Osgoode Hall Law Journal Volume 43, Number 1/2 (Spring/Summer 2005) Third World Approaches to International Law After 9/ Article 5 11 Guest Editor: Obiora Okafor The Bearded Bandit, the Outlaw Cop, and the Naked Emperor: Towards a North-South (De)Construction of the Texts and Contexts of International Law's (Dis)Engagement with Terrorism Ikechi Mgbeoji Osgoode Hall Law School of York University, [email protected] Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohlj Part of the International Law Commons Special Issue Article Citation Information Mgbeoji, Ikechi. "The Bearded Bandit, the Outlaw Cop, and the Naked Emperor: Towards a North-South (De)Construction of the Texts and Contexts of International Law's (Dis)Engagement with Terrorism." Osgoode Hall Law Journal 43.1/2 (2005) : 105-135. http://digitalcommons.osgoode.yorku.ca/ohlj/vol43/iss1/5 This Special Issue Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons. The Bearded Bandit, the Outlaw Cop, and the Naked Emperor: Towards a North-South (De)Construction of the Texts and Contexts of International Law's (Dis)Engagement with Terrorism Abstract For over one hundred years, the definition of the term "terrorism" has been subjected to political propaganda. In addition, dubious self-righteous indignation or outrage, often expressed by various states or prominent politicians at the occurrence of acts of terror have often masked the participation of those same states in international terrorism. In this endless cycle of finger pointing, accusations, denials, and counter-accusations, the problematic of what constitutes terror in legal parlance has degenerated into an exercise in name-calling. This sad spectacle frustrates objective and sincere attempts at fashioning out legal and policy framework to deal with the scourge of terrorism. In this paper, I evaluate contemporary attempts at international law to deal with the problem of terrorism. In my analysis, I conclude that unless powerful states eschew their hypocritical support of terror and also seek to understand why weak entities and marginalized groups resort to "terrorism," the current outbreak of "wars on terrorism" is an exercise in futility. Keywords International law; Terrorism This special issue article is available in Osgoode Hall Law Journal: http://digitalcommons.osgoode.yorku.ca/ohlj/vol43/iss1/5 THE BEARDED BANDIT, THE OUTLAW COP, AND THE NAKED EMPEROR: TOWARDS A NORTH- SOUTH (DE)CONSTRUCTION OF THE TEXTS AND CONTEXTS OF INTERNATIONAL LAW'S (DIS)ENGAGEMENT WITH TERRORISM© BY IKECHI MGBEOJI* For over one hundred years, the definition of the Pendant plus de cent ans, la d6finition du terme , term "terrorism" has been subjected to political terrorisme - a dt6 soumise Ala propagande politique. De propaganda. In addition, dubious self-righteous plus, l'indignation ou la reprobation bien-pensante et indignation or outrage, often expressed by various states douteuse, qu'expriment souvent divers ttats ou politiciens or prominent politicians at the occurrence of acts of dominants lorsque surviennent des actes de terrorisme, a terror have often masked the participation of those same souvent masqu6 la participation de ces m~mes ttats au states in international terrorism. terrorisme international. In this endless cycle of finger pointing, accusations, Dans cette spirale interminable d'incriminations, denials, and counter-accusations, the problematic ofwhat d'accusations, de d6mentis et de contre-attaques, la constitutes terror in legal parlance has degenerated into question de savoir ce qui constitue du terrorisme en an exercise in name-calling. This sad spectacle frustrates langagejuridique a d6g~n6r6 pour se transformer en une objective and sincere attempts at fashioning out legal and foire aux injures. Ce triste spectacle lse les tentatives policy framework to deal with the scourge of terrorism. objectives et sinccres de modeler notre cadre juridique et In this paper, I evaluate contemporary attempts at de politiques pour s'attaquer au f16au du terrorisme. international law to deal with the problem of terrorism. In Dans cet article, j'6value les tentatives my analysis, I conclude that unless powerful states eschew contemporaines que fait le droit international pour their hypocritical support of terror and also seek to affronter le problme du terrorisme.Dans mon analyse, understand why weak entities and marginalized groups fen arrive Aconclure que, si que les Etats puissants ne resort to "terrorism," the current outbreak of "wars on s'abstiennent pas d'appuyer hypocritement le terrorisme terrorism" is an exercise in futility. et, par ailleurs, ne cherchent pas A comprendre pour quelles raisons les entit6s faibles et les groupes marginaux recourent au . terrorisme ,,, le d6clenchement actuel de , guerres contre le terrorisme , constituera une entreprise futile. © 2005, Mgbeoji. LL.B., (Nig)., B.L., LL.M., J.S.D. (Dalhousie). Assistant Professor, Osgoode Hall Law School, York University, Toronto, Canada. Draft of a paper presented at the "Event of War" Conference, Emory University, Atlanta, Georgia, 5-7 November 2004. The author wishes to thank Yemi Oke for his research assistance and Professor Obiora Chinedu Okafor for his indulgence. This article is dedicated to the blessed memory of a great lawyer, a wonderful father and humanist, Ichie Okwu Okafor. The author is indebted to Diana Younes for her useful comments on earlier drafts of this paper. OSGOODE HALL LAW JOURNAL [VOL. 43, NO. 1 & 2 I. TERRORISM AND THE GLOBALIZATION OF FEAR .............. 109 II. THE NORTH-SOUTH (DIS)ENGAGEMENT WITH STATE-SPONSORED TERRORISM ............................... 117 III. THE CHICKEN COMES HOME TO ROOST? AL-QAEDA AND THE MORNING AFTER 9/11 ................................ 125 IV. CO NCLUSION .................................................. 132 Few issues in our times have produced as much heated rhetoric as terrorism. Ironically, while terrorism has become a familiar word, its meaning is among the least understood. While it would be tolerable if the ideological or propagandistic use of the word "terrorism" were solely a pastime of ordinary people doing ordinary things, it is intolerable that top policymakers entrusted with the duty of securing the populace are unwilling to engage in serious thinking about this concept. An apparent consequence of the propagandistic use of terrorism is the displacement of rational discourse on the concept and juridical meaning of terrorism.1 How can the "war on terror" be successful in achieving its objectives if we understand neither the core elements of what constitutes terrorism nor its legal character? In this article, I argue that the war on terror, as presently pursued, is a reproach to both international law and domestic constitutional governance. The word terrorism has become a populist domestic political strategy. In my argument, I posit that by refusing to have an intelligent and rational understanding of what terrorism is and what we seek to achieve through its elimination, international law reinforces its reputation as a discipline of crisis. 2 Further, I argue that international law is biased in its construction and resolution of global issues. There is a strong tendency for powerful states and vested interest groups to use the substance and forum of international law to protect their narrow self-interests, which threatens the legitimacy, coherence, and fairness of the global legal order. The war on terror, I argue, demonstrates how international law facilitates the metamorphosis of first-world interest and convenience from discourse into juridical fact, simultaneously banishing third-world issues to the periphery. Thus, it is an abiding feature of the structure and process of international law that when powerful states experience fears, concerns, and inconveniences that weaker states and marginalized groups are forced to Julie I Merton, "Terrorism as Ideology: Implications for Intervention" (1999) 93 Am. Soc. Int'l L. Rev. 78 at 78-79. 2 Hilary Charlesworth, "International Law: A Discipline of Crisis" (2002) 65 Mod. L. Rev. 377. 2005] Disengagement with Terrorism accept as "normal," the institutions, norms, and processes of international law are quickly deployed to assist these states and vested interest groups. Powerful states create and remake juridical reality by reconfiguring legal narratives. Since the terrorist attacks on the United States on 11 September 2001 ("9/11"), common refrains from the Bush administration include "September 11 changed the world" and in turn "we (the United States) have changed the World." This mindset and narrative constructs the United States as a saintly victim of global terrorism. Of course, the United States was a victim of terrorism on 9/11, but the mainstream narrative on terrorism pretends that prior to 9/11, or even afterwards, the United States has not engaged in the practice of terror. Such a narrative contradicts well- documented facts and perpetuates the fiction that the United States itself has not been a supporter, instigator, and facilitator of state-sponsored terrorism, particularly in the Cold War era.3 Indeed, even amidst the heated rhetoric on terrorism and terrorists who seek to acquire weapons of mass destruction from Saddam Hussein, very few scholars and policymakers have deemed it fit to remind all that the United States and other Western states