Nationality of crimes in our global village

FOLLOWING the Xmas day abortive attempt by Nigerian-born Farouk Abdul-Mutallab to blow up a Detroit-bound U.S. Delta Airline, a lot of water has passed under the American bridge. Amidst taking other precautionary and remedial measures, the U.S. has enlisted Nigeria into its extant list of terrorist countries including Yemen , Afghanistan , Algeria , Iraq , Lebanon , Libya , Pakistan , Saudi Arabia and Somalia . As a Nigerian, I share the sentiments of most of my compatriots who rightly consider the American offensive or defensive, as the case may be, to be unfair, arrogant, hasty, premeditated and highhanded. In assessing the propriety of U.S.’ re-branding of Nigeria , it is necessary to call to service the jurisprudence of criminal law on the one hand and of international law on the other.

In every civilised legal system, the sacred injunction to the effect that the soul that sinneth shall die translates into the requirement to punish offences and offenders based on the principle of individual responsibility. This principle upholds the autonomy and human rights of the individual. It is patently evil and illegal to engage the responsibility of A or ABC for the acts of commission or omission of X or XYZ, and vice versa. But criminal law perspective is not generally shared by international law – the law that regulates the relationship amongst states and international organisations and, to a limited degree, individuals. In contrast with the former, the latter is predicated on the principle of collective responsibility, that is, for the offence of one or a few citizens of State A. State A and the entirety of its citizens can be sanctioned – a primitive feature that constantly brings international law into disrepute. Thus, because Abdul-Mutallab is a Nigerian national, the collective responsibility of Nigeria and Nigerian citizens must be engaged.

The principle of nationality in a global village deserves some re-examination. It must be admitted that global villagisation has boosted the capacity of citizens from particular states to form alliances with various transnational or international non-State Actors (NSAs) established to advocate and execute causes bordering on the good, the bad, and the ugly. This development has considerably undermined the ability of national states to mould the behavioural pattern of their nationals. In the extreme of cases, their allegiance to these NSAs may supplant their loyalty to the countries of which they are citizens. The executors of 911 terrorist acts subordinated their patriotism to their commitment to Al Qaeda. Ditto for some U.S. citizens who hold extremist views favourable to the terrorist movement. Abdul-Muttalab is no exception. But his conduct is out of character with that of the average Nigerian. He lost his Nigerianness in his fidelity to the cause of Al Qaeda. A Nigerian is a survivalist; he may kill another but he surely would not simultaneously kill others and himself. Some lessons for the U.S. intelligence community!

However, it is worth noting that resort to collective responsibility is a default mechanism. In other words, collective responsibility is exacted only where individual responsibility fails. In the Lockerbie bombing incident of December 21, 1988 – that claimed a total of 270 lives – two Libyan citizens (Ali al-Megrahi and Khalifah Fhimah) were suspected of complicity. The failure of Libyan authorities to surrender the suspects for prosecution triggered United Nations’ sanctions. The sanctions were lifted upon Libya ‘s ultimate surrender of the suspects. UN-backed action against Libya was justified on the ground that the country’s conduct was an attempt to undermine the individual responsibility of the two-some. In Abdul-Muttalab’s case, individual responsibility is alive and well. The suspect was arrested and is custody in the U.S. In fact, his prosecution has commenced therein. Nigeria has not acted the way Libya did. Neither is there any evidence linking the Nigerian State to the sponsorship of terrorism or attesting to its reluctance to co-operate with U.S. investigators.

Nigerians the world over are embarrassed and scandalised by the accused’s conduct. So, why is the U.S. making a trend out of the single and isolated event, opening the floodgates for humiliating frisking of Nigerian travellers around the world? Or is it just another round of pre-emptive strike? That took U.S. forces to Iraq in 2003 in search of Weapons of Mass Destruction (WMD) but after seven years of carnage and destruction, with no WMD found, the ‘coalition of the willing’ is vegetating in Iraq .

Despite the legal reality of collective responsibility, it must be noted that modern international law provides for human rights protection of the individual the crux of which is the recognition of the individual responsibility. Moreover, modern international criminal law recognises individual criminal responsibility because, according to the International Military Tribunal (IMT) for Nuremberg in 1946, it is only by so doing that the provisions of international law can be enforced. U.S.’ arrest and prosecution of Abdul-Muttalab is consistent with international law. But its blacklisting of Nigeria lacks basis in international law and in logic.

Some commentators have argued that the U.S. is right to have so red-flagged Nigeria because Nigeria’s house is in disarray. They further contend that the country’s classification was long overdue since it is home to many terrorists in the guise of corrupt, irresponsible rulers and religious fundamentalists. Though acknowledging their brilliance in adapting the mantra of terrorism to label our misbegotten rulers, I disagree with them. However right it may be for anyone to castigate Nigeria for its seeming mismanagement of its affairs, we must not fail to realise that the country remains a sovereign State. If the U.S. is dissatisfied with the way Nigeria is administered, it has to express itself diplomatically. It does not lie within its powers to use the Abdul-Muttalab opportunity to vent its sentiments on all Nigerians. Afterall, in 1993, it had the chance to help Nigeria ‘s democracy but it lacked the courage. Yet it was the arrowhead of the coalition of states that united under the auspices of the UN to wrest power from the Haitian military junta for the benefit of the democratically elected president, Bertrand Aristide.

Notwithstanding its global influence, U.S. should understand that its problems are not necessarily world-wide problems. Truth is that terrorism is not as problematic to Nigeria as it is to the U.S. In fact, in a world where one man’s terrorist is another’s freedom fighter, terrorism is not even an international crime. Thus, at the Rome Conference in 1998, efforts to extend the jurisdiction of the International Criminal Court (ICC) to include terrorism failed. But, with the September 11, 2001 monumental bloodletting in terrorist outrage, it is understandable why combating terrorism requires international cooperation. However, the integrity of such cooperation is threatened when the U.S. acts the big stick-wielding old headmaster with a mission to whip the pupil into line.

The United States should note that Nigeria equally has its peculiar problems such as poor leadership, docile followership, and endemic corruption for which it should not blame any other country including the U.S. – despite the complicity of the latter’s financial intermediaries in the laundering of the proceeds derived from corruption committed in former. The U.S. should not take for granted Nigeria ‘s empathy for its apprehension over terrorism.

By Dr. Simeon Igbinedion (Department of Jurisprudence and International Law, University of Lagos)