LANCASTER UNIVERSITY 2021 UNDERGRADUATE RESEARCH CONFERENCE
10th MARCH - 17th MARCH 2021
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Awurakua Afaribea Yirrah

Awurakua Afaribea Yirrah

Law (Ghana) | Year 3 | Degree: LLB Law (Hons)
Terrorising Terrorism: the role of international law

International law guides relations between States with a view to ensuring global peace and security. This has been an underpinning of international law, and for good reason. Historically, States alone have possessed the will and capacity to inflict harm on another State. Without international law, such destructive acts could go unpunished. International law fills this lacuna by instituting principles to guide the global community and a global governing body to facilitate their application.

The attacks on September 11, 2001 signified a paradigm shift in the conceptualisation of global security. It showed that Non-State actors could have the will and capacity to inflict harm on States. Until then, this had been beyond the contemplation of international law.

What developments in international law are needed to tackle terrorism? This paper explores this question by traversing State responses to terrorist attacks, including Ghana’s response to burgeoning terrorist threats, and the underlying legal provisions. A determination will be made on whether these legal provisions inadvertently limit the efficacy of State responses. Recommendations on how international law can contend with terrorism will be outlined. This analysis will be against the backdrop of Article 51 of the UN Charter.

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Awurakua Afaribea Yirrah
 
Awurakua Afaribea Yirrah

Awurakua Afaribea Yirrah

Law (Ghana) | Year 3 | Degree: LLB Law (Hons)
Terrorising Terrorism: the role of international law
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A major way international law ensures global security is through the institution of the United Nations (UN) which acts as a global governing body. 

The United Nations Charter is the foundational instrument governing the UN and in effect, governing world peace and security. 

there might be recalcitrant States who use FORCE. The UN Charter contemplates that and gives victim States respite.

This is in the form of the only acceptable exception to the prohibition of the use of force.

When the State is involved

All States are regarded as sovereign. That is a basic principle of international law. Thus, the internal affairs of a State are, generally, guided by the State's own laws and procedures. The principle of State sovereignty also, generally, protects against invasions and/or intrusions by other States. This principle of sovereignty has been codified in Article 2(4) of the UN Charter. 

 

BUT, with rights come obligations.  As Kalliopi Chainoglou observes, the correlation between a State's(X) right to sovereignty and another State's(Y) right of self-defence is contingent, to some extent, on the degree to which X has honoured its international obligations primarily vis-à-vis Y, and secondly vis-à-vis the international community.  It is a relationship of reciprocity. 

 

So, where a State fails to meet its international obligations and is actively involved in an act of terror against another State, the right to have its sovereignty respected is forfieted and an attack by the victim State in self-defence may be appropriate. In fact such a scenario is fully contemplated in Article 51 of the Charter. 

3. When State involvement is absent and individual terrorists are unidentifiable It will seem that States can only rely on their inherent right of self-defense as espoused in Article 51. However, the application of this article is wrought with issues. In fact, applying the Article in this manner will be contrary to the very tenets of international law.  Why the issue with Article 51? For one thing, it requires for there to be an armed attack. Bothe notes the implicit inference of the armed attack being attributable to another State. It stands to reason that terrorist attacks without any discernible State involvement cannot come under the purview of Article 51 because terrorists are generally not part of the official apparatus of any State. They are non-state actors.  Secondly, the use of the word 'armed attack' is noteworthy. This is because, throughout the Charter, 'aggression' or 'threat of force' is commonly used. Cassese proffers that its usage in Article 51 shows a greater threshold to satisfy. Afterall, it is an exception to the rule and as a matter of principle, a higher standard should be met in order to elicit its application. The Caroline espoused the requirements to be met before resort can be made to self-defense: the attack must be imminent and the response must be proportionate and necessary. These three requirements will be almost impossible to satisfy for terrorist attacks.
2. When State involvement is indiscernible and terrorist camps located: In many such cases, the aut judicare aut dedere (prosecute or extradite) can be applied. Contracting States on whose territory those reasonably suspected of terrorist acts happen to be must either try them or hand them over to whichever other contracting State requests their extradition. This ensures that the terrorists are apprehended and prosecuted. However, this remedy is only available when there is an applicable treaty between the States.   

How has international law grappled with the threat of terrorism?

The Way Forward

Should non-State actors be recognised as armed attackers?  That would not solve much. - the provision to use force in self-defence is conditional upon exhausting all other means and reporting back to the Security Council. - even if we recognize these terrorist organisations as capable of carrying out armed attacks under Article 51, the condition to use peaceful means (such as negotiation) first, may never be met. - recognising them as capable of executing armed attacks still does not take away the requirement for any response in self-defence to satisfy the three-tier critria espoused in the Caroline case. - acting in self defence may necessitate military action in another State(X). Where the X is uninvolved with these terrorist organisations, this attack can be regarded as use of force and might set off a chain of attacks between the two States. 
Should the requirement of imminence of the armed attacks be removed? - the effect of this will be the tacit approval of pre-emptory attacks in self-defence. These are attacks in response to a possible attack, a threat of attack. Without a doubt, this could result in potential widespread abuse of the right to self-defence.  - further, this solution does not address the issues relating to sovereignty espoused above.
Should Article 51 be removed? The rationale is that self-defence is an inherent right even under customary international law (this is law that is formed through State practice and that precedes this Charter).  So, even without the explicit mention of the right to self-defense, States can still resort to this right without the limitations set forth by the Article.  This is not a good idea though: - it will only breed confusion in the international plane: Does the explicit prohibition of the use of force in Art 2(3)(4) of the Charter prohibit the resort to force in self-defence without the explicit mention of this right in the Charter? Will signatories to the Charter, then, be estopped from resorting to force in self-defence? - the article was influenced by the possibility of the occurrence of a range of events. It seems to deal sufficiently well with those occurrences. So, removing this because of it presents a hurdle in dealing with the issue of terrorism may be myopic.

A BETTER SOLUTION?

The law applicable to terrorism has been described by Judge Abraham Sofaer as intentionally 'flawed and perverse.' It was so described for its 'disjointedness,' among other things.  A preliminary step towards winning the fight against terrorism is having a law on terrorism. The importance of this cannot be overemphasised.  This treaty should outline:
  • a definition of terrorism
  • the range of activities constituting terrorist acts
  • enforcement mechanisms
The suggestion for an all-encompassing treaty on terrorism is far from novel. Frank and Lockwood assert that past failures by the League of Nations (now the UN) to create such a treaty were attributable to the markedly different times where the terrorist activities were almost non-existent. The urgency of current circumstances suggests better success.        

A framework to ensure global peace and security.

In a globalized world the activities of one State may have profound impacts on another State. In other words, the security of one State is intrinsically interlinked with the security of another.

 
Indication of the interconnectedness of global security
Indication of the interconnectedness of global security
GIF representing how a security issue in one State can quickly spread across the globe.

What is International Law?

Global security can, thus, be likened to a ‘delicate’ and ‘flexible’ membrane encompassing the planet, the disruption of which affects the security of not just one State but a regional block, evidenced by depressions into the affected areas. There would be black hole like cavities, corrugated areas, capricious indentations and depletions indicating proclivities to insecurity. However, this is a living membrane. As such, each depression would cause ripples and even send shockwaves across the surface, thereby affecting not only the region of origin but neighbouring States as well.  

One of the foremost ways it seeks to preserve peace and security is a blanket ban on the threat of and use of force at Article 2(4).

This makes sense because nothing disrupts peace and security like combat. Violence, or the threat of violence is completely anthetical to peace and security. In fact, such violence will only breed insecurity. If the aim is peace and security, removing a root cause of insecurity (use of force and violence) is appropriate. 

The expectation, though, is for the minimal use of force in self-defense since member States will be compliant with the terms of the UN Charter.

In this way, International Law preserves global peace and security.

But this is no perfect world and sometimes,

On the face of it, international law is fully equipped to deal with the threats of terrorism.
Afterall, terrorism is the disruption of international peace and security. What better opponent to challenge this phenomena than international law, the mechanism instituted for the main purpose of preserving international peace and security. It's scope falls directly into the ambit of international law.
So, how has international law grappled with the threat of terrorism? A consideration of the three main approaches used ensues below.
That has been the approach generally adopted by the United States in its response to terrorist attacks.  After an attack, the US responded with the 1986 bombing of Tripoli, and claimed self-defence by linking the 'aggressor' attack to the Libyan government.  In 1993, the US responded to attacks by bombing the headquarters of the Iraqi Secret Service. Again, it claimed self-defence on the basis that the attack could be directly linked to the State. After the infamous September 11, 2001 attacks, there was targetted military action and air strikes. It claimed self-defence by once again linking these attacks to State involvement by Afghanistan. The American models iterates the importance of proving State involvement for the legitamcy of any attack in self-defence.
How is State involvement determined?Maogoto asserts that the case of Nicaragua v US suggests that active support by a State which constitutes a substantial degree of state control would be sufficient to legally charge a State for an 'armed attack' (as used in art 51 of the UN Charter) committed by international terrorists within its borders.' 
Important to note is that State involvement  involves both acts of commission and omission. This can range from direct forms of involvement such as a State directly supporting the terrorist attacks to less direct forms such as providing training, financing, or tolerating particular terrorist organisations which have their base in the State.  In a demonstration of their abhorrence for terrorist organisations, many States have enacted local laws targetted at terrorist organisations.  In Ghana for example, the Anti-Terrorism Act, 2008, (Act 762)Anti-Money Laundry Act 2008 (Act 749); Immigration (Amendment) Act 2012 (Act 848) and the Economic and Organised Crime Act 2010 (Act 804) have been enacted to deal with issues of terrorism.Enacting such laws shows a State's commitment towards eradicating terrorism and their desire for non-involvement with these terrorist groups.  Caution must be exercised however. For such enactments are simply prima facie proof of non-involvement. The Nigerian example shows a holistic approach is necessary. Though Nigeria has enacted an anti-terrorism Act, recent reports of paying 'ransoms' to members of the Boko Haram terrorist group may be viewed as giving financial support to the group and therefore, State involvement can be imputed if the activities of the group should transcend national boundaries.
   
This has been the main response of Kenya to terrorist attacks in the country. Suspects in these attacks, many of them from Somalia, are tried under applicable laws in Kenya.
References
  1. VR Raghavan, ‘Pakistan Institute of International Affairs Challenges to Global Security Author ( s ): V . R . Raghavan Source : Pakistan Horizon , Vol . 60 , No . 3 , GLOBAL SECURITY ( July 2007 ), Pp . 23-39 Published by : Pakistan Institute of International Affairs S’ (2017) 60 23.
  2. Victor Kattan, ‘Furthering the “War on Terrorism” through International Law: How the United States and the United Kingdom Resurrected the Bush Doctrine on Using Preventive Military Force to Combat Terrorism’ (2017) 1702 Journal on the Use of Force and International Law 1.
  3. M Bothe, ‘Terrorism and the Legality of Pre-Emptive Force’ (2003) 14 European Journal of International Law 227.
  4. A Cassese, ‘Terrorism Is Also Disrupting Some Crucial Legal Categories of International Law’ (2001) 12 European Journal of International Law 993.
  5. Michael Byers, ‘Shorter Articles, Comments and Notes on Terrisom, The Use of Force and International Law After 11 September: The United States Response to the Terrorist Attacks of II September 2001 Was Encouraging for Those Who Worry about a Tendency towards Unilateralism’ (2002) 51 Iclq 401.
  6. Jackson Nyamuya Maogoto, ‘War on the Enemy: Self-Defence and State-Sponsored Terrorism’ (2003) 4 Melbourne Journal of International Law 406.
  7. Antonio Cassese, ‘The International Community’s “Legal” Response to Terrorism’ (1989) 38 International and Comparative Law Quarterly 589.

Found in Article 51, this exception is self defense.

Article 51

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

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