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THE FIGHT AGAINST TERRORISM UNDER INTERNATIONAL LAW: A CRITICAL APPRAISAL By Ajah C. Ogbu

The war on Terror goes on. I was most impressed by the resolve of all the leaders in this room, and their resolve is as strong as my resolve. We will not yield to these people. We will not yield to the terrorists. We will find them, we will bring them to justice. And at the same time, we will spread the ideology of hope and compassion that will overwhelm their ideology of hate1 1 INTRODUCTION On the 11th September, 2001, the entire human race woke up to be served with the undesirable dose of a horrifying tragedy the terrorist attack on the United States of America destroying the twin towers of the World Trade Centre, a partial destruction of the pentagon and Pennsylvania leaving in its toll about five thousand human beings dead. claimed responsibility. A terrorist organization, Al-Qaeda Network

LL.B(Hons) LL.M,Ph.D,BL,Director of Research, National Judicial Institute, Abuja L Mr. George W. Bush, President of United States of America on the Terrorist bombings in London on 7 th July, 2005, See Saturday Champion of 16th July, 2005. p. 38

On the 7th July, 2005, the world was also served with another spectre of terrorists bombings in the cities of London leaving several people dead. An Islamic Organization, Al-Kalar, claimed

responsibility and posted in its website the following words a blessed raid in London had been carried out by the heroic Maijahadeen. There was also terrorists bombing of a train in Madrid Spain in March 2004, leaving about two hundred (200) persons dead. Terrorists bombings in Casablanca, Morocco, in 2003 left over a dozen persons dead. There were terrorists attacks in the following countries Bali, Indonesia on 12th October, 2002. Kikambala and

attempted Missile attack on an airliner in Mombassa, Kenya on 28th November, 2002, the bomb attack in Bogota on 7th February, 2003, hostage taking in Moscow, Russia on 23rd October, 2003, terrorists bombings in Egypt 2006, Train bomding in Bombay, India, 2006. everyday in Iraq from March, 2003 till date, one terrorist bombing or the other is recorded. All these attacks always go with lots of human lives losses. It is as a result of the above scenario that the jolted world has declared war on terrorism and each state has been mandated to put

proper counter-terrorism measures in place and to co-operate with other countries of the world in fishing out the terrorists, and their financiers and have them face justice. Terrorism has grown in profile in recent times for a combination of reasons. It is certainly not a new form of behaviour. The use of violence against non-war targets to achieve political, economic and social advantages dates back as far as history itself. The term

terrorism has its origin in the State terror instigated during the French Revolution the arrest and execution of political targets and dissenters in order to secure oneself as the new and legitimate government. Since the end of the old cold war, and the emergence of the USA as a policeman of the world with U. K. as her ever ready ally, the targets have become more disparate, the causes greater in number and the weapons have become more dangerous and indiscriminate. Somewhat paradoxically, terrorism is often both

decentralized and composed of highly organized networks. Faced with this obvious danger, democratic states face real problems in maintaining their security and the safety of their citizens without cutting too far into the human rights of their citizens. The

international element of terrorism has expanded as barriers between

states have been removed by globalization and the terrorists now take action both against those whom they harbour grievance and neutral third party states and their citizens e.g. by hijacking an aircraft to create an international pressure to accede to their demands or in order to draw media attention to their cause. The events of 11 September, 2001 have thrown the threat posed by terrorism into sharp focus and showcased the inefficacy, inefficiency and total impotence of the existing international measures to counter these acts of random or targeted violence. As a result states, (most especially Europe and the United States) have embarked on an aggressive war against terrorism. Some of the

strategies adopted by these states, though well intentioned, have been weighed in the scale of laws of human rights and have been found wanting. In the fight against this evil called terrorism, there is every need to exercise caution so that human rights of citizens will not be sacrificed on the alter of the fight against terror or under the pretext of doing so.

WHAT IS TERRORISM? Twelve International conventions relating to terrorism have

been adopted within the United Nations context, and several others by the regional and municipal organizations. One lacuna in these various instruments is the absence of a clear and unanimous definition of terrorism. In fact, during the negotiation of the treaty establishing the International Criminal Court in Rome, one reason why terrorism was not included as a crime against humanity (which is one of the offences under the jurisdiction of that court) was due to lack of agreed definition of the term2. In criminal law, motivation of the actor is generally irrelevant. The motive for doing an act does not necessarily determine the legality of the act. If one has the right to do an act that the motive for doing that is bad will not affect its validity or legality. Similarly where one lacks the right to do an act, the purity of the motive or magnanimity of the act done will not alter the legal consequences. See Dr. Ben O. Chukwumah Vs. Shell D. C. of Nig. Ltd.3 However, in the case of terrorism, it is the defendants motive that converts his domestic criminal liability into an international crime.
2

Claire de Than et al International Criminal Law and Human Rights (London. Sweet & Maxwell 2003) p. 235. 3 (1993) 5 SCNJ 1 at 47, See also Mayor of Bradford vs. Pickles (1895) A. C. 587.

He may be liable for aggravated offences in domestic law on the basis of terrorists motive and he will have his rights curtailed more than would haven been the case if he was not suspected of a terrorist offence. In the U. K. for instance, a person suspected of a terrorist offence spends more time in detention than other persons not suspected of terrorist offence. Attempts to create binding In

international law principles criminalizing terrorism are not new.

1937 the League of Nations adopted a convention for the creation of an international criminal court ostensibly as an anti-terrorism measure, but the convention never came to force since it failed to attract sufficient signatures and eventually World War II set in. Article 1(2) of that Convention defined terrorism as : Criminal acts directed against a State and intended to or calculated to create a state of terror in the minds of particular persons, or a group of persons or the general public. The danger with that definition is the possibility of criminalizing the activities of freedom fighters or people fighting against state oppression and would therefore conflict with the right to selfdetermination.

However, after the events of September 11, 2001 the mood and nuances of the international community changed, giving impetus to a broader definition of terrorism. But the requirement that the act must be directed against a state have the tendency of excluding some acts of extreme violence which do inflict terror but are either directed against the world in general or a group within a state or undirected in nature. This prompted Cherif Bassiounu to define terrorism as an: ideologically motivated strategy of internationally proscribed violence designed to inspire terror within a particular segment of a given society in order to achieve a poweroutcome or to propagandize a claim or grievance irrespective of whether its perpetrators are acting for and on behalf of themselves or on behalf of a state.4 The International Law Commission defined terrorism to include: (i) Any act causing death or grievous bodily harm, or loss of liberty to a head of state, persons exercising the prerogatives of the Head of State, their hereditary or designated successors, the spouse of such person, or persons charged with public functions or holding public positions when the act is directed against them in their public capacity; (ii) Acts calculated to destroy or damage public property or properties devoted to public purpose; (iii) Any acts likely to imperil human lives through the creation of a public danger, in
4

Cherif Bassiounu: Legal Responses to International Law: United States Procedural Aspects (1988).

particular the seizure of aircraft, the taking of hostages and any form of violence directed against persons who enjoy international protection or diplomatic immunity; (iv) The manufacture, obtaining, possession or supplying of arms, ammunition, explosives or harmful substances with a view to the commission of a terrorist act.5 It is our view that the above definition by the ILC is broad enough to even cover coup plotting and if this view is accepted, it then means that coup plotting have assumed the status of international crime. As events have shown, terrorists are becoming more inventive and more effective and their acts so discreetly unpredictable.

However, the above definition has its own deficiencies. Not all terrorists incidents involving planes are adequately labeled as hijacking or hostage taking. Random killing of ordinary citizens without use of explosives or guns should surely be a terrorist act if its motivations are fear-inducing or ideology related. Claire De Than and Edwin Shorts 6 suggested that an acceptable and workable half way position could be for the I.C.C. to adopt a new offence of terrorism with a broad, general definition
5 6

See also the definition of terrorism in the U. K. Terrorism Act, 2000. Ibib at p. 235

along the lines of the current U. K. definition, and a non-exclusive list of examples incorporating the existing terror related international crimes. With due respect to the learned authors, the crime of terrorism is not within the jurisdiction of the court. However, if any acts by whatever name called falls within the definition of crime against humanity under Article 7 of the Rome Statute of the International Criminal Court; the court can assume jurisdiction and punish the act as a crime against humanity but definitely not as a terrorists act. The call on the I. C. C. to fashion out a definition of terrorism is calling on the court to do what it is forbidden to do and would further engender the fear of over politicization of the court. On the 9th December, 1994, the U. N. General Assembly adopted a Declaration On Measures to Eliminate International Terrorism in the annex to Resolution 49/60. The Declaration stated that terrorism includes: Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes7

See Digest of Jurisprudence of the U. N. and Regional Organizations on the Protection of Human Rights while Countering Terrorism (New York office of High Commissioner for Human Rights, 2003). P. I.

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The declaration further went ahead to declare that such acts are in any circumstances unjustifiable whatever the

consideration of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them. We are of the view that the above definition covers the field. That forecloses the door of any terrorists claiming that he is fighting a jihad and basing his claim on the Quranic injunction as contained in Sura 9.58 or Surra 4.75,9. According to an Islamic writer, Prof. Said Mahmoudi10 In the jargon of international mass media, the concept of global jihad now refers mainly to the activities of Islamic terrorist groups. These activities have generally been classified as terrorists acts and their targets have in many cases been civilians. Almost all terrorists acts in the past few years e.g. in Bali, Casablanca, Istanbul and Madrid, have been attributed to Islamic groups, which have claimed that their struggle is a jihad, primarily against the U. S.

Suraq 9.5 declares as follows slay the pagans wherever you find them, and seize them, belgeaguer them and lie in wait for them in every strategem (of war). 9 Sura 4. 75 declares And why should you not fight in the cause of Allah and of those who being weak, are ill-treated (and oppressed)? Men, women and children, whose cry is Our Lord! Rescue us from this town, whose people are oppressors, and raise for us from thee one who will protect and raise for us the one who will help. 10 Said Mahmoudi The Islamic Perception of the Use of Force in the contemporary world. Journal of the History of International Law volume 7 No. 1, 2005 pp. 55 68 at 62.

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According to the Learned scholar, The use of jihad by nonstate groups be it religious or purely militant, normally falls outside the purview of International Law11. He therefore concluded that: when jihad is invoked by individuals or groups, its legality is an issue for the national laws of those states where such groups reside or act. It is, first, the national laws of those states that should determine whether the call is a peaceful one or a call for terrorist activities in the name of jihad, which should be outlawed and prevented12. The same thing can be said 0f the activities of the militant groups in the Niger Delta area of Nigeria and the Boko Haram sect in Northern Nigeria. No matter the reason they may provide to justify their actions, they remain terrorists organization and their activities are terrorists activities and are punishable both under the municipal laws of Nigeria and under international law. The question will then arise Does the definition offered by the U. N. Declaration conflict with the right to freedom of Religion and conscience? The answer is obviously No. As was stated above by Prof. Said Mahmoudi, the jihads as proclaimed by the terrorist group, falls outside the purview of international law. Similarly, the definition does not in any way affect the right to self-determination of
11 12

Op cit p. 62 Op cit p. 63

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oppressed groups fighting for their liberation using the Legal method as prescribed by international law. Borrowing the words of Lord Mansified in the case of Jones Vs. Randall (1744): whatever is contra bonos more et decorum our law prohibits and the Kings Court as the general censor and guardian of public manners is bound to restrain and punish. Terrorist acts by any group no matter their reason can never be in the interest of the world community and as such are supremely condemned and should be punished. As has been stated by Prof. Said Mahmoudi, though terrorism has assumed the status of international crime yet, the quality of its criminality should be adjudged by the municipal courts where the actors reside or where the acts are committed. In the words of Lord Atkins in the case of Proprietary Trade Association Vs. A. G. of Canada13 The criminal quality of an act cannot be discerned by intuition nor can it be discovered by any reference to any standard but one. Is the act prohibited by penal consequences thus the domain of criminal jurisprudence can only be ascertained by examining what acts at any particular period are declared by the state to be crimes and the only common nature they will be found to possess is that they are prohibited by the state and that those who commit them are punished.
13

(1931) AC 310 at 324.

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Flowing from the above is the understanding that what constitutes terrorism can be garnered from the regime of international law and of the municipal laws of the respective countries on the subject. 3. THE FIGHT AGAINST TERRORISM The crime of Terrorism have not been properly developed both by customary and statutory international law. Every new terrorist

attack evokes an equally new response of a different dimension. The Tokyo Convention of 1963, Hague Convention of 1970 and the Montreal Convention of 1971 were all responses to the spate of aircraft hijackings of those periods. As at now there are many

international legal instruments dealing with different aspects of terrorism. These are: The Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons Including Diplomatic Agents (New York, 1973) which in Article 2 provides that: The intentional commission of: a murder, kidnapping or other attack upon the person or liberty of an internationally protected person; a violent attack upon the official premises, the private accommodation or the means of transport of an internationally protected

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person likely to endanger his person or liberty; and a threat to commit any such attack; an attempt to commit any such attack; an act constituting participation as an accomplice in any such attack; shall be made by each state party a crime under its internal law. The internal criminal law of every state prohibits murder, kidnapping or other attack upon any person or his property and punishes any body who commits, or attempts or participates in the commission of the crime and the offence of murder being a capital offence is the biggest offence known to law in any state and carries the most grievous punishment. In most commonwealth countries, the offence of murder is punishable with a sentence of death. The victim need not to be an internationally protected person, the victim could even be a madman, a lunatic, a citizen or non-citizen but every person within the borders of the state is entitled to his or her right to life and anybody who deprives him or her of that right unlawfully will be accordingly dealt with. This convention have not created anything new but can only be said to be declaratory of the existing law. If this offence is committed in armed conflict, it is a war crime.

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The International Convention Against the Taking of Hostages (New York 1979), which in Article I provides that any person who seizes or detains and threatens to kill or injure or to continue to detain another person in order to compel a third party, namely, a state, an international organization, a natural or juridical person or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the person seized or detained, commits the offence of taking hostage under the convention and any person who attempts or participates in committing the offence of hostage taking is also guilty of the same offence under Article 2. In Nigeria, militant groups in the Niger-Delta area who had been involved in hostage taking especially of expatriate and indigenous workers of the various oil companies operating in the area were granted amnesty the Government of Nigeria. The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (Rome, 1988), which provides that;

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Any person commits an offence if that person unlawfully and internationally seizes or exercise control over a ship by force or threats thereof or any other form of intimidation; or performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship; or destroys a ship or causes damage to a ship or to its cargo which is likely to endanger the safe navigation of that ship; or places or causes to be placed on a ship, by any means whatsoever, a device or substance which is likely to destroy that ship, or cause damage to that ship or its cargo which endangers the ship or is likely to endanger the safe navigation of a ship; or destroys or seriously damages maritime navigational facilities or seriously interferes with their operation, if any such acts is likely to endanger the safe navigation of a ship; or communicates information which he knows to be false, thereby endangering the safe navigation of a ship; injures or kills any person, in connection with the commission or the attempted commission of any of the offences set forth in subparagraphs (a) to (f).14 International Convention for the Suppression of Terrorists Bombings (1998). This convention came into effect on 23 May, 2001, (six months before the September 11, 2001 attack on U.S.A) and provides for the measures to combat terrorism and for the prosecution of terrorists. Article 2 of the Convention provides that:

14

See Article 3(1)

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Any person commits an offence within the meaning of this convention if that person unlawfully and internationally delivers, places, discharges or detonates an explosive or other lethal device in, onto, or against a place of public use, a state or government facility, a public transportation system or an infrastructure facility. With intent to cause death or serious bodily injury; or with the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss. Attempts, participation or organization of such an activities are also offences15. The penalties prescribed by municipal laws for these offence must reflect the severity and grievous nature of the offences. The convention was in force when the Al Qaeda terrorists group bombed the twin Tower of the World Trade Center in U.S.A. in 2001, another Terrorists group bombed train and public transport system in London in July 2005 and quite recently the terrorist bombings in Mumbai India in November 2008 in which more than one hundred and seventy four persons were reported dead. arrests have been made both in India and Pakistan.16 International Convention for the Suppression of the Financing of Terrorism (1991) which provides that a person commits in offence if he; However, some

15 16

See Clair de Than et al. Op.cit p. 240. See Guardian Newspaper, Tuesday, 9 December, 2008. p. 11.

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by any means directly or indirectly, unlawfully and willfully, provides, collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carryout: An act which constitutes an offence within the scope of and as defined in one of the treaties listed in the Annex; or Any other act17 After the September 11 bombings in the United States several persons were arrested. Five of the suspects have confessed to the crime of terrorism. The four suspects are: (1) Khalid Sheikh

Mohammed, a Kuwait, who confessed to being responsible from A to z for the attacks on the U.S. He was captured in Pakistan in 2003. (2) Ramzi Binalshibh, a Yemeni who is the coordinator of the attacks and was supposed to be one of the hijackers but was unable to get a U.S.A. visa.

17

Article 2(1).

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The other two are the financiers of the terrorist attacks on U.S. i.e. (1) Mustafa Ahmad al Hawsawi, a Saudi Man and one of the two key financial people used by Mohammed Sheikh to arrange the funding for September 11 hijackings; (2) Ali Abd ali-aziz Ali also known as Amar al-Balochi who is a key lieutenant to Mr. Mohammed, his uncle; and the last one Walid Bin Attash a Yemeni who has confessed to master-minding the bombing of the American destroyer U.S.S. Cole in Yemen in 2000 and also involved in the U.S. bombing of 2001. Their confessions were made before a Judge of the

Guantanamo Bay Military Tribunal.18. On Wednesday, 27 February, 2008, a court in Spain sentenced twenty (20) Islamic radicals to prison terms of between five and fourteen years for belonging to a terrorists group, the Al Qaeda network. They were arrested in 2004 several months after the Madrid Train Bombings of March 11, 2004 which killed one hundred and ninety-one people and which Al-Qaeda claimed responsibility.19 Also in Australia, a jury in the Victoria State Supreme Court found a Moslem cleric and five of his followers guilty on 15 September, 2008 for planning to stage a violent jihad in Melbourne,
18 19

See the Guardian Newspaper, Tuesday, 9 December, 2008 p. 11 See Vanguard, Friday, February 29 2008. p. 17, Spain Anti-terrorists Court Convicts 20 Islamic radicals.

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Australia in 2005 to force Australia troops out of Iraq. The group had planned to plant bombs in the venue of the final March of the Australian Football League to be attended by Ninety Seven Thousand fans but could not do so after the group were individually arrested from their homes.20 In September, 2008, the Al-Qaeda terrorist group killed twelve Mauritanian Soldiers in an ambush at the Eastern part of Zonerat, close to the border with Western Sahara.21 The activities of the

terrorists are nefarious and multidimensional. Apart from bombing, they also hijack both air crafts and ships. That gave rise to the

adoption of both the Tokyo Convention on Crimes and Other Acts Committed on Board Aircraft of 1963 (The Tokyo Convention) which came into force in 1969 and ratified by more one hundred and fortyseven states; the Hague Convention For The Suppression of Unlawful Seizure of Aircraft 1970 and came into force in 1971 and provides for the most efficient and effective means of dealing with offenders, and provides in Article 2 that each state party undertakes to make the offence punishable with severe penalties. 22 provides thus:
20 21

Article I

See, THISDAY Newspaper, Tuesday, September 16,2008. p. 51 6 Guilty of Terrorism in Australia. See THISDAY Newspaper, op.cit p. 50. 22 See Claire de Than et al. op.cit p. 243.

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Any person who on board an aircraft in flight: Unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft or attempts to perform any such act; or : Is an accomplice of a person who performs or attempts to perform any such acts, commits an offence. In the case of UNITED STATES OF AMERICA VS. YUNIS 23 it was held that any person who hijacks aircraft outside the special jurisdiction of the U.S. are liable for criminal punishment provided that the hijacker is later found in the United States and it made no difference how the person came to be in the United even if the person do not enter United States involuntarily but under arrest warrant, because the crime under consideration is one of the crimes so clearly condemned under the law of nations that states may assert universal jurisdiction to bring offenders to justice, even when the state has no territorial connection to the hijacking and its citizens are not involved. The offence of Aircraft hijacking is an extraditable offence. There is also the Montreal convention for the suppression of unlawful acts against the safety of civil aviation adopted in September, 1971 to address the weakness, gaps and deficiencies in both the Tokyo and Hague Conventions. Its definition of the offence is not radically too
23

(NO.3) (1992) ILR Vol. 88 p. 176 at 182.

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different from the two previous attempts, but this time it contains both the mens rea and the various activities that constitute the actus reus. Article I provides thus: Any person commits an offence if he unlawfully and intentionally: performs an act of violence against a person on board an aircraft in flight if that act is likely to endanger the safety of that aircraft; or destroys an aircraft in service or causes damage to such an aircraft which renders it incapable of flight or which is likely to endanger its safety in flight; or places or causes to be placed on an aircraft in service, by any means whatsoever, a device or substance which is likely to destroy that aircraft, or to cause damage to it which renders it incapable of flight or to cause damage to it which is likely to endanger its safety in flight; or destroys or damages air navigation facilities or interferes with their operations, if such act is likely to endanger the safety of the aircraft in flight; or communicates information which he knows to be false, thereby endangering the safety of the air-craft in flight. This convention applies and extends to situations where the aircraft is in service which includes from the commencement of preflight preparations, in flight and up to and until twenty-four (24) hours after the aircraft has landed.24 The case that arose out of this convention was the bombing an U. S. Airliner, Pan-Am Flight 103 at
24

See Article 2(a) & (b).

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Lockerbie in Scotland by terrorists from Libya. That case has been settled out of court between the U.S. and Libyan Government on terms acceptable to both parties after the trial of the suspects at the Netherlands by a special Scottish Court and one convicted and the other one acquitted. Most countries have enacted laws to punish those who commit acts of terrorism or those who finance or aids or abates terrorism. European Union adopted the European Convention for the

suppression of Terrorism in 1977 and it came into force in 1978. the United Kingdom ratified this convention through the suppression of Terrorism Act 1978, but previous to this it had enacted the prevention of Terrorism (Temporary Provisions) Act 1974. A brand new

Terrorism Act came in to force in 2000 and after the September, 11 2001, incident in U.S.A., she enacted the Anti-terrorism, Crime and Security Act 2001 which increased police powers in respect of the arrest and detention of foreign nationals, leading to a derogation from the European convention on Human Rights and a consequent outcry from eminent human rights lawyers and academics.25

25

Claire de Than et al op.cit p. 249.

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We shall now turn to consider the fight against Terrorism in the light of human rights Laws.

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4.

HUMAN RIGHTS AND THE FIGHT AGAINST TERRORISM We condemn utterly these barbaric attacks. We send our profound condolences to the victims and their families. All of our countries have suffered from the impact of terrorism. Those responsible have no respect for human life. We are united in our resolve to confront and defeat this terrorism. It is not an attack against one nation but on all nations and all civilized people every where.26 No one doubts that states have legitimate and urgent reasons

to take all due measures to eliminate terrorism. Acts and strategies of terrorism aim at the destruction of human rights, democracy and the rule of law. They destabilize governments and undermine civil society. States, therefore, have not only the right, but also the duty, to protect their nationals and others against terrorists attacks and to bring perpetrators of such acts to justice. The manner in which the counter-terrorism efforts are conducted however, can have a farreaching effect on overall respect for human rights. Human rights law has sought to strike a fair balance between legitimate national security concerns and the protection of

fundamental freedoms. It accepts and encourages that states must address serious and genuine matters of security such as terrorism.

26

Mr. Tony Blair, Prime Minister of U.K. Speaking on the Multiple bombs attacks in the British capital London on 7th July, 2005. See Saturday champion of 16th July, 2005page 38.

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Human rights law establishes a frame work by which terrorism can be effectively countered without infringing on fundamental freedoms. Human rights law, notably Article 4 of the International Covenant on Civil and Political Rights (I. C. C. P. R.), Article 15 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) and Article 27 of the American Convention on Human Rights (ACHR), recognizes that some rights can be derogated from in time of emergency or other situation threatening the security or life of the nation. The three conventions, however, made it clear that certain rights cannot be derogated from no matter the situation. These are (i) right to life (ii) freedom of thought, conscience and religion (iii) freedom from tortune, cruel, inhuman or degrading treatment or punishment (iv) principles of previous convictions or acquittals and non retroactivity of penal laws (except where the later law prescribes a lesser punishment). Any measures for the derogation from these rights must be of exceptional character, strictly limited in time and to the extent required by the exigencies of the situation, subject to regular review, consistent with other obligations under international law. The UN

Human Rights committee have also compiled a list of rights that

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cannot be subject to lawful derogation in addition to the ones listed in article 4 of ICCPR. These include the requirement that all persons deprived of liberty must be treated with respect to their dignity. Hostage taking, and abduction and unacknowledged detentions are prohibited. Persons belonging to minorities are to be protected, unlawful deportation or transfers of populations are also prohibited; and no declaration of a state of emergency may be invoked as justification for a state party to engage itself in propaganda for war, or in advocacy of national, racial or religious hatred that would constitute incitement to discrimination, hostility or violence.27 It is interesting to note that our own African charter on Human and Peoples Right (ACHPR) does not contain any derogation clause. However, as members of the world community, the scourge of terrorism and guided by the respective laws especially the respective constitutions of each country, certain rights can be derogated from during the period of national strife. The U. N. Security council has adopted a number of Resolutions concerning terrorism. Two of such resolutions

established a framework of action. In Resolution 1269 (1999) the

27

U. N. Human Rights Committee General Comment No. 29 adopted at the 1950th Meeting on 24 July, 2001.

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security council expressed its deep concern over the increase in acts of international terrorism which endangered the lives and well being of individuals worldwide as well as the peace and security of all states, and condemned all acts of terrorism irrespective of motive, wherever and by whomever committed, as criminal and unjustifiable and in particular those which threaten international peace and security. The council then called on the states to co-operate with one another to prevent and suppress terrorists acts, protect their nationals and others against terrorists attacks and to bring to justice the perpetrators of such acts. Resolution 1373 was adopted on 28 September, 2001 following the events of 11 September, 2001. It established new international legal obligations on states to take measures and to co-operate against terrorism. The measures introduced includes (i)

criminalization of the collection of funds for terrorists acts and freezing the assets of terrorists; (ii) refraining from providing any

support to entities or individuals involved in terrorists acts; (iii) preventing terrorists acts through early warning and exchange of information with other states; (iv) denying save haven to terrorists. (v) preventing the states territory from being used by terrorists or

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supporters of terrorists. (vi)

criminalizing terrorists acts and assisting other states in

prosecuting supporters of terrorists; (vii)

prosecuting terrorists and the financing of terrorists acts (viii) preventing movement of terrorists through effective border controls and effective issuance of identity documents, including measures to prevent their forgery, (ix) intensifying and accelerating the exchange of operational information concerning terrorists; (x) refugee status is not abused by terrorists. The resolution also set up the Counter Terrorism Committee (C. T. C) that is saddled with the responsibility of monitoring the implementation of Resolution 1373 and states are required to report to the committee on the steps they have taken to implement the resolution. Following complaints of human rights abuses in the process of fighting terrorism the General Assembly of the U. N. passed Resolution A/RES/57/219 on 18 December 2002 specifically focusing on the need to protect human rights and fundamental freedoms while countering terrorism. It affirmed that states must ensure that any ensuring that

measures taken to combat terrorism complies with their obligations under international law, in particular international human rights,

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refugees and humanitarian law. A resolution with similar approach was also adopted by U. N. Human Rights Committee on 25 April 2003.28 On the 22 November, 2001, the U.N. Committee Against Torture issued a statement reminding parties to the Convention Against Torture, cruel, inhuman or degrading treatment or

punishment of the non-derogable nature of most of the obligation undertaken by them in ratifying the Convention. The committee highlighted the provisions of Article 2 which prohibits torture under all circumstances; articles 15 which prohibits confessions extorted by torture being admitted in evidence except against the torturer, and article 16 which prohibits cruel, inhuman or degrading treatment or punishment, and further stated that these provisions must be observed in all circumstances noting that: whatever responses to the threat of international terrorism are adopted by states, such responses will be in conformity with the obligations undertaken by them in ratifying the convention against Torture29. To show the seriousness of the U. N. on the observance of human rights while fighting terrorism, on the 10 December, 2001 17 special rapporteurs and independent experts of the U. N. Committee
28 29

Resolution E/CN.4/Res./2003/68 at the 59th Session on 25 April 2003. See CAT/C/xxvii/ Misc/ 7 of 22 November, 2001.

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on Human Rights issued a joint statement reminding the states of their obligation under international law to uphold human rights and fundamental freedoms in the context of the aftermath of the tragic events of 11 September, 2001. They warned against human rights violations and measures that have targeted particular groups such as human rights defenders, migrants, asylum, seekers and refugees, religious and ethnic minorities, political activists and the media. On 8 March, 2002, the U. N. Committee on the Elimination of Racial Discrimination issued a statement recalling that prohibition of racial discrimination is a peremptory norm of international law from which no derogation is permitted and requested states and international organizations to ensure that measures taken in the struggle against terrorism do not discriminate in purpose or effect on grounds of race colour, descent or national or ethnic origin. The

committee emphasized that this requirement of non-discrimination must be observed in all areas including liberty, security, dignity of the person, equality before the tribunal and due process of law and international co-operation in judicial and police matters. The U. N. Committee on Human Rights in its General Comment No. 29 highlighted the need to observe the principles of fair hearing, fair trial

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and all the judicial guarantees in all matters relating to the trial of terrorists and their collaborators. It can then be observed that the world community is in total support of the wholesome fight against terrorism but the only thing required of states while doing so is that they must ensure that human rights and fundamental freedoms are not compromised or

jeopardized. The U. N. Human Rights Committee warned that state parties are requested to ensure that the definition of terrorism does not lead to abuse30. In the light of the above discussion one is compelled to question the legality of invasion of Odi in Rivers State and Zakibiam in Benue State by the Nigerian Army. In the said invasions, lives and property were lost all in the name of suppressing terrorism. The force employed by the Federal Government of Nigeria in these two towns are excessive. It was as if these two towns were marked for

extermination. In the fight against terrorism, only the terrorists should be targeted, civilians lives should not be taken. Collateral deaths should be curtailed or totally avoided.

30

Resolution CCPR/CO/75/NZL para. 11 (2002) See also Resolution CCPR/CO/76/ EGY Para 16 (2002); CCPR/CO/75/MDA para. 8 (2002); CCPR/CO/75/YEM, para. 18 (2002); CCPR/CO/75/YEM, para. 18 (2002); CCPR/CO/73/UK, para. 6 (2001). See also KLASS or Ors Vs. Germany ECHR 6 Sept. 1978 (para. 49).

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In the case of Suarez de Guerrero vs. Colombia31 the U. N. Human Rights Committee stated that right to life is protected by law and no one shall be arbitrarily deprived of his life. Similarly in Ergi Vs. Turkey32 the European Court on Human Rights held that a State must take all feasible precautions in the choice of means and methods of Security operations mounted against an opposing group with a view to avoiding and in any event, to minimizing incidental loss of civilian life. As to the issue of prolonged detention, the U. N. Human Rights Committee observed in General Comment No. 2033 that prolonged solitary confinement in itself may constitute a violation of the right to freedom from torture, cruel, inhuman or degrading treatment. In Tomasi Vs. France34 the European Court on human rights held that: The requirements of the investigation and the undeniable difficulties inherent in the fight against crime, particularly with regard to terrorism, cannot result in limits being placed on the protection to be afforded in respect of
31 32

Case No. 45/1979 views adopted on 31 March, 1982. ECHR 28 July, 1998; See also Sense Onen Vs. Turkey ECHR 14 May, 2002; McKerr vs. U. K. ECHR 4 May, 2001. 33 See CCPR/C/79/Add. 93 para. 20 (1998) 34 ECHR, 27 August 1992 (para. 115). See also Ireland vs. the U. K. 18 January 1978 (para. 167) where the European Cout of Human Rights has made it clear in its judgment that even members of the Irish Republican Army, convicted of acts of terrorism remained protected by the terms of the European Convention for the Protection of Human Rights and Fundamental Freedoms particuarly the right to a fair trial and the ban on the use of torture.

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the physical integrity of the individuals. Similarly, in the case of Pulay Campos Vs. Peru35 the petitioner was detained in communicado from the time of his arrival at the prison in Yanamayo until his transfer to Callao Naval Base detention center. The U. N. Human Rights Committee opined that this condition amounted to violation of Article 10 paragraph 1 of ICCPR. Also in Velasquez Rodinques Case36 the Inter-American court on Human rights held that: prolonged inhuman isolation treatment, and deprivation to of the

communication are in themselves cruel and harmful psychological and moral integrity of the person and a violation of the right of any detainee to respect for his inherent dignity as a human being, such treatments therefore violates article 5 of the convention. In the case of Adil Charkaoui Vs. The Minister of Citizenship and Immigration and The Solicitor-General of Canada 37 the Canadian Court of Appeal held that the Detention of a permanent
35 36

Case NO. 577/1994 views adopted on 6 November 1997. 1/A Court H. R. Judgment of 28 July, 1988 (para. 56). See also Fals Borda Vs. Colombia Case No. 46/1979 views adopted on 27 July, 1982 (para. 12.3) O Calan vs. Turkey ECHR 12 March 2003 (para. 106). 37 (2004) F.C.A., Docket A 603 -03 of 10/12/2004

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resident awaiting the determination of the reasonableness of the Security certificate issued against him is not unjustified measure where there is proof of a danger to national security or that he might not appear in the proceedings taken against him.38 According to Chief Justice Richmond in his concurring judgment, Canada has a legitimate and compelling interest in protecting national security. The challenges confronting the government is how best to achieve an equilibrium between the dictates of national security and civil rights39. In contrast, the British House of Lords in A. Vs. Secretary of State for the Home Department40 held that: A non-national who faces the prospect of torture or inhuman treatment if returned to his own country, and who cannot be deported to any third country and is not charged with any crime may not be detained here even if judged to be a threat to national security. In the case of Al-Nashif Vs. Bulgaria41 the European Court on Human Rights maintained that:

38 39

At paras. 121, 122, 130, 132 per Decarry and Letourneau JJ, of December 10, 2004. ADIL vs. MIN. OF CITIZENSHIP (Supra) at paras. 149 152. 40 (2004) U.K.H.L. 56, Dec. 16, 2004. 41 ECHR 20 June 2003 (para. 123 124). See also Hamdi Vs. Rumsfield 124 S. Ct. 2633 (June 28, 2004 and Rasul Vs. Bush, 24 S. Ct. 2686 (June 28, 2004) on the right of U. S. detainees to contest their classification as an enemy combatants before a judge or other neutral decision maker. For a General discussion on treatment of U. S. detainees at Guantanmo Bay, Cuba, See the American Journal of International Law Vol. 99 No. I (January 2005) page 261 262. 27a See HAMDI vs. Rumsfield, 124 S. Ct. 2633 (June 28, 2004). Rasul vs. Bush 124 S. Ct. 2686 (June 28, 2004). 27b American Journal of International Law Vol. 999 N.O.J. January 2005 page 261.

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The individual must be able to challenge the executive assertion that national security is at stake. While the executives assessment of what poses a threat to national security will naturally be of significant weight, the independent authority must be able to react in cases where invoking that concept has no reasonable basis in the facts or reveals an interpretation of national security that is unlawful or contrary to common sense and arbitrary. It is also expected that persons accused of terrorism shall be accorded the right to fair hearing. This requirement received judicial affirmation in the case of Castillo Patruzzi et al42 when the interAmerican court on Human Rights held that the guarantees to which every person brought to court is entitled must be not only essential but also judicial and that means active involvement of an independent and impartial judicial body having the power to pass judgment on the lawfulness of the measures in a state of emergency. From the discourse, there is no doubt that the world is no longer prepared to toy with the rights of the human beings, the threat or scourge of terrorism notwithstanding. Human Rights are

inextinguishable no matter the circumstances. However in the case of KLASS VS. GERMANY (1978) 2 EHRR214, telephone tapping
4227c p

Neil A. Lewis, General Takes Three Officers off Tribunal at Cuba Base, New York Times Oct. 22, 2004 page A20. 1/A Court H.R. Judgment of 30 May 1999. See also Media Rights Agenda Case Comm. NO. 224/98 14 th Annual Activity Report 2000 2001 (paras. 59 62).

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was held to be allowed as necessary and proportionate in response to the threats posed by ever more sophisticated methods of spying and terrorist activity. derogated from. In the case of PHILIP VS. U. K. ECHR, July 5, 2001, The European court on Human Rights held that only those who have their assets seized or frozen under suspicion of terrorism can raise the issue of right to property. A state in response to a terrorist attack may wage war against the terrorist group and the state that is harbouring them. That was the situation that forced the United States led Allied Forces to attack the Taliban government of Afghanistan for granting save haven to the Al Qaeda terrorist group from where they planned and launched an unprecedented attack on the United States. India and the U. S. A. are presently accusing Pakistan of harbouring the Decca Mujahideed terrorists groups who bombed Mumbai India killing more than one hundred and seventy four people in November, 2008. However, in such a fight as between the offended state and the terrorist group, the law is that the terrorist are not combatants and if captured are not treated as P.O.Ws but can only be treated The Right to private life was therefore

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humanely. As for the offended state and the state harbouring the terrorists, they are legal combatants and if captured, they are entitled to the P.O.W.s status. There have been suggestion by some writers that some terrorists, especially those who obey the rules of war, should be accorded prisoners of war status43. Larry May, maintained that what is required is fine-grained and not rough-grained determination. According to him other terrorists, such as the Red Brigades, or the ETA (Euskadi Ta Askata Suma), try to stay within the bounds of those rules by, for instance, phoning first before bombs are detonated so as to give civilians the chance to be evacuated 44. Our quarrel with the classification of terrorists into good and bad is that it lacks basis. We have not heard of any terrorists groups that attacked the military formations except perhaps the slight torching of the pentagon during the September 2001, terrorists attack on the U.S.A. Some of these terrorists are not fighting to stay alive. They die in the process. Take the case of suicide bombers, they attack civilians. Their main targets are the civilians. They are not fighting any wars because wars
43

See Larry May op.cit p. 308 We have no good reason to think that terrorists are all alike or that they think of themselves as enough like other terrorist, that treating them humanely in one case will mean that other terrorists will be more likely to commit mayhem some terrorists engage in indiscriminate violence and others do not. It is not at all clear that both groups should be treated the same way and that the way to treat them both is by suspending the rules of war. 44 Ibid.

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are not fought by or against civilians. If they want to be treated as P.O.Ws on capture they should declare war and undertake to be bound by the laws and customs of war. They should fight only

combatants, they should wear uniforms and carry their arms openly and not wear bombs and go to civilian restaurants and bars, and civilian transportation systems and expect to be treated as combatants. In most terrorists attacks the terrorists combatants always die, so nobody is alive to be captured. The people who may be captured are the financiers or kingpins. In the Mumbai terrorist attack in India, it was civilians that were killed not members of the Indian military forces. However, we submit that national authorities should try to distinguish between insurgents and terrorists, the two are not the same and should be treated differently. What has happened is that in some countries, the national authorities treat insurgents or guerilla fighters as terrorists. They are not terrorists, international law

recognizes them as belligerents and they should be treated so. The terrorists when captured are only entitled to humane treatment and guaranteed further protection by the laws and customs of war. According to Green L.C:

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Those who might claim to be covered by the Geneva Law, and for some reason or other are denied such protection, would nevertheless, be protected by the general principles of human rights law, the whole content of which is based on humanitarian principles45.

5. CONCLUSION
In conclusion, we are of the opinion that States in their respective measures to combat terrorism should not in the process compromise human rights of the citizens. This calls for extreme

caution so that while the fight against terrorism should be intensified and unabated, human rights should not under any guise be compromised or jeopardized. If that happens, anarchy and doom will be unleashed, thus bringing humanity back to the dark ages of brutalism and barbarism.

45

Green L. C; Relevance of humanitarian law to Terrorism and terrorists; In John Carey et al (ed.) International Humanitarian Law: Prospects. (New York Transnational publishers Inc. 2006) p. 38 at p. 23.

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