FEATURE ARTICLE

Friday, November 13, 2020
chyinaho@yahoo.com

THE ELITE COMMANDOS RESCUE OPERATION IN NIGERIA: A BREACH OF ARTICLE 2(4) OF THE UNITED NATIONS CHARTER?

n American, Philip Walton 27, was abducted in Niger Republic. Taking advantage of porous Nigerian border, his kidnappers took their victim to Nigeria. It was alleged that the CIA did assist in intelligent gathering of Walton’s whereabouts. It was also alleged that Marine Special Operation Elements locate the spot he was kept, paving the way for the US Elite Seal Team Six to carryout a commando style rescue operation of Walton.

It was a dangerous rescue operation embarked upon in a foreign soil. There was, according to reports, no recorded casualty or fatality on both the Elite Commandos and the hostage. However, the hostage takers lost five, out of six abductors to Elite Commando’s gunfire. President Trump and the Pentagon Chief spokes person tweeted and lauded the rescue operation and promised to re-enactsuch rescue operation elsewhere in the world.

Opinions pertaining to the rescue operation in Nigerian soil differ sharply, and these differences have a great impact on our evaluation of the US rescue operation within the geographical territory called Nigeria. A group of Nigerians tonguelashed their president for lacking the same zeal exhibited by President Trump. This group questioned whether President Buhari will ever be willing to initiatea rescue operation of a Nigerian citizen, the same way President Trump did, taking into consideration that nationals of a state are the most important of its constitutive elements. They argue that President Trump seems to have absorbed the philosophy and views that protection of one’s nationals abroad as a patriotic and heroic act that demand execution, hence he helicoptered the Elite Commandos to carry out the rescue action.

The argument or concern of other Nigerians revolve around territorial violation of Nigerian soil, This group uphold that the US exceeded bounds by entering Nigerian soil forcefully in the execution of its rescue operation, One Nigerian twitted: “So the American military can now conduct rescue operation in the soilof Nigeria.” His concern, in actual fact, constitutes the major reason for writing this short note. Another Nigerian was blunt in saying: “Buhari, you are allowing foreigners to commit sacrilege in Nigeria wide and violating our Nigerian sovereignty ...”. The concerned Nigerians were alluding to Article2{4) of the United Nations Charters which prohibits the use force in international relations: “Prohibits the use of force and call on all Members to respect the sovereignty and territorial integrity and political independence of other states.”

Basedon the same Article 2(4) it becomes important to pose another query as to whetherthe US forceful intrusion into the Nigeria soil, in its rescue operation is legally justified or whether it infringed Art. 2(4) of the UN Charter. Should this accusation be brought before the UN General Assembly? The US might claim that it went into Nigerian territory to protect or rescue its citizen, taking advantage of Article 51 of the UN Charter. Article 51 has this to say: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations ….” Art 2(4) of the Charter, which prohibits the territorial in violability of each member state does not condemn such an act because such action is “neither directed against the territorial integrity or political independenceof a state, nor is it inconsistent with the purpose of the UN.”

Furthermore, based on the UN’s General Assembly’s 1970 Declaration of Principles of Friendly Relations, which should be viewed as the most authoritative assertion on Art 2(4), there is no implicit or explicit comment that protection of nationals constitutes an act that violates Art 2(4). Based again on this assertion, the Elite Commando’s rescue operation of an American national held hostage inside Nigerian territory cannot be argued to have constituted a violation of Art.2(4), but could be analysed within the context of self defense, bearing in mind that self defense is not only limited to one’s territory, but has been expanded to embrace one’s citizens resident abroad, particularly when lives of such victims are in grave danger of brutal massacre. The US therefore, would appear entitled to pursue the right of protection by use of force as the Elite Commandos havedone. The action of the US to rescue its citizen in Nigeria is not the first of its kind. There are abundant instances when foreign powers have used force to protect their nationals trapped abroad. In 1956, Britain justified its participation of the Anglo-French invasion of the Suez on the basis of protecting their nationals. Defending their actions in the emergency meeting of the General Assembly in the same year, contented that the military intervention in Egypt was not aimed at the sovereignty of Egypt and did not infringe Egyptian sovereignty, but was there to protect and evacuate it citizens trapped afterthe closure of the Suez Canal by president Abel Nasser of Egypt.

Againin 1960, during the Congo war, Belgium ordered troops to move into Congo for the purpose of protecting the lives of its citizens and those of other Europeans. Like Britain, Belgium also argued that its action had no political objective, and therefore, should not be misconstrued as an aggression against Congo.

The US used similar argument to defend its military intervention in the Dominican Republic in 1965. And in 1975, the US combined attack with landing of 200 marines to secure the release of the American merchant vessel called ‘Mayague’ and its crew from detention by the Cambodian authorities in Cambodian territorial waters.

Israel equally landed paratroopers at Entebbe Airport in Uganda to rescue crews and passengers and passengers including many Israelis, of an Air France aircraft hijacked on a flight from Tel Aviv en route to Paris by Popular Front for the Liberation of Palestine.

On 24 April 1980, the US made unsuccessful attempt to rescue the Americans, including diplomats, who were held hostage in the US Embassy in Tehran. Responding to the Security Council on the issue, the US claimed that it exercised its legitimate right of self defence with aim of extricating American nationals, who had been, and remained the victims of Iranian armed attack on its Embassy. The US further stated that it acted in accordance with Article 51 of the UN Charter to protect and rescue its citizens who, the government of the territory in which they were located `was unable or unwilling to protect them.

It should therefore, be known that the legal protection that every state enjoys from the international law or the UN Charter is crafted only to protect it or safeguard it from what could be called ‘legally unwarranted acts’, The fact that a territory is declared inviolable does not bestow it with any immunity from ‘legitimate act of violence’. In sum, no national territory, including Nigeria, would therefore be legitimately be protected from legitimate forcible action undertaken unilaterally or authorized by the UN.

However, Article 51, which is crafted for self-defense can a[so be grossly abused, thereby infringing Article 2(4). The military intervention of Tanzania infringed Uganda’s sovereignty. Tanzania defended itself for acting in self-defence to expel Ugandan forces that had occupied the Tanzanian territory of Kagara in 1978, and to prevent their reincursion. When analysed within the international law, Tanzania acted in self-defence and did not violate Article 2(4) of the UN Charter by the use of force. What can be seen as an infringement in Tanzania’s action was that it could have withdrawn its troops after expelling Idi Amin forces from its occupied soil. Instead, Tanzania allied with the Ugandan National Liberation Front (UNLF) in the bringing down Idi Amin’s regime that was noted for its extraordinary barbarism and genocidal policies. Even though many Ugandans enjoyed the fall of Idi Amin and had expressed their gratitude to the Tanzanian government, in the face of international law on Article 2(4) of the UN Charter the Tanzanian forces exceeded bounds in the exercise of Tanzanian self-defence.

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