, PoliticsandTheory (Cambridge University Press 2004)
Ubaka, C. O, Sharia in Nigeria- its Implication for Non- Muslims (Snaap Press, Enugu 2000)
Vago, Stephen& Nelson Adie, Law and Society. (Prentice Hall Toronto2004).
Van der Vyver Johan, Prosecuting Terrorism in International Tribunal, Schmid Alex, P, The Problems of Defining Terrorism, in Encyclopedia of World Terrorism, 12, (Martha Crenshaw & John Pimlott( eds.), 1997)., Vol. 24. No. 2, Jan. 2010.
Walters J. Gregory, Human Rights in an Information Age, A Philosophical Analysis, (University of Toronto PressToronto2002).
Waltz, Kenneth, Man, the State and War, A Theoretical Analysis, (Columbia University PressNew York 1954).
Wilkinson, P, Terrorism and the Liberal State (WileyNew York1977).
Wolterstorff, Nicholas, Justice, Rights and Wrongs, (Princeton University Press 2008).
Wooton, David (ed), Modern Political Thought (Readings from Machiavelli to Nietzsche(Hackett Publ. Co. Inc.Indianapolis1996).
JOURNAL ARTICLES
Abimbola, J .O. & Adesote S.A., ‗Domestic Terrorism and Boko Haram Insurgency in Nigeria, Issues and Trends: A Historical Discourse‘ [2012]Journal of Arts and Contemporary Society 4.
Adelabu, Salawu M. & Oladele Adeoti E., ‗Terrorism and Nigerian Democracy: Implications for Sustainable Development‘ [2105]European Journal of Globalization and Development Research, Vol. 11, No. 2.
Adeniyi, A. Bukola, ‗Terrorism in Nigeria: Groups, Activities and Politics‘ [2010]International Journal of Politics and Governance, Vol.1, No. 1.
Acharya, U. D., ‗War on Terror or Terror Wars: The Problem of Defining Terrorism‘ [2009]Denver Journal of International Law and Policy Vol. 37:4, 656. 342
Allen, Michael, ‗George W. Bush and the Nature of Executive Authority: The Role of the Courts in a Time of Constitutional Change‘[2007]72 Brooklyn L. Rev. 871.
Ayuba, Isyaku, ‗Terrorism: A New Challenge to Nigeria‘s Stability in the 21st Century‘ [2013] International Affairs and Global Strategy, ISSN 2224-8951 (Online), Vol. 12.
Aldrich, George H., ‗The Taliban, and the Al Qaeda and the Determination of Illegal Combatants‘ [2002]The A.J.I.L. Vol. 96, No.4. (Oct. 2002) 891.
Arato, Andrew, ‗The Bush Tribunal and the Specter of Dictatorship‘ [2002]Constellation, Vol.9, no.4.
Ariel Bendor, ‗Justiciability of the Israeli Fight against Terrorism‘ [2007]39 Geo. Wash. Int‟l L. Rev. 149.
Azmy Baher, ‗Constitutional Implications of the War on Terror: Rasul v. Bush and the Intra-Territorial Constitution‘ [2007]62 New York University Annual Survey of American Law. 369.
Baher Azmy, ‗Constitutional Implications of the War on Terror: Rasul v. Bush and the Intra-Territorial Constitution‘ [2007]62 N.Y.U. Ann.Surv. Am. L.369.
Beard Jack, ‗The Geneva Boomerang: The Military Commission Act of 2006 and the US Counter Terror Operations‘ [2007]A.J.I.L Vol. 101.56.
Bendor Ariel L, ‗Justiciabilityof the Israeli fight Against Terrorism‘ [2007]39 George Washington International Law Review 149.
Bianchi Andrea, ‗Security Council‘s Anti- terror Resolutions and their Implementation by member States‘ [2006]Journal of International Criminal Justice, 4, 1044.
Boyle Joseph, ‗Just War Doctrine and the Military Response to Terrorism‘ [2003]The Journal of Political Philosophy, Vol. 11, No.2. 153.
Brown, D.‗Use of Force against Terrorism after September 11th: State Responsibility, Self Defense and Other Responses‘ [2003]11 Cardozo Journal of International and Comparative Law, 1, Spring.
Buergenthal Thomas, ‗The Normative and Institutional Evolution of Human Rights‘ [1997] Human Rights Quarterly, 19. 4, 703.
Byers Michael,‘ Preemptive Self-Defense: Hegemony, Equality and Strategies of Legal Change‘ [2003], The Journal of Political Philosophy: Vol. 11, No. 2, 171.
Chinwokwu Eke C, ‗Terrorism and the Dilemmas of Combating the Menace in Nigeria‘ [2013]International Journal of Humanities and Social Science Vol. 3 No. 4 [Special Issue – February] 343
Cohen Aviv, ‗Prosecuting Terrorists at the International Criminal Court: Re- evaluating Unused Legal Tools to Combat Terrorism‘ [2012]Michigan State International Law Review, Vol.20.2, 2012. 219.
Cheng, Sinkwan, ‗Terrorism, the Subaltern and the Politics of Recognition: Rethinking Hegel and Honneth‘Journal of Law and Conflict Resolution, Vol. 6(3), 56 June 2014.
Chinwokwu Eke Chijioke, ‗Terrorism and the Dilemmas of Combating the Menace in Nigeria‘ [Feb. 2013]. International Journal of Humanities and Social Science, Vol. 3, No. 4 (Special; Issue), 265.
Cullen, Anthony, Key Developments affecting the Scope of Internal Armed Conflict in International Humanitarian Law, [2005]Military Law Review, Vol. 183, 66.
Ellmann, Steven, ‗The Rule of Law and the Military Commission‘ [2007], 51 N.Y.U. Sch. L Rev. 760.
Ethan Bueno de Mesquita, ‗The Quality of Terror‘ [2005] American Journal of Political Science, Vol. 49, No. 3, July 2005.
Fearon, James D.‗Rationalist Explanations of War‘ [1995]International Organisation 49, 3, Summer 379.
Ferejohn John & Pasquino Pasqaule, ‗The Law of Exception: A Typology of Emergency Powers‘ [2004]I.CON, Vol.2, No.2, 210.
Forsythe, David, United States Policy towards Enemy Detainees in the War on Terrorism [2006] Human Rights Quarterly, 28.2, 465.
Goldman, Robert, ‗Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights under International Humanitarian and Human Rights Law‘ [2002]A.S.I.L Task Force Papers.
Gore, Thomas, ‗Commission Control: The Court‘s Narrow Holding in Hamdan v. Rumsfeld Spurred Congressional Action but Left Many Questions Unanswered. So what happens now?‘ [2007]58.Mercer L. Rev. 741.
Green, J., Docking of Caroline: ‗Understanding the Relevance of the Formula in Contemporary International Law Concerning Self Defence‘14 Cardozo J. int‟l & Comp. L. 429 430.
Hoffman, Paul, Human Rights and Terrorism, Human Rights Quarterly 26.4, 932.
Hussein, Solomon, ‗Counter- Terrorism in Nigeria, Responding to Boko Haram‘ [2012]The Rusi Journal, (Published on line): 15 Aug. 2012.
Kaplan, Shawn, A Typology of Terrorism [2008]Review Journal of Political Philosophy, Vol. 6, No 1. 1.
Isyaku, A. Terrorism: A New Challenge to Nigeria‘s Stability in the 21st Century [2013]International Affairs and Global Strategy, Vol. 12. 344
Jennings, R. Y., The Caroline and Mcleod Cases, 32 American. J Int‟l L 82, 84.
Levitt, M. A., The Political Economy of Middle East Terrorism [Dec. 2002]Middle East Review of International Affairs, Vol. 6, No. 4.
Makau wa Mutua, ‗The Banjul Charter and the African Cultural Fingerprint: An Evaluation of Language of Duties‘ [Winter 1995]35 Virginia Journal of International Law. 339.
Maogoto, J. N., ‗Walking an International Law Tightrope: Use of Military Force to Counter Terrorism- Willing the Ends‘31 Brooklyn J. Int‟I L 405.
Matheson, ‗Michael, Continuity and Change in the Law of War: 1975 to 2005: Detainees and POWs‘ [2006]38 Geo. Wash. Int‟l L Rev.543.
May, W. F., ‗Terrorism as Strategy and Ecstasy‘[Spring 1974].Social Research 41 .
Meron, Theodor, ‗The Geneva Conventions as Customary Law‘ [1987], A.J.I.L. Vol.81, No.2, 348.
Meron, Theodor, ‗The Humanization of Humanitarian Law‘ [2000]A.J.I.L. Vol. 94, No.2, 239
Meron Theodor, ‗The Martens Clause, Principles of Humanity and Dictates of Public Conscience‘ [2000], A.J.I.L. Vol.94, No. 1, 78.
Morris,,Madeline ‗Terrorism: The Politics of Prosecution‘Chicago Journal of International Law[Winter 2005] Vol. 5, No. 2,. 405.
Munoz, Megan J. & Crosston, ‗Mathew, Diplomatic Counterterrorist Deterrence: Moving beyond Military Means‘[July- August 2015] Air and Space Power Journal.
Neumann, P. R.,‘ Negotiating with Terrorists‘ [Jan/Feb. 2007] Foreign Affairs, Vol. 86, No. 1, 128.
Okeke G. N., ‗The United Nations Security Council Resolution 1373: An Appraisal of Lawfare in the Fight against Terrorism‘[June 2014] Journal of Law and Conflict Resolution, Vol. 6(3), 39.
Omale, John O., ‗Terrorism and Counter Terrorism in Nigeria: Theoretical Paradigms and Lessons for Public Policy‘[2013] Canadian Social Science, Vol.9, no. 3, 96.
Oyeniyi Bukola Adeyemi, ‗Terrorism in Nigeria: Groups, Activities and Politics‘ [2010]International Journal of Politics and Governance, Vol. 1, No. 1.
Paust, Jordan, Legal Response to International Terrorism.22 [1999] Houston Journal of International Law, 17.
Paust, J., ‗Anti-Terrorism Military Commissions: Courting Illegality‘[2003] 23 Michigan Journal of International Law, 1. 345
Paust, J., ‗Use of Armed Force against Terrorist in Afghanistan, Iraq and Beyond‘[2002] 35 Cornell International Law Journal, 533.
Pushaw, Robert, ‗The Enemy Combatant‘ Cases in Historical Context: The Inevitability of Pragmatic Judicial Review, [2007], 82 Notre Dame L. Rev. 1005.
Pokempner, Dinah, ‗The New Non-State Actors in International Humanitarian Law‘ [2006)], 38 Geo. Wash. Int‘l L. Rev.551.
Popoola I. S., ‗Press and Terrorism in Nigeria: A Discourse on Boko Haram‘Global Media Journal, African Edition, 2012, Vol. 6 (1), 43.
Qadri, Muhammad Ahmed, ‗Terrorism: A Serious Challenge to Transnational Relations and World Peace‘ [2016] International Affairs and Global Strategy, Vol. 40.
Ramraj Victor, ‗The Emerging Security Paradigm in the West: A Perspective from Southeast Asia‘ [2003], 1 Asia-Pacific Journal of Human Rights and the Law, 1.
Rodney, Allen, Martin Cherniack and George Andreopoulos, ‗Refining War: Civil Wars and Humanitarian Controls‘ [1996]Human Rights Quarterly 18.4, 747.
Rosen, R. D. ‗America‘s Professional Military Ethic and the Treatment of Captured Enemy Combatants in the Global War on Terror‘[Winter 2007], 5 Georgetown J. L. and Pub. Pol‟y, 113, 124.
Shestack Jerome, ‗The Philosophic Foundations of Human Rights‘ (1998), Human Rights Quarterly, 20.2, 201.
Ryan, Christopher M., ‗Sovereignty, Intervention and the Law: A Tenuous Relationship of Competing Principles‘, Millennium Journal of International Studies, [1997] Vol. 26, No. 1 77.
Ryan, Goodman, ‗Humanitarian Intervention and the Pretexts of War‘, American Journal of International Law, Vol. 100 107.
Scheuerman, William, ‗Economic Globalization and the Rule of Law‘ [1999], Constellation, Vol. 6, No.1.
Scheuerman, W. E., ‗Carl Schmitt and the Road to Abu Ghraib‘ [2006], Constellations, Vol. 13, No. 1.
Shlomy, Zachary, ‗Where Does the Unlawful Combatant Belong?‘ [2005], 38 Isr.L Rev. 378.
Sloss David, ‗When Do Treaties Create Individually Enforceable Rights? The Supreme Court Ducks the Issue in Hamdan and Sanchez-Llamas [2007]45, Colum. J. Transnat‟l L.20. 346
Steven, Solomon, ‗Internal Conflicts Dilemmas and Developments‘ [2006], 38 Geo. Wash. Int‟l L Rev.579.
Solomon, H., ‗Counter-Terrorism In Nigeria, Responding to Boko Haram‘ [2012]Rusi Journal, August/September, , Vol. 157, no.4, 6.
Steven, Solomon, ‗Internal Conflicts: Dilemmas and Development‘, [2006], 38 Geo. Wash Int‟l L Rev. 579.
Terwase Sampson Issaac, ‗The Legal Framework for the Punishment of Terrorism in Nigeria: A Critique of the EFCC Establishment Act‘ [2008] The Nigerian Army Quarterly, Vol. 4, No. 3.
Tilstra Sarah E., ‗Prosecuting International Terrorist: The Abu Sayyaf Attacks and the Bali Bombing‘[2003]Pacific Rim Law and Policy Journal, Vol. 12, No. 3, 835.
Vagts Deltlev, ‗Military Commissions: A Concise History‘ [2007], The American Journal of International Law, Vol.101:35.
Vazque Carlos Manuel Z., ‗The Military Commissions Act (MCA), The Geneva Conventions and the Courts: A Critical Guide‘American Journal of International Law, Vol. 101 73.
Waldron Jeremy, ‗Security and Liberty: The Image of Balance‘ [2003]The Journal of Political Philosophy, 11:2 191.
Walker C., ‗Terrorism and Criminal Justice: Past, Present and Future‘ [2004]The Criminal Law Review, 50th Anniversary Edition). 55.
‗War, Schemas and Legitimation: Analysing the National Discourse about War‘,[May 2006]Harvard Law Review, 119, No. 7, 2099.
Watkin, Kenneth, ‗Controlling the Use of Force: A Role for Human Rights Norms in International Armed Conflict‘ [2004]A.J.I.L., Vol.98, No.1, 1.
Wellman, Carl, ―On Terrorism Itself,‖ [1979] Journal of Value Inquiry 13, 25.
Wilke, Christiane, ‗Law‘s Enemies: Enemy Concepts in U.S. Supreme Court Decisions‘, [2007]Studies in Law, Politics, Society, Vol. 40, 41.
Wilke Christiane, ‗War v. Justice: Terrorism Cases, Enemy Combatants and Political Justice in the US Courts‘ [2005]Politics and Society, Vol.33, No. 4, 637.
Yates Bob,‘ From Hamdan to Unlawful Enemy Combatants: The Military Commissions Act‘[Nov.2006], Chicago Lawyer.
Yomi Olukolu, The Changing face of Terrorism in Nigeria: The Boko Haram Insurgence and the Role of Domestic and International Law [Nov. 2012]University of Ibadan Law Journal, Vol.2, No 2 445. 347
Young, R., Defining Terrorism: The Evolution of Terrorism as a Legal Concept in International Law and Its Influence on Definitions in Domestic Legislation, Boston College of International and Comparative Law Review, Vol. 29, Issue 1, Article 3, 23.
Zumwe Samuel, Ingyoroko Margaret, Akuwa Isaac Iorhen, ‗Terrorism in Contemporary Nigeria: A Latent Function of Official Corruption and State Neglect‘[March 2013 edn.] European Scientific Journal, Vol.9, No. 8. 122.
BULLETINS, PERIODICALS AND UNPUBLISHED WORKS
The Beam, Newsletter of the CTITF, Vol. 7, (Summer- Fall 2013).
The Beam, Newsletter of the CTITF and UNCCT, Vol. 9, (Fall 2015).
Cayci Sadi, Countering Terrorism and International Law: The Turkish Experience. Paper presented at the Seminar on International Law and Terrorism organised by International Institute of Humanitarian Law in co-operation with George C. Marshal Centre.(Sept. 24-26, 2002).
Cunningham William, Terrorism, Concepts, Causes and Conflict Resolution. New York: US Defense Threat Reduction Agency(2003).
Dakas C. J. Dakas, Nigeria‟s Anti- terrorism Laws and Practices: The Imperative of Mainstreaming Human Rights into Counter- Terrorism Administration, being Paper presented at an expert workshop organized by the Nigerian Coalition on the International Criminal Court (NCICC) in Abuja, on May 14, 2013.
Derek Gregory, Vanishing Points: Law, Violence and Exception in the Global War Prison, (2006), Unpublished excerpt.
Damaj Oussama, The Problem of Responding to Terrorism, Paper presented at the Seminar on International Law and Terrorism, organised by International Institute of Humanitarian Law in co-operation with George C. Marshal Centre (Sept. 24-26, 2002).
Dr. Hassan Rouhani, The President of the Islamic Republic of Iran, Statement before the 69th Session of the UN General Assembly, 25 September, 2014.
Eghosa E. Osaghae & Rotimi T. Suberu, A History of Identities, Violence and Stability in Nigeria, CRISE Working Paper No. 6, Centre for Research On inequality, Human Security and Ethnicity, Queens Elizabeth House, University of Oxford. (January 2005).
Fitzpatrick Joan, Terrorism and Migration.ASIL Task Force Papers(2002).
Gillard Emmanuela-Chiara, The Complementary Nature of Human Rights Law, International Humanitarian Law and Refugee Law, Paper presented at the Seminar on International Law and Terrorism, organised by International 348
Institute of Humanitarian Law in co-operation with George C. Marshal Centre(Sept. 24-26, 2002).
Hostettler, Peter, Human Rights and the War against International Terrorism, Paper presented at the Seminar on International Law and Terrorism, organised by International Institute of Humanitarian Law in co-operation with George C. Marshal Centre(Sept. 24-26, 2002).
Ishola Balogun, Terror Attacks: How Terrorists Recruit, Radicalise Youths, Saturday Vanguard, (Nov. 21, 2015).
Kantor Mark, Effective Enforcement of International Obligations to Suppress the Financing of Terror, American Society of International Law, Task Force on Terrorism(Sept. 2002).
Kuchisky Valeriy, Ukrainian Representative to the United Nations Security Council, U.N SCOR, 56th sess., 4370th mtg at 3-4, U.N. Doc. S/PV. 4370 (2001).
Larsen Mike & Piche Justin, Incarcerating the „Inadmissible‟: KIHC as an Exceptional Moment in Canadian Federal imprisonment, YCISs Working Paper, No. 45, (May 2007).
Legislative Guide to the Universal Anti- Terrorism Conventions and Protocols, Prepared by United Nations Office on Drugs and Crime, Vienna. (New York: United Nations Publication 2004).
Lietzau,William, Combating Terrorism: Law Enforcement or War, Paper presented at the Seminar on International Law and Terrorism, organised by International Institute of Humanitarian Law in co-operation with George C. Marshal Centre(Sept. 24-26, 2002).
McDonald, Avril, Counter-Terrorism and Jus in Bell, Paper presented at the Seminar on International Law and Terrorism organised by International Institute of Humanitarian Law in co-operation with George C. Marshal Centre(Sept. 24- 26, 2002).
Mundis Daryl, Prosecuting International Terrorists, Paper presented at the Seminar on International Law and Terrorism organised by International Institute of Humanitarian Law in co-operation with George C. Marshal Centre(Sept. 24- 26, 2002).
Naqishbandi Ghiath, Alienation or Terrorism: Paradoxical Words and Two faced Currency. Paper presented to Faculty of Humanities and Social Sciences, Political Dept., Adelaide University.
Newsletter of the Counter Terrorism Implementation Task Force (CTITF) of the United Nations, The Beam (Fall 2015), Vol. 9.
Oyebode, Akin, Legal Responses to the Boko Haram Challenge: An assessment of Terrorism (Prevention Act) 2011, a paper delivered at the Oxford Round table Holden R Harris Manchester College, University of Oxford, England, (July22- 26, 2012). 349
Pokempner Dinah, Terrorism and Human Rights: The Legal Framework. Paper presented at the Seminar on International Law and Terrorism, organised by International Institute of Humanitarian Law in co-operation with George C. Marshal Centre (Sept. 24-26, 2002).
Pratt Andrew Nichols, 9/11 and Future Terrorism, Same Nature, Different Face. Paper presented at the Seminar on International Law and Terrorism, organised by International Institute of Humanitarian Law in co-operation with George C. Marshal Centre(Sept. 24-26, 2002).
Purvis, Trevor, Looking For Signs in an International Rule of Law, (unpublished bulletin), (2006).
Sandole, Deniis J., Causes of Terrorism, in William Cunningham, Terrorism, Concepts, Causes and Conflict Resolution. New York: US Defense Threat Reduction Agency(2003).
Schmitt, Michael N., Deconstructing October 7th: A Case Study in the Lawfulness of Counterterrorist Military Operations, Paper presented at the Seminar on International Law and Terrorism, organised by International Institute of Humanitarian Law in co-operation with George C. Marshal Centre(Sept. 24- 26, 2002).
Shamy, Yural, Israeli Counter terrorism Measures: Are they “Kosher” under International Law. Paper presented at the Seminar on International Law and Terrorism, organised by International Institute of Humanitarian Law in co- operation with George C. Marshal Centre. (Sept. 24-26, 2002).
Stock, Magaret, D., Detainees in the Hands of America: New Rules for a New Kind of War. Paper presented at the Seminar on International Law and Terrorism, organised by International Institute of Humanitarian Law in co-operation with George C. Marshal Centre. (Sept. 24-26, 2002).
Scott, R., Moore, Characteristics of Terrorism, in Terrorism, Concepts, Causes and Conflict Resolution, (US Defense Threat Reduction AgencyNew York2003).
Shultz, G., U.S Secretary of State, Low Intensity Warfare: The Challenge of Ambiguity, Address before the Low Intensity Warfare Conference. (Jan. 15, 1986), in 25 I.L.M. 204, 206 (1986)
Steele, D., S. Brion-Meisels, G. Gunderson, & E. L. Long Jr., Use Cooperative Conflict Resolution, in Glen Stassen (ed), Just Peacemaking, Ten practices for Abolishing War (2nd edn), (Pilgrim PressCleveland 1998).
The National Security Strategy of the United States of America(September 2002).
United Nations Office on Drugs and Crime (UNODC), The Criminal Justice Response to Support Victims of Acts of Terrorism. (: United Nations, English Publishing and Library SectionVienna 2011). 350
United Nations Global Counter-Terrorism Strategy: Activities of the United Nations in Implementing the Strategy- Report of the Secretary General. A/66/762.(4 April 2012).
Umar, Yusuf, Boko Haram: 200 Islamic clerics on Counter-radicalisation training in N- East, Vanguard Newspaper, Monday, (November 14, 2016).
Tackling the Financing of Terrorism, United Nations Counter-Terrorism Task Force (CITF) Publication Series(2009).
US Fed News, Countries Describe Relevance For Them of Rule of Law as Legal Committee Begin Debate on National, International Implications, (October 17, 2006)
Vatican Council II, Pastoral Constitution of the Church in the Modern World (Gaudium et Spes, No. 79, (7 Dec. 1965).
Yates Bob, From Hamdan to ―Unlawful Enemy Combatants‖: The Military Commissions Act, The Chicago Lawyer, (Law Bulletin Publ. Co., Nov. 2006).
WEB BASED RESOURCES AND ARTICLES
About the ICTY,
A Tactical Typology of Terrorism. Available on line at:
Amy Zalman, History of Terrorism
Arase Solomon (IGP), Legal Framework for the Prevention of Terrorism in Nigeria. .Nation Online. June 9, 2015.
Ashcroft outlines proposed changes in anti – terrorism laws‘, Global Security, 24 September 2001
Boko Haram: 6 alleged bombers docked, remanded
Boye Raji Rafui, Nigeria Anti- Terrorism Law and Global Security
Cerone John, Status of Detainees in Non-International Armed Conflict and their Protection in the course Of Criminal Proceedings: The Case of Hamdan v. 351
Rumsfeld, July 14th 2006.
Countering the Use of Internet for Terrorist Purposes- Legal and Technical Aspects. United Nations Counter –Terrorism Implementation Task Force, Working Group Compendium, May 2011. Available at:
Cohen-Almagor Raphael, Foundations of Violence, Terror and War In the Writings of Marx, Engels and Lenin, Terrorism and Political Violence, Vol.3, No.2 (1991), pp.1- 24
Encyclopedia Britannica,
EU Counter Terrorism Strategy
Gabriel Weimann, United institute of Peace, Special Report, 119, Dec. 2004
Gambone L, Proudhon's Libertarian Thought and the Anarchist Movement, Red Lion Press, 1996.
Garima Tiwari, Counter Terrorism : A Democratic Dilemma
George W. Bush, Address to a Joint Session of the Congress on the United States Response to the Terrorist Attacks of September 11(Sept. 20, 2001)
George W. Bush, 2002 State of the Union Address (Jan. 29,, 2002)
Global Terrorism Index (GTI)
Human Rights Watch, ―Legal Issues arising from the War in Afghanistan and Related Anti- terrorism Efforts‘ (Background paper 2001)
Kirgis Frederic L., Distinctions between International and US Foreign Relations Law Issues Regarding Status of Suspected Terrorist, June 2004,
Khusrav Gaibulloev & Todd Sandler, The Impact Of Terrorism and Conflicts on Growth In Asia( 2008) Available at:
Ladi Oluronyomi, US resumes training of Nigerian troops for anti-terror war, Feb. 12, 2016.
Leiken Robert S., Europe‘s Mujahideen: Where Mass Immigration Meets Global Terrorism, Centre for Immigration Studies, April 2005.
Liqueur Walter, Historical Context for the Phenomenon of Modern Day Terrorism (2007),
Martin Philip, International Migration and Terrorism: Prevention, Prosecution and Protection, UC.CIIP Seminar, March 5-6, 2004.
Mitko Bogdanoski & Drage Petreski, Cyber Terrorism– Global Security Threat, in International Scientific Defence, Security And Peace Journal. July 2013.
Neal Dave, Anarchism: Ideology or Methodology, 1997
O‘Connor Tom, The Criminology of Terrorism: History, Law, Definitions, Typologies.
Powell Colin Powell, ‗Meet the Press‘,23 September 2001
Powell Colin, ‗ Interview on CBS‘ Face the Nation‘, 21 October 2004
Recruitment of terrorists: Court orders trial-within-trial on case against 2 Nigerians,
Ruperez Javier, The UN‘s Fight against Terrorism: Five years after 9/11. Analysis of Real Instituto Elcano, Spain, ARI 83/2006, (6 September, 2006).
Security Council Calls on all States to Intensify Efforts to Eliminate International terrorism. Press Release 353
SC/7207.
Security Council Counter- Terrorism Committee, 16 International Legal Instruments.
Terrorism/Antiterrorism, Polyarchy: Essays on Statism, Oxford, 2003.
Walter, C., Defining Terrorism in National and International Law, 2003.http://cdoc.mpil.dc/conference-on-terrorism/index.cfmaccessed 17/07/16.
Vanguard Newspapers,
Various Definitions of Terrorism,
Virostko Lani & Newman Frank, Counter- terrorism and the Protection of Human Rights. Human Rights Council, 13th Session.( Berkeley: Human Rights Advocates)
Wedgewood Ruth, Tribunal and the Events of September 11th, Dec.2001, ASIL Insights,
Zalman Amy, History of Terrorism