New dimensions of Israeli-Hamas War: Reciprocity, IR2P and relocating US troops to Nigeria, by Prof Bola Akinterinwa

The ongoing war between Israel and the Palestinian Hamas is witnessing new dimensions: unprecedented painful impacts at the national, bilateral, and international complicity in the inapplicability of law. At the national level, the United States is the first victim to be challenged by pro-Palestinian protests at the University of California. The protests started from the University of California and have spread across several other universities in the United States. The support for the Palestinians has garnered much support internationally, and prompted the organisation of pro-Israel protests in the United States. In short, a political lull has been created which is threatening Joe Biden’s election chances in the November 2024 presidential elections.

At the bilateral level, Turkiye announced on Thursday, May 2nd, 2024 the severance of its trade ties with Israel. The Istanbul authorities said they would not resume trade with Israel until there is a permanent ceasefire and enablement of humanitarian aid in Gaza. And true enough, Turkiye is an important trading partner of Israel with about $7 billion worth of bilateral trade. While Turkiye is considering the deepening situation of human sufferings in Gaza, Israel is raising the issue of Turkiye’s non-compliance with the rule of pacta sunt servanda, that is, disregard for the sanctity of their trade agreements. In the words of Turkiye’s President, Tayyip Erdogan, Turkiye cannot be idle in light of ‘Israeli bombardment of defenceless Palestinians.’

As regards politics of law and law of politics, the International Court of Justice (ICJ) made it clear on 26 January 2024 that it would not rule on South Africa’s plea to order Israel to stop its military operations in Gaza. However, the ICJ required Israel to enable access to international humanitarian aid to the internationally-protected civilian populations. This is quite interesting because many countries, like Germany, United Kingdom, and France, are supplying arms to Israel with which Israel is committing war and genocidal crimes. Nicaragua took Germany to the ICJ on the matter. Colombia and Turkiye want to join South Africa’s case. Yet, the ICJ refused to rule on it. This was politics of law more than law of politics. 

The New Dimensions, Reciprocity and IR2P 

The aforementioned new dimensions necessarily raise two critical principles of international law: principle of reciprocity and international responsibility. The action of South Africa, by going to the ICJ, the decision of the Government of Nicaragua to take Germany to the ICJ, etc. are legitimate expressions of application of reciprocity. Besides, there is no reason why the international responsibility of Israel shouldn’t have been raised for its recidivist violations of humanitarian law. 

True, reciprocity can be positive or negative in character. In international economic relations, it is generally positive, especially in terms of the most-favoured nation clause or treatment which requires that signatories to an accord should give the ‘most favourable tariff and regulatory treatment given to the product of any one Member at the time of import or export of “like products” to all other Members.’ Explained differently, the most-favoured-nation clause is the ‘status conferred by a clause in which a country promises that it will treat another country, as well as it treats any other country that receives preferential treatment.’ This founding principle of the World Trade Organisation is not what we are focusing our attention on in this column. 

Reciprocity in its negative sense is what is at stake in the management of the quest for peace in Israel and Gaza. Reciprocity is applied on the basis two other principles: retorsion and reprisal. Reciprocal retorsion involves the use of diplomacy and never the use of force, while reciprocal reprisal involves the use of force. Therefore, the understanding of reciprocity in the context of Israeli-Hamas war should be done in its appropriate context. In doing this, it should be noted that there cannot be an act of reprisal without the existence of an initial offending act. 

Put interrogatively, is the declaration of an Israeli genocidal war on Gaza an act of reciprocal reprisal? Does the war fall under the purview of a legitimate self-defence? In whichever way the answers to these questions are conceived, there can be no disputing the fact that reciprocity is a major factor in the prolongation of the Israeli-Hamas war. In the eyes of the Israelis, the October 7, 2023 attack by the Hamas militants was unprovoked. Besides, the killing of about 1200 Israelis during the attack and also taking hundreds of people into unwanted hostage were considered unacceptable. This was what prompted the Benjamin Netanyahu government to resolve to completely wipe out the Gaza of Hamas militants in all its ramifications.

Most unfortunately, Netanyahu’s perspective ignores the background to the October 7 Hamas attacks. There is no disputing the fact that since the 6-Day war in 1967, the war between the Israelis and the Palestinian Arabs has never been ended. Battles have been ended. The 1966 battles were concluded. So were the battles of the Yom Kippur in 1973 but the war was never ended. The 1973 war was therefore a prolongation of the 1966 war. At the end of every battle, the Israelis have always imposed the policy of military occupation of the newly acquired territories. Additionally, and perhaps most disturbingly, the Palestinians have been continually mistreated, particularly in terms of living standards. This is one major dynamic of the continuation of the war as at today.

And true, it is the cumulative effect of the bad treatment suffered under the Israelis who were taking Palestinian land and settling themselves on it that apparently led to the frustration of the Palestinians. International law prohibits military occupation of territories acquired by use of force following war. It was when the frustration of Palestinian Arabs appeared to have reached its crescendo that the Hamas militants opted to be more militarily confrontational and to damn the consequences by responding to the Israeli occupation of their land on October 7, 2023. In this regard, can it not be rightly argued that Palestinians have engaged in reciprocal reprisal? Can it not also be posited that Palestinian Hamas reciprocated the double-standard policy attitude towards the conflict before the October 7 attack?

For instance, is it not very shameful for Member States of the United Nations Organisation to be preaching the sermons of democratisation and good governance, on the one hand, and doing the contrary, on the other hand? The United States is an internationally acknowledged ally of the Israelis in the commission of Israel’s war crimes and genocide. United States wants to be a credible mediator but has partisan interest. International law does not allow for partisanship as a mediator. The big powers want every country to democratise but refuse the democratisation of the UN system. The P-5 of the UN Security Council want to maintain their right to nuclearisation but refuse the same right to others. The dirtiness of the politics of the Israelo-Hamas conflict is to the extent that Israel is openly, but indirectly, encouraged to engage in genocidal crimes, and for that matter, with international impunity. 

This point raises the question of international responsibility in international law and relations. International responsibility is very critical in the study of international law. In this regard, the principle of classical international responsibility should not be confused with the International Responsibility to Protect (IR2P), the genesis of which is traceable to Canada. IR2P has its own logic and principle. As a logic, it is internationally expected that all Member States of the international community are responsible enough. The enough responsibility is to the extent that the Member States should be able to protect its people from genocide, war crimes, ethnic cleansing, and crimes against humanity. In the event that all these crimes cannot be prevented or consciously condoned, the international community owes it a duty to intervene to stop any further injustice, or unfairness and prompting the sufferings of the people. 

As regards classical responsibility, it is about internationally wronged acts of a State. The Yearbook of the International Law Commission, 2001, Volume Two (Part Two) stipulates in Article 1 of the General Principles that ‘every internationally wrongful act of a State entails the international responsibility of that State.’ More important, ‘there is an internationally wrongful act of a State when conduct consisting of an action of omission is attributable to the State under international law’ (vide Article 2 (a), and ‘constitutes a breach of an international obligation of the State’ (Article 2(b).

What is particularly noteworthy here is Article 4 on the conduct of organs of a State. It stipulates that ‘the conduct of any state organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organisation of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.’ In this regard, an organ ‘includes any person or entity which has that status in accordance with the internal law.’

In the context of the rule of self-defence, Article 21 says ‘the wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations. In the same vein, ‘the wrongfulness of an act of a state not in conformity with an international obligation of that State is precluded if that act is due to force majeure, that is, the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation.’

Relocating US Troops to Nigeria

From the foregoing, to what extent can Israel rightly lay claim to the rule of self-defence in its war on the Gaza of Hamas, and particularly in light of Article 24 on situations of distress and Article 25 on necessity? Can the classical international responsibility of a State, like Israel, be ignored considering the requirement of compliance with peremptory norms of general international law? Article 26 says ‘nothing in this chapter precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under the peremptory norm of general international law,’ (Vide UNGA resolution 56/83 of 12 December 2001 and corrected by Document A/56/49 (Vol. 1), Corr.4

And perhaps more interestingly, in which way will the principles of IR2P and classical international responsibility not be similarly raised in the event of relocation of French and American troops, declared unwanted in Niger Republic, to Nigeria? In other words, in which way will the possible relocation of US troops from Niger to Nigeria not precipitate unprecedented influx of terrorists to Nigeria, and as a result, quickly ending the beginning of President Bola Ahmed Tinubu (PBAT)’s presidential career nationally and internationally? 

We contend here that, based on the past experiences of both the French and the Americans in Niger, in particular, and Francophone West Africa, in general, considering the rationales given by Nigerians for initially rejecting the AFRICOM in Nigeria, and considering the public promise of the French to launch themselves back in Niger, there is no way PBAT will not run into self-destruction, and in an unprecedented manner, if he accepts the relocation of the French and American troops on Nigeria’s soil. Under such a scenario, the issues of Nigeria’s international responsibility cannot but be raised because the current agitations for separation in the country still have the potential to be infiltrated by international terrorists. For various reasons, it is therefore not advisable for PBAT to condone any threats to Nigeria’s political sovereignty under whatever circumstance.

First, the whole international community cannot be relied upon to safeguard Nigerians or help ensure Nigeria’s political sovereignty and national security. Maintenance of international peace and security is largely based on the whims and caprices of the Free Willing States that are solvent enough to fund the UN peace support operations. Put differently, anything that is not in the national interest of any of the P-5 of the UN Security Council (UNSC) cannot work. Collective majority vote is easily neutralised by the use of right of veto. It should be recalled here that, following the vote on UNGA resolution seeking to condemn Russia’s military invasion of Ukraine, majority of African States either refrained from voting or refused to condemn Russia. 

Even though majority of the UNGA members still voted in favour of the resolution, the Joe Biden administration was seriously disappointed that many important and strategic countries were directly and indirectly supporting Russia. As a result, President Joe Biden had to declare that any country that votes against any US foreign policy interest in the future would be sanctioned. At that time, Nigeria voted along with the United States. So no US anger could be recorded against Nigeria in this case. But when a country like the United States, no matter how powerful, can have the effrontery to say whoever votes against US will be punished, then why should Nigeria accept to play host to an American military base? Is it because of the fear of possible punishment that Nigeria’s sovereignty will be sold at a reckless price?

Secondly, one major pillar of Nigeria’s foreign policy is non-acceptance of any foreign military base in Africa, not to mention a foreign military base in Nigeria. The way the United States is serving as a global watchdog in the maintenance of global orderliness and security, Nigeria also operates as the policeman for the protection of Black and African interests. This is consistent with the consideration of Africa as cornerstone of Nigeria’s foreign policy from 1960 through 1976, as from when it was replaced with Africa as centrepiece of Nigeria’s foreign policy. 

Several times, Nigeria’s opposition to French military bases in Francophone Africa has always been explained off by France’s point that she is in Africa on the kind invitation of other sovereign states like Nigeria. In other words, France is pointedly saying that Nigeria should not extend her own sovereignty and influence to the Francophone areas where France enjoys preferential foreign policy treatment. If Nigeria has been consistently opposed to foreign military bases since 1960, is PBAT’s period the appropriate time to change the policy and negotiate Nigeria’s sovereignty on the platter of the euro or the dollar?

In the same vein, the United States had made several efforts to relocate the headquarters of the United States Africa Command (Africom) from Stuttgart in Germany to Nigeria. For various considerations, Nigeria was targeted. Nigeria’s military strength was considered necessary to support the US troops. Nigeria’s geo-strategic location from the perspective of the Gulf of Guinea was also very attractive. All in all, the United States refused to consider the smaller countries in West Africa which showed much enthusiasm to host the AFRICOM when Nigeria rejected the US proposal. In fact, when Nigeria rejected the AFRICOM and the United States did not want to consider countries like The Gambia, the idea of relocation was postponed for ten years.

Three main reasons explained Nigeria’s rejection of the relocation of the AFRICOM to Nigeria. First was the ambiguity surrounding why the Germans wanted the relocation of the AFRICOM from Stuttgart. Why are the Germans no longer interested in hosting the AFRICOM? Secondly, informed foreign policy elite in Nigeria drew attention to the problems of wherever the Americans are located: access to people’s homes are often blocked, and by so doing, preventing the freedom of movement to one’s house. The factor of ex-territoriality of US diplomatic mission is one example. As a result, the ordinary civilians are always hostile to any idea of military base near them. 

Thirdly, any military base of the big powers are always the target of terrorists. Their embassies are always also targeted simply because they are internationally protected by the 1961 Vienna Convention on Diplomatic Relations and by the 1963 Vienna Convention on Consular Relations. It is precisely because diplomatic missions and diplomatic agents are inviolable that terrorists seek to violate them in order to score political points. In other words, the relocation of American and/or French troops to Nigeria cannot but attract the refocusing of attention of the terrorists from the Sahel to Nigeria. In fact, the objective of boko haramism in Nigeria is to put an end to westernisation in Nigeria. Boko Haram is opposed to Western education. They are opposed to Nigeria’s constitution and to Nigeria as it currently exists. And perhaps most disturbingly, Muammar Gaddafi told Nigerians before he was killed by the United States and its allies that Nigeria would not have enduring peace until Nigeria is divided into Muslim North and Christian South. Will this dream of Gaddafi not become a reality if we admit that the relocation of Franco-American troops to Nigeria has the potential to engender more of terrorists to Nigeria? The United States flushed out the Al Qaeda terrorists from Syria and the terrorists came to settle in the Sahel region of Africa. The French and the Americans are fighting tooth and nail the terrorists in the Sahel, but to no avail. In the struggle against the terrorists, they are still forced out of the region. Will the terrorists not continue to pursue the French and Americans in Nigeria? Will Nigeria not become another terra cognita for sophisticated terrorist activities?

Nigeria’s relationship with Niger is the warmest when compared with other neighbours. If Niger opens its doors widely to the Russians and Nigeria similarly condones US military base, will Nigeria be able to manage the implications of the Russo-American geo-political propinquity at her door steps? Already, many people rightly or wrongly see PBAT as a stooge of the West, particularly of France. In the event of acceptance to play host to unwanted US troops in Niger, will the image of PBAT be stronger or weakened? The reality of international politics of the Israeli-Hamas war is such that the life of Palestinians, property of Palestinians, and whatever they represent do not matter. Consequently, for as long as the national interests of the major powers are protected, for as long as the world continues to condone the policy of ‘do what I say and not what I do,’ as espoused by the big powers who all cherish ‘might is right,’ and for as long as global governance will remain largely predicated on unfairness, denial of justice, dreaming of international peace and security cannot but remain a myth. In fact, consciously arming Israel to commit war crimes and genocide in Gaza, and still un-shamefully coming to plead for humanitarian aid for the same Palestinian people, relocating the troops of France and the United States to Nigeria will replicate the Israelo-Hamas saga in Nigeria. Nigeria should not at all contemplate the proposal. It is against Nigeria’s national interest. It is self-defeatist for the giant of Africa. It is most insulting for those who cherish Nigeria’s national sovereignty. It belittles Nigerians that are citizens of Nigeria by ius sanguinis. PBAT must spare Nigeria of future unrest in the country by not attempting to accept any such proposal.