South Africa, Transnational Criminal Justice Centre

Deadline extended to June 25th – 2nd DAAD Centers for African Excellence Alumni Conference

Dear all, as we still have some free slots for our alumni conference, we have extended the application deadline to June 25th. For those presenting their work in the conference, tickets for international travel, catering and accommodation will be provided.

2nd DAAD Centers for African Excellence Alumni Conference

Ghana, 06th – 09th November 2018

Abstract submission until June 25th 2018

Sustainable Development in Africa: The Role of Science and Education

The promotion of sustainable development is the result of an unprecedented global consensus about the need to foster economic development in ways that reduce poverty and inequality, to enhance political participation and good governance, without destroying the natural environment that forms the substrate of human life, taking into account both the needs of current and future generations. The ideals encompassed in the original formulation of the concept are broadly shared in public discourse and among important political institutions, as demonstrated by the United Nations Sustainable Development Goals. Many academic institutions, as well as individual researchers, conduct research, design curricula, and train students in order to generate the required knowledge and professional expertise to transform public policies towards sustainable development. The DAAD Centers of Excellence in Sub-Saharan Africa agree on the importance of promoting sustainable development and advance sustainability through:

  • Research, producing innovative knowledge, approaches, and technologies helping to attain sustainable development
  • Training highly qualified professionals who can contribute to sustainable development working in multiple sectors within and outside of universities
  • Engaging in outreach activities promoting the DAAD Centers’ results, products and alumni

Since the nexus between the DAAD centers and their contribution to Africa’s sustainable development has not yet been explicitly addressed, we would like to invite you to the Second DAAD African Centers of Excellence Alumni Conference, which will address the topic Sustainable Development in Africa: The Role of Science and Education.

The Conference will be held in Accra, Ghana from 06th to 9th November 2018 at the Institute of Statistical, Social and Economic Research (ISSER), based in the University of Ghana, Legon. The 2nd DAAD Centers for African Excellence Alumni Conference results from a collaboration between ISSER, the Ghanaian-German Center for Development Studies (GGCDS), and the ISSER/GGCDS Alumni Network (IGAN).

We are interested in the experiences and contributions that the DAAD Centers of African Excellence have made towards the promotion of sustainability through their research, but also through the expertise they bring to bear in their professional practice. We also want to discuss where the alumni see additional potential for promotion of sustainable development by the centers. Thus the contributions should address the following questions:

  • How has/can your research contributed/contribute to sustainable development?
  • How can/does the training received at the centers contribute to your professional practice in promoting sustainable development?
  • How could the centers further enhance students’ capabilities towards the promotion of sustainable development?
  • How can interdisciplinary cooperation between the African Centers of Excellence help to enhance sustainable development?

While focusing on sustainable development in general, we are interested in fostering (interdisciplinary) discussions that relate to the many facets of sustainability addressed in the various centers:

  • Science, knowledge production and education
  • Logistics, economic development and financial inclusion
  • Natural resources governance and mineral extraction
  • Governance and law
  • Agriculture, rural development and rural-urban transformation
  • Migration and social mobility

The conference will be organized in thematic workshops. In these workshops the core questions outlined will be addressed. The output from individual workshops and the plenary discussion will be captured and compiled in a conference report. This report will detail current successes, identify capacity needs, and potential areas of future collaboration.

In order to participate, please send an abstract (not more than 500 words) of your intended presentation and a short summary of your curriculum vitae (including, if applicable, your most relevant publications). Please also indicate in which thematic workshop you would like to present your work (e.g. Science, Knowledge production and education; logistics, economic development and financial inclusion; natural resources governance and mineral extraction, etc.). Proposals shall be sent to the email addresses igan.ghana@gmail.com and Tetteh.alumni@gmail.com with the subject “Abstract – application to the 2nd DAAD Alumni conference” until June 15th 2018. A scientific committee with members from ISSER, GGCDS and of the ISSER/GGCDS alumni network will select the participants based on the quality of their proposal, their academic and professional activities, and the thematic pertinence of their contribution. Gender balance and diversity among participants (including all DAAD centers for African Excellence) will also be considered.

For those alumni presenting their work in the conference tickets for international travel, catering and accommodation in Accra will be provided.

Here the tentative programme: Alumni Conference 2018-Call for applicationsAP-14.06.18

REMINDER – CALL FOR APPLICATIONS: 2nd DAAD Centers for African Excellence Alumni Conference – send your abstract until June 15th 2018

CALL FOR APPLICATIONS

2nd DAAD Centers for African Excellence Alumni Conference

Accra, Ghana, 06th – 09th November 2018

Abstract submission until June 15th 2018

Sustainable Development in Africa: The Role of Science and Education

The promotion of sustainable development is the result of an unprecedented global consensus about the need to foster economic development in ways that reduce poverty and inequality, to enhance political participation and good governance, without destroying the natural environment that forms the substrate of human life, taking into account both the needs of current and future generations. The ideals encompassed in the original formulation of the concept are broadly shared in public discourse and among important political institutions, as demonstrated by the United Nations Sustainable Development Goals. Many academic institutions, as well as individual researchers, conduct research, design curricula, and train students in order to generate the required knowledge and professional expertise to transform public policies towards sustainable development. The DAAD Centers of Excellence in Sub-Saharan Africa agree on the importance of promoting sustainable development and advance sustainability through:

  • Research, producing innovative knowledge, approaches, and technologies helping to attain sustainable development
  • Training highly qualified professionals who can contribute to sustainable development working in multiple sectors within and outside of universities
  • Engaging in outreach activities promoting the DAAD Centers’ results, products and alumni

Since the nexus between the DAAD centers and their contribution to Africa’s sustainable development has not yet been explicitly addressed, we would like to invite you to the Second DAAD African Centers of Excellence Alumni Conference, which will address the topic Sustainable Development in Africa: The Role of Science and Education.

The Conference will be held in Accra, Ghana from 06th to 9th November 2018 at the Institute of Statistical, Social and Economic Research (ISSER), based in the University of Ghana, Legon. The 2nd DAAD Centers for African Excellence Alumni Conference results from a collaboration between ISSER, the Ghanaian-German Center for Development Studies (GGCDS), and the ISSER/GGCDS Alumni Network (IGAN).

We are interested in the experiences and contributions that the DAAD Centers of African Excellence have made towards the promotion of sustainability through their research, but also through the expertise they bring to bear in their professional practice. We also want to discuss where the alumni see additional potential for promotion of sustainable development by the centers. Thus the contributions should address the following questions:

  • How has/can your research contributed/contribute to sustainable development?
  • How can/does the training received at the centers contribute to your professional practice in promoting sustainable development?
  • How could the centers further enhance students’ capabilities towards the promotion of sustainable development?
  • How can interdisciplinary cooperation between the African Centers of Excellence help to enhance sustainable development?

While focusing on sustainable development in general, we are interested in fostering (interdisciplinary) discussions that relate to the many facets of sustainability addressed in the various centers:

  • Science, knowledge production and education
  • Logistics, economic development and financial inclusion
  • Natural resources governance and mineral extraction
  • Governance and law
  • Agriculture, rural development and rural-urban transformation
  • Migration and social mobility

The conference will be organized in thematic workshops. In these workshops the core questions outlined will be addressed. The output from individual workshops and the plenary discussion will be captured and compiled in a conference report. This report will detail current successes, identify capacity needs, and potential areas of future collaboration.

In order to participate, please send an abstract (not more than 500 words) of your intended presentation and a short summary of your curriculum vitae (including, if applicable, your most relevant publications). Please also indicate in which thematic workshop you would like to present your work (e.g. Science, Knowledge production and education; logistics, economic development and financial inclusion; natural resources governance and mineral extraction, etc.). Proposals shall be sent to the email addresses igan.ghana@gmail.com and Tetteh.alumni@gmail.com with the subject “Abstract – application to the 2nd DAAD Alumni conference” until June 15th 2018. A scientific committee with members from ISSER, GGCDS and of the ISSER/GGCDS alumni network will select the participants based on the quality of their proposal, their academic and professional activities, and the thematic pertinence of their contribution. Gender balance and diversity among participants (including all DAAD centers for African Excellence) will also be considered.

For those alumni presenting their work in the conference tickets for international travel, catering and accommodation in Accra will be provided.

See the attached file for the tentative program: Alumni Conference 2018-Call for applications

CALL FOR APPLICATIONS: 2nd DAAD Centers for African Excellence Alumni Conference – send your abstract until June 15th 2018

CALL FOR APPLICATIONS

2nd DAAD Centers for African Excellence Alumni Conference

Accra, Ghana, 06th – 09th November 2018

Abstract submission until June 15th 2018

Sustainable Development in Africa: The Role of Science and Education

The promotion of sustainable development is the result of an unprecedented global consensus about the need to foster economic development in ways that reduce poverty and inequality, to enhance political participation and good governance, without destroying the natural environment that forms the substrate of human life, taking into account both the needs of current and future generations. The ideals encompassed in the original formulation of the concept are broadly shared in public discourse and among important political institutions, as demonstrated by the United Nations Sustainable Development Goals. Many academic institutions, as well as individual researchers, conduct research, design curricula, and train students in order to generate the required knowledge and professional expertise to transform public policies towards sustainable development. The DAAD Centers of Excellence in Sub-Saharan Africa agree on the importance of promoting sustainable development and advance sustainability through:

  • Research, producing innovative knowledge, approaches, and technologies helping to attain sustainable development
  • Training highly qualified professionals who can contribute to sustainable development working in multiple sectors within and outside of universities
  • Engaging in outreach activities promoting the DAAD Centers’ results, products and alumni

Since the nexus between the DAAD centers and their contribution to Africa’s sustainable development has not yet been explicitly addressed, we would like to invite you to the Second DAAD African Centers of Excellence Alumni Conference, which will address the topic Sustainable Development in Africa: The Role of Science and Education.

The Conference will be held in Accra, Ghana from 06th to 9th November 2018 at the Institute of Statistical, Social and Economic Research (ISSER), based in the University of Ghana, Legon. The 2nd DAAD Centers for African Excellence Alumni Conference results from a collaboration between ISSER, the Ghanaian-German Center for Development Studies (GGCDS), and the ISSER/GGCDS Alumni Network (IGAN).

We are interested in the experiences and contributions that the DAAD Centers of African Excellence have made towards the promotion of sustainability through their research, but also through the expertise they bring to bear in their professional practice. We also want to discuss where the alumni see additional potential for promotion of sustainable development by the centers. Thus the contributions should address the following questions:

  • How has/can your research contributed/contribute to sustainable development?
  • How can/does the training received at the centers contribute to your professional practice in promoting sustainable development?
  • How could the centers further enhance students’ capabilities towards the promotion of sustainable development?
  • How can interdisciplinary cooperation between the African Centers of Excellence help to enhance sustainable development?

While focusing on sustainable development in general, we are interested in fostering (interdisciplinary) discussions that relate to the many facets of sustainability addressed in the various centers:

  • Science, knowledge production and education
  • Logistics, economic development and financial inclusion
  • Natural resources governance and mineral extraction
  • Governance and law
  • Agriculture, rural development and rural-urban transformation
  • Migration and social mobility

The conference will be organized in thematic workshops. In these workshops the core questions outlined will be addressed. The output from individual workshops and the plenary discussion will be captured and compiled in a conference report. This report will detail current successes, identify capacity needs, and potential areas of future collaboration.

In order to participate, please send an abstract (not more than 500 words) of your intended presentation and a short summary of your curriculum vitae (including, if applicable, your most relevant publications). Please also indicate in which thematic workshop you would like to present your work (e.g. Science, Knowledge production and education; logistics, economic development and financial inclusion; natural resources governance and mineral extraction, etc.). Proposals shall be sent to the email addresses igan.ghana@gmail.com and Tetteh.alumni@gmail.com with the subject “Abstract – application to the 2nd DAAD Alumni conference” until June 15th 2018. A scientific committee with members from ISSER, GGCDS and of the ISSER/GGCDS alumni network will select the participants based on the quality of their proposal, their academic and professional activities, and the thematic pertinence of their contribution. Gender balance and diversity among participants (including all DAAD centers for African Excellence) will also be considered.

For those alumni presenting their work in the conference tickets for international travel, catering and accommodation in Accra will be provided.

See the attached file for the tentative program: Alumni Conference 2018-Call for applications

Report on the Launch of the edited book ‘The African Criminal Court: A Commentary on the Malabo Protocol’

On 28 February 2017, the South African-German Centre for Transnational Criminal Justice (‘Centre’) launched the book: ‘The African Criminal Court: A Commentary on the Malabo Protocol edited by Professor Gerhard Werle and Dr. Moritz Vormbaum. The keynote lecture was held by Professor Dire Tladi, University of Pretoria, one of the contributing writers in the book, at the Law Faculty, University of the Western Cape. The book is volume 10 of the International Criminal Justice Series published by TMC Asser Press. The launch was attended by several guests including the Dean of the Law Faculty of the University of the Western Cape, the Directors of the Centre, Professors from the University of Cape Town and Stellenbosch, LLM and PhD students of the Centre and staff of the Law Faculty.

The history of the book dates back to 2011 when a student of the LLM programme wrote a thesis on the idea of establishing an African Criminal Court. In 2014 when the African Union, adopted the Malabo Protocol, which aims to empower the African Court of Justice and Humans Rights with jurisdiction over international crimes, the Centre thought to comment on it, which culminated into the Berlin summer school symposium in 2015 that hosted presentations which form content of the book. The approach of the book is to avoid a ‘friend or foe approach’ to the Malabo Protocol, it looks into the actual content of the Protocol, it analyses, among others, the definition of crimes and the controversial immunity clause as well as the proposed Court’s relationship with the International Criminal Court (ICC). The book also includes annexures of materials related to the African Criminal Court.

Key Note Address by Professor Dire Tladi

Following the brief introductory remarks on the African Criminal Court by the Director of the Centre, Professor Werle, and a short introduction of the keynote speaker by Co-ordinator of the Centre Dr. Vormbaum, Prof Tladi started his address by commenting on recent and unfolding events around international criminal justice. Tladi framed his lecture on three issues of particular interest in debates on Africa and the ICC from a South African context. These include the alleged ICC bias against African States, immunities under international law as well as the constitutional law impasse on whether or not South Africa needs a parliamentary approval to leave the ICC. All other questions that arise in the context of the Africa v ICC debate according to Tladi fall essentially within these three subjects.

Bias

According to Tladi, the claim that the AU is biased is often based on statistics. The contention is that one has only to look at the nine situations before the ICC to make a determination on whom it targets. Those who support the ICC counter this claim also by referring to statistics. The argument here is that most of these situations are self-referrals, thus claims of bias against African States are unfounded. The ICC, in fact,  claims that in other situations in which it is expected to act, the court does not have jurisdiction. Tladi argued that both positions are problematic. In the former argument, he noted that anti-ICC rhetoric in Africa arose after 2008 even though earlier than 2008 all situations before the ICC were from Africa. This gives rise to speculation that perhaps this is a dress up reason for the discontent with the ICC. According to Tladi, the latter argument does not stand either because it is not true that the ICC does not have jurisdiction in situations in which it would otherwise wish to act. Situations in Afghanistan or in Palestine were examples of these. However, the ICC had only taken extremely long drawn preliminary investigations, which were yet to be concluded in both situations. Thus Tladi argued that the claim of bias was actually an issue of power politics rather than skewed numbers. The AU would like to see the ICC go after powerful hegemonies, examples are the US and its allies. However, Tladi noted that while the ICC might desire to prosecute nationals of these countries, it is an overtly difficult political issue.

Immunities under International Law

The ICC has had occasion to deliberate over a number of cases on the failure to arrest President Omar Hassan Ahmed Al Bashir. South African domestic courts have two decisions on the issue. Of the total courts involved, only one court was correct on its interpretation of international law according to Tladi. The approach in both those cases basically has two strands. The first aspect emanate from the Malawi and Chad strand when they found themselves in the position South Africa found itself, with Al-Bashir in their territory and them failing to arrest him. The ICC found that both countries had the obligation to arrest him under Article 27 of the Rome Statute because there was no immunity before the ICC. The problem with this reasoning according to Tladi is that Article 27 speaks about immunity before the ICC, not immunity before the Malawian authorities. The Court he argued, had essentially merged these two issues and concluded that because Al-Bashir does not have immunity before the ICC, he lacked the same under Malawian law. The ICC completely ignored the fact that the Rome Statute itself recognises the possibility of immunity under customary international law and essentially provides that the court should not request cooperation if it would violate international law.

The ICC again had occasion to settle the same issues in the Democratic Republic of Congo (‘DRC’) case, needless to say, it came to the same conclusion; i.e., it decided that the DRC was in violation of its cooperation obligations in failing to arrest Al Bashir while he was in that country. However, in the DRC case, the Court essentially reversed itself completely and found that in fact, as a general point of departure, a head of state of a non-party state would ordinarily enjoy immunity under the Rome Statute. However, this is dubious because under the Rome Statute any accused does not have immunity before the ICC, thus this decision also was misguided according to Tladi. The question then was whether there is a legal duty for third states to arrest Al Bashir. Here, the Court decided that even though Bashir ordinarily would have had immunity before the ICC, he could not enjoy immunity in casu because his arrest arose in the context of the UNSC referral and because Sudan had a duty to cooperate. However, the UNSC resolution on Sudan does not reflect this position according to Tladi. Interestingly, even though the ICC came to the same conclusions on the facts in the Malawi and Chad cases as well as in the DRC case, the reasoning in both is inconsistent, in fact exclusively.

The High Court in Pretoria, in turn, rendered an even more problematic decision on 23rd June 2015 in that its reasoning merged the problems in all the other cases. However, Tladi opined, the Supreme Court of South Africa had come to a right conclusion as far as the interpretation of international law was concerned. It found that there was an international law duty not to arrest Al Bashir. Its point of departure, however, was that this did not matter because the South African domestic law required his arrest. Tladi then concluded that in his opinion there was no duty under international law for South Africa to arrest Al Bashir. It is important to note that there will always be a conflict of obligations as soon as Al Bashir lands in an ICC member state and these are some of the impasses that are inherent in international law.

Constitutional Law and Parliamentary Approval

On the question whether or not South Africa can withdraw from the ICC without the approval of the South African parliament, Tladi opined that it makes little sense that the South African government did not seek parliamentary approval to leave the ICC simply because it would not be difficult to get such approval. The argument essentially in the case was that since parliament approved ratification of the Rome Statute, it should approve cancellation of the same. However, Tladi argued that this does not necessarily have to be the position. He was of the opinion that parliamentary approval for leaving the ICC was not necessary because approval did not imply that parliament obliged the executive to become part of the treaty. Parliamentary approval merely gave permission to exercise a choice to become part thereof. Thus it would not make logical sense that the executive seek approval of parliament to leave the ICC.

It is worth noting that, on 7 March 2016, the South African government had revoked its withdrawal notice from the ICC.

Status Quo

There will be a hearing in The Hague on the 7th April 2017 on whether or not South Africa violated its obligations in its failure to arrest Bashir. Tladi preempted that the ICC would come to the same conclusion as it had consistently done in all Bashir matters. Secondly, he communicated that the South African government was contemplating on whether or not to appeal the decision of the Pretoria High Court. However, if this contemplation was based on legal considerations only, Tladi recommended that this would not be an ideal solution. On the other hand, if the government does not appeal, it means that the order of the court will be executed. Parliament will likely pass approval of the process to leave before the Supreme Court gets the opportunity to deliberate on an appeal. It thus seems futile to launch an appeal.

Tladi’s address ended with a question and answer session in which he emphasised that the problems within the ICC are not new, they are problems inherent in international institutions like the United Nations. However, this does not necessarily imply that the remedial action is to leave these institutions but rather to work out these problems within the institution itself.

 

Written by Thato Toeba

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 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 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 nuclear plant in another state and essentially 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) and the effective control test. 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 group Uganda hackers fund another group of hackers conducting cyber operations as part of an insurgency in Estonia that would not constitute a cyber attack.Whereas on the other hand, if the Ugandan group armed and trained the Estonian group to carry out cyber operations against another state that would constitute cyber use of force or a cyber attack under the effective control test. 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.

Conclusion

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 the relation to individual criminal responsibility and elements of crime.

In sum the Tallin manual is not 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 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’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.