Terrorism, self-determination and IPOB

Upon the motion ex parte of the Attorney General of the Federation (AGF) for and on behalf of the government of President Muhammadu Buhari, the Federal High Court, Abuja, proscribed the Indigenous Peoples of Biafra (IPOB) as a terrorist organisation. Already, matters have arisen out of the step taken by the government, including important procedural matters as to whether the government can sue IPOB as a body, lack of fair hearing in the ruling, and the propriety of an interim injunction despite repeated warnings against it by the office of the Chief Justice of Nigeria (CJN), the legitimacy of the relief sought, amongst others. But this piece is on the propriety of declaring IPOB a terrorist organisation. Specifically, it disagrees with the executive declaration and judicial affirmation of IPOB as a terrorist group.

Since 911 terrorist attacks which shook the political and economic edifices of the U.S., states have increasingly risen over and above the aphorism that one man’s terrorist is another man’s freedom fighter to decisively rein in on acts of terrorism. Typically, terrorists act like gangsters, rogue groups, mobsters, outlaws or anarchists and seek to actualise their goal by indiscriminately attacking the persons and property of their targets with dangerous weapons. Specifically, such attacks may take the form of bombings, assassinations, armed assaults, kidnappings, and hijackings, as a means to the end of realising their dreams.

In view of terrorists’ indiscriminate, wanton and atrocious waste of lives and property, a U.S. judge in Flatow v. Islamic Republic of Iran (999 F. Supp. 1, 23, D.D.C. 1998) observed that “terrorism has achieved the status of almost universal condemnation, as have slavery, genocide, and piracy, and the terrorist is the modern era’s hostis humani generis – an enemy of all mankind.” With the exception of the rare cases of one-man terrorist, terrorists usually operate under the umbrella of a terrorist organisation.

Despite its vagueness, terrorism is not without context or definition. As known in contemporary times, terrorism emerged from the Reign of Terror in the aftermath of the French Revolution orchestrated by Maxmilien Robespierre in 1793, wherein the lives of the enemies of the revolution were wasted in order to stabilise the country. Although states still perpetrate terrorism, non-states actors have dominated the field of operation, including ISIS, Al Quaeda, Al Shabaab and Boko Haram.

Notwithstanding the absence of definitional consensus, there appears to be a general agreement on the adoption of the International Convention for the Suppression of the Financing of Terrorism 1999 as an authoritative definition of terrorism. Article 2 (1)(b) of the Convention defines terrorism as any “Act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organisation to do or to abstain from doing any act.”

In state practice, states are, for the purpose of law and order, legitimately expected to make legal provisions against any group that prides itself on the indiscriminate destruction of lives and property in order to achieve its parochial ends. And by their nature, terrorists everywhere in the world employ violence as their primary tool of engagement.

However, states’ freedom of action to maintain law and order within their domain through the prohibition of acts of terrorism is limited by their international obligation to respect the right of a group genuinely agitating for freedom on the basis of the principle of self-determination.

Generally speaking, a people’s (ethnic nationality’s) right to self-determination means their right to choose or pursue their own socio-economic, cultural and political development. According to Prof. Friedlander, it is the right of a people to shape their own political, economic, and cultural destiny. Self-determination finds legal expression in the UN Charter 1945 and UNGA Declaration (Res. 1514) on the Granting of Independence to Colonial Countries and Peoples 1960. It is noteworthy that Common Article 1 of the International Covenant on Civil and Political Rights (ICCPR) 1966 and the International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966 specifically provides for self-determination as follows: “All peoples have the right of self-determination.

By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” Likewise, Article 20(1) of the African Charter on Human and Peoples’ Rights 1981 provides thus: “All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.”

Notably, the right to self determination is one of the few rights in customary international law that have evolved into norms of jus cogens, norms from which derogation is impossible.

But there are two diametrically opposed views on the contemporary status of the right to self-determination. One view holds that because self-determination was developed within the context of decolonization, it was meant strictly for those who were under the yoke of colonialism and that the locus of any people to invoke the right terminated with their attainment of statehood. Thus, in Katanga v. Zaire, the African Commission rejected Katanga’s Peoples Congress which sought to, inter alia, secede from Zaire. The Commission’s decision was also actuated by the obligation to uphold the sovereignty and territorial integrity of Zaire on the basis of the principle of uti possidetis.

Dr. Igbinedion, senior lecturer, Department of Jurisprudence and International Law, Faculty of Law, University of Lagos.However, the other group insists that because it was developed during the struggle against colonialism does not inevitably or inexorably lead to the conclusion that the right vanished with the collapse of colonialism. The group argues that state practice sufficiently demonstrates that states recognize the right of peoples or groups in existing states to self-determination.

According to Professor Nanda, the right of self-determination extends beyond the colonial context while Prof. Collins maintains that it is only political exigencies that tied the right of self-determination to the apron string of colonial territories. Furthermore, John Humphrey (former head of the Human Rights Section of the UN), said that the UNGA in its Declaration of 1960, intended the word ‘peoples’ to extend beyond the colonial context. Notice that the African Charter on Human and People’s Rights of 1981 does not tie the principle down to colonial context. What do we make of this?

The conclusion of the matter of both polar opposites is that in contemporary times where colonial enterprises have largely been liquidated, there has been a paradigm shift from self-determination in the realm of inter-state relations to internal self-determination within the context of intra-state relations. Prof. Oyebode connects the two by stating that although the principle of self-determination as known in international law has been overtaken by the event of the attainment of statehood by colonised peoples, the principle has been practically replaced by the right to the development of the constituents making up the independent state.
To be continued tomorrow.