The Sowetan (Johannesburg)
Robert W Eno
2 October 2001
opinion
Since the United States terrorist attacks, the world has been gripped by fear, insecurity and uncertainty as threats loom of an American attack on Afghanistan. Analysis so far has been centred on the reaction of the US, predicting a protracted war with the Taliban-led government of Afghanistan.
Little has been said on what this single act could do for humanity, human rights, international insecurity and democracy.
The immediate casualty following the attack on the US is the restriction of personal freedom and civil liberties. Security has been tightened up all over the world. This will inevitably be accompanied by stereotyping and racial profiling. Arabs and persons of Arab descent will be associated with certain acts.
This will expose them to checks, arrests and surveillance. They will be subjected to harassment in places of work, streets, schools, public buildings and other social gatherings. The attacks will lead to a tightening of immigration laws especially in the West and will inevitably heighten the already high xenophobic sentiments in parts of the Western world.
Many people in and outside America have linked the terrorist attack to exiled Saudi millionaire Osama bin Laden. There has been speculation of an imminent attack on Afghanistan, which shelters him.
Any attack of Afghanistan will worsen the human rights situation of the vulnerable Afghans as the uncertain atmosphere will give the dictatorial Taliban regime the opportunity to continue its senseless violation of the human rights of ordinary people.
The people who already feel betrayed by the international community will have no recourse either against their government, the United Nations or the
US. This will bring to doubt the universality of the values and principles expounded by the UN.
The vulnerability of the UN and the fragility of the international human rights regime will also be exposed by the September 11 event. It also reveals the UN's unpreparedness in the face of a crisis involving non-state actors such as terrorist groups.
The US has said it does not intend to consult the UN in its reaction to the attack. UN secretary-general Kofi Annan could only appeal for proper investigation before any action. This shows how powerful countries like the US can ignore the UN and act unilaterally.
The US did this when it attacked Sudan and Afghanistan in 1998 after attacks on its embassies in Kenya and Tanzania. The US and Britain have also, without consultation with the UN, carried out air raids on Iraq.
It also brings into play the international law principle of proportionality. Would an attack on Afghanistan, a sovereign state recognised by the UN, in order to capture bin Laden and dismantle his al Quaeda organisation be regarded as proportionate to the US terrorist attack?
The principle of proportionality holds that a state's application of a unilateral countermeasure in response to an unlawful action must be proportionate to the unlawful act in terms of the countermeasure's effects and objectives.
This entails that countermeasures can only be taken against the offending state, and indirect and unintended consequences for other states and individuals must as far as possible be avoided or minimised.
Article 49 of the International Law Commission's Draft Articles on State Responsibility provides that "countermeasures taken by an injured state shall not be out of proportion to the degree of gravity of the internationally wrongful act and the effects thereof on the injured state".
Article 50 places an absolute prohibition on certain forms of countermeasures such as those that will cause "extreme economic or political coercion designed to endanger the territorial integrity or political independence" of the victim state or which entail conduct that "derogates from basic human rights".
The present situation provides a complicated debate in international law. First, America was not attacked by a state and would find it difficult to have a "proportionate" countermeasure against a non-state actor.
Second, America has been focusing its artillery on a war against a country believed to be harbouring a non-state attacker.
Millions of Afghans have fled their homes and are at the border with Pakistan for fear of an attack. The political coercion and military manoeuvre have seriously undermined the territorial integrity of Afghanistan.
The US action also derogates from basic human rights norms as hundreds of Afghans are dying without food because humanitarian organisations have left the country due to the US threat of attack.
The US attack will probably open the way for a harmonised international law to deal with terrorism. Currently the UN recognises terrorism, like piracy and hijacking, as an international crime, but many of its member states do not have laws dealing with terrorism.
In South Africa, for example, any terrorist act would be charged under malicious damage to property or action occasioning serious bodily harm if there were no deaths because the country is still in the process of adopting such a law.
The harmonisation of laws at international level would call for collaboration and solidarity to ensure their effective implementation. In this regard, the international community can move fast to bring the Statute for an International Criminal Court into force.
The court will have jurisdiction to bring to justice perpetrators of genocide, crimes against humanity and war crimes in cases where the national courts of the country with custody of the suspect are unwilling or unable to do so. Other crimes such as international terrorism, piracy and hijacking would fit into this category.
Ironically, the US and Israel were opposed to the setting up of such a court and have not signed the Rome Statute.
Granted that the Taliban accepts that Osama bin Laden be tried, they would not hand him to the US for trial because they would not expect him to get a fair trial there.
The Taliban would be more willing to extradite him to a neutral venue where there is plurality of judges and a built-in atmosphere of confidence with the application of international rather than national law.
The attack has given the world an opportunity to seek collective security and examine ways of how to deal with non-state actors.
(The writer is executive assistant to the chairman of the SA Human Rights Commission and writes in his personal capacity.)
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