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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.

A logistics short course really gets your career moving

Study hard, get a degree and enter the job market. Climb the corporate ladder or start for yourself and see your salary grow and your prospects improve. That is the theory, the dream, the blueprint which has been imprinted into Namibians. Sadly it isn’t so easy, so linear or so definite. Also, a lot of knowledge needs to be picked up along the way, knowledge they didn’t give you as part of your initial degree.

This all sounds rather challenging and as if you don’t really have a chance. But, how do you manage and control your own personal development. When working in an accounting, human resources or a manufacturing position for example, what good is it to acquire extra knowledge in a field you know little to nothing about? Take logistics for example. The bedrock of almost any organisation. Without the movement of goods or services that the organisation produces, the whole company collapses. This movement of goods has to be carried out as smoothly and as efficiently as possible. The accounting department demands it from a budgetary point of view, marketing needs it as a unique selling proposition and HR requires it, as there’s only a fixed number of people to move the goods. So, swiftly, efficiently, economically and effectively moving goods is the name of the game.  This is where logistics shines. Adding to your bow with a short course in logistics and understanding the flow of goods and how this impacts every facet of a business is highly recommended. There are certain things to look out for when deciding to give your career the boost it needs.

When you’re working a full-time job, it’s hard to commit to a full time study and a fully-fledged degree in logistics might be a bridge too far. It also needs to fit into your work schedule and look at how busy your life is and how much time you really have to devote to studying…remember, you need to sleep as well. Completing the course you start successfully is what it is all about. This is where Namibian German Centre for Logistics  (NGCL) offers the perfect solution with their short courses.

Logistics can and is taught through understanding processes, theory and especially best practises and case studies. These short courses are especially geared to teach in this way. As a Centre of the Namibia University of Science of Technology (NUST) and facilitated by DAAD from Germany,  the courses are certified and give necessary boost in logistics knowledge to those that need to further their careers.  These courses provide something called Continuous Professional Development, something that in the ever changing and dynamic world we all need to aware of and embrace.

If you’re going to invest time into career advancement, especially here in Namibia, it is important to ensure you signed up to an NQA recognised course. Spending your or the company’s hard earned money on courses needs to be worth it. It also helps in general to sign up to courses that receive industry recognition. Ideally, you want to graduate with a certificate or other qualification widely recognised in your industry. NGCL works together with industry logistics leaders to offer courses that are tailor-made for the industry and therefore useful in practical working life.

Talk to people in Human Resources at your organisation as to how you can reach the next level in the organisation or get that sought after promotion through understanding logistics.

Whether you’re looking to brush up your skills, apply for a promotion or embark on a total career change, a logistics short course training o even a fully-fledged logistics degree can help you reach your goals. A qualification in logistics really gets your career moving.

 

Written by: Logan Fransman
Director : NGCL

Logan Fransman

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.

Seminar on East African Community and Comparative Regional Integration Law

In March 2016 the Tanzanian-German Centre for Eastern African Legal Studies (TGCL), one of East Africa’s leading think-tanks on regional integration law, organised a three-day Seminar on East African Community and Comparative Regional Integration Law. The participants drew from various East African law faculties, from non-governmental organisations as well as from law firms.

It was a unique feature of the seminar that it discussed the East African integration process from a comparative perspective. This enabled the participants to gain additional and transferable insights into the functioning of regional integration. Whereas Dr Wanyama Masinde from the Catholic University of Eastern Africa in Kenya gave an overview on the law of the East African Community, Professor Jörg Gundel from the University of Bayreuth in Germany, which is the TGCL partner university, discussed the relevant legal aspects from the European perspective. Professor Richard Oppong from Ghana, who is teaching at the Thompson Rivers University in Canada, looked at the legal regimes of various regional economic communities in Africa. Finally, Professor Palamagamba Kabudi from the University of Dar es Salaam analysed aspects of East African Community Law from the Tanzanian national perspective.

This seminar was conducted in a highly participatory manner. Each resource person was given about 30 minutes of presentation. This was followed by questions, discussions and inputs which largely added value to the seminar and knowledge of participants. Discussions centered on the need for having a more workable regional cooperation. A call for harmonisation of the laws of the East African Partner States, policies and practice was made with a view to facilitating the operation of the customs union, common market, monetary union and the proposed political federation. There was also a call for the establishment of mechanisms within the EAC to solve all actual and potential conflicts among or between partner states that may threaten the East African cooperation.

There was also an in-depth presentation and discussions on the EAC institutions, especially on the role of the East African Court of Justice in the integration process. It was noted that there is a need for advocates within the EAC countries to familiarize themselves with the Court’s Rules and Procedures to enable them to utilise the services of the Court with a view to ensuring that growth among member states is balanced.