1. THE MEANING AND ELEMENTS OF CRIME
Mans refusal in doing what he ought to do and even go ahead in doing what he is not supposed to do remains inalienable part of him and an incurable delinquency. Thus as the worlds population continues to grow leaving natures amenities insufficient, this inherently disobedient creature called man becomes progressively desperate and ready to do anything in his bid to survive. Giving also that no much wealth and comfort can be achieved legally in a short while, this creature, greedy in nature, resorts to violence and lawlessness in his bid to acquire so much in so little a time. This has given birth to the phenomenon “crime”.
As a beginning, this chapter throws light on the general notions of crime, pointing out its elements and showing the definitional problems which are presented by this hydra-headed syndrome whose starting point can be traced far back to the fall of man and the refusal of Adam and Eve to obey celestial positive law .
1.1 THE MEANING AND NATURE OF CRIME
Crime, which is an umbrella word covering many individual actions of man like many legal terms had defiled definition. In times past, the attitude of most lawyers was that crime is essentially a moral wrong . This was basically due to the strong hold religion had over society ay that time. Thus, Denning L.J. concluded that ever since the time of Henry I
“…in order that an act should be punishable, it must be morally blame-worthy; it must be a sin” .
Thus, till the medieval era, sin and crime were inseparable as such acts as heresy were criminal and countries like England maintained the death penalty for it until the last quarter of the 17th century. Quite obliviously, the above propositions and instances which are in line with the earliest comprehensive law extant such as the Babylonian Hammurabi Code dating from 1900 B.C. and the Mosaic Codes of ancient Hebrew societies can be said with the greatest conviction to be in line with contemporary thinking as regards crime.
Today’s world, resting greatly on positive law ideologies, have abandoned most of the above propositions and thus, views law from an Austinian point of view as being the command of a human Sovereign backed by sanctions. Thus, crime being a branch of law must be divorced from morality and the will of God and viewed from a contemporary and more practical point of view as being the command of a human sovereign. This limitation of the concept crime to only acts outlawed any positive law does not solve the definitional problem of crime but at best, would reduce it from an ocean of problems to a sea of problems and till today, there are many definitions of crime as there are writers and communities requiring criminal law.
Undoubtedly, an attempt to compile all proposed definitions and approaches which had had been adopted in the process would be insincere so one would only make reference to definitions given by few renowned works. The Encyclopaedia Britannica defines crime as
“The intentional commission of an act usually deemed as socially harmful or dangerous and specifically defined, prohibited or punishable under the criminal law” .
This definition, brilliant as it looks with all humility, has its lacunas. The first being the practical problems encountered in ascertaining whether an act is intentional and the fact that some unintentional acts are punished as “strict liability crimes” . Obviously also, there is a wide range of opinions concerning what is socially harmful . The Oxford Advanced Learner’s Dictionary defines crime as “an offence for which one may be punished by law”, while the Black’s Law Dictionary defines it as
“…an act that the law makes punishable; the branch of a legal duty treated as the subject matter of a criminal proceeding”.
The Encyclopaedia Americana defines crime as a voluntary act or omission in conjunction with a given state of mind, while the instant writer in his own view would define crime as an act or omission outlawed by positive law, which is prosecutable and punishable at the instance of the state. At this point, no better conclusion can be reached other than that although criminal law had been in existence from time immemorial, it has not been easy to satisfactorily define the word “crime” . In a bid to solve this problem, legal opinion as to the definition of crime can be placed under three approaches namely:
(a) POSTERIORI: This denotes a form of inductive reasoning which arrives at causes from effects. Here Terrace Morris defines crime as what society says is crime by establishing that an act is the violation of a criminal law. In his opinion, without law there can be no crime. From this approach one can better understand the spate of legislations in post independent Africa forbidding one type of conduct or the other .
(b) PROCEDURE: Here, attempt is made to define crime in terms of procedure or in terms of consequences of such conducts. Thus Smith and Hogan define crime as
“ wrongs which the Judge has held and parliament has laid down from time to time as sufficiently injurious to the public to warrant the application of criminal procedure to deal with them” ,
and Lord Atkins refers to it as “an act prohibited by penal consequence” .
(c) PRIORI: this denotes deductive reasoning. By this approach, principles are enshrined in a given definition, arbitrariness is done away with and the criteria of criminalising a particular conduct is laid down while the contents of criminal law are also in the process analysed and criticised . It explains why acts have been made criminal or what ought to have been posited as criminal.
These three approaches stated above do not solve the definitional problem of crime also but only go to show the different methodologies which legal scholars had over time adopted in their bid to define crime. As at today, there is no universally accepted definition of crime. Thus every political society has to endeavour to enact for itself laws prohibiting acts which it feels are harmful to its structure or to global peace.
For instance during the days when horses were the major source of transportation in the U.S.A, horse theft was a crime attracting death penalty. Abortion and other artificial means of birth control were objects of legal restriction during the era of population scarcity but these restrictions no longer exist in these years of over population . Undoubtedly, from place to place criminal laws change.
In Nigeria for example, the Criminal Code in the South and the Penal Code in the North constitute our legal authority as to crime. Though both codes make use of the word “offences” rather than “crime”, the use of the adjective “criminal” in both codes makes the two words appear interchangeable. The Criminal Code defines an offence as “an act or omission liable to punishment under the Code”. From this definition, it can be safely said that punishment is all what criminal law is about and any act which loses its penal aspects loses its criminal quality. Thus, the noblest act may constitute a crime just by being outlawed by the laws of a given state on the pain of punishment while the most outrageous act if not so outlawed is not a crime.
1.2 CHARACTERISTICS OF A CRIME
Smith and Hogan identify two characteristics which in their opinion recur in criminal activities. Thus, it is implied that for an act to be criminal, it must be;
(a) A public wrong.
(b) A moral wrong.
(1) Public Wrong: By this it is emphasised that crimes are generally acts which have a particular harmful effect on the public and do more than just interfere with individual private rights. Though sociologists and some lawyers had tried to establish what is called victimless crimes such as alcoholism and drug addiction, it has not been able to break into the field of law but remains basically one of the theories of sociology. Sir Carleton Allen once said
“…crime is crime because it consists of wrong doing which directly and in strong degree threatens the security and well being of society and because it is not safe to leave it repressible only by compensation to the party injured” .
The U.S.A. Supreme Court also held in the case of Robinson V. California that a Californian law making it a crime to be a drug addict was out of place and the mere status of being a drug addict was not an act and could not be criminal. Thus in the opinion of the court, for a situation to be criminal it must have a public element.
Also, the public nature of crime can be located in its prosecution. Though private persons may in exceptional cases bring up criminal prosecution, it is normally a prerogative of the state which also has an exclusive right to discontinue it. Whenever an ordinary person institutes a criminal action, he can not on his own discontinue it . This is because crime is not a private matter but that of the public. This therefore distinguishes criminal wrongs from civil wrongs where only the injured party can sue and any other person who is not the injure party or an interested third party in exceptional cases is viewed as a litigation busy body and barred by the doctrine of privity of contract. Another point in which the public nature of crime can be observed is in its making. Crimes are not made by private individuals. They are wrongs which the Judge has held and parliament had from time to time laid down as being sufficiently injuries to the public as to warrant the application of criminal procedure to them.
(2) MORAL WRONG: the second character of crime is that it has to be a moral wrong. Though this characteristic may have been true in times past when there were few crimes , it is admitted that this characteristic had really lost relevance. These days, many acts are prohibited merely on grounds of social expedience and environmental conditions . These acts need not necessarily be immoral, while certain clearly immoral acts such as adultery and abortion seem not to be accepted universally as criminal.
However, whether an act ought to be criminal merely on moral grounds has become a source of great debate and it has strongly been held in many quarters that this characterisation is not indeed a business of criminal law. Though this criticism of the moral character of crime has been chastised , it seems to be gaining grounds and the British House of Lords had in fact stated categorically that it had no powers to extend criminal law to enforce good morals .
1.3 ACTUS REUS OF CRIME
Actus Reus sometimes called the external element or the objective element of crime is the Latin term for “guilty act” which when proved beyond reasonable doubt in conjunction with the necessary mental element produces criminal liability. For an act to constitute actus reus it must be voluntary. In this respect, the role of automatism is highly relevant in providing a positive explanation of the need to establish the “voluntariness” of the behaviour for one to be found criminally liable. In the English case of Hill V. Baxter , it was held that for an act to be criminal it must be voluntary.
Also it is note worthy to observe that the behaviour classified as actus reus must not only be an act, it can also be an omission or even a passive state of affairs. It includes not just the conduct of the accused but sometimes also goes down to the consequences or result of the conduct. In some cases, the actus reus will not be complete until some other physical elements required to be present are present . Sometimes, the nature of the actus reus can be viewed from two main perspectives, firstly the actus reus of “result crimes” and the actus reus of “conduct crimes”. In result crimes, the law is interested only in the result and not in the conduct bringing about the result, while in conduct crimes the law is interested in establishing that the conduct was performed rather than if it produced any result or was effective . Though I earlier stated three headings under which actus reus can be discussed , I would for the sake of time restrict myself to two i.e. acts and omissions.
It has been well established that intention on its own no matter how wicked or dangerous it might be, if put into action is not generally punished of forbidden by the law until the man with the intention begins to put it into execution . The reason for this would be the difficulty which would be encountered in the bid to determine people’s state of mind. This does not then mean that the law will wait until someone is killed or wounded before it reacts. At the slightest manifestation of intention, the law will intervene and undoubtedly, the slightest gesture would constitute sufficient actus reus for an assault. The slightest movement of property would be sufficient to constitute the crime of stealing.
In contrast, if circumstances which in law amount to justification or defence exist then no crime can safely be said to have been committed. Thus, the hangman is not guilty of a crime when he hangs a person sentenced to death by that means although indeed he would have caused death. Also, by virtue of the Nigerian Criminal Code in its section 24, a person is not criminally responsible for an act which occurs independently of the exercise of his will or by accident. Though he might have committed an act sufficient to be the actus reus of the crime. A man who causes an actus reus in self defence is not guilty of a crime .There are also offences which are committed merely by the accused being in possession of something in defiance of the law even though he had not started putting it into any unlawful use. Here a man may have possession in the eyes of the law even though another has actual possession of the thing in question.
Generally, acts are the prevalent form in which actus reus presents itself and most of the times, it is in criminal acts that the courts have themselves involved. This basically draws from the fact that most human activities are present in form of acts while failure to do personal favours or perform duties not compelled by law would no be criminal. Therefore, a man standing a feet away from a baby who is about to drown in a shallow water does not commit a crime of omission if he fails to aid the child. Though he might answer to the laws of God at his death, he has no questions to answer to the laws of man in his life.
According to Prof. Okonkwo, there is no hard and fast rule as to when omissions can constitute the actus reus of a crime. The law is generally reluctant to punish omissions and the common law very rarely punished omissions. As has been stated above, a man who can rescue a helpless baby without any risk is not liable for a crime if he refuses to do so.
If a question is put up as to when an omission becomes criminal then there would be a general principle to put up and none can even be found in the case law . Where the law has expressly put down a duty then that duty must be obeyed. The Criminal Code provides for certain situations where a person has a duty to perform and in these instances, these duties become mandatory and objects of legal interest. Thus a father or guardian who stands aside and watches his child or ward drown in shallow water would be guilty of a crime. In the Gibbin’s and Proctor’s case a man and a woman with whom he was living were held guilty of the murder of the mans child where, they both in agreement withheld food from the child intending to cause death or grievous bodily harm.
In Nigeria, the Criminal Code provides a long range of omissions that would be considered criminal. Thus, duties are imposed on peaces officials to suppress riot , on members of a ship crew to obey orders , on those in charge of railway trains or ships, and on sip engineers, to ensure the safety of passengers . Section 343 provides for situations where negligent omissions might be criminal. Sections 300-305 provide duties relating to the preservation of life failing of which would give rise to criminal liability. So many other crimes by omission would be found in the code.
1.4 MENS REA OF CRIME
Before the 12th century, historians believe that a man would have been liable for much harm simply because his conduct caused them even without proof of any blame worthy state of mind on his part. This belief had over time changed mainly due to the influence of the Church and Roman law, and the courts have began to require some element of guilty mind or mens rea.
Today the term “mens rea” has become an integral part of criminal law and refers to the state of mind of the accused at the time of committing the offence. According to Edward Coke, the maxim is “actus non facit reum nisi mens sit rea”, meaning that an act is not guilty unless the mind is guilty and the only offences to which the maxim does not apply are referred to as strict liability offences.
In order to appreciate the term, it is necessary to distinguish between a number of mental attitudes which a person may have with respect to the actus reus of a crime. They include:
(vi) Blameless Inadvertence.
For a range of offences, intention on the part of the defendant is the fault element that has to be established. An attempt to define it has proven a difficult task “one which has occupied the House of Lords on at least five occasions since 1975” .
In general, intent would mean purpose, aim or design . This intention must be proved by the prosecution before it can succeed and this duty is undoubtedly a difficult one. As William Shakespeare observes, “there’s no art to find the minds construction in the face” , intention is difficult to ascertain unless the accused confesses. However, it can be established circumstantially if an overt act exists from which the jury can draw an irresistible inference that the accused intended what he did. Thus, the maxim”act exteriora indicant interiora” which implies that a man is taken to intend the natural a d probable consequence of his acts once held sway. In the much criticised case of D.P.P V. Smith the House of Lords held that the defendant should be held to have foreseen the natural and probable consequence of his acts. This very wide and extremely generous provision worked hardship and was thus reviewed by Section 8 of the Criminal Justice Act, 1967 which provided that a court or jury in determining whether a person has committed a offence,
(a) Shall not be bound in the law to infer that he intended or foresaw the result of his act by reason only of it being the natural and probable consequence of his act but
(b) Shall decide whether he did intend or foresee that result by reference to
all the evidence as appears proper in the circumstance.
The above amendment mitigated the hardship of D.P.P. V. Smith and limited intention to be strictly in line with an established guilty mind as against a presumed guilty mind. Today, it is clear that a man intends the consequence of his act if it can be shown that he foresaw them a desired them . If the consequence is desired then it is immaterial that the chance of it occurring may be small, but where the consequence is not desired for its own sake then difficulty may arise. Here, “A” may desire the occurrence of “D” event which cannot occur unless “E” event (which “A” abhors) occurs. No conclusive solution has been propounded for this problem but the facts and circumstances of each case would be of help to the courts.
Generally, if intention to cause a particular result is not expressly declared to be an element of the offence, then the result intended to be caused by the accused is immaterial , and the definition of an offence often prescribes the specific result which the prosecution must prove that the accused intended . In Ahler’s case , a German Consul who assisted German nationals to return home after the declaration of war in 1914 was held to have intended doing his duty as Consul and not to aid the king’s enemies. In Throne V. Motor Trade Association , Lord Atkins thought (though extremely) that to put a traders name on the “stop list” which had the effect of running down his business might be an act done in lawful furtherance of business and without an express intention to injure the person whose name is published.
Common law on its own had believed in a doctrine known as “transferred malice or intent”. Here, it is believed that if “O” intends to hit “A” and mistakenly hits “B” he would still be guilty of maliciously wounding “B” unless a different type of harm is done not being the one intended . This doctrine has long been abandoned and Section 24 of the Criminal Code states that a person is not criminally liable for an act or omission which occurs independently of the exercise of his will or by accident.
In a vast majority of offences in which mens rea is to be proved, recklessness would suffice . Recklessness basically implies a state of mind which falls short of intention, in which the defendant foresaw the consequences of his act and risked them. Clearly, the nature of foresight required may vary and a man is not reckless who foresees criminal liability as being only a remote possibility. Between recklessness and intention falls a large range of possibilities which can be described as ‘possible’, ‘reasonably likely’, ‘likely’, ‘probable’, or ‘very probable’. The Nigerian Criminal code makes more use of the word ‘likely’ . Michael Molan goes ahead to delimit recklessness into subjective and objective recklessness. There is a requirement of proof that the defendant was aware of the risk that a given harm might result from his actions in the subjective instance while in the objective there is no such requirement. He also proffers a lacuna argument which implies that if a defendant before acting shows that he had stopped to consider the risk he cannot be found to be reckless under both the subjective and objective approaches if the risk materialises .
A man acts negligently when be brings about a consequence which a reasonable man would have foreseen and avoided . Here a man is seen as a rational and reasonable being and this stand is put up as a yard-stick to which he must conform. Any action which he undertakes must be one reasonably does not endanger others, and if he fails this reasonability test, he becomes liable for any harm caused whether he intends it or not. Thus, if “A” points a gun at “B” and pulls the trigger either believing that the gun was unloaded or not even considering that possibility; if a reasonable man might have realised the possibility that the gun might be loaded and accordingly avoided acting in this way, then “A” is negligent if the gun goes off and kills “B”. This concept is sometimes called inadvertent negligence . Here, for the prosecution to succeed, it is enough to prove certain conducts in certain circumstances but unnecessary to prove the accused state of mind.
The Nigerian Criminal Code provides some offences that can be committed by negligence . Most of these offences are relatively not serious with the exception of manslaughter punishable by life imprisonment. There are degrees of negligence and for a conviction of manslaughter, the negligence must be ‘gross’. Though the criminal code is silent as to the requisite degree of negligence, the Nigerian courts have held that the standard is the same as in England . In jurisdictions with criminal law derived from England, there is a distinction between criminal and civil negligence . While grievous negligence is viewed as criminal certain minor acts of negligence are viewed as civil. In general, there is no subjective approach to the doctrine of negligence as the accused is punished even though he did not appreciate that his conducts are negligence.
According to Prof Okonkwo, it is often required in the definition of a particular crime that the accused must have knowledge of the particular existing circumstance. On a charge of possessing counterfeit he must know that he possesses it , and that it is counterfeit. Knowledge is proved almost the same way as intention . Thus, in R. V. Mba the appeal was allowed for publishing defamatory matters knowing it to be false for there was no proof of such knowledge; the accused might have believed his publication to be true.
Motive which has a close resemblance with intention has been defined as the ulterior intention, the intention with which an intentional act is done, or more clearly, the intention with which an intentional act is brought about. Its fine distinction from intention can be brought about in the statement “intent is limited to purpose to commit the prescribed act and the consequence, while inquiries as to why he did the prescribed act are concerned with motive” . As a general rule, motive does not affect criminal liability and once intention or any other type of mental element is established, the prosecution has won the battle of mens rea; and if the actus reus is also established, criminal liability is complete.
Thus, if “D” causes the actus reus with the mens rea, he is guilty of a crime and it is irrelevant to his guilt that he had a good motive . A father who kills his polio stricken son out of sympathy still falls under the same category as an assassin. Although Perkins, an American writer, had attempted to subvert the rule by postulating as follows: ‘suppose a grieve felony is about to be committed under such circumstance that the killing of the offender to prevent the crime would be justifiable by law and at that very moment, he is shot and killed, if the slayer was prompted by an impulse to promote social security by preventing the felony, he is guilty of no offence; if he has no such impulse but merely acts upon the urge to satisfy an old grudge by killing a personal enemy the he is guilty of murder’. However, this position has been greatly criticised by law writers as being contrary to principle, and the Australian Court of Criminal Appeal has held it to be a fallacy . Smiths and Hogans are of the view that if Perkins is to be believed, then a hangman would be guilty of murder if he hanged a convict sentenced to death by that means simply because he bore a grudge against the convict. Undoubtedly, this would not be true.
However still, motive is not completely alien to criminal proceedings and could play a great role when the courts are passing sentence. Motive may also be relevant as evidence to prove or disprove criminal intent. In the words of Ademola C.J.F., “if there is motive, it strengthens the case of the crown and becomes part of it” . But he quickly adds that motive will not strengthen a weak case.
(VI) BLAMELESS INADVERTENCE:
Here, a man a man may reasonable fail to see a consequence which follows from his action. This can be exemplified from a situation in which a slight slap causes the death of a person who may have been sick. Also, a man may reasonably fail to consider the possibility of the existence of a circumstance. This may occur in the case of receiving stolen items especially in a market overt.
1.5 CONCURRENCE OF ACTUS REUS AND MENS REA
Establishing criminal liability normally involves the prosecution in proving that there was a coincidence of the overt act and the required mental element. In a vast majority of cases, the coincidence is evident from the facts, while in some others it is not. Thus, if “A” kills his brother mistakenly, he does not become guilty of murder by thereafter expressing joy over the incidence. This is similar to the doctrine of past consideration in the law of contract. Thus, the mens rea must coincide with the act and not be expired or exhausted in the past.This rule must not be taken so far as to make it absurd. Thus, the Privy Council in Thabo Meli & ors V. R . rejected an attempt to apply this doctrine in a bid to divide one transaction of murder into two with a view to escape liability. This case has itself been criticised and thus, should be applied with caution.
In summary, Prof Okonkwo had proposed a test to solve this problem of concurrence. It goes thus,
“if the accused where appraised of the true facts at the moment at which his original intention where about to become effective, would he still say; yes, I desire that to happen?”.
If not, there is no coincidence. Obviously, where a man forms an intention to commit a crime and then drinks or smokes narcotics or other artificial inspirators to give him courage to do the act and at the time the act is executed, he is so drunk or inspired as not to know what he is doing, he will still be guilty .
2.1 MEANING AND NATURE OF TERRORISM
Following the two world wars which engulfed the world in quick succession, most nations came face to face for the first time with the glaring truth that there was military imbalance and unproportionality in the world. The military might of some nations was simply outrageous and lethal. Thus smaller nations needed no helper to identify themselves as small while big nations easily recognised themselves by their fruits. Though this was the situation, weaker nations were not to sit back as cowards watching their identity and sovereignty trampled upon. Therefore they began to resort to cheaper easier but unconventional methods of warfare which they considered adequate for their cause.
Terrorism is the general word which covers these abnormal war strategies which though perfected after the Second World War had existed long before. In this chapter which opens up a discuss on the subject, its definition and nature are discussed, while explanations are made about this extra-ordinary concept, this confusing but necessary to understand situation, this transporter of catastrophes whose origin is hidden in the most vintage antiquities and genesised in the days of Cain and Abel.
2.1 THE MEANING OF TERRORISM
For the frail minded. Terrorism would remind them only about the art of bombing planes while for the most mundane in thought it would pass for another name of Osama Bin Laden. Though both are not completely divorced from the concept of Terrorism, they are far from a true definition of the concept.
The term Terrorism comes from a French word ‘Terrorisme’, related to the Latin verb ‘Terrere’ meaning to ‘frighten’ . The ‘Terror Cumbricus’ was a panic and state of emergency in Rome in response to the approach of warriors in Cimbri tribe in 106 BC. The Jacobins of the French revolution declared the period 1793-1794 as ‘La Terrereur’ (reign of terror). Maximilien Robespierie the leader of the Jacobins declared in 1794 that ‘terror is nothing other than justice, prompt, severe and inflexible’ . The committee of public safety agents who enforced the policy of terror were referred to as ‘Terrorists’ . The word terrorism was first recorded in English dictionaries in 1798 as meaning a ‘systematic use of terror as a policy’ . Although the reign of terror was imposed by the French government, in modern times, terrorism usually refers to the killing or intimidation of innocent people by a private group in such a way as to create media spectacle. This meaning originated from Russia. In the 1870’s people like Sergey Nichayev who founded the People’s Retribution in 1869 described himself as a terrorist.
The definition of the concept Terrorism had proved controversial while various legal systems and government agencies use different definitions for terrorism. Moreover the international community has been slow to formulate a universally agreed and generally binding definition of this jus cogence. This difficulty arises from the fact that the term terrorism is both politically and emotionally charged. Bassiouni notes that
‘To define terrorism in a way that is both all inclusive and Unambiguous is very difficult if not impossible. One of the principle difficulties lie on the fundamental values at stake in the acceptance and rejection of terror inspired violence as means of accomplishing a giving goal’.
Sami Zeidan a Lebanese diplomat and scholar categorically stated ‘there is no general consensus on the definition of terrorism’. Many other legal scholars in one way or the other agree with this proposition. Angus Martyn in a briefing paper for the Australian parliament has stated that
‘International community had never succeeded in developing an accepted comprehensive definition of terrorism. During the 1970’s and 1980, the United Nations attempts to define the concept foundered mainly due to difference of opinions between various members about the use of violence in the context of conflict of national and self determination.’
These divergences had made it impossible to conclude a comprehensive convention on international terrorism that incorporates a single definition of terrorism.
This obviously does not mean that the jus cogence of terrorism does not need a definition or express explanation. As Ben Saul had noted, a combination of pragmatic and principled argument supports the case for defining terrorism in international law , to protect the state and deliberative politics, to differentiate public and private violence and to ensure international peace and security. Carlos Diaz-Paniagua who coordinated the negotiations for the proposed United Nations Comprehensive Convention on international terrorism noted on his part that there is a need to provide a precise definition of terrorist activities in international law. On this backdrop, the international community had adopted series of sectorial conventions that define and criminalize various types of terrorist activities. In addition since 1994, the United Nations General Assembly has condemned terrorist activities using the following political description
‘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 which are in any circumstance unjustifiable, whether the consideration of a political, philosophical, ideological, radical, ethnic religious or any other nature that may be invoked to justify them’.
Schmid and Jongham had counted 109 definitions of terrorism carrying over 22 different definitional elements. This had also been seconded by Jeffery Records in a 2003 analysis which identified more. Some of the many sectorial definitions of terrorism can be found in the Terrorist Bombing Law which states in its Article 2(1)
‘any person commits an offence within the meaning of this convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, unto or against a place of public use, a state government facility, a public transport system…’
The courts had not been left out in the struggle to define terrorism. The Supreme Court of India had in Madam Singh V. State of Bihar defined terrorism as ‘peace time equivalent of war crimes’.
Academicians and scholars have made the most attempts at defining terrorism. Schmid and Jongham defined terrorism as
‘an anxiety inspiring method of repeated violent action, employed by semi-clandestine individual groups, or state factors for idiosyncratic, criminal or political reasons’.
Jack Gibbs defined terrorism as
‘Illegal violence or threat of violence directed against human or non-human objects’.
Walter Laqueur sees it as
‘…the illegitimate use of force to achieve political objectives when innocent persons are targeted’.
Though the precise and exact meaning of terrorism still eludes man, one thing is settled, the term terrorism is pejorative. It is a word with intrinsically negative connotation that is generally applied to ones enemies and opponents. The term is usually used as a political label to condemning violence or the threat of violence by certain actors as immoral, indiscriminate and unjustifiable or to condemn an entire segment of a population. Those labelled terrorists by their opponents rarely identify themselves as such and at best use other terms specific to their situation such as Freedom Fighter, Liberators, Revolutionaries, Rebels, and Patriots etc to identify themselves as heroes. Jihadi, Mujahedden, Fadayeen are similar Arabic words which have entered the English lexicon. It is also common for both parties in a conflict to describe each other as terrorists.
This dynamic nature of terrorism which had greatly impeded definitional attempts can be summed up in the aphorism ‘one mans terrorist is another mans Freedom fighter’. This is exemplified when a group using irregular military method is an ally of a state against a mutual enemy, but later falls out with that state and starts to use the method against its former ally. During the World War 11, the Malayan Peoples Anti-Japanese Army was allied with the British but during the Malayan emergence, members of its successors (the Malayan Race Liberation Army) where branded terrorists by Britain. More recently Ronald Regan and other American administrators frequently called the Afghan Mujahedden ‘freedom fighters’ during their war against the soviet, but 20 years later when a new generation of Afghan men are fighting against what they perceive to be a regime installed by foreign powers, their attacks are labelled terrorism by George Bush a president of the same nation which once recognised them as freedom fighters just because of a clash of interests. Also some groups when involved in a liberation struggle are branded terrorists by western governments and media, only later to recognise the same people as statesmen when their nations had been liberated. A good example would be the two Nobel laureates Menachem Begin and Nelson Mandela.
2.2 EVOLUTION OF TERRORISM IN THE INTERNATIONAL COMMUNITY
Terrorism is continually changing while at the surface it remains the calculated use of unlawful violence or threat of violence to inculcate fear. It is rapidly becoming a predominant strategic tool of adversaries. Terrorism has evolves into a principle irregular warfare strategy in the 21st century and is adapting to changes in the worlds socio-political environment. Some of these changes facilitate the ability of terrorists to operate, procure funding and develop new capabilities. Other changes are gradually moving terrorism into a different relationship with the world at large. In order to put these changes in context it would be necessary to look at the historical changes and evolution with each succeeding step building upon techniques pioneered by the previous ones.
From the 1st to the 14th century AD, the Zealots existed and indeed pioneered terrorism. They were known to the Romans as Sicarii or dagger men. They carried on an underground campaign of assassination of Roman occupation forces as well as any Jew they felt had collaborated with Romans. Their motive was an uncompromising belief that they could not remain faithful to he dictates of Judaism while living as Roman subjects. Eventually the Zealot revolt became open and they were finally besieged. They committed mass suicide at the fortification of Masada.
The Assassins were the next group to show recognisable characteristics of terrorism as we know it today. A breakaway faction of Shia Islam’s called the Nizari Islamis they adopted the tactics of assassination of enemy leaders. Because of the cult’s limited manpower, they avoided open combat. Their leader Hassan-I Sabbah, based the cult in the mountains of today’s Northern Iran. Their tactics of sending a lone assassin to successfully kill an enemy leader at a certain sacrifice of his own life (the killer waited next to his victim to be killed or captured) inspired fearful awe in their enemies and marked the origin of modern suicide terrorism.
Even though both the Zealots and Assassins operated in the antiquities, they are relevant today; firstly as the forerunners of modern terrorism in the aspects of motivation, organisation, tactics, targets and goals. Secondly, though both were finally vanquished, the fact that they are remembered hundred of years later demonstrates the deep psychological impact they had in their days.
From the 14th to the 18th century, terrorism and barbarianism where wildly used in warfare and conflicts but the key ingredients of modern terrorism were lacking. Until the rise of modern nation states after the Treaty of Westphalia in 1948, the sort of central authority and cohesive society which terrorism attempts to influence barely existed. Communication was inadequate and controlled thus causes which might inspire terrorism (i.e. religious uproars, ethnic strife etc) almost always led to full fledge warfare. By the time kingdoms and principalities became nations they had sufficient means to enforce their authority and suppress the activities of such terrorists. The French revolution within this period provided the first use of the word ‘terrorist’ and ‘terrorism’. The use of the word terrorism began in 1795 in reference to the Reign of Terror initiated by the revolutionary government.
In the 19th century, radical political theories and improvements in weapon technology sprang up the formation of small groups and revolutionist who effectively attacked nation states. The Anarchist expounding their belief in ‘The Propaganda by Deed’ produced some striking successes, assassinating heads of state from Russia to Spain, France, Italy and the United States. However their lack of organisation and refusal to co-operate with other social movements in political efforts rendered the Anarchist inefficient as a political movement.
Another trend in the late 19th century was the increased tide of nationalism throughout the world. As states began to emphasis national identities people who previously had been conquered by colonial powers began to struggle by all means for their freedom. Some of them resorted to terrorism in their bid to protest colonial regimes and push out European adventurers. The multi-century struggle for Irish nationalism presented a terrorist oriented nationalist struggle. Also the Russian Naroduya Volva (peoples will) is another example of such a group.
The first half of the 20th century saw two events that influenced the nature of conflicts. The two world wars influenced passions and hopes of nationalists through out the world and severely damaged the legitimacy of the international order. The ‘total war’ practise of all the combatants of the Second World War provided further justification for the ‘everyone does it’ view which imported great violations of the laws of war. Nations who could not stand against mightier nations had to resort to unconventional means of warfare. Nations like the Soviet Union provided support for revolutionary movements around the world who never used proper military strategies.
Also, the failure of colonialism, post colonial attempts at state creation and the recognition of Israel as a state engendered a series of anti-western and Marxist transformations throughout the Arab and Islamic world. The growth of these nationalist and revolutionary movements along with the decision of the Arab forces not to accept Israel generated a new phase of modern terrorism. Following Israel’s 7 days defeat of the Arab forces, Palestinian leaders realised that the Arab world was unable to militarily confront Israel. They thus moved away from their classical gorilla warfare towards a more exact terrorist formation, launching series of kidnapping operations, bombings and shooting cumulating in the kidnap and killing of 11 Israeli athletes during the 1972 Olympics at Munich which has been described as the ‘genesis of terrorism in our age. These Palestinian groups became a model for numerous secular militants offered help to subsequent ethnic and religious movements. Some of these groups include the Popular Front for the Liberation of Palestine (PFLP) founded by Dr George Habash. Abu Nidal Organisation (ANO) an anti-western and anti-Israeli group headed by Sabri al-Banna.
By 1979, international terrorism had sparked up global tension while the soviet invasion of Afghanistan in 1979 during the Mujahedden war which lasted till 1989 had stimulated the rise of many terrorist groups. State sponsored terrorism had escalated and most Arab nations had decided to identify themselves frankly with this new born system of warfare, “terrorism”. Nations like Syria and Lebanon openly backed “Hezbollah” while the Islamic brotherhood provided the backbone for the Islamic resistance movement (HAMAS).
In today setting, cold war legacies are still well felt. Thus, the world has become alive to advanced conventional weapons and military know-how. This thus assisted the growth of terrorism in our days. The vacuums and leadership absence in places like Balkins, Yemen, Afghanistan, and some African countries, offers some ready-made grounds for terrorist training and recruitment while some nations like Iraq and Iran had made it a point of policy to support terrorism and the mass transmission of anguish. The geographical location and nature of Afghanistan made it impossible for any organised government to thrive while neighbouring big-brother Pakistan supported the Taliban terrorist movement to take charge. The Taliban government thus, became the facilitator of terrorist operations and organisations around the world. Terrorist groups like the Egyptian Islamic Jihad and Osama Bin Laden’s Al Qaeda were benefactors of Taliban terrorist philanthropy.
With a distinct geographical home in the Middle East and an almost certain financial support, terrorism has become a baby with a silver spoon, a well nourished palm fruit and thus a ripe problem for mankind. Its effect and potentials obviously grow when one looks at the 1993 bombing of the World Trade Centre and the subsequent bombing of that same structure and Pentagon in 2001.
2.3 NATURE OF TERRORISM
Terrorism usually takes the form of violence or threat of violence, other criminal, unlawful, subversive or anarchist acts, piracy, hijacking of Aircrafts and taking of hostages. It can be perpetuated by an individual or a government and is an attractive method because it is relatively cheap.
Terrorism can be motivated by a many factors. The rational terrorist thinks through his goals and options, making a cost benefit analysis. On the other hand, there are psychological terrorists whose actions are derived from personal dissatisfaction with life and personal achievements. Thus terrorism is usually a product of frustration. Religion and culture could also be motivational grounds fro terrorism. Terrorism had been identified as having three aspects;
(1) The act or threat of violence.
(2) The emotional reaction or extreme fear on the part of the potential or future victim.
(3) The social effect that follows the violence.
The desire of terrorist is not only the physical damage on the victims but also the psychological impact on the target. Therefore, terrorist victims must be care fully selected to ensure maximum possible psychological impact on the target. The subjects of terrorist attacks generally have little intrinsic value to the group but represents the larger human audience whose attention the group seeks. The most basic reason for terrorism is to get attention or recognition. Thus, after every terrorist attack, different groups are seen scrambling to claim responsibility.
The targets of terrorism are also not worthy elements in the nature of terrorism. Often times, terrorist targets are harmless people who do not have direct involvement in the political decision making process. Also, key economic structures are also targets of terrorism. In Turkey, Egypt, Spain, U.S.A. etc terrorist groups had continuously targeted tourist structures in order to inflict heavy economic damage.
The most common weapons of terrorism are threats as well as sabotage, assassination, hostage taking, murder, kidnapping, and bombing. According to Crenshaw, terrorists use whatever means available to them to further their objectives. Thus, technological advances of the modern era had created more opportunities and vulnerabilities. Undoubtedly, professional terrorists had become increasingly ruthless, sophisticated and operationally content.
Bombing had become the most available instrument of terrorism. Thus, terrorists had advanced into the use of plastic bombs and aluminium made explosive in their bid to outsmart detectors. Between 1968 and 1999 there were more than 7000 terrorist bombings. The main reason for the preference pf bombs is the fact that they are easy to smuggle, steal and even manufacture. Also bombs require less manpower to handle and can thus, be employed in a one-man operation.
Another powerful tool of terrorists is that of hostage taking. This can be in form of kidnapping individuals, hijacking airliners or seizing buildings. There are many other tools of terrorism such as assassination, use of biological weapons etc.
2.4 FORMS OF TERRORISM
Terrorism can broadly be categorised into two :
(1) Double Terrorism
(2) International Terrorism
2.4.1 DOMESTIC TERRORISM
This occurs when the violence and terror associated with terrorism is confined within natural territory and does not involve targets abroad. In practice it is difficult to find any intensive terrorist campaign that remains purely internal as the terrorists eventually look abroad for support, weapons, finance, training and safe haven . The use of domestic terrorism is not restricted to non-governmental groups as state terrorism forms an integral part of it. Thus governments and their armies, secret police and intelligence systems may be labelled terrorists when they involve themselves in terrorist activities. Examples of Domestic terrorism are the activities of the Boko Haram terrorist group in northern Nigeria and the actions of the Russian K.G.B security system which has now been dissolved.
2.4.2 INTERNATIONAL TERRORISM
Terrorism is regarded as international when the interest of more than one state is involved. This mainly occurs where the victim or the perpetrator of the act is a foreigner in the country where the act is done or has fled to another country . The international element is highlighted in the participation of foreign nationals. The September 11 attack on the United States is an example here.
There are nevertheless other types or classifications of terrorism. Thus one may hear of the following forms of terrorism
2.4.3 POLITICAL TERRORISM
This has been defined as the use of threats of terror by the state or a group outside government in pursuit of a set of ideological objectives that ignore the rules set by domestic and international law . This form of terrorism is used primarily for political ends. Terrorism used as a modus oparandi for political groups reflects their inability to achieve their political objectives through legitimate means. Thus in some nations (mostly African) leading political parties employ brutal and high level intimidation as a political strategy in their bid to win elections.
2.4.4 RELIGIOUS TERRORISM
This is a very controversial heading in discussions on terrorism. Though it is headed religious terrorism, it is unarguable that only one religion has continued to exhibit persistent terrorist and aggressive qualities ‘Islam’. This type of terrorism which is basically embedded in the anti-Zionism struggles of the Arab world is today the problem of society and the most effectively brutal form of terrorism. Most terrorist groups known today draw from this branch of terrorism which has continued to progress since the recognition of Israel as a state.
2.4.5 THE ANARCHIST
This was a terrorist movement which originated in Italy . The believed in a philosophy called the ‘Propaganda by Deed’. This philosophy promoted physical violence against agents of bad governments as a way of inspiring the masses and catalysing a revolution. This Propaganda by Deed may take any form such as murder, kidnap, arson etc and targeted at parsons seen as a threat to the working class. They also use symbolic acts of violence to convey specific information’s and lessons. One early example of an Anarchist was Carlo Pisacane who wrote in his book ‘ideas spring from deeds and not the other way round’ . One striking quality of the Anarchist was that they never wanted to align themselves with politics but were content with opposing corrupt and high handed governments.
Piracy refers to a warlike act committed by private persons who engage in acts of robbery or violence at sea or even on an aircraft . The earliest record of pirates was the ‘Sea People’ who threatened the Mediterranean Sea in the 13th century . The main goal of ancient pirates was to steal treasures mainly gold, bronze and money coins which most times they buried. Ancient pirates attacked only big ships. Today, piracy still exists. Modern pirates present different qualities from their ancestors as the attack even small vessels and cargos stealing practically anything they can lay their hands on (e.g. clothes, furniture’s, art works etc) .
2.4.7 CYBER TERRORISM
This is defined as ‘terrorism that initiates or threatens to initiate the exploitation or attack on information systems’ . It has also been called ‘terrorism of zeros and ones’ . Here terrorists use computer software’s and elements to make unlawful attacks and threaten attacks against computers, information networks and electronically stored data. One of the tools of Cyber Terrorism is the ‘computer virus’ which eats up data and freezes up the system. Another is the ‘Logic Bomb’ which fools computers into doing things which it cannot do thereby forcing them to malfunction. As the economy and security of nations increasingly depends on information networks, many feel that the public is now more vulnerable to such terrorist attacks.
2.4.8 NARCO TERRORISM
This is terrorism committed to further the aims of drug traffickers. It may take the form of assassination, extortion, kidnap, hijack etc, directed at Judges, Prosecutors and law enforcement agents for the purpose of diverting attention from drug operations. It also includes Narcotics trafficking by terrorist groups in a bid to raise funds for terrorism.
2.4.9 ECO TERRORISM
This type of terrorism seeks to inflict economic damage on those who profit from the destruction of the natural environment . One of such terrorist groups is the Earth Liberation Front (ELF). Arson is their major tool and these groups had been responsible for the damage of property worth millions of dollars including a United States department of Agriculture building .
2.4.10 BIO TERRORISM
This involves the use of biological weapons of mass destruction such as anthrax, botulism and small pox. Some experts suggest that bio terrorism is the third most likely terrorist act to occur . This type of terrorism is also very dreadful because once a toxic biological weapon is deposited in a place the effect which is usually not felt immediately is drastic when it begins to show.
3. LEGAL FRAMEWORK AGAINST TERRORISM AT MUNICIPAL LEVEL.
Since Terrorists are human beings and not deities, it follows that they must be benefactors of society in one way or the other; thus they can be frustrated by a willing society. On this backdrop, willing nation had stood up to combat terrorism by creating for themselves strong and well linked legal machineries aimed at crushing and suffocating terrorists and their means of operation.
Sometimes, this commitment arises from personal experiences of these states or sometimes from a genuine desire to aid the global community by playing their cards well in this general quest to stamp out terrorism. Although not every nation has shown this commitment, those who had failed to join the band are mostly rogue nations who themselves sponsor and support terrorism.
In this Chapter, we discuss the municipal efforts of four nations in a way which exposes the scantiness of legal tools in Africa while indicating an arena of greater success in the U.S.A and Britain. Thus since the battle against Terrorists is one of life and death Africa must wake up and appreciate that this in not a race of slow and steady.
3.1 LEGAL FRAMEWORK AGAINST TERRORISM IN NIGERIA.
Nigeria like most other African nations had failed to perfect a legal framework for counter terrorism:
This undoubtedly is not a positive development. Despite pockets of attempts at counter terrorism which we had witnessed in the past, the lack of sincerity had been a vitiating element which had obstructed the free flow to successful counter terrorism. Either due to the lack of will or personal interests previous bills raised on this subject before Nigerian legislatures frequently hit the rock. Also the political and religious crises which had punctuated our collective history and which had also witnessed grave human rights violations and acts of terrorism had not catalyzed a change of attitude in this regard.
Although some sluggish efforts had been made in the past the lack of interest at those times has over shadowed these weak spirited efforts.
One of such efforts was made by Senator Ben Obi, a former vice presidential aspirant of the federal republic of Nigeria who proposed an anti-terrorism bill in 2005 but due to the fact that the subject matter “Terrorism” did not appear to other members to be one of urgency, the bill was left unattended and finally died a natural death. In December 2006 Chief Olusegun Obasanjo a former president of Nigeria also sent another counter Terrorism bill to the National Assembly but this was suffocated by the political tension which the 2007 elections where generating at that time. Late Presidential Umar Musa Yaradua sent another terrorism bill to the National Assembly in November 2009 but this will also diffused into thin air for reasons unknown to the non political general Public. Strangely also, Nigeria failed to domesticate seven out of the nine international conventions on terrorism which it signed at the United Nations with only two being partially domesticated.
Undoubtedly, this audacity to turn a nonchalant eye to counter terrorism was developed due to the fact that the countries name was not on the front burner of discussions on terrorism. Undoubtedly, this situation had changed. The failed attack by Farouk Umar Abdulmutallab has brought Nigeria to the fore front of international discussions on terrorism. The recent inclusion of Nigeria on the list of Nations of concern for terrorism by the U.S.A had served as an eye opener exposing the effect of decades of nonchalance and administrative neglect of the international obligations of Nigeria with regards to terrorism.
Thus, the Nation has been overtaken by a genuine and calculated effort to stamp out terrorism in all its forms. Also the increasing rate of kidnapping in the south eastern part of the country had led to some make shift legislations and legislative arrangements to stamp out the scourge.
Therefore, most states in the south eastern part of Nigeria had enacted laws prohibiting and punishing kidnapping which is just one tactics of terrorists. Also pockets of inefficient or uncompleted legal arsenal can still be identified in Nigeria and they will include:
(a) THE NIGERIAN CRIMINAL CODE
Though this code is not headed or titled terrorism nor was terrorism as a technical term amongst the thing playing in the draftsman’s mind while drafting this act, it cannot totally be side-lined as not being a counter terrorism instrument Even as none of its sections makes mention of the word terrorism, some elements and motives of terrorist are prohibited and punishably under the act so that certain terrorist acts when committed within the territory of Nigeria can be punished. Murder for example which is one of the aims of modern day terrorism is prohibited under the code. Kidnapping, arson, rape, etc are also goals of terrorists and are also prohibited under the code.
(b) STATES KIDNAPPING LAWS.
Most States in the South Eastern part of Nigeria had since 2007 witnessed unprecedented rate of kidnapping. Thus, the governments and parliaments in these states had decided to put a stop to this scourge by enacting for themselves individual laws prohibiting and punishing kidnapping. One of such laws is that of Imo state.
These laws had indeed not done so much in the aspect of defining the crime or expanding its field rather the laws had been sentence based. They had only increased the punishment for the crime from years in jail as it use to be to death penalties.
(c) THE NIGERIAN ARMY ANTI TERRORISM SQUAD.
This is a squad in the Nigerian Army set up for purpose of combating terrorism.
They are known for highway checks and are distinguished from the ordinary army men by red caps on their head.
Though this agency is not really efficient, it has been commended by the global community most especially the U.S.A as a step in the right direction. This squad is very visible today in the south eastern part of the country following the advent of kidnapping in the region.
(d) THE PROPODED ANTI- TERRORISM BILL
This bill which was sponsored by Senator Teslim Folarin represents Nigeria’s first sincere push at having a conducive anti-terrorism legislation. The bill titled “an attack to provide measures to combat terrorism” would go down as the first anti-terrorism bill to get to the second reading.
The bill has five essential parts covering acts of terrorism and related offences. The first part deals with terrorist funding and prohibits the action within the territory of Nigeria. Part II of the act deals with terrorist properties and empowers the government and its agencies to seize or confiscate any property proven to belong to a terrorist group. Part 111 deals with investigation while part IV and V deals with prosecution and extradition. .
The act of terrorism according to the bill includes attack upon a person’s life which may cause bodily harm or death, kidnapping as well as destruction of government facilities or private properties in a manner likely to endanger human life or result in major economic loss.
The bill also addressed the hijacking of aircrafts, ships and other means of public transport as well as the manufacture, possession, acquisition, transport and use of weapons and explosives.
The propagation and dissemination of information in a way likely to cause panic, evoke violence or intimidate government, persons or group of persons also falls with terrorist actions that the bill seeks to deal with.
3.2 LEGAL FRAMEWORK AGAINST TERRORISM IN SOUTH AFRICA.
Like most other African nations, South Africa does not possess a large number of legal tools for counter terrorism. But still the nation fall in the class of the one eyed man in the land of the blind by being one of the few African nations who have enacted for themselves an anti-terrorism legislation.
(a) TERRORISM PROTECTION ACT 2000.
This is the only terrorism act in South Africa and was enacted in the year 2000 following the bombing of U.S.A embassies in Africa. The act which is one of the first in Africa prohibits the financing of terrorism from any where within the South African Nation. It also permits the South African government to seize and confiscate any asset shown to belong to any terrorism organization or person. The act also permits the attorney General of South Africa to order the extradition of any suspected terrorist to a place where he can get adequate trial. Undoubtedly as there is no perfect legislative enactment any where in the world, this act had been criticized for prescribing very low penalties for the crimes it prescribed.
(b) LEGAL FRAMEWORK AGAINST TERRORISM IN U.S.A.
The United State is today the world’s greatest terrorist target and since the rise of Zionism the most fundamental enemy of the Arab world.
On this backdrop the U.S.A from time to time continues to pad up its legal arsenal on counter terrorism. The events of September 11 2001 which marked the turning point of global laziness in the area of counter terrorism also went a long way to ignite the United States decision to enact more counter terrorism legislations to add to its already powerful machinery in their fight against terrorism which President George W. Bush termed a “fight for survival”.
From state to state, the terrorism laws vary and punishment fluctuates, but generally there are some noteworthy enactments which had been put up on which individual state are expected to build their own structures and base their laws. They include;
(a) THE U.S.A. PATRIOTS ACT 2001
The name of this act is an acronym for “Uniting and Strengthening America by providing appropriate tools required to intercept and Obstruct Terrorism”. It is the fundamental document on terrorism in the U.S.A. the act has expanded the concept of terrorism to include domestic Terrorism and also expand the powers of security agents to intercept cell phone calls and e-mails. New punishments were created for those who attack mass transportation systems. If the offender commits the offence while no passenger is on board then he is liable to a fine and a jail term not exceeding 20 years. If the offence was committed while the transport system was caring passengers and the act results to the death of any person then the offence carries a fine and life imprisonment.
This Act creates the offence of harbouring terrorists in the U.S.A and therefore anyone who is convicted of harbouring terrorist under this act would be subjected to a fine or ten year jail term or both. By the provisions of this act, one needs not be the member of a terrorist group to be branded a terrorist. Any one who engaged in soliciting support or openly represented a terrorist group or terrorist would be also deemed a terrorist.
Raising money for terrorists was seen as a direct terrorist act under the law. Family members of terrorists act under the law. Family members of terrorists and their spouses may be treated as terrorists themselves unless the Attorney General has reasonable reasons to believe that the family had not taken part in terrorism or has renounced terrorism.
The Patriot Act sets out monumental sums of money every year for counter terrorism while it prohibits every discrimination against Moslems and Arabs.
Under title III section 405 of the code no payment is to be made to families of terrorists who took up life assurance policies.
(b) THE U.S.A. CRIMINAL CODE.
This is the central Legislation in the U.S.A. prohibiting crimes of all types. Like the Nigerian Criminal Code, it prohibits certain general terrorist tactics and objectives such as murder, arson, intimidation, kidnapping, rape etc.
The code which is quite more voluminous than its Nigerian counterpart also goes further to prohibit certain specific terrorist acts or means such as terrorist financing, terrorist accommodation etc. This not withstanding, the code is still not strong enough as to bear on its shoulders the burden of all terrorist prosecutions.
(c) ANTI TERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996.
This is an act of the U.S.A congress aimed at increasing the punishment which previous U.S laws had laid down for counter terrorism. In the face of monumental loss of human and material resource to terrorism, this U.S law prescribes death penalty for any completed terrorist activity which cost the life or lives of innocent persons. It also prescribed life in jail and a fine for any completed terrorist activity in which no life was lost while any attempt at terrorism would attract a commensurate jail term depending on the extent of damage the accused intended to cause.
This enactment generated so much controversy in the U.S.A. because it was prescribing death penalty at a time when a part of the united state congress was canvassing for the abolishment of death penalty.
(d) TERRORISM AND RISK PROTECTION ACT 2001.
This bill passed on November 29 2001 was sponsored by Rep Oxley Michael following the devastating effect of September 11 terrorist attacks in the United states that year. The bill established a 3 year terrorist insurance program in the U.S.A department of treasury administered by the treasury secretary to pay federal share of compensation to insured losses resulting from acts of terrorism.
Title XI of the act stated that the owners of damaged properties must have paid their tax as at when due before the terrorist attack. Under the act, the treasury secretary is granted sole discretion to decide when claims have to compensation under the act would arise.
(e) FINANCIAL ANTI-TERRORISM ACT 2001
This enactment is aimed at frustrating the financing of terrorism in the United States or through the United States. By this enactment, all bank accounts in the United States holding large quantity of cash must be registered with the security department of both the central and state governments. It prohibits the smuggling in or out of the U.S.A any bulk cash and provided that any such amount intercepted by the security agents would be seized. Also by the provisions of the act if any one is caught transferring bulk cash illegally and a terrorist act is executed within the same vicinity and time, then the person caught would be deemed to have been a sponsor of that terrorist action except he can explain his possession. Again all charity donations and trusts must be registered with the government and their beneficiaries indicated to avoid trusts and donations being made to terrorist organizations.
(f) PROTECT AMERICA ACT 2007.
This is an act which draws largely from the patriot act but is itself aimed at frustrating even the lawful activities of terrorists. Under this act, any person who provides support to terrorists even in lawful activities is presumed to be a terrorist and is striped of his citizenship and subjected to deportation.
3.3 LEGAL FRAMEWORK AGAINST TERRORISM IN BRITAIN.
Britain which is one of the greatest allies of the United States had also joined in the development of counter-terrorism machineries in the quest to stamp out terrorism. This is not just a friendly gesture by a friend to another but also as a result of the imminent threat its territory and government structures face from terrorism having in mind the disastrous effect that terrorism had had on its population.
Also draw from the fact that the nation is a fundamental player in global politics and international decision making it has to lead by example. Thus as terrorism has been declared a crime of global interest and nations had been called up to enact laws to frustrate terrorism, Britain attempts to lead the way by doing so in its own territory. Britain counter terrorism laws include.
(a) TERRORISM ACT 2006.
This is an act of the U.K parliament which received royal assent on 30th march 2006 and created within the U.K territory new offences relating to terrorism while amending existing ones. The act was drafted in the wake of the July 2005 London bombings as a swift reaction.
Part one of the act creates a series of new criminal offences intended to assist the police in tracking terrorism. Part two of the act makes miscellaneous provisions and empowers the British home secretary to proscribe terrorist groups. Part three which is the final part of the act provides some review from the old act in 2000 and many other laws formerly applicable to terrorism in U.K.
(b) ANTI-TERRORISM, CRIME AND SECURITY ACT 2001.
This is an act of the U.K parliament which came into force of the 14th of December 2001. It empowers the state security systems to freeze any property suspected to belong to a terrorist group or terrorist. This includes building on rent and cars (or any other property) on lease.
The bank accounts of suspected terrorist could be freezed by the security organizations. The home secretary was allowed by the act to certify any non-British citizen whom is suspected to be a terrorist and detain them indefinitely pending deportation even when such detention would otherwise had been prohibited.
(c) PREVENTION OF TERRORISM ACT 2005.
This is an act of the U.K parliament intended to deal with a house of lords ruling that the detention of nine foreigners at the H.M prison in Belmarsh under part 4 of the anti-terrorism, crime and security act was unlawful being incompatible with international and domestic human rights laws. This act thus provided that the home secretary may only place suspected terrorists on house arrest or restrict them from the use of their phones but could not indiscriminately arrest and detain them.
(d) THE COUNTER –TERRORISM ACT 2008.
This is an act of the U.K parliament which received royal assent on 26th November 2008. It increased the power of the police to combat terrorism and arrest offenders. By virtue of the act, the police were empowered to search on reasonable suspicion the home of any suspected terrorist within the United Kingdom with or without warrant. It also required the registration of those previously convicted of terrorist offences for easy identification and information transmission to other interested nations. The government was also empowered to seize the assets of suspected terrorists and terrorist sponsors. It also provides a long term jail sentence for terrorists.
(e) THE CORONERS AND JUSTICE ACT 2009.
This is an act of the U.K parliament which came into effect on 12th November 2009 and applies to both England and Wales. The act which is not wholly based on terrorism has only its parts I-IV as counter terrorism instruments. The aim of the act is to ensure that terrorists do not make any profit from their actions. Those monies meant for the payment of terrorist or their families would be seized once intercepted.
(f) THE TERRORIST ASSETS FREEZING ACT 2010.
This is an act of the U.K parliament which came into force on 10th February 2010. It is aimed at assets of terrorist groups and empowers governments to freeze all such assets.
4. INTERNATIONAL INTSRUMENTS AGAINST TERRORISM.
Despite the weary storms of violent antagonism and legal hostilities thrown up by organized mankind against the menace of terrorism, this ugly monster still persists. The fact that its structure, personnel, funds and organizational control draws from a world wide network explains the inability of municipalities to curb or control the growth and development of this outrageous evil. Thus in a spirited attempt to salvage the situation and aid individual nations in this onerous tasks the international community through the United Nations and other international agencies had constantly called up nations for a collective action against terrorism.
These actions had basically come in form of treaties and conventions which had been ratified by willing states. Due to the dynamic nature of terrorism most of these treaties are sectional and refer only to specific terrorist actions and once they are made, they become part of international law and binding on all nations. Therefore after having discussed the municipal legal framework against terrorism it is worth while for us to turn our gaze to the international instruments against terrorism.
(a) CONVENTION ON THE PREVENTION AND PUNISHMENT OF CRIME AGAINST INTERNATIONALLY PROTECTED PERSONS INCLUDING DIPLOMATIC AGENTS, NEW YORK, 14 DECEMBER 1973.
The convention applies to crimes of direct involvement or complicity in the murder, kidnapping, or attack, whether actual, attempted or threatened, on the persons, official premises, private accommodation or means of transport of diplomatic agents and other internationally protected persons. Internationally protected persons are defined as heads of states or Government, ministers of Foreign Affairs, State officials and representatives of Foreign Affairs, representatives of international organizations entitled to protection in the Foreign States and their Families.
State parties have the obligation to establish their jurisdiction over the offences described, make the offences punishable by appropriate penalties, take alleged offenders into custody, corporate in preventive measures and exchange evidence and information needed in related criminal proceedings. The offences referred to in the convention are deemed to be extraditable between state parties under existing extraditions treaties and under the convention itself.
(b) INTERNATIONAL CONVENTION AGAINST THE TAKING OF HOSTAGES, NEW YORK, 17 DECEMBER 1979.
The Convention applies to the offence of direct involvement or complicity in the seizure or detention of, and threat to kill, injure or continue to detain a hostage, whether actual or attempted, in order to compel a State, an international organization or person to do or abstain from doing any act as an explicit or implicit condition for the release of the hostages.
State parties have obligations to establish their jurisdiction over the offences described, make the offences punishable by appropriate penalties, take alleged offenders into custody, prosecute and extradite alleged offenders, corporate in preventive measures and exchange information and evidence needed in related criminal proceedings. The offences referred to in the convention are deemed to be extradition offences between state parties under existing extradition treaties and under the convention itself.
(c) INTERNATIONAL CONVENTION FOR SUPPRESSION OF TERRORIST BOMBINGS, NEW YORK, 15 DECEMBER, 1997.
This convention applies to the offence of the intentional and unlawful delivery, placement, discharge or detonation of an explosive or other lethal device, whether attempted or actual, in, into or against a place of public use, a state or government facility, a public transportation system or an infrastructural facility, with the intent to cause death or serious bodily harm or injury, or extensive destruction likely to or actually resulting in major economic loss. Any persons also commits an offence if that person participates as an accomplice in any of these acts, organizes others to commit them or in any other way contributes to their commission. The convention does not apply where an act of this nature does not involve any international element as defined by the convention.
State parties are required to establish jurisdiction over and make punishable under their domestic laws the offences described, to extradite or submit for prosecution persons accused of committing or aiding in the commission of the offences, and to assist each other in connection with criminal proceedings under the convention. The offences referred to under the convention are deemed to be extraditable offences between state parties under existing extradition treaties and under the convention itself.
(d) INTERNATIONAL CONVENTION FOR THE SUPRESSION OF THE FINANCING OF TERRORISM, NEW YORK, 9 DECEMBER 1999.
The convention applies to the offence of direct involvement or complicity in the intentional and unlawful provision or collection of funds, whether attempted or actual, with the intention or knowledge that any part of the funds may be used to carry out any of the offences described in the convention listed in its annex, or any act intended to cause death or serious bodily injury to any person not actively involved in armed conflict in order to intimidate a population, or to compel a government or an international organization to do or abstain from doing an act. The collection of funds in this manner is an offence whether or not the funds are actually used to carry out the prescribed acts. The convention does not apply where an acct of this nature does not involve any international element as defined by the convention.
The convention requires each State 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 purpose of committing the offences described.
The offences referred to in the convention are deemed to be extraditable offences and states parties have obligations to establish their jurisdiction over the offences described, making the offences punishable by appropriate penalties, take alleged offenders into custody, prosecuting and extraditing alleged offenders, cooperate in preventive measures and counter measures, and exchange information and evidence needed in related criminal proceedings. The offences referred to in the convention are deemed to be extraditable offences between State parties under existing extradition treaties.
(e) CONVENTION ON OFFENCES AND CERTAIN OTHER ACTS COMMITTED ON BOARD AIRCRAFTS, TOKYO, 14TH SEPTEMBER 1963.
This convention applies to offences and other acts prejudicial to good order and discipline on board an aircraft, committed while the aircraft is in flight or on the surface of the high seas or of any other area outside the territory of any State. It does not apply to state aircrafts used by the military, customs, police etc.
The purpose of this convention is to protect the safety of aircrafts and of the persons and property thereon. The aircraft pilot, members of the crew and in specific circumstances, even passengers on board the plane, are empowered to prevent the commission of such acts and to disembark the person concerned. Where the offences is serious the pilot may deliver the offender to the competent authorities of the contracting state when the aircraft lands.
The state of registration of the aircraft is competent to exercise jurisdiction over offences and acts committed on board. Each contracting state is obliged to take the necessary measures establish its jurisdiction as the state registration. The convention does not eliminate existing or future jurisdiction in states other than the state of registration. A contracting state which is not the state of registration may not interfere with an aircraft in flight in order to exercise its criminal jurisdiction over an offence committed on board except in certain case.
(f) CONVENTION FOR THE SUPPRESSION OF UNLAWFUL SEIZURE OF AIRCRAFTS, THE HAGUE, 16 DECEMBER, 1970.
The convention defines the act of unlawful seizure of aircrafts, and the contracting parties have undertaken to make such an offence punishable by severe penalties. Under the provision of this convention a state is obliged, whether or not it is the state of registration, to take such measures as may be necessary to establish its jurisdiction over the offence in the case where the alleged offender is present in its territory and it does not extradite him. If there is no extradition treaty between the states concerned and the offender is in the territory of a contracting state and that state refuses to extradite the offender, then it must submit the case to its competent authorities for the purpose of prosecution under its criminal law.
The convention requires any contracting party in whose state the aircraft or its passengers or its crew are present to facilitate the continuation of the journey of the passengers and crew as soon as possible and to return the aircraft and its cargo to the persons lawfully entitled to possession without delay.
(g) CONVENTION FOR THE SUPPRESSION OF UNLAWFUL ACTS AGAINST SAFETY OF CIVIL AVIATION, MONTREAL, 23rd SEPTEMBER, 1971.
This Convention deals with acts other than those covered by the Tokyo and The Hague Conventions. The Montreal Convention defines a wide spectrum of unlawful acts against the safety of civil aviation and the contracting states have undertaken to make punishable by severe penalties.
The convention contains detailed provisions on the jurisdiction, custody, prosecution and extradition of the alleged offenders similar to those of the Hague convention. Like the Tokyo and The Hague conventions, the Montreal convention does not apply to aircrafts used in military, customs or police service. This convention attempts to establish a form of universal jurisdiction over the offender as provided in article 5(1) of the convention. The scope of the convention is primarily determined in terms of the “international element” provided in its Article 1, sub paragraphs 1(a), (b), (c), (d) and (e). The convention applies irrespective of whether the aircraft is engaged in international or domestic flight, only as provided in article 4 (2) of the convention. Namely, if:
(i) The place of take-off or landing, actual or intended, of the aircraft is situated outside the territory of the state of registration of the aircraft; or
(ii) The offence is committed in the territory of a state other than the state of registration of the aircraft.
(h) CONVENTION ON THE PHYSICAL PROTECTION OF NUCLEAR MATERIALS, VIENNA, 3 MARCH 1980.
The physical protection convention has a two fold objective: It establishes levels of physical protection required to be applied to nuclear materials used for peaceful purposes while in international transport and it also provides measures against unlawful acts with respect to such nuclear materials while in international nuclear transport as well as in domestic use, storage and transport.
Although the level of physical protection prescribed in the convention are required to be applied only to nuclear materials used for peaceful purposes, other provisions of the convention (e.g., the requirement that relates to making specified acts punishable offences under national law, to establish jurisdiction over those offences and to prosecute or extradite alleged offenders) apply also to nuclear materials for peaceful purposes while in domestic use, storage and transport. Accordingly, states parties to the convention are obliged to make punishable under their national laws the intentional commission of acts without lawful authority dealing with nuclear materials as listed in its article 7, in particular, with reference to nuclear materials causing or likely to cause death or serious injury or damage to any person or property; theft or robbery of nuclear materials, embezzlement or fraudulent obtaining of nuclear materials, demands for nuclear materials by any form of intimidation; threats to use nuclear materials to cause death or serious body injury or damage to any person or property; or threat to steal nuclear materials to compel a person, international organization or state to do or refrain from doing any act. The convention also contains specific rules on jurisdiction and extradition.
(i) PROTOCOL ON THE SUPPRESSION OF UNLAWFUL ACTS OF VIOLENCE AT AIRPORTS SERVING INERNATIONAL CIVIL AVIATION, SUPPLEMENTARY TO THE CONVENTION FOR THE SUPPRESSION OF UNLAWFUL ACTS AGAINST THE SAFETY CIVIL AVIATION, MONTREAL, 24TH FEBRUARY 1988.
The protocol adds to the definition of “offences” given in the Montreal convention of 1971 and defines it as “unlawful and intentional acts of violence against persons at an airport serving international civil aviation which causes or is likely to cause serious injury or death and such acts which destroy or seriously damage the facilities of such an airport or aircraft not in service located thereon or disrupt the service of the airport; the qualifying elements of these offences is the fact that such an act endangers or is likely to endanger safety at that airport. These offences are punishable by severe penalties, and contracting states are obliged to establish jurisdiction over the offences not only in the case where the offence was committed in there territory but also in the case where the alleged offender is present in their territory and they do not extradite him to the state where the offence took place.
(j) CONVENTION FOR SUPPRESSION OF UNLAWFUL ACTS AGAINST THE SAFETY OF MARITIME NAVIGATION, ROME, 10TH MARCH 1988.
The convention applies to the offences of direct involvement or complicity in the intentional and unlawful threatened attempted or actual endangerment of the safe navigation of a ship by the commission of any of the following acts: Seizure of or exercise of control over a ship by any form of intimidation, violence against a person on board a slip; destruction of a ship or the causing of damage to a ship or to its cargo; placement on slip or device or substance which is likely to destroy or cause damage to that slip or its cargo; destruction of serious damage of, or interference with maritime navigational facilities; knowing communication of false information; injury to or murder of any person in connection with any of the preceding acts.
The convention applies to ships navigating or scheduled to navigate into, through or from waters beyond the outer limit of the territorial sea with adjacent states, or when the alleged offender is found in the territory of a state party.
The convention does not apply to warships, ships owned or operated by a state when being used as a naval auxiliary or for customs or police purposes or ships that have been withdrawn from navigation or laid up.
The offences referred to in the convention are deemed to be extraditable offences and state parties have obligations to establish their jurisdiction over the offences described, make the offences punishable by appropriate penalties, take alleged offenders into custody, prosecute or extradite alleged offenders, cooperate in preventive measures and exchange information and evidence needed in related criminal proceedings.
(k) PROTOCOL FOR THE SUPPRESSION OF UNLAWFUL ACTS AGAINST THE SAFETY OF FIXED PLATFORMS LOCATED ON THE CONTINENTAL SHELFS, ROME, 10th, MARCH, 1988.
The Protocol applies to the offences described in the convention for the suppression of unlawful acts against the safety of maritime navigation when committed in relation to a “fixed platform” defined as an artificial island, installation or structure permanently attacked to the sea-bed for the purpose of exploration or exploitation of resources or for other economic purposes.
State parties have obligations in relation to establishing their jurisdiction over the offences described, making the offences punishable by appropriate penalties, taking alleged offenders into custody and prosecuting or extraditing them.
(l) CONVENTION ON THE MAKING OF PLASTIC EXPLOSIVES FOR THE PURPOSES OF DETECTION, MONTREAL, 1ST MARCH 1991.
The convention requires each state party to prohibit and prevent the manufacture in its territory of unmarked plastic explosives. Plastic explosives will be marked by introducing during the manufacturing process any one of the detection agents defined in the technical annex of the convention. The convention also requires each state party to prohibit and prevent the movement into or out of its territory of unmarked explosives and to exercise strict and effective control over the possession of any existing stock of unmarked explosives. Stocks of plastic explosives not held by authorities performing military and police functions are to be destroyed or consumed for the purpose not inconsistent with the objectives of the convention, marked or rendered permanently ineffective, within a period of three years from the entry into force of the convention in respect to the states concerned.
The convention also establishes an international explosive technical committee of experts in the field of manufacturing and detection of, or research in explosives. The commission will evaluate technical reports relating to the manufacture, marking and detection of explosives, report its findings through the council of ICAO to all state parties and international organizations concerned, and propose amendment to the technical Annex of the convention as required.
(m) COUNCIL OF EUROPE CONVENTION ON THE
PREVENTION OF TERRORISM 2006. ( CECPT)
This is a regional multi-national treaty negotiated under the auspices of the council of Europe. Most notable amongst its provisions is the three new offences which it creates and defines i.e. Public provocation to commit a terrorist offences, solicitation of persons to commit a terrorist offence, provision of training for terrorist offences in their legal systems, however this obligation arises only with respect to offences which have some international nexus of some sort.
(n) INTERNATIONAL AMERICAN CONVENTION AGAINST TERRORISM 2006.
This is a convention which was adopted by member countries of the organization of American States (OAS) at its general assembly held at Bridge Town, Barbados on third June 2002. The convention was negotiated pursuant to a mandate from the OAS foreign ministers shortly after the terrorist attacks on the United States on September 11 2001. It reflects the American hemispheric-wide commitment to enhance cooperation in the global fight against terrorism.
(o) UNITED NATIONS SECURITY COUNCIL RESOLUTION 883 OF 1993.
In this resolution, after reaffirming resolution 731 and 748 both of 1992 the council expressed its determination to eliminate international terrorism and ensure that those involved in terrorism are brought to justice, the council also noted Libya’s failure to comply with the council’s previous decision on counter terrorism and went ahead to prescribe sanctions and economic restrictions not just on Libya, but also on any other defaulting state.
(p) UNITED NATIONS SECURITY COUNCIL RESOLUTION 1373 OF 2001
This resolution is a counter terrorism measure passed following the September 11 attacks in the U.S.A. the resolution was adopted under Chapter VII of the United Nations Charter and is therefore binding on all states. It marked a shift in the International laws as the later was presumed to be valid only if the concerned state had an international treaty; whereas here, the Security Council imposed the resolution all members. The resolution is aimed at placing barriers on the movement, organization and funding of terrorist groups. It recalled provisions from the resolutions 1189 of 1998, 1269 of 1999 and 1368 of 2001 concerning terrorism. U.N. member states were encouraged to share their intelligence on terrorist groups in combating International terrorism. The resolution also called for all states to adjust their national laws to that they can ratify all the existing international convention. The resolution established the Counter Terrorism Committee (CTC).
5. TERRORISM IN PRACTICE
Prior to 25 December 2009, the name Abdulmutallab would have passed unnoticed as any other Hausa name or at best the name of a former Chairman of First Bank Nigeria. Undoubtedly, the situation has changed and this name now occupies a fundamental place in international discuss and global concern. This sudden international recognition is obviously not on attained through positive endeavours but one attained through negativity and terrorism. Ike a dreaded virus, it had affected everything associated with this name and like lepers everyone who is related to it must not be torched or cohabited with. All these have come to be due to the activities of on man Farouk Umar Abdulmutallab. His failed attempt ton bomb a Detroit bound aircraft which would have cost his willing life and another 289 unwilling lives would have been a monumental disaster.
On this backdrop, the United States and many other nations of the world including Nigeria has rose up to condemn the attack and reject this calculated evil. Nigeria’s inclusion of its voice in the multitude of voices condemning Farouk’s actions had not saved the nation from international wrath. Its subsequent inclusion in the list of terrorist suspect nations evidences the global disbelief in its outcry.
Therefore in this chapter, an overview is made on the life of Farouk Umar Abdulmutallab highlighting the different stages of his life and observing his links with terrorism. His attack is also analysed while its effects and impacts are identified.
5.1 ABDULMUTALLAB AND TERRORISM
Farouk Umar Abdulmutallab is the youngest of the 16 children of Alhaji Umaru Mutallab, a former chairman of First Bank Nigeria and also a one time Nigerian federal Minister for Economic Development . His Yemeni mother, Aisha, is the second of his father’s two wives.
The family comes from Funtua in kastina state but Farouk was basically raised up in an affluent neighbourhood in Kaduna and later at the family’s house in Nairobi, Kenya . As a young boy, he attended Essence International School in Kaduna as well as classes at the Rabiatu Mulallab Institute for Arabic and Islamic Studies, which is named after his Grandfather . As a child, he enjoyed playing basketball but as he grew up he abandoned such hobbies in favour of striving to be a more devout Moslem . According to one of his cousins, Farouk condemned his fathers banking profession as being unislamic and immoral for charging interest and urged him to quit .
He had his high school at the British International School in Lome, the capital of Togo , a private school that is popular amongst wealthy Nigerians. Farouk was known in school as a devout Moslem and for preaching Islam to his school mates . While at the school he was nicknamed ‘Alfa’ which is a term for Moslem clerics and ‘pope’ both due to his piety. A teacher John McGuiness described Farouk as incredible polite and very hard working during his days in school while also noting his devotion to Islam. He was also described as a ‘dream student’ by his history teacher, Michael Rimmer . Rimmer stated that Farouk had defended the Taliban during class discussions but he thought the boy just wanted to play the devils advocate in class .
From 2004-2005 Farouk studied at the Sana’a institute for Islamic and Arabic Language in Sana’a Yemen and attended lectures at the Iman University Collage London in September 2005 where he studied engineering and business financing and earned a degree in mechanical engineering in June 2008 . Coincidentally, the collage was also attended years earlier by Sama Alami, an Arab daughter of a banker who was convicted for detonating a car bomb in London in 1994 and was sentenced to 20 years in jail .
He was president of the schools Islamic society, which some sources had described as a vehicle for peaceful protests against the actions of the United States and the United Kingdom in the war against Terrorism . During his tenure as president, along with political discussions the club participated in activities such as martial arts and paint balling. On one of their paintball trips an Islamic teacher with them said ‘dying while fighting jihad is one of the surest ways to paradise’ . Farouk is the fourth president of the London Students Islamic society to face terrorist charges in three years . Though he was a devout student he graduated with a low degree due to the time he spent only on Islamic matters. He organised a conference in January 2007 under the banner ‘war on terror week’ and advertised speakers including political figures, human rights lawyers, and speakers from cage prison and former Guantanamo Bay detainees . One lecture Jihad v Terrorism was billed as a lecture on ‘the Islamic position with respect to Jihad. He attended a sermon by a man called al-Awlaki an Islamic extremist scholar at Finsbury Park mosque. Due to his contacts with extremists, he had to cross the ‘Radar Screen of M15’ a UK domestic counter-intelligence agency used to screen radical Islamic extremists .
At the age of 21, Farouk told his parents that he wanted to get married but they refused on the grounds that he had not earned a masters degree . On July 12 2008, Farouk applied for and received from the U.S consulate in London a U.S multiple-entry visa valid till June 12 2010, with which he visited Houston and Texas from August 1-17 2008 . From January to July 2009 he attended a master of international business program at the University of Wollongong in Dubai . In May 2009, his application to return to Britain, ostensibly for a six-months ‘life couching’ program at what the British government concluded was a fictitious school was denied by the United Kingdom Border Agency . His name was placed on the U.K Home Secretary watch list which meant that he could not enter the U.K, though passing through the country in transit was permissible and he was not permanently banned. U.K did not share the information with other countries because the application was rejected to prevent immigration fraud and not for national security .
While Farouk was at the Sana’a Institute for Arabic language in Yemen to study Arabic from August to September 2009 he was the only African student in the school of 70 students. Here, he also lived a very devout life and spent 10 days sequestrated in the mosque during the Ramadan. He surprisingly left the institute after a month while remaining in Yemen. This surprised his family. By September he routinely skipped his classes at the institute and attended lectures at the Iman University notorious for suspected links with terrorism . One of his classmates said: ‘He told me his greatest wish was for Sharia and Islam to be the rule of law around the world’ .
The institute obtained a visa for him at his request and on 21st September arranged for a car that took him to the airport. But the school director said: ‘After that, we never saw him again, and apparently he didn’t leave Yemen’ . His father threatened to cut of his funding where on Farouk said he was ‘already getting everything for free’ . When his father asked who sponsored him he replied, “…that is none of your business”. The family last had touch with Farouk in October 2009 .
Yemeni officials say he was in Yemen from early August 2009, overstaying his student visa which was valid till September 21 and left Yemen on 7th December flying to Ethiopia and two days later to Ghana . Yemeni officials have said that Farouk travelled to the mountainous Shabwah province to meet with al Qaeda elements before living Yemen. Ghanaian authorities say he was in Ghana from December 9 till 24 when he left for Lagos, Nigeria.
Prior to these travels, a number of sources reported contacts between Farouk and al-Awlaki, a senior Moslem lecturer and spiritual leader accused of being an al Qaeda talent recruiter and motivator. Al-Awlaki, previously an Imam in the U.S who had recently lived in Yemen also had links with three of the 9/11 bombers, the 2005 London subway bombers, a 2007 Fort Dix attack plot amongst others . Despite being banned from the U.K., al-Awlaki spoke on at least 7 occasions and at least in 5 different venues in Britain via video link from 2007 to 2009 . He gave a number of video link lectures at the East London mosque during this period. In one instance the mosque provoked the outrage of the media by hosting a video teleconference with al-Awlaki which Farouk attended .
The U.S. and Britain were indeed not uninformed about Farouk. On November 11 2009 British intelligence officials sent to the U.S a cable massage indicating that a man named ‘Farouk Umar’ had spoken with al Awlaki pledging to support jihad, but the massage did not reflect Farouk’s last name . Farouk’s father also made reports to two CIA officials at the U.S. embassy in Abuja regarding his son’s extremist religious views and told the embassy that Farouk might be in Yemen .
Acting upon the report, Farouk’s name was put in the November 2009’s 550,000 names of terrorists identity Data mark environment, a data base of the U.S national counter terrorism centre. It was not added however to the FBI’S 400,000 name terrorist screening database neither was it added to the central no fly list of the United States nor was his visa revoked . United State Department officials said in congressional testimony that the state department had wanted to revoke Farouk’s visa, but the U.S. intelligence officials requested that his visa should not be revoked. The reason stated by the intelligence officials was that revoking Farouk’s visa would have foiled a larger investigation into the Alqaeda .
5.2 ABDULMUTALLAB AND HIS ATTACK.
On Christmas day 2009, Farouk travelled from Lagos, Nigeria to Amsterdam, Holland where he boarded a North West flight 253 en route to Detroit. He purchased his ticket in Ghana, on December 16 .
Abdulmutallab spent about 20 minutes in the bathroom as the flight approached Detroit and then covered himself with a blanket after returning to his seat . All of a sudden, the passengers on board started hearing popping noise and the smell of foul odour while some claim they saw Farouk’s trouser legs and the plane wall on fire . Fellow passenger, Jasper Schurina, a Dutch film director, jumped on Farouk and subdued him as the flight attendants used the planes fire extinguisher to douse the flames . Farouk was then taken towards the front of the plane cabin. He had lost his trouser due to the fire and the burns on his legs . The bomb which consisted of a six-inch packet was sewn into his underwear and contained the exposure power PETN which became a plastic explosive when mixed with the highly explosive Triacetate Tripe oxide (TAPN) . It is note worthy to know that this was the same two explosives used by Richard Reid in his 2001 Terrorist Attack . Farouk also had a syringe containing liquid acid. He created the explosives by mixing PETN with TAPN and some other ingredients.
After being taken into custody, Farouk told authorities that he had been directed by Alqaeda and that he had obtained the device in Yemen . Alqaeda a terrorist organization in the Arabian pensuilla which had affiliates in Yemen and which was established by Osama Bin Laden had subsequently claimed responsibility for the attacks describing it as a revenge for the United states role in a Yemen military offence against the Alqaeda in that country .
5.3 THE AFTERMATH OF TERRORISM BY ABDULMUTALLAB
Two days after the attack, Farouk was released from a hospital where he had gone for treatment of first degree and second degree burns on his hands and inner thighs respectively sustained during the attempted bombing . He was charged on December 2009 in the United States District Court for the eastern district of Michigan, at first with two criminal charges i.e. attempting to blow up a U.S. Aircraft and also placing a destructive device on the U.S. aircraft. Additional charges where added by the grand juries’ indictment on January 6, 2010. He is incarcerated at U.S. Federal Correction Institute, Milan, Michigan while awaiting further legal proceedings . If he is found guilty of the charges he may face a life in jail sentence and also an additional 90 years in jail .
The seriousness attached to the case by the United States is reflected in the statement by Barbara Mc Quade, the attorney leading the prosecution. She was quoted to have said: “the attempted murder of 289 innocent people merits the most serious charges available and that is what we have charged in this indictment . Mc Quade who is a U.S.A Attorney for the eastern Michigan is supported in the persecution by the counter terrorism section of the Justice Department, National Security Division.
Farouk is currently facing six count charges. In count one of the six charges which he is currently facing Farouk is accused of attempting to use a weapon of mass destruction which is contrary to section 2332 (a) of title 18 of the U.S.A Criminal Code and which attracts a life sentence on conviction; Count two accuses him of attempted murder within the Special Aircraft Justification of the U.S. which is in violation of sections 1113 of title 18 and 46506 of title 49 of the U.S. code and carries a maximum of 20 years sentence. Count three alleges that he wilfully attempted to destroy or wreck an aircraft in violation of sections 32(a), 8 and 32(a) 1 of title 18 of the U.S. Criminal Code.
He is accused in count four of wilfully placing a destructive device on an aircraft; an action likely to endanger the safety of such aircraft which is a violation of section 32(9)2 of title 18 of the U.S. code. Count five alleges that he used fire arms/destructive device during and in relation to a crime of violence contrary to section 924(c) 1(a) 924 (c) 11 of title 18 of U.S. Code a conduct which attracts a mandatory 30 years jail term. In count six he is accused of possessing fire arms /destructive device in the furtherance of a crime of violence contrary to section 924 (c) 1 of title 18 of the U.S. Code carrying another mandatory jail term of 30 years.
While Farouk and his legal representatives continue to look for ways out of this predicament, the whole world and most especially the United States continue to wonder what went wrong in the security systems of not just one nation but of about four nations through which Farouk travelled.
The United States had in a swift reaction imposed new restrictions on travellers in a bid to checkmate terrorists. This no doubt had caused great inconvenience to travellers but U.S. sees the end as the most important and not the means. They had also launched unexpected military strikes at unsuspecting Alqaeda strongholds in Yemen and made useful arrests. President Barrack Obama had also gone ahead to warn that his government would not tolerate such security lapse in future while also indicating that the jobs of certain security chiefs was at stake .
As the adage goes “when one finger gets soiled by oil, it quickly spreads to the rest four,” the action of Farouk Umar Abdulmutallab which ordinarily should have been the problem of one man alone had spread out to affect the whole nation as the U.S. had put Nigeria’s name on the list of Nations of concern in the fight against terrorism. By this, Nigerian travellers entering into the U.S. are subjected to many degrading and inhuman conditions. The situation had become so bad that even Nigerians of international repute are not exempted from embarrassment. Prof Wole Soyinka who is amongst African leading Nobel Laureates was also maltreated at U.S. airports.
Though the Nigerian nation had strongly and clearly rejected the derogative title, the segregation still continues. The Nigerian President Chief Goodluck Jonathan had since visited the U.S. to clear out this issue but a positive reply is still being awaited. Chief Ojo Maduekwe, the Nigerian Minister for Foreign Affairs had also invited the United States Ambassador to Nigeria to his office for a chat over the matter. He expressed Nigerian’s disappointment at the actions of Farouk Abdulmutallab but went on to announce the nation’s disgust at the hasty and uninformed reaction of the United States by placing Nigeria alongside well known terrorist states . The minister explained that this was the first time a Nigerian was being involved in such an act and also that Farouk did not indeed grow up in Nigeria. The ambassador said she was going to transmit the information to her country’s executive. She noted that the problem was caused mainly due to the governmental crisis in Nigeria at the moment. According to her, President Obama would have called President Yar’Adua to discuss the matter but because of his unexplainable absence, Obama’s hands were tied as ‘diplomatic protocols demand that Obama cannot call the Vice President unless he was Acting President’ .
As Nigerians around the globe continue to face degrading actions at airports around the world, the economy of Nigeria is not left out of the quake. As of now, nothing visible had been noticed with regards to economic down turn but the future is uncertain and if Nigeria does not clear the dust at this early stage there is no doubt that soon business men and investors would distance themselves from this nation as a means of avoiding disgrace.
6. STATE RESPONSIBILITY AND TERRORISM
Of all the challenges facing the international community, the question of State responsibility is certainly a source of concern. In fact it has been described as the “most ambitious and most difficult topic of the codification work of the international law commission” . In the days of the famous Caroline incident, things seemed a lot simpler . Wherever armed hostilities arose, “the tit for tat” principle reverberated as the guiding hymn. Self defence appears to be a reliable concept, Imbued with rationality. In fact, an eloquently crafted three- part test had been had been developed many years ago. From that point onwards, any retaliatory recourse to force will be governed by a standard involving the imminent threat of an attack, necessity and proportionality . This statement of the doctrine had now been codified in Article 2(4) of the United Nations Charter.
Though the United Nations Charter had approved the above standard, the question now is; when does a nation become liable or when can a Nation acquire these rights of retaliation? To perfectly understand this problem one may have to understand perfectly those who have the duty to frustrate terrorism and international aggression and when such a person can be liable.
6.1 COLLECTIVE DUTY OF STATES
In the international effort to combat terrorism it has become clear that terrorism is a global problem, despite claims of some in George Bush’s administration and its more hard-line supporters, that the U.S.A derives far more benefits in the war against terrorism. Undoubtedly, Counter terrorism measures are global necessities and every nation of the world must record its own effort in the fight. This is because modern terrorism targets fundamental structures and in events of its success the likelihood of persons from different nations to be involved is high. Thus nations must join hands with trusted and non-traditional allies in this fight against terrorism.
By this, powerful nations like U.S.A. and Russia must ensure that their Counter-terrorism machineries are interwoven with those of other countries who might not have the same technical and financial power. This necessity had been noted by the council of foreign relations independent task force on terrorist financing, which noted that while substantial progress had been made in many countries, “a lack of technical capacity still inhibits the ability of many countries to comply fully with their Counter-terrorism related obligations”. In fact, lack of capacity is a problem in a number of countries and regions identified by the 9/11 commission as a likely basis for the operation of some of the most dangerous international networks.
Once there is a perfect global network in the fight against terrorism, part of the work would have been perfectly done. Noting here that these terrorists organizations are not based in one country alone, their tentacles can thus, only be clipped by multi national efforts. In this regard, the organized global community must develop its own network of Counter-terror arsenal in its bid to break down the terror network of terrorists groups.
Note worthy in this regard is immigration information. Any information obtained by any country of the world must be transmitted across with regard to persons so that airports and points of entry into countries would have clear and accurate details about persons entering its domain. The effect of a lapse in this regard can be observed in the Abdulmutallab scenario where information with regard to his terrorist activities was obtained by some nations while others were at a loss.
Also the fact that these terrorists are human beings and not deities goes to show that they are also benefactors of societal elements and thus can be frustrated by any willing society. On this backdrop, all nations of the world, most join into this struggle for peace and tranquillity on planet earth instead of appearing less concerned because its territory had not become subjects to terrorists attack.
6.2 HOST STATES AND LIABILITY
To say that the events surrounding September 11, 2009 changed the world forever has become cliché. It is none the less true with regards to international law and more specifically host states liability. Many factors are now extending the debates beyond simple assigning blame to negligent or wilfully blind nations. Whether due to intricate information networks, new technologies like the internet, sophisticated cellular structure of organizations such as the al Qaeda, complex financial systems, convoluted political realities, or other factors, the level of government involvement in terrorist activities is no longer readily discernable in all instances. We now live in an era dominated by security concerns and the parameters of state responsibility need to be revamped accordingly. It is common knowledge that some countries are used as frequent launch pads or training grounds for terrorist organizations. If the event following September 11 has taught us anything, it is that we must avoid attributing responsibility to those states indiscriminately and rather engage in a serious and methodical analysis of the conduct of the governments involved.
Also of particular importance to a discussion on state responsibility are the jurisprudential developments that have occurred over the last 30 years. For instance a nation may invoke the influential Nicaragua decision and Tadic judgment which tempered it. In the same spirit, the Tehran Case is also instrumental in this area and in many ways marks the beginning of the modern concepts of indirect state responsibility.
Needless to say, many terrorist attacks had punctuated our collective history and stirred up this dynamic discussion since the Beirut raid days. Some these accounts must be visited in other to shade light on the level of responsibility of the whole states involved.
In 2001 the International Law Commission (ILC) adopted the Draft Article on the responsibility of States for international wrongful acts a monumental portion of the legal mosaic on State responsibility. The same year unprecedented attacks were carried out on US soil by al Qaeda terrorists, events which are remembered today as “9/11”. Following the attacks, the United States staged a military campaign I Afghanistan which subverted the Nicaragua and Tadic legacies, and some worth crystallized the more towards the implementation of indirect responsibility rule in international Law.
However, as time passes, International law evolves and with it the Literature and jurisprudence follows suit. Many unforeseen elements impacted the development of the indirect responsibility or strict liability rule and “when confronted with this complex algorithm, we must now break down the pieces of this legal Puzzle’. Since the Literature is far from dispositive on the issue, I propose to open the debate on indirect state responsibility and weigh different arguments in order to shed light on the law that governs this politically charged area. In doing so, I draw a distinction between direct and indirect responsibility and argue that the International community had in fact moved towards a model of Indirect responsibility.
6.2.1 DIRECT RESPONSIBILITY V. INDIRECT RESPONSIBILITY
It is well documented in International Law that a state will usually not answer for the actions of private or none state factors, or at the very list that the conduct will not be attributed to the host state. This is called “Concept of attribution”.
Since the publication of Prof Bowett’s “Reprisals involving recourse to Armed Forces” international courts have formally adopted this Concept of attribution but its parameters had not been perfectly defined. In the Nicaragua decision, the ICJ was confronted with the U.S.A.’s involvement in the funding and training of Contra rebels in the Nicaragua-El Salvador conflict. Although the United states was found to have provided various forms of assistance to the rebels, and the gorilla’s were at times completely dependent on U.S support, the ICJ refused to pronounce the Contra rebels de factors as agents. The court said:
“The court has taken the view… that united States participation, even if predominant or decisive, in the financing, organizing, training, supplying, and equipping of the Contras, the Selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself…
The Court then proceeded to elaborate a test for establishing state responsibility, a standard that would quickly gain international recognition as the “effective Control test”. Therefore the ICJ opined that in order to find the United States legally responsible for the activities of the Nicaragua Contras, it would have to be proved that the State had effective control of both military and paramilitary operations of the contras of both military and paramilitary operations of the contras in the cause of which any said violation is committed. From this decision onwards it became common practice to analyze the degree of effective control exercised by a state over non-state actors in order to determine the level of involvement of that state, as a necessary corollary, to its level of responsibility.
Thirteen years later the Appeal chambers of the International Criminal Tribunal for the former Yugoslavia (ICTY) revised this effective control test in the Tadic Case. The court found that when private individuals carry out acts contrary to International Law, the only way to attribute such acts to the host State over the individuals is to demonstrate that the state exercised control over the individuals. The court also points out that the degree of control might vary according to the circumstances and that the analyses should be guided by a flexible approach. The court then purported to draw a distinction between an individual and an organized group. In the latter case it was now necessary to demonstrate that the host state exercised “overall Control” over the group in question, a legal inquiry that marked a significant relaxation of the “effective control test”.
The ICTY pursued the analysis by making a crucial distinction between groups that are militarily organized and groups that are not. For the former it would have to be proved that the host state wields overall control over the group, not only by equipping and financing the group, but also by co-ordinating or helping in the general planning of its military activities. For non- military groups the threshold is higher, as overall control was deemed insufficient and specific instructions flowing from the host state to the group in question were required.
Alternatively, the threshold could be satisfied if the host state has publicly endorsed or approved the act ex post facto. The ICTY greatly advanced the debate on state responsibility by expanding the analysis to include not only a group’s relation with the host state, but also the groups’ organizational structure. The Tadic legacy has come to be known as the “overall control test” and in post Nicaragua Era; it governs debates on the question of a states involvement in funding and training insurgents or terrorists.
Following these jurisprudential developments, the adoption of the ILC Draft Articles in 2001 constituted another crucial international effort to define state responsibility. This Landmark document ultimately codified the law to read; “Every International wrongful act of state entails the International responsibility of that state” . Under the ILC framework, an act is wrongful if it amounts to a breach of the host states international obligations, whether derived from treaty Law, Customary Law, General rules of international law or jus cogens. This Principle now codified in Article 2 of the Draft Articles had also received wide support in International jurisprudence. In tandem, these provisions operate on the premise that if a state has violated a primary rule, whether through an act or omission, the secondary rules of state responsibility contained in the Draft Article may apply.
Undoubtedly, an overreaching dichotomy may guide the law of state responsibility for international wrongful acts. On the one hand, a state may be held accountable if its direct act or omission leads to harm. Cases such as Nicaragua and Tadic as well as the Draft Article, focus on this sort of direct responsibility. Such responsibility can attach where a terrorist group acts as a state agent or de facto state agent” , or where the state later approves the terrorist act. It is now fair to say that a state which overtly and directly supports or condones a terrorist attack on another state will presumably be held to have violated international Law. Hence from both conceptual and practical points view, the issues surrounding direct state responsibility are relatively clear.
On the other hand, there exists a subtler type of responsibility, one that hinges on the indirect involvement of a state in a wrongful act. Indirect responsibility usually arises when there is no casual link between the wrongdoer and the host state. It is compactable with the notion of “vicarious liability”
“Terrorism involves indirect aggression. Indirect aggression occurs when the state without committing any aggressive act, operates through its nationals or other foreigners who appear to be acting on their own. This appears to be the situations with Libya. The Libyan government is in violation of international law and can be held liable for the terrorist act of its nationals…”
Some scholars have rejected the direct/indirect dichotomy because direct and indirect responsibilities are conceptually difficult to distinguish. In fact the post 9/11 campaigns in Afghanistan have escalated the confusion surrounding this Legal distinction. The decision to take action against the Taliban government has collapsed both branches of State responsibility into one confused framework. I examine below how the military campaign in Afghanistan has created a new precedents in international law along with the significant shift in the law of state responsibility.
In other words, I attempt to re-establish and delineate the significant boundaries between direct and indirect responsibility while devoting careful analysis to the question of Indirect State responsibility in preventing terrorist attacks.
6.2.2 THE PARADIGM SHIFT TOWARDS THE LAW OF STRICT LIABILITY.
The old paradigm of direct State responsibility, codified in Article 2 of the Draft Articles, indicated that the conduct underlying the international wrongful act must be attributed to the States act or omission if the state is to be held responsible. This logic was founded on a concept of terrorist actions that, as with Nicaragua and Tadic, involved actors who shared an intimate link with the host States or that became de facto state actors through the mechanism of control and attribution
However, these cases did not foresee modern Terrorism. The world is now faced with a new and significant threat, Sophisticated in organization with a complex financing structure. Modern technologies provide terrorists with increased means and methods of inspiring fear and carrying out attacks. There are cases where host States had no knowledge of and wielded no control over terrorist organization is the fact that both co-existed in the same geographical area. In such a situation it is imperative to establish new parameters for indirect responsibility. Before embarking on such an endeavour, however, it is helpful to briefly review important developments in the indirect state responsibility.
The Tellini case of 1923 provides a useful starting point. Following the assassination on Greek territory of several members of an international commission overseeing the delimitation of the Greek-Albanian border the League of Nations organized a special committee to address the legal issues raised by the incident. Although the committee clearly rejected the possible attribution of the assassination to Greece, It opined that a host State could beheld responsible in like circumstances if it
“Neglected to take all reasonable measures for the prevention of the crime and Pursuit, arrest and bringing to Justice of the criminals”.
This language clearly for shadowed a move from the more traditional analysis of the connection between private actors and the host state to a rigorous examination if the conduct of the host state itself vis-à-vis the wrongful act authored by private persons.
These considerations are even more relevant when contrasted with the findings of Tehran’s case, which was instrumental in advancing the law of indirect state responsibility further. The facts of this case were: In 1979, a student militant group in Iran took over the U.S. embassy I that Country and its consulates. This led to serious vandalism, destruction of property and the detention of 50 American citizens, mostly diplomats and consular personnel. In the light if these facts the ICJ had to establish whether the take over, ransacking of the embassy, and hostage taking an operation which lasted approximately three hours was attributable to the Iranian state. The court first considered whether Iran was directly responsible for the attacks. Somehow overlooking the reasoning in Tadic, the courts asked whether the militants had been charged by some competent organs of the Iranian Government to carry out this specific operation. The ICJ found no direct involvement on the facts given.
The court then proceeded to analyze whether Iran was indirectly responsible for the attack in that they failed to fulfil its duty to protect foreign diplomatic missions from assault. The courts held that even though the attack could not be directly attributed to the state, Iran was not free of any responsibility in regards to those attacks “for its own conduct was in conflict with its international obligations.” By virtue of several treaty provisions and principles of international Law, the court noted that Iran had a “categorical duty” to protect the victims of the attack along with the embassy.
In a statement that would mark the real starting point of the modern law of Indirect responsibility, and that can be applied today to the obligation to prevent terrorist attacks, the ICJ opined that Iranian Government had a duty to protect U.S.A. embassy and its personnel.
A more limpid boundary between direct and indirect responsibility was finally drawn in the Tehran case. It is now clear, under the direct responsibility paradigm, that the initiated focus of the inquiry hinges on the conduct of an extraneous person or group and not on the host states itself. The overreaching objective is to establish whether the wrongful action or omission, as engendered by a person or group, is directly attributable to the state. Interestingly, through the lens of Nicaragua and Tadic, the primary objective becomes somewhat ancillary to the question of control and direction by the host State over the persons or group of persons that committed the wrongful act, In fact the question of control as exercised by the host State has become a source of touch stone in modern scholarly attempts to reconcile both arguments.
The Final analyses cumulates in three possible scenarios: The act of state agents are binding on the State; Non state actors are deemed to be de facto government agents; or the act of terrorist groups and insurgents are directly attributable to the host State without labelling them formal instrumentalities or agents of the state purse. When considering the event of September 11, it seems impossible that the attacks could in fact be attributed to the Taliban government but the fact that the al Qaeda benefited a large margin of autonomy within Afghanistan brought them under the “indirect responsibility” rule.
It logically follows that contrary to the direct responsibility rule which focuses on the wrongful act itself, indirect responsibility is concerned with the conduct of the host state namely, its failure to fulfil an international obligation rather than committing some positive act thus indirect responsibility can also be referred to as strict liability.
The parallel between the Tellini and Tehran cases is sticking even though, they were decided, nearly 60 years apart. In both cases the inquiry hinged on a rational of indirect state responsibility with particular emphasis placed on the host states failure to bring its conduct within the realm of its international obligation to prevent the occurrence of a given event. Based on these reasoning and having in mind that modern terrorism poses a significant and sometimes polymorph threat, it is apparent that the in action of host states will be thoroughly scrutinized if a given terrorist strike could have been avoided or partially thwarted. The emphasis would ineluctably shift towards establishing the duty of host states to forestall attacks rather than on their involvement in Funding, Supporting or directing terrorist attacks or activities. In addition, a paradigm shift towards indirect responsibility signals the imposition of a greater burden of precaution and prevention of the host states.
6.2.3 LAW BEFORE SEPTEMBER 11, 2001
The attitude of the United Nations Security Council towards the repression of international terrorism has been confused or at best fact specified. In some instances, the council had allowed a state to enter a host state and eliminate the base of terrorist operations there. The 1995-1996 entry of Turkish forces into Iran soil in pursuit of Kurdish irregulars is an example. Iran shortly followed suit, resorting to aerial attacks on Kurdish bases from which insurgent troops had launched excursions. The Senegalese entered Guinea Bissau in 1992 and 1995 to attack the military bases of opposition forces their. The United States bombed parts of Sudan and Afghanistan following the 1998 bombing of U.S embassies in East Africa. In these instances the council recognized an injured States right to pursue terrorist into other countries and Thomas Frank had noted that “it is becoming clear that a victim state may invoke article 51 (of the U.N. Charter) to take armed counter measures….against any territory harbouring, supporting or tolerating activities that culminate in or is likely to give rise to insurgent infiltrations or terrorist attacks”.
In other instances, the Security Council remained unmoved by a host States plea of territorial infringement when a neighbouring State invaded the host state’s territory in pursuit of terrorist. In September 2000, the Security Council specifically rejected the Rwandan authority’s claim, to a right to attack Hutu insurgents operating out of neighbouring territory on the grounds that it would violate the host states territorial integrity.
The Security Council’s unpredictability has been most extreme in the context of the ongoing Arab/Israeli hostilities. One notable case was the Beirut raid of 1968. Following an attack on an El Al Boeing 707 craft at Athens airport, Israel sought to establish the responsibility of two members of the popular front of the liberation of Palestine as well as that of Lebanon. In fact, a flight from Beirut to Athens constituted the only territorial link between the two perpetrators and Lebanon, in a language reminiscent of the new shift towards indirect responsibility, Israel accused Lebanon of “assisting and abetting acts of warfare, violence, and terror by irregular forces and organizations”. The argument did not however, convince the Security Council. The decision by the Security Council not to endorse the reprisal was met with great disapproval by Israel, which stated that the council was one-sided in its finding of responsibility and emphasized the fact that Lebanon’s role had not been thoroughly scrutinized.
A similar incident was the 1982 Israeli-Lebanon conflict, which stemmed from the 1956 Sinai incident between Israel and Egypt. Since the Sinai incident, it had become common practice for Palestinians to launch strikes from part of Lebanese territory into Israel. After Israel invaded a large part of the Lebanese territory in 1982, it contended the Palestinian Liberation Organization (PLO) had effectively turned the southern part of Lebanon into a Launch pad for terrorist attacks and that Lebanon had failed to fulfil its duties to prevent its territory from being used for terrorist attacks against other states. Lebanon denied responsibility alleging that the bases for which the attacks were launched evaded its own control. The Security Council unanimously called on Israel to withdraw from Lebanon. In the following days Israel made several vivid arguments in support of its decision to take military actions after years of incursions perpetuated by PLO members against Israel. In its pleas, Israel referred to Lebanon as a logistic centre and refuge for members of every terrorist group around the world. The Security Council remained undeterred in its objective to restore peace in the region and demand the cessation of hostilities.
Despite this inconsistent precedent, the concept of “harbouring and supporting” terrorists had achieved international precedence over the concept of mere attribution, giving that terrorist need assets to operate and that governments across the globe has been trying to forestall their financial autonomy, it thus becomes obvious that the international community has abandoned the reasoning of Nicaragua and Tadic which imposed stringent burden on the attacked State to establish direct responsibility, in favour of an expansive rule of indirect responsibility, which alleviates the injured states onus exponentially. Based on this logic, the mere provision of Logistical support to, or the sheltering of Terrorists within a given territory will supplant any inquiry into the level of control a host state exercises over a given attack. This shift in international law, which still requires few adjustments, now centres completely on a host states failure to prevent an excursion by terrorist from its territory into that of another.
6.2.4 LAW AFTER SEPTEMBER 11, 2001
The pivoted point of reference in the modern development of indirect state responsibility is the events of September 11 2001 which is referred to as ‘9/11’. Following the attacks carried out by the al Qaeda on the World Trade Centre (WTC), Pentagon and in Pennsylvania, the United States and its allies launched out a military campaign in Afghanistan. Some commentators had questioned the legality of that retaliation while others have condoned it, or at least found it justified under the existing scheme of “jus ad bellum”. Other commentators opined that it has relaxed international legal standards by loosing the use of force principles and contorting the self defence standard. Regardless of which interpretation one prefers, the U.S.A. action in Afghanistan has significantly imparted international law, especially in the realm of State liability.
International law could not endorse U.S. led war in Afghanistan solely against Bin Laden and high ranking members of the al Qaeda, as a terrorist organization is simply not tantamount to State. Consequently, the U.S.A could not pin responsibility on al Qaeda alone, but sort to impute al Qaeda conducts to Afghanistan simply because the Taliban had harboured and supported the group. As the stage was being set for the retaliatory strikes, President Bush accused the Taliban of murder, declaring that its members had supported and harboured the al Qaeda responsible for the 9/11. These remarks were eventually substantiated by a congressional authorization to use force against Afghanistan and any other State or Organization that aids or harbours the terrorists involved in the 9/11 attacks. As the war on terrorism transitioned into a full-fledged military operation, it became clear that the United States would not differentiate between host States and terrorists and would attempt to extirpate 9/11 perpetrators form any territory that offered them shelter.
Publicly available facts tend to demonstrate that the Taliban harboured the terrorists and also provided them with legal support. However it is difficult to contend that the Taliban government did in fact exercise effective control or overall control over the al Qaeda. The al Qaeda had a complex, much operational and organizational autonomy from the Taliban. The Taliban probably did not know the 9/11 attacks before hand and did not endorse them. Further, it does not appear that the al Qaeda was acting as a de facto agent of the Taliban. Thus, under the Nicaragua and the Tadic reasoning, these facts would not support a finding that the Taliban and thus Afghanistan were responsible for the 9/11 attacks.
The U.S. strike in Afghanistan has therefore subverted, or at least lowered substantially the classical threshold of attribution. Although the U.S. argued that the Taliban was directly responsible for the 9/11 attacks, it also justified its response by declaring that the Taliban harboured and supported al Qaeda. Thus, through the conceptually nebulous application of international law, the United States seems to have collapse direct and indirect State responsibility into one approach. It is appropriate to describe the U.S. attack on Afghanistan as having signalled a monumental scuff in international law from direct to indirect state responsibility. Thus indirect responsibility is no longer a second test which is best applied when direct responsibility can not be established; rather, it has supplanted direct responsibility and has become the dominant theme in the field of state liabilities.
On September 12, 2001, the U.N. General Assembly adopted a resolution calling for international cooperation to prevent and eradicate acts terrorism and stressing that those responsible for aiding, supporting or harbouring the perpetrators, organizers, and sponsors of such acts would be held accountable. On the same day, the Security Council adopted the Resolution 1368, emphatically prompting all States to work together urgently to bring to justice the perpetrators, organizers and sponsors of attacks. Sixteen days later, the Security Council adopted Resolution 1373, a land mark document in the modern Counter terrorism campaign. Although Resolution 1368 recognized the international rights of individual or collective self defence, Resolution 1373 additionally reaffirms the need to combat by all means, in accordance with the charter (of the U.N) threats to International peace and security caused by terrorist acts. These Resolutions signal a departure from Previous Security Council Practices and consecrated the international communities new found obdurate will in combating terrorism.
The strongest case which can be made against the Taliban is that it failed to prevent a terrorist act from emanating from its territory and it refused to stop harbouring al Qaeda elements. The U.N. Security council has frequently deplored the continued use of Afghan territory for the sheltering and training of terrorists and accused the Taliban of perpetrating egregious violations of international law. In Resolution 1373, the council decided that all States must refrain from providing any form of support, active or passive to terrorists and must deny safe haven to those who finance, plan, support or commit terrorist acts. These claims had also been made in other contexts, especially for the purpose of justifying retaliatory use of force or self-defence against a host state. Consequently, commentators have recognized the right to use force in such circumstances:
“This clearly confirms the right of a victim state to treat terrorism as an armed attack and those who facilitate and harbour terrorists as armed attackers against whom… military force may be used in self defence”.
Although it is inherently difficult to analyse the collective history of terrorism and reprisals, such as the Arab-Israeli situation, to isolated events such as the 9/11 attacks or the more recent train bombing in Madrid, however, both the Beirut and Sinai incidents can be analogized to the U.S-Afghanistan situation because in each case the attacks were instigated by irregulars and launched from a third partly host States. The Security Council rejected Israel’s plea of self defence and Lebanon eventually relocated the PLO irregulars to Tunis. In contrast the Security Council permitted the U.S. action in Afghanistan. This difference in the application of the International is difficult to explain but illustrate the scuff within the international community from a model of direct responsibility, focus on effective or overall control to one of indirect responsibility. In other words, the argument presented by Israel in 1982 did not resonate well with the International community. In 2001 the Taliban provided safe haven to members of al Qaeda, a very similar factual situation which engendered an unprecedented level of approval for retaliatory recourse to force. The war in Afghanistan (titled Operation Enduring Freedom) not only gathered significant support for the Security Council but also from other high profile International bodies. For instance the North Atlantic Treaty Organization (NATO) support the right to collective self defence and found that the Taliban had harboured Osama Bin Laden and al Qaeda. The Organization of American Nations followed suit, recognizing the United States right inherent to self defence and referring to the appropriate provision in the “Inter-American Treaty of Reciprocal Assistance.” The United States also received vast support from many other prominent government bodies.
One could also seek to explain the Security Council’s different attitude to the United States’ 9/11 response on grounds of State sovereignty. At the heart of this dilemma is the question whether a host State that cannot effectively thwart terrorist activities emanating from its territory, or has lost control over the region where the basis of terrorist activities is located, should be required to allow foreign forces to enter its territory and repress the terrorists’ threats. In 1982 the Security Council allotted great weight to Lebanese sovereignty. Clearly, even under International law, the target to any reprisals has to be shown to have committed a prior delict so that, without proof of delictual conduct on the government of Lebanon the Security Council was uninclined to accept Israel’s plea of justification. But with the 9/11 attacks, the situation was different, the world has come to recognise the need to change old legal notions to deal with new threats of terrorism. It is perhaps fair to say that the underlying legal terms found in Nicaragua and Tadic are now obliterated from the equation, save in clear cases of direct state involvement in terrorist activities. Thus even with sovereignty as a factor, the security council’s acquiescence in the U.S. strike on Afghanistan can best be explained as a concrete affirmation of the indirect responsibility paradigm in response to a global changing order. Indeed it is now an accepted practice for an injured State to accuse a host state of not preventing excursions into the former state territory. Most importantly, as a direct consequence of finding another state responsible for terrorism, the aggrieved state can use force to restore peace and security in most cases. Although traditionally addressed as a law enforcement problem, it is now clear that International terrorism will often necessitate some sort of military response.
The new paradigm is not without problem of its own, however. In the past, the Security Council had often rejected the idea of collective guilt, the lumping together of terrorist and the states in which they base their operations, along with a finding of a responsibility solely based on a state’s harbouring of terrorists. In the cases were the council found a host state responsible on that basis, it often condemned the reaction of the aggrieved state as disproportionate. Prof. Bowett implies that this may have been due, in part to the Council’s reluctance to assume ‘that the territorial State assumed responsibility because it had the power to prevent these activities’. Bowett claimed that it is probably unrealistic, based on argument of size and capacity of host states, to expect countries like Jordan and Lebanon to effectively thwart all terrorist operations within their territory. These concerns demonstrate the complexity of the new legal paradigm. For instance, if we expect that Lebanon can not effectively thwart terrorist activities within its own territory because wide spread guerrilla activities, what exactly do we expect it to do? Based on the logic of Resolution 1373, we would have to require it to forego its sovereignty and allow foreign forces in its territory to suppress the terrorist threat.
An effective anti-terrorism campaign will require a substantial straightening of the international regime of state responsibility or a significant degradation of State sovereignty. This later opinion will prove temporarily adequate to address concerns with regards with ineffectiveness of States as the harbouring of terrorists by a host state has sometimes been equated with relinquishment of sovereignty, or at least, with the exercise of a state function that is deeply incompatible with the cardinal principles of sovereignty. However an increase in state responsibility seems far better suited to the current state of International law and is the most effective way to empower a global counter terrorism campaign while upholding some fundamental of the International legal orders.
Therefore, giving the international communities will to eradicate Terrorism, coupled with the security council’s emphatic condemnation of terrorist acts and its resolve to eliminate threats to peace and security “by all necessary means, I personally think that it is imperative to rethink the underlying tenets of direct responsibility and move to a more sincere doctrine of strict liability. Although it is important to address the substantiality of the host State’s obligation to prevent terrorist attacks emanating from its territory it is more important to note that most wilfully blind nations do so because of benefits which they get from terrorist operations.
7. SUMMARY, RECOMMENDATION AND CONCLUSION
Owing to globalization and the rapid industrial and technological developments which the world has witnessed since the 20th century, ascertaining the level of support which a nation gives to terrorists had become very difficult and the age long doctrine of direct responsibility had become clearly inefficient. The question ‘should states be strictly liable for failing to prevent transborder terrorism’ which once had ‘NO’ as its ready answer now has ‘YES’ as its obvious answer. Strict liability is undoubtedly today’s law and nations must endeavour to ensure that their territories do not become functional launch pads from which terrorist acts are initiated against other nations.
Like the drink manufacturer who has exclusive knowledge of the means and items of production a nation is in the best position to decide how to order his environment and safeguard it. In a situation where he cannot do it alone, he is free to call up international agencies and other willing nations to aid it. The reason for the strict liability doctrine is mainly because a nation which had through genuine efforts and struggles ensured that its territory is terrorist free or counter terrorism loaded would have been unfairly cheated if his efforts were to be rubbished by external attacks launched from nations who have turned wilfully blind to terrorist activities emanating from their territory.
The events of 9/11 in the United States presented a perfect example of this situation because the Taliban government of Afghanistan allowed their territory to be used as an effective launch pad against the United States causing the loss of lives and property worth Billions of dollars thus crystallizing the move toward the doctrine of strict liability.
Having a peaceful global future in view, we must strive to identify probable ways of making progress in our anti terrorism crusade. I wish to make the following suggestions as probable ways of achieving global peace:
(1) As one of the bases of Religious terrorism lies in the continued problem of Israeli-Palestinian co-existence, there is a need to resolve this problem. Since 1958 when the Israeli’s defeated the Arab brotherhood in a battle which lasted 7 days, it had continued to hold unto Jerusalem which it claims is its biblical capital and so many other territories which it captured during the war. This the Arab world sees as a slap in the face. As a solution to this problem I would recommend that there should be an even sharing of the conflict areas. While Israel should be given Jerusalem which occupies a fundamental position in its history and inalienable from its person, they (Israel) should withdraw from territories which it currently occupies as a result of conquest during the 1958 war. This would include the ever contentious Gaza strip as a necessary sacrifice in a bid to achieve long lasting peace in the Middle East. On the other hand Palestine and all other Arab nations should recognise Israel as a sovereign nation because the nation had been recognised by the U.N.
(2) Also nations of the world in a bid to overcome terrorism must continue to enact anti-terrorism laws prohibiting and punishing terrorism in their various municipalities. Africa and nations of the Middle East would be relevant in this regard. These nations had indeed not excelled in the field of counter terrorism. While in Africa today, no nation has more than one anti-terrorism law, the Arab nations of the Middle East all have none. This explains the reason way these two places represent the base of most terrorist organisations and the launch pad of most transborder attacks. I suggest that these nations should join the rest of the world in creating a perfect legal framework for counter terrorism.
(3) As the world play host to many different religion with more springing up everyday all must learn to live in harmony appreciating the right of others to worship in their own peculiar ways. None should term the other infidel or start up a Jihad against another.
(4) Again the continued existence and capacity of nuclear materials posses a risk to the security and continued existence of the world. While nations continue to dread the possibility of terrorists getting hold of these weapons of mass destruction, one can’t help but wonder what the nations who have it in their possession intend to do with it. Whether it be in the hands of U.S. or in the hands of Iran the potential capacity of this instrument of terror coupled with its effect on Hiroshima and Nagasaki continues to terrify the global community. Therefore I suggest that the world’s nuclear energy should be channelled into industrial and technological developments but not warfare.
(5) Anti-terrorism laws should also be backed up by anti-narcotics, anti-money laundering and smuggling laws. This is because with the inclusion of terrorism in the list of crimes of international concern it has become difficult to sponsor it directly. Therefore terrorist organisations now resort to these illegal means of money transfer in their bid to circulate finances to their branches.
(6) The United Nations and other international organisations should cooperate with true Islamic organisations to spread and propagate the true Islam. This has become necessary following the rapid growth of extremism in that religion. For example while organisations like the Nigerian Supreme Council for Islamic affairs (N.S.C.I.A) and the Assembly for Moslems in Nigeria (A.M.I.N) had disassociated themselves from the actions of Farouk Umar Abdulmutallab, organisations such as the Alqaeda had praise his actions as being heroic and worthwhile.
(7) With the constant growth of Cyber Terrorism, nations should engage themselves in multiple storage of data. If this is done, Cyber Terrorists who might not have access to all these different systems were information is stored would be discouraged as destroying information and data in one system knowing that the same information is stored in several other places would discourage them.
(8) Convicted terrorists should be rehabilitated and recruited into the anti-terrorism system. This is because they would have useful information and knowledge of how terrorist groups operate. Being themselves products of terrorism, they would be able to suggest helpful ways of checkmating terrorists and frustrating terrorist recruitments.
(9) All nations of the world most especially the super powers must learn to obey the decisions of the I.C.J and other international tribunals. This would go a long way in insuring international equity while playing down warfare as a means of settling international disputes.
Understanding the phenomenon Terrorism in the 20th century requires an appreciation of how networks operate. Terrorist organisations are now perfectly organised and every monumental structure in the world is a possible target of terrorist’s world wide. In response to this, states had created a verity of policies to combat terrorism. Though the battle seems far from its conclusion, to say it has been lost would be telling a lie. The struggle continues, the watch word is ‘BELIEVE’, both in ourselves and in our cause. THIS IS A CLARION CALL.
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