South Africa, Research Network, Transnational Criminal Justice (former 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.

The purpose of this article is to moot the conversation on academic persecution and its place in international criminal law as an independent crime. Is academic 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 Ugandan Lawyer.

Email:  matsikosam@gmail.com

Interview with Dr. Fatuma Mninde-Silungwe // 2nd DAAD Alumni Conference

“African women need to be economically empowered!”

Dr. Fatuma Mninde-Silungwe is a lawyer from Malawi and Alumna from the South African German Center for Transnational Criminal Justice. The interview took place during the 2nd DAAD Centers for African Excellence Alumni Conference in Akosombo, Ghana, where Fatuma held a presentation which was titled: Contributing to the Achievement of the SDG 16 on Peace, Justice and strong Institutions through Training in Transnational Criminal Justice and Crime Prevention in Africa.

She has done research in International Criminal Law and in Electoral Law. Her fields of interest include International Criminal Law, Criminal Justice, Elections, Human Rights and Good Governance. She currently works as a Legal Analyst on Elections with the United Nations Development Program in Malawi.

Interview

May you introduce yourself to the readers?

Dr. Silungwe: My name is Dr. Fatuma Silungwe. I am an Alumna of the South African – German Center for Transnational Criminal Justice.

What did you study?

Dr. Silungwe: I studied law at the University of Malawi. In my Masters level, I studied for an LL.M. and Transnational Criminal Justice and Crime Prevention which I completed in 2013 with a cum laude. During my LL.M studies, I specialized in Anti Money Laundering, Anti-corruption, International Criminal Law and Transitional Justice. Then I proceeded to do my PhD in International Criminal Law. My PhD research was on Regionalization of International Criminal Justice in Africa and I graduated on 27 August 2018.

Have you studied abroad?

Dr. Silungwe: My first time to study abroad was for my Masters when I went to do my Masters in South Africa after I got a DAAD scholarship. When I was doing my PhD I also stayed in Berlin for some time and in Cape Town for some time. Those were the two experiences that I have stayed and studied abroad for a longer period of time. In another case it was just for a short period of time when I came to Ghana once for a certificate course in legislative drafting.

How did the DAAD grab your attention?

Dr. Silungwe: A friend of mine got a DAAD scholarship some years before I went to do my Masters. She forwarded to me a Call for Applications for a DAAD scholarship to study an LL.M in Transnational Criminal Justice and Crime Prevention. Before that, I did not know about that kind of scholarship but when she forwarded it to me I applied and was fortunate enough to be considered.

What kind of influence did the scholarship have on your career?

Dr. Silungwe: I would say my career has progressed, because when I joined the program, to do my Masters, I was working for the Government of Malawi as a State Advocate. After my Masters I was able to get the job where I work now with the United Nations Development Program as a Legal Analyst. The Minimum qualification was a Master of Law Degree so – obviously – If I did not have it, then I would not gotten that job. So yes, the scholarship has influenced my career progression.  I also think with the qualifications I have acquired, I believe that I will be able to get other opportunities, whether within the same institution or in other institutions.

Do you have children?

Dr. Silungwe: I don’t have children.

Do you think the DAAD scholarship can help women to combine career and family?

Dr. Silungwe: I think it does. I’ve seen others who have benefitted from DAAD scholarships getting a stipend for their children and even for their husband when they are studying abroad. So, it helps the family to be together, especially when such kind of funding is provided to cater for family members.

Apart from the family, what does a scholarship mean for women?

Dr. Silungwe: One key issue in terms of us African women is that we need to be economically empowered! And with more education comes more opportunities remunerable employment. I am economically empowered because I am educated. That’s important for a woman. Apart from economic empowerment, advancement in education enables women to contribute and influence policy from an informed point of view. Such policies include policies that encourage inclusion of women in different areas of the economy and governance of different African countries.

Regarding the empowerment of African women, I think, we can do more. So what do you think can the DAAD improve when it comes to the empowerment of women?

Dr. Silungwe: I think DAAD can do more in terms of opening up opportunities for qualified women enable them access education, because most of such women are not able to get funding to go and study abroad or even within their countries. As such by providing scholarship opportunities for them, women will be able to access education which is really important. In addition, in terms of research within the DAAD Centers of Excellence, the research could focus on how gender can be mainstreamed in all the courses that the Centers cover, because I believe gender is an overarching issue whether we are studying International Criminal Law, Transitional Justice or other courses. So DAAD should support the Centers to ensure that they are including gender in their course work.

We are now talking about Africa respectively Sub-Saharan Africa and I’m wondering, because not every country has the same development issues. So to what extent can we talk about Africa in general?

Dr. Silungwe: It’s important to note that Africa is a continent of 54 countries and each country has its own social-economic development issues. It’s not good to generalize and to say: Africa is this and that. You need to go the individual countries and regions and assess what kind of needs those countries have.  As such, when designing any program at a country-level, it should be a program that will fit the needs of that particular country, not just putting Africa on one platter.

In the European perception Africa is still often considered as “one country”.

Dr. Silungwe: Well, there is the European Union with different countries and we have the African Union with 54 countries. It’s important that people are aware of that.

Thank you very much, Dr. Silungwe.

 

 

The Interview was held by Lani Marie Doehring, a Student Assistant at GGCDS (Ghanaian-German Center for Development Studies) at the Center for Development Research Bonn, Germany.

 

 

The Continuous Visit of President Omar al-Bashir of the Sudan to Uganda without Being Arrested Leaves the ICC in Dilemma

The president of the Sudan, Omar al-Bashir has consecutively visited Uganda in both May 2016 and November 2017 and returned to his country without being arrested. president Omar al-Bashir is wanted by the International Criminal Court for war crimes and crimes against humanity allegedly committed in the Darfur region.

Uganda as a member state to the Rome statute is obligated to arrest president Omar al-Bashir on sight in Uganda but has always defied the ICC.

From these developments we may realize that;
1. the ICC’s dependency on individual state cooperation leaves it ineffective
2. the absence of international law enforcing institutions in individual states cripples its would be strength especially in arresting fugitives.
3. Africa seems to have become hostile to the ICC’s operations and the hostility is likely to keep growing.
4. The ICC needs to re-strategize on enforcement measures of the Rome Statute.
5. Probably, indicting those who fail to arrest fugitives present in their states to the ICC will force them to choose between inviting fugitives to their countries or effect the arrest so that they are not arrested.
6. The rate of non-cooperation from member states is a serious set-back for international and transnational criminal justice

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.

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.