Posts bySamuel Matsiko

United States Visa Applications, Global Magnisky Act & Social Media Montioring in Uganda

United States Visa Applications , Global Magnisky Act and Social Media Monitoring in Uganda

 

By Samuel Matsiko

On 27th August 2019,Ismail Ajjawi a  palestinian student admitted to Harvard University was detained at Boston International Airport, denied entry into the United States and his visa was cancelled. According to a statement issued to the Harvard Crimson by Ismail Ajjawi the immigration officers deported him after they disapproved of his friends political comments on social media. 

In the past few days, several ugandan officials including the  permanent secretary to the judiciary Pius Bigirimana, deputy secretary general of the ruling National Resistance Movement party Richard Twondongo, National Resistance Movement deputy treasurer Keneth Omona, Spokesperson of the National Resistance Movement secretariat Rogers Mulindwwa, Army  General Peter Elewulu and assistant inspector of police Asuman Mugenyi were denied US visas on allegations of corruption and human rights violations.  

This comes weeks after the US Department of Treasury’s Office of Foreign Assets Control sanctioned the former inspector general of  the Uganda police force General Kale Kayihura under the Global Magnitsky Act.The Department also publicly designated his spouse, Angela Umurisa Gabuka, his daughter, Tesi Uwibambe, and his son, Kale Rudahigwa.

However, we need to look way beyond the allegations of corruption and human rights violations and look at the digital footprint of these individuals and their affiliates. What social media data did some of these individual submit during their visa applications? What is their social media inventory including that of their affiliates and superiors for the last five years?  How is social media monitoring shaping domestic and foreign policy? Why we need to pay attention to social media monitoring by Governments.

The United States  federal government agencies in particular the Department of Homeland Security and the Customs and Border Protection Agency have expanded their social media monitoring programs. At the beginning of June 2019 the United States State Department issued a social media policy for all visa applications. The policy requires all visa applicants to submit social media accounts they have used in the last five years including emails and accounts with end to end encrypted messaging applications like whatsapp and telegram.

Such social media account information would give the United States government access to photos, locations, dates of birth,  IP addresses, religious opinions, political opinions and other personal data commonly shared on social media. This would probably make the United States the social media data capital of the world considering the millions of  annual United States visa application

The United States  Customs and Border Protection Agency uses social media monitoring  software. The most notable software is dunami a product of a silicon valley  company PATHAR linked to a CIA venture capital firm called In-Q-Tel. These digital tools were initially designed to determine networks of association and the potential of radicalisation on the war on terror. However the tools can also be  used to collect data points on individuals for foreign policy interests . 

American soft power is declining in a world where the global agenda is shaped by twitter feeds. Two years ago,President Donald Trump’s  budget director, Mick Mulvaney, proclaimed a hard power budget that would have slashed funding for the State Department and the US Agency for International Development. Uganda is beginning to experience this american foreign policy hard power through the Global Magnisky Act.  The United States to deny several senior  ugandan government officials visas after years of mutual  coperation is totally unprecedented. I may not have evidence to substantiate my arguments but the United States must have collected a treasure trove of data points on these individuals and their affiliates to have an evidence based reason to deny them visas.

Uganda with a social media tax regime is a very unique country when it comes to social media. Interesting social media cases include but not limited to city lawyer Fred Muwema v Facebook, Havard Student Hillary Seguya’s suit against  President Yoweri Museveni for blocking him on twitter and Dr. Stella Nyanzi’s conviction for cyber harassment. 

This year the  Uganda Communications Commission a regulatory body hired a social media monitoring personnel and issued a policy for social media influencers to register with the commission. A time has come for Ugandans and the world  to pay critical attention to their digital footprint. Social media is influencing domestic and foreign policy way beyond our likes and shares.

Samuel Matsiko is a lawyer and research fellow at the Amsterdam  Center for International Law

 

Academic Persecution: Independent International Crime or Subject to a Connection Requirement?

Academic Persecution: Independent International Crime or Subject to a Connection Requirement?

Around the world today, Turkey, Hungary , China, Syria, Iran & Uganda, scholars  and academics are attacked because of their words,  ideas and their place in society. Those seeking power and control work to limit access to information and new ideas by targeting scholars, restricting academic freedom and repressing research, publication, teaching and learning.

Scholars ask difficult questions and that can be threatening to authorities whose power depends on controlling information and what people think. When academics are silenced or subjected to self censorship their communities are disadvantaged. Every year thousands of academics across the world are harassed, censored tortured and killed. The persecution of academics has occurred repeatedly in the course of human civilization. Notable examples are the migration of the Greek scholars from Constantinople to Italy, the expulsion of the Huguenots from France , the intelligenzaktion of scientists and academics in occupied Poland and the arrest of Sudanese  biology Professor Farouk Mohammed for teaching evolution.

On 2nd June 2019, I submitted an Article 15 communication to the Office of the Prosecutor(OTP) of the International Criminal Court (ICC). The communication calls upon the ICC to conduct a preliminary examination on persecution as a crime against humanity committed against scholars and academics in Uganda. However, the purpose of this article is not to discuss the merits of the communication but rather to moot the conversation on academic persecution and its place in international criminal law as an independent crime. Is persecution an independent international crime or does it require a connection element?

Article 7(1)(h) of ICC Statute ,Connection Requirement and Ambiguities

The crime of persecution has always been subject to debate and raises fundamental questions.

Is persecution an independent international crime ?

Does the crime of persecution require a connection element?

Article 7 of the ICC Statute in the verbatim states that a crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population,with knowledge of the attack The ICC statute further describes the crime of persecution in (Article7(1)h) :Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court. The statute goes on to  provide that for the purposes of the above : Persecution means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.

The ICC elements of crime provides the following  constitutive elements for the crime of persecution including the mental element as follows:

  • The perpetrator severely deprived, contrary to international law, one or more persons of fundamental rights.

  • The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such.

  • Such targeting was based on political, racial, national, ethnic, cultural, religious, gender as defined in article 7, paragraph 3, of the Statute, or other grounds that are universally recognized as impermissible under international law.

  • The conduct was committed in CONNECTION with any act referred to in article 7, paragraph 1, of the Statute or any crime within the jurisdiction of the Court.

The International Criminal Tribunal for the former Yugoslavia(ICTY) has a measurable body of  jurisprudence when it comes to the international crime of persecution. For example, out of the ninety (90) who to date have been convicted by the ICTY, forty(40) had been charged with the crime of persecution. It is important to note that the crime of persecution was hardly applied in international or national law before the start of the ICTY proceedings. The ICTY case law dealing with the crime of persecution is one of the most important contributions of the ICTY to international criminal law. This body of jurisprudence clearly rejects that the crime of persecution needs to be subject to a connection requirement. The (ICTY), in the Kupreškič case, affirmed that:The Trial Chamber rejects the notion that persecution must be linked to crimes found elsewhere in the Statute of the International Tribunal.

The other dilemma that has emerged is the problematic formulation by the International Law Commission (ILC) work on the proposed crimes against humanity convention. The ILC formulation provides for a rather troubling connection requirement for the crime of persecution with specificity to geneocide and war crimes. Article 3(1)(h) of the Draft ILC Articles reads as follows: Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or in connection with the crime of genocide or war crimes. The chairman of the ILC drafting committee Mr. Mathias Forteau stated in his report that the act of persecution defined in sub-paragraph (h) refers to any act “in connection with the crime of genocide or war crimes” while the ICC Statute refers to “any crime within the jurisdiction of the Court”.

I do argue that the use of the terms “in connection with” is vague, problematic and susceptible to many interpretations and misinterpretations. In sum these ambiguities trigger the need to moot a conversation on the international crime of persecution especially the persecution of scholars and academics and its place in international criminal law. Is it an independent international crime without a nexus to other crimes?If i  were to give the text of the statute its ordinary meaning or interpretation, persecution as a crime against humanity is an independent international crime without the need for a connection requirement. To my knowledge the connection requirement has no basis in international law and was merely a juridictional filter by the drafters of the text.

Scholars like Professor Gerhard Werle in the second edition of his book principles of international criminal law explained that “The requirement of a connection was intended to take account of the concerns about the breadth of the crime of persecution. With this accessorial design, the ICC Statute lags behind customary international law, since the crime of persecution, like crimes against humanity, has developed into an independent crime

Academics and scholars do belong to an identifiable group or collectively because of their scholarship. Perpetrators especially repressive and dictatorial regimes target such person or persons by reason of their identity as a group. The perpetrators often severely deprive, contrary to international law, one or more persons of fundamental rights. It is important to note that the crime of persecution as a crime against humanity is not about numbers, the text of the elements of crimes uses the wordperson or persons”. In Turkey as of 2016 approximately 23,400 academics were persecuted by the Turkish authorities. In Uganda as of December 2018 Dr. Stella Nyanzi was arrested and 45 academics at Makerere university were sacked without due process. The appaling  emergence of  academic perseuction across the globe needs to be viewed from an international criminal justice persective.

In sum the travaux preparatoires among government delegates during the negotiations of the ICC Statute clearly illustrates that the connection requirement was simply a compromise clause and merely a jurisdictional filter. I do believe that the requirement of a connection to other crimes was simply used as jurisdictional filter considering the scope of persecution as an international crime. The unsettled field of international criminal law often tends to create new constituencies that ought to be subjected to further academic interrogation. The need to moot a conversation on academic persecution as an international crime  is not only neccesary it is timely.

Samuel Matsiko is a research fellow at the Amsterdam Center for War Reparations.He is also an early-career investigator and research fellow with the EU Cost ActionJustice360– Global Atrocity Justice Constellations”  . Email:  matsikosam@syrianlegalnetwork.nl.

The Tallin Manual: The Head, Shoulders, Knees and Toes of International Law and Cyber Warfare

The Tallin Manual: The Head, Shoulders, Knees and Toes of International Law and Cyber Warfare

By Matsiko Samuel[1]

The greatest challenge for states and international relations today is the manner and scope of international law’s applicability to cyber warfare and cyber operations. The legal regime regulating cyber operations remains unsettled. International law whether in the form of treaty regimes or customary international law was developed at a time when cyber technology and cyber operations was not a dominant feature of international relations. A group of experts have conducted an ambitious project that comprehensively analyses existing international law and its application to cyber operations. This analysis is published in a non binding document known as the Tallin Manual . This manual  is what I term as the head, shoulders, knees and toes of international law and cyber operations.

What is the Tallin Manual?

The NATO Cooperative Cyber Defence Centre of Excellence, The Embassy of the Kingdom of the Netherlands to the United States and the Atlantic Council on the 8th February 2017 co-organized the launch of the “Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations” This was followed by another launch in the Hague co-organized by the T.M.C.Asser Institute and the Netherlands Ministry of Foreign Affairs on 13th February 2017.

Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations is a predecessor of the 2013 Tallinn Manual on the International Law Applicable to Cyber Warfare. It is important to note the nomenclature of the current manual is a shift from cyber warfare to cyber operations. The 2013 Tallinn Manual is a massive 215 paged document that addresses the current  international cyber security law landscape and architecture. The manual is divided into sections of black letter rules with accompanying commentaries. The first chapter attempts to address issues of state sovereignty, jurisdiction and use of force. The latter chapters raise myriad legal questions from individual criminal responsibility, characterisation of international armed conflict, conduct of hostilities to improper use, perfidity and espionage.

With regard to espionage and the debates on cyber espionage, the second Tallinn Manual raises important legal questions. For example, whether cyber espionage reaching a particular threshold of severity violates international law? Whether one state hacking into a facility of a another state and  holding it as a cyber hostage violates international law?

What would constitute a cyber attack or cyber use of force?

The drafters of Tallin manual were faced with a challenge on the definition of what constitutes a cyber attack or cyber use of force? In rule 11 it is without a doubt they applied the approach articulated in the armed attack context in the Nicaragua Decission by the International Court of Justice (ICJ) . This approach mainly dealt with States but did not address issues of non-state private actors.

The issue of the attribution of international responsibility to States for conduct of a group of individuals within the territory of another State has become a question of control. Therefore if a cyber operation by  Uganda aided and abetted another cyber operation  in Estonia would thatconstitute a cyber attack? .However we need to be cautious and draw a line between attribution, effective control and overall control, the current  international jurisprudence is more reflective to state relations than private non -state actors.

The voyage on the unchartered waters of the applicability of international law and cyber operations was not only necessary it was timely. The Tallin manual is indeed the ABC guide or head, shoulders, knees and toes of international law and cyber operations. The 2017 version does a commendable job on addressing the law on state responsibility, which includes thelegal standards for attribution. Though more work needs to be done in adressing the interaction between international cyber norms and domestic cyber norms.

In sum the Tallin manual is not necessarily  a source international law it is merely an academic, non-binding manual on how international law applies to cyber conflicts. The practice of producing a non-binding manuals is not novel. Similar manuals have been published before such as the San Remo manual on International Law Applicable to Armed Conflicts at Sea.

[1] Matsiko Samuel (LLM) is Uganda lawyer and academic with a keen interest in international law. He is a lecturer at the faculty of law Uganda Christian University and Vice president of the International Law Association Uganda Branch http://www.ila-hq.org/en/branches/index.cfm/bid/1026.

Gambia’s Transition & Odious Debt: International Law Defences for Repudiation

Gambia’s Transition & Odious Debt: International Law Defences for Repudiation

Matsiko Samuel*

 Gambia’s Transition

It is now four days since former Gambian president Yahya Jammeh fled into political exile to Malabo, Equatorial Guinea after 22 years in power. The departure of Yahya Jammeh ignited by regional military intervention created an opportunity for the Gambian people to enjoy the first constitutional transfer of power since 1965.

This was followed by reports from various news agencies that Gambia’s ex-ruler Yahya Jammeh stands accused of stealing more than 11 million dollars in cash from state coffers before flying into exile. One of the news agencies reported that an adviser to new President Adama Barrow was quoted to have said that approximately 500 million dalasi ($11.45 million) had been withdrawn by Jammeh in the past two weeks alone. Although the central bank came out to state that the treasury was intact probably to deter public outrage and protect investor confidence, there is no doubt that the Jammeh regime had plundered this enclave economy.

These events made me question Jammeh,s 22 years of schoolboy economics. Did the money allegedly plundered belong to him as an individual? OR was it money borrowed for international creditors like the Brentwood Institutions? Who bears the consequences of paying back this money to these lending institutions? There is no doubt that the money plundered during his 22 year rule was money borrowed from the international financial community.

Jammeh, s School Boy Economics

The Jammeh regime reduced Gambia into a heavily indebted poor country with a per capita income of between US$543 to US$1101 per annum in contrast to Singapore with a per capita income of US$78000. Jammeh and his government failed to increase the Gambia’s domestic exports or transform the country into a middle income nation making Gambia a heavily indebted economy with a massive trade deficit. In 2013, Gambia’s domestic exports amounted to D415 million while its imports stood at D12.7 billion and the trade deficit increased to D10 billion in 2014.

Most of the paved roads in the Gambia, including, Madinaba to Seleti, Soma to Basse, Barra to Amdalaye Sofanyama, Trans Gambia Highway Bridge and the Basse to Wellingara were all funded by grants and external borrowing from the European Union. The issue at hand is who gets to pay back these loans? Is it Jammeh or the Gambian people? In addressing these questions the Gambian people are more likely to pay these loans unless the new government calls for a repudiation of the odious debt.

The Odious debt norm and International Law

Odious debt is a legal term for money lent to an oppressive regime and used for purposes other than the “needs and interest” of the country. Under this definition, an odious debt is one that was contracted against the interests of the population of a State (Gambians), without their consent, and with full awareness of the creditor.

Alexander Nahun Sack, in his 1927 book The Effects of State Transformations on their Public Debts and Other Financial Obligations argues that if a despotic power incurs a debt not for the needs or in the interest of the State, but to strengthen its despotic regime, to repress its population that fights against it, etc., this debt is odious for the population of the State.

Therefore the debt is not an obligation for the nation (Gambia); it is a regime’s debt, a personal debt (Jammeh) of the power that has incurred it, consequently it falls within this power. The reason these ‘odious’ debts cannot be considered to encumber the territory of the State, is that such debts do not fulfill one of the conditions that determines the legality of the debts of the State. For a debt to meet the legality threshold it must have been employed for the needs and  interest of the people of the State. Although this definition mentions state and not government one would argue that a state must have some form of government or administration.

The norm of odious debt is not codified under international law. There was a proposal by the International Law Commission to include a chapter on odious debt in the 1977 draft convention on state succession unfortunately the International Law Commission finally decided not to include any such provision in the convention.  However, the legal basis for odious debt is article 38 of the Statute of the International Court of Justice that provides for sources of international law and general practice. There is also extensive state practice and cases to prove that odious debt now forms part of customary international law.

Unfortunately the World Bank claims that international law does not generally provide for the repudia­tion of debts on the grounds of them being odious. I would argue that these claims are subject to debate, baseless, hypocritical and unresearched considering the fact that World Bank is one of the lending institutions.

International Law Defences for Repudiation and Gambias Odious Debt

If i was to advise the new government of president Adama barrow and the department of foreign relations on how to challenge illegitimate debt incurred by Jammehs despotic regime under international law I would raise the following defences;

  • The Vienna Convention Defence

 

The 1969 Vienna Convention on the Law of Treaties (Vienna Convention) provides certain grounds for the invalidation of a treaty. Article 53 of the convention which forms part of customary international law provides that the violation of a peremptory norm of ius cogens invalidates a treaty. Therefore debts that are not contracted in conformity with international law should be considered odious and thus invalid. The test is to establish a causal link between the loan and the ius cogens violation at the time the loan was contracted. In Gambias situation the ius cogens violation includes numerous gross violations of human rights committed under Jammehs regime, murders, summary executions, torture, forced disappearances.

  • The Traditional Odious Debt defence

 

The traditional defence of odious debt is simple; debts that are incurred by an undemocratic regime, without the consent of the population, and against its interests cannot be reclaimed if the lender was aware of these deficiencies. This is even truer when the money borrowed was used to commit serious human rights violations. With this defence all is needed is to prove the mental element of the lender that the lender had  knowledge whether actual or constructive  of these deficiencies.

Regional Alternatives: Establish an ECOWAS Debt Audit Commission

ECOWAS and his Excellency president Adama can establish a regional debt audit commission for Gambia to classify legitimate and illegitimate debt. The commission can transplant the Ecuadorian model on audit commissions. Ecuador became the first government  in 2007 to launch a Debt Audit Commission in cooperation with civil society, and with the authority to undertake a complete audit of all the country’s debts. The commission brought together national and international experts in the fields of debt, economics, law and local social and environmental struggles as well as Ecuadorean government officials to conduct an audit of all of Ecuador’s debts. President Rafael Correa Delgado’s presidential decree establishing the commission called for the determi­nation of each debt’s “legitimacy, legality, transparency, quality, efficacy and efficiency, considering the legal and financial aspects, and the economic, social, regional, and environmental impacts, as well as the impact on all genders, nations, and peoples.”

Conclusion

Gambia is undergoing a critical transition and on various platforms his Excellency president Adama Barrow has called for a truth and reconciliation commission. A truth and reconciliation commission is one of the transitional justice mechanisms applied in transitional societies, however experience has shown that often transitional justice mechanisms often concentrate on addressing civil and political rights at the expense of economic and social considerations.

Gambians shud not be subjected to paying the debts incurred by Jammehs despotic regime. They may chose to use international law defences including the defence of validity of contracts considering the rules of agency and principal  or alternatively examine the actions of the international financial community in the context of a truth commission.

Gambia may also decide that repudiation of debt is not the only way of addressing its connection to a legacy of oppression. Gambia may  then request the international financial community to admit complicity in “odiousness” and to make amends through new lending arrangements that will benefit the Gambian people.

* Matsiko Samuel (LLM) is Uganda lawyer and academic with a keen interest in international law. He is an adjunct lecturer at the faculty of law Uganda Christian University and Vice president of the International Law Association Uganda Branch http://www.ila-hq.org/en/branches/index.cfm/bid/1026.

Gambia and the Crime of Unconstitutional Change of Government: The Emergence of Extra-Curricular International Crimes

 

Gambia and the Crime of Unconstitutional Change of Government: The Emergence of Extra-Curricular International Crimes

Matsiko Samuel*

The Gambian Question

The African Commission on Human and Peoples’ Rights (African Commission), at its 51st Ordinary Session held from 18 April to 2 May 2012 in Banjul, The Gambia passed a resolution on the unconstitutional change of governments.(UCG)The resolution was considering and recalling its objectives and mandate under the African Charter on Human and Peoples’ Rights, the African Union Constitutive Act, The African Charter on Democracy, Elections and Governance, and the ECOWAS Protocol on Democracy and Good Governance.

The resolution went on to recall the relevant provisions of the Algiers Decision AHG/142 (XXXV) of July 1999, the Lome Declaration of July 2000 and the Protocol Relating to the Establishment of the Peace and Security Council of the African Union on the unconstitutional change of government.

Fast forward, on the 10th of December 2016, controversial Gambian leader Yahya Jammeh, who took power in a military coup in 1994, rejected the outcome of the November 2016 elections he lost to opposition leader Adama Barrow. The refusal by the incumbent to relinquish power to a democratically elected government did not only stir international criticism but also academic debate on the normative underpinnings and enforcement mechanisms of the crime of unconstitutional change of governments in international law.

It is ironic that Gambia that had hosted the passing of a resolution on the unconstitutional change of governments in 2012 and survived an attempted coup in 2014 was the very country experiencing a situation of unconstitutional change of government.

These events raise very important questions that deserve critical interrogation. Does the crime of UCG have any normative foundations in international law? Would UCG be classified as an international crime or simply a crime particular to a region? Does UCG as a crime threaten international peace and security?

UCG norm  and the African peace & security architecture

A critical mapping of coups in Africa coupled with the research conducted by the African Development Bank clearly shows that there have been more than 200 coups in Africa since the post-independence era. The 2015 failed coups in Burundi and Burkina Faso clearly illustrate that coups are getting out of fashion and the refusal to relinquish power to a democratically elected government is the new boy in town.

The UCG narrative in Africa began with the mechanism proposed by the 1997 OAU Council of Ministers for the restoration of constitutional order in response to the coup d’état in Sierra Leone. This was followed by the Constitutive Act of the African Union that clearly set out the prohibition of the UCG as one of the foundational principles of the African Union.

This was followed by the July 2000 Lome Declaration on the framework for an OAU response to unconstitutional change of government and crystallised by the Protocol Establishing the AU Peace and Security Council. The UCG narrative was further expanded by the 2007 African Charter on Democracy, Elections & Governance that included a provision on the issue of retaining power unconstitutionally.

it important to note that these African union  instruments prohibited UCG but did not criminalise UCG.

The Malabo protocol & Criminalisation of UCG

The protocol to the amendments to the protocol on the statute of the Africa court of Justice and Human Rights was  adopted in Malabo, Equatorial Guinea on the 27th of June 2014, the Malabo protocol is an amendment to the 2008 protocol on the statute of the African court of justice and human rights that aims to extend an international criminal mandate to the African Court of Human and Peoples Rights. Among the key provisions in the protocol include the crime of unconstitutional change of government.

The crime of unconstitutional change of government in the Malabo protocol was mooted as early as 2010 in the draft amendment. The pragmatic argument for the inclusion of this crime in the amendment is that unconstitutional change of government is characteristic of Africa’s political fabric and thus necessary.

Article 28E of the Malabo protocol criminalizes unconstitutional change of government. The provision starts by stating that UCG means committing or ordering to be committed the following acts with the aim of accessing power or maintaining power. The acts include the following;

  • The use of armed dissidents to replace a democratically elected government
  • A putsch or coup against a democratically elected government
  • An intervention by mercenaries to replace a democratically elected government
  • Refusal by an incumbent to relinquish power to the winning party or candidate after a free and fair election.

Clause 2 of Article 28E goes on to provide that for purposes of this statute a democratically elected government has the same meaning as contained in AU instruments. For any aspiring international criminal law scholar the chapeau and contextual elements of UCG in Article 28E of the protocol are vague and thus problematic.

A number of problems arise with regard to what constitutes a democratically elected government within the meaning of African Union instruments? the second problem are the debates surrounding the element of intervention by mercenaries to replace a democratically elected government in the definition. (It is important to note the same protocol criminalizes mercenaries in Article 28H as a crime on its own)

Let’s take a hypothetical scenario considering the principle of double jeopardy or what international law terms as Non bis in idem. If “A” is acquitted for the crime of mercenarism under Article 28H of the Malabo protocol can “A” be convicted for similar acts of mercinarism in relation to the crime unconstitutional change of government under Article 28E? Other problems with this definition include auxiliary issues of immunities, modes of responsibility and the application of statutes of limitations.

UCG as an Extra- Curricular International Crime

My  ambitious attempt to classify the crime of unconstitutional change of government as an extra-curricular international crime among colleagues in the field has been met with mixed feelings. A majority of colleagues referred me to the Greek mythology of Lcarus who attempted to fly too close to the sun with waxy wings and ended up melting in the process, whereas other colleagues did not even comprehend what I meant by an extra-curricular international crime.

The radical attempt to classify the crime of unconstitutional change of government as an extra-curricular international crime is merely a modest contribution to the progressive development of the nascent and yet underdeveloped field of international criminal law.  I believe that crimes that do not exist as discrete crimes in international law  but  meet the scale & gravity threshold and threaten international peace  ought to be categorised  as extra-curricular international crimes. This is to enable experts in the field understand their customary character, history and trauvaux preparatories  for those governed by any treaty regimes.The concept of an extra-curricular international crime may seem novel on the surface but it is merely a reflection of the emerging concept of extra-curricular international criminal law coined by Professor Mark Drumbl in his 2016 publication.

Professor Mark Drumbl in his paper titled  extra-curricular international criminal law attempts to question instances where international criminal law may unexpectedly stray elsewhere or where regional or domestic law may stray in the realm of international criminal law. Professor Mark Drumbl goes on to discuss the jurisprudential impact of international criminal courts on domestic civil litigation  in the United States with a focus on the Alien Torts Act.

Unlike Professor Mark Drumbl my approach is simple and subject to criticism and debate. My argument is that an emerging crime that does not exist as a discrete crime under international law but fulfils the scale & gravity threshold, threatens international or regional peace and security, neither falls within the ambit of the four core crimes that is genocide, crimes against humanity, war crimes & the crime aggression and lacks comprehensive enforcement mechanisms should be considered as an extra-curricular international crime for study purposes.

Conclusion

In sum, apart from the Ivory Coast scenario where the African Union classified the refusal by an incumbent to relinquish power as typical UCG situation. Gambia is a classical example of the crime of UCG. Some scholars argue that the crime of UCG has no international law basis and is neither an international crime nor a transnational crime whereas others alternatively argue that UCG does have legal basis under the law of international organizations. Personally, as we attempt to comprehend the emerging crime of UCG and develop the nascent field of international criminal law classifying UCG is an extra-curricular crime is a plausible start to address this hitherto but yet unexplored “international” crime.

 

 

* Matsiko Samuel (LLM) is a Ugandan lawyer and academic with a keen interest in international criminal justice. He is an adjunct lecturer at the Faculty of Law Uganda Christian University & Vice president of the International Law Association Uganda Branch http://www.ila-hq.org/en/branches/index.cfm/bid/1026.

South Africa & the Domestication Question: A Commentary on the ICC Denunciation

South Africa & the Domestication Question: A commentary on the ICC denunciation

 By Matsiko Samuel

A conversation on the withdrawal of African states from the International Criminal Court and its impact on States Parties that have domesticated the Rome Statute is way overdue. The domestication question is a hitherto unexplored but important issue. Let’s take a hypothetical scenario where an African state has ratified the Rome Statute and domesticated the statute into national law through an act of parliament. Then the executive withdraws from the treaty without repealing the act through parliament. Such a  hypothetical scenario raises very important questions for academic debate:

 

  • What is the legality of the act at the time of withdraw?
  • How would a domestic court that has a pending case that relates to the act deal with such a case?
  • How would the courts address issues of cooperation with regard to a domestic law that provides for cooperation in terms of arrest and surrender to an institution established by the treaty in question?

 

 

Such questions are specific to the recent withdrawal of South Africa from the ICC. On 19th October 2016, the executive branch of the South African government exercised its “prerogative” powers to withdraw from the International Criminal Court. South Africa ratified the Rome Statute on 17 July 1998 and took further steps to domesticate the treaty into national legislation. South Africa’s parliament drafted the implementation of the Rome Statute which became law on 16 August 2002.

The preamble of the act provides that South Africa is committed to- bringing persons who commit such atrocities to justice, either in a court of law of the Republic in terms of its domestic laws where possible,pursuant to its international obligations to do so when the Republic became party to the Rome Statute of the International Criminal Court. There is no doubt that the exit from the ICC was sparked by the South Africa’s failure to arrest Sudan president Omar Bashir a head of state in June 2015 wanted for genocide, war crimes and crimes against humanity in contravention of its commitments and obligations. The domestication question attempts to interrogate as to whether the withdraw of South Africa from the ICC without public or legislative involvement is fundamentally and procedurally flawed?

In addressing the questions and mapping of state practice in international law, it is settled that when a treaty is domesticated in a non-monist state it gets a life of its own separate and distinct from the treaty. Thus the domestic law is applicable until a legislative process to repeal the law has occurred. A plausible  example of an attempted legislative process to repeal a domestic law inspired by a treaty is the so called Brexit United Kingdom Great Repeal bill of 2016. The bill attempts to end European Union law enshrined in the1972 European Communities Act and trigger article 50 of the Lisbon treaty. Back to South Africa, despite the fact that the Rome Statute provides that the withdraw notice shall take effect one year after deposit. It is without doubt that until a process to repeal the International Criminal Court Act 27 of 2002 is finalised South Africa is still obliged to fulfil its commitments. This will create a legal and political paradox for South Africa on the 22nd day of November 2016. The South African Constitutional Court in addressing the Bashir case will be put to test to either cooperate with ICC on the arrest and surrender as enshrined in section 8 of the International Criminal Court act or succumb to the effects ofrealpolitik” in addressing the nascent and yet unsettled field of International Criminal Law.

In a nutshell, accountability for international atrocity crimes and human rights violations in a not so perfect international criminal justice system ought to be  the dominant script of any international criminal justice system. In the spirit of the African group for justice and accountability i believe that the pessimistic argument that justice not being served elsewhere (the west) should not be served anywhere (Africa) is fundamentally flawed and merely diversionary. Inspired by the words of Atonnio Cassese better to have half a loaf than simply pie in the sky.