South Africa, Transnational Criminal Justice (TRANSCRIM)

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.

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 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.