The signing of a memorandum of understanding (MoU) between Ghana and the Gambia in Sirte, Libya, which culminated in agreement by the Gambian government to make contributions to the families of six Ghanaians murdered in the Gambia seems to have fuelled the debate on the matter in the media and entire country.
When news about the alleged killing of the Ghanaians and other West African nationals in the Gambia was broken, many issues cropped up with some Ghanaians suggesting the extreme that Ghana should attack that country.
Those who suggested attack as the solution to the problem put up arguments that the Gambia was no country that could match the might of Ghana in military terms.
Matters have been compounded the more with the release of a report of the UN/ECOWAS about the complicity of the Gambia in the matter.
In the MoU signed in Sirte, the Gambia has offered to contribute to the families of the six people that that country accepted were indeed killed.
The Gambia has denied any wrongdoing in the matter to warrant any condemnation and even to accept responsibility except that it attributed the action to self defence and blamed it on some elements within its security set up. Their action was to quell the activities of certain mercenaries thought to be on a mission to overthrow the government of President Yahaya Jammeh.
This article will consider the issue of state responsibility under international law and whether or not the Gambia should be held responsible for the killing of the innocent Ghanaians and other nationals.
The laws of state responsibility are the broad and basic rules that govern when and how a state should be held responsible for any infraction of international dimension.
Rather than set forth any particular obligations, the rules of state responsibility determine, in general, when an obligation has been breached and the legal consequences thereafter; they establish the conditions for an act to qualify as internationally wrongful, the circumstances under which actions of officials, private individuals and other entities may be attributed to the state. They also set out general defences to liability and the consequences of liability.
It is these conditions that this article will address itself to.
With the adoption of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts ("Draft Articles") by the International Law Commission (ILC) in August 2001, the theory of the law of state responsibility has come a long way in its development.
The International Court of Justice has long held on the issue of state responsibility in such cases as the Spanish Zone of Morocco Claims, and the Chorzow Factory case, in which the issue of reparation was made very clear.
Some other older cases and commentaries have discussed whether state responsibility is based on notions of fault or strict liability. These include the Home Missionary Society Claims, the Neer Claim case and the Caire Claim case.
It may be said that states are more "strictly liable" for the actions of their officials than for the actions of private individuals where in the latter case, it may be necessary to prove some "failure to control" the private individuals (i.e. "fault") before the state itself is held responsible.
In the strict liability sense, the principle of objective responsibility holds that once an unlawful act has been committed by an agent of the state that state should be responsible to the state suffering the damage.
This position was rejected in the Neer Claim case while the Caire Claim case upheld the test.
Before a state can be held responsible for any action, it is necessary to prove a causal connection between the injury and an official act or omission attributable to the state alleged to be in breach of its obligations.
This has become an increasingly significant contemporary issue, due to non-state actors such as civil society groups, multinational corporations, and non-governmental organisations, as well as militant groups, which play greater international roles.
The state is responsible for all actions of its officials and organs, even if the organ or official is formally independent and is acting ultra vires.
Persons or entities not classified as organs of the State may still be imputable, when they are otherwise empowered to exercise elements of governmental authority, and act in that capacity in the particular instance.
Persons or entities not performing public functions may equally be imputable, if they in fact acted under the direction or control of the State although the act need not be authorised by the state authorities.
For instance, where there is a breakdown of normal governmental authority and control, such as in so-called "failed states", the actions of those acting as the "government" in a de facto sense will be acts of the state.
The acts of an "insurrectional or other movement that becomes the new government of an existing state or succeeds in establishing a new state" can also be attributed to the state.
This is also the case where a state acknowledges and adopts the conduct of private persons as its own. If private persons, elements or groups within a state engage in acts the government is not responsible except when the government rather than condemn the act praises or associates itself with it.
For instance if a Ghanaian rogue attacks a British intern in Ghana, the government will not be responsible for that act except when the act was committed by a soldier or policeman.
Under such a circumstance, the state is held as such. This was what happened in the Iran-US case when militants attacked the US embassy. In that case, the International Court held that the initial attack by the militants could not be imputed to the state. However, the subsequent approval by Ayatollah Khomeni and other state organs of Iran translated the acts into state act.
Article five of the ILC Draft Article provides that the conduct of any state organ having that status under its municipal law is considered as an act of the state concerned where the organ was acting in that capacity.
Similarly, ultra vires acts may be imputed to a state even if it is established that the act was beyond the legal limits or capacity of officers involved provided they acted as competent officials.
There is no denying the fact that Ghanaians and other West African nationals in their bid to get to Europe use other African countries as transit where some of them die under very horrifying circumstances.
Therefore, to mistake our befallen brothers for mercenaries is neither here nor there. I have not heard the Gambia deny the killings except to justify these senseless killings for acts of certain mercenaries, which is no justification anyway.
Only last week, the Gambian consul in Ghana phoned in to a TV3 programme to express his country’s regret about the incident.
If anything at all, those people who were killed could have been arrested to face the municipal laws of Gambia after having been investigated. This was not done and for me, once the killers have been identified as coming from the fold of the Gambian security set up, that makes the Gambia responsible in every respect.
The MoU begs the question and should not be used to throw dust into the eyes of Ghanaians and the international community. President Jammeh should be made to face the music rather than camouflaging the matter with just contributing to the families of only six people alleged to have been killed.
Is the contribution a reparation or what? The choice of words is deceptive and to evade the issue at stake. Accepting responsibility makes the payment of reparation necessary and in such forms as in kind as was done in the Temple case involving Thailand and Cambodia, monetary contribution as in the I Am Alone case, which the Gambia is reinventing as a contribution.
To say the least, this is an insult to the integrity of the people of Ghana and unacceptable. Definitely, the issue should not be left to rot. It must be pursued to its logical conclusion.
The breach of an international obligation entails legal consequences thus it creates new obligations for the breaching state, principally, duties of cessation and non-repetition (Draft Article 30), and a duty to make full reparation (Draft Article 31).
If illegal actions are continuing, the state has a duty to cease, which has been done.
The Gambia cannot rely on the defence of self defence because those killed were in no way armed or posed any threat to the security of that country. If they had been arrested while armed then probably it could rely on this defence.
And resolving to arrest the perpetrators in the Gambia is good but flawed in the sense that that should not be used to deflate the tension and also make nonsense of the law.
That is a matter between the government of Gambia and its citizens but as far as international law annd the international community are concerned, it has done wrong and need to be held responsible for that wrong.
It must acknowledge that fact before passing the buck.
When news about the alleged killing of the Ghanaians and other West African nationals in the Gambia was broken, many issues cropped up with some Ghanaians suggesting the extreme that Ghana should attack that country.
Those who suggested attack as the solution to the problem put up arguments that the Gambia was no country that could match the might of Ghana in military terms.
Matters have been compounded the more with the release of a report of the UN/ECOWAS about the complicity of the Gambia in the matter.
In the MoU signed in Sirte, the Gambia has offered to contribute to the families of the six people that that country accepted were indeed killed.
The Gambia has denied any wrongdoing in the matter to warrant any condemnation and even to accept responsibility except that it attributed the action to self defence and blamed it on some elements within its security set up. Their action was to quell the activities of certain mercenaries thought to be on a mission to overthrow the government of President Yahaya Jammeh.
This article will consider the issue of state responsibility under international law and whether or not the Gambia should be held responsible for the killing of the innocent Ghanaians and other nationals.
The laws of state responsibility are the broad and basic rules that govern when and how a state should be held responsible for any infraction of international dimension.
Rather than set forth any particular obligations, the rules of state responsibility determine, in general, when an obligation has been breached and the legal consequences thereafter; they establish the conditions for an act to qualify as internationally wrongful, the circumstances under which actions of officials, private individuals and other entities may be attributed to the state. They also set out general defences to liability and the consequences of liability.
It is these conditions that this article will address itself to.
With the adoption of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts ("Draft Articles") by the International Law Commission (ILC) in August 2001, the theory of the law of state responsibility has come a long way in its development.
The International Court of Justice has long held on the issue of state responsibility in such cases as the Spanish Zone of Morocco Claims, and the Chorzow Factory case, in which the issue of reparation was made very clear.
Some other older cases and commentaries have discussed whether state responsibility is based on notions of fault or strict liability. These include the Home Missionary Society Claims, the Neer Claim case and the Caire Claim case.
It may be said that states are more "strictly liable" for the actions of their officials than for the actions of private individuals where in the latter case, it may be necessary to prove some "failure to control" the private individuals (i.e. "fault") before the state itself is held responsible.
In the strict liability sense, the principle of objective responsibility holds that once an unlawful act has been committed by an agent of the state that state should be responsible to the state suffering the damage.
This position was rejected in the Neer Claim case while the Caire Claim case upheld the test.
Before a state can be held responsible for any action, it is necessary to prove a causal connection between the injury and an official act or omission attributable to the state alleged to be in breach of its obligations.
This has become an increasingly significant contemporary issue, due to non-state actors such as civil society groups, multinational corporations, and non-governmental organisations, as well as militant groups, which play greater international roles.
The state is responsible for all actions of its officials and organs, even if the organ or official is formally independent and is acting ultra vires.
Persons or entities not classified as organs of the State may still be imputable, when they are otherwise empowered to exercise elements of governmental authority, and act in that capacity in the particular instance.
Persons or entities not performing public functions may equally be imputable, if they in fact acted under the direction or control of the State although the act need not be authorised by the state authorities.
For instance, where there is a breakdown of normal governmental authority and control, such as in so-called "failed states", the actions of those acting as the "government" in a de facto sense will be acts of the state.
The acts of an "insurrectional or other movement that becomes the new government of an existing state or succeeds in establishing a new state" can also be attributed to the state.
This is also the case where a state acknowledges and adopts the conduct of private persons as its own. If private persons, elements or groups within a state engage in acts the government is not responsible except when the government rather than condemn the act praises or associates itself with it.
For instance if a Ghanaian rogue attacks a British intern in Ghana, the government will not be responsible for that act except when the act was committed by a soldier or policeman.
Under such a circumstance, the state is held as such. This was what happened in the Iran-US case when militants attacked the US embassy. In that case, the International Court held that the initial attack by the militants could not be imputed to the state. However, the subsequent approval by Ayatollah Khomeni and other state organs of Iran translated the acts into state act.
Article five of the ILC Draft Article provides that the conduct of any state organ having that status under its municipal law is considered as an act of the state concerned where the organ was acting in that capacity.
Similarly, ultra vires acts may be imputed to a state even if it is established that the act was beyond the legal limits or capacity of officers involved provided they acted as competent officials.
There is no denying the fact that Ghanaians and other West African nationals in their bid to get to Europe use other African countries as transit where some of them die under very horrifying circumstances.
Therefore, to mistake our befallen brothers for mercenaries is neither here nor there. I have not heard the Gambia deny the killings except to justify these senseless killings for acts of certain mercenaries, which is no justification anyway.
Only last week, the Gambian consul in Ghana phoned in to a TV3 programme to express his country’s regret about the incident.
If anything at all, those people who were killed could have been arrested to face the municipal laws of Gambia after having been investigated. This was not done and for me, once the killers have been identified as coming from the fold of the Gambian security set up, that makes the Gambia responsible in every respect.
The MoU begs the question and should not be used to throw dust into the eyes of Ghanaians and the international community. President Jammeh should be made to face the music rather than camouflaging the matter with just contributing to the families of only six people alleged to have been killed.
Is the contribution a reparation or what? The choice of words is deceptive and to evade the issue at stake. Accepting responsibility makes the payment of reparation necessary and in such forms as in kind as was done in the Temple case involving Thailand and Cambodia, monetary contribution as in the I Am Alone case, which the Gambia is reinventing as a contribution.
To say the least, this is an insult to the integrity of the people of Ghana and unacceptable. Definitely, the issue should not be left to rot. It must be pursued to its logical conclusion.
The breach of an international obligation entails legal consequences thus it creates new obligations for the breaching state, principally, duties of cessation and non-repetition (Draft Article 30), and a duty to make full reparation (Draft Article 31).
If illegal actions are continuing, the state has a duty to cease, which has been done.
The Gambia cannot rely on the defence of self defence because those killed were in no way armed or posed any threat to the security of that country. If they had been arrested while armed then probably it could rely on this defence.
And resolving to arrest the perpetrators in the Gambia is good but flawed in the sense that that should not be used to deflate the tension and also make nonsense of the law.
That is a matter between the government of Gambia and its citizens but as far as international law annd the international community are concerned, it has done wrong and need to be held responsible for that wrong.
It must acknowledge that fact before passing the buck.
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