James Gadet Dak has committed treason against South Sudan, and South Sudan has jurisdiction over him
By Daniel Juol Nhomngek, Kampala, Uganda
November 7, 2016 (SSB) —- Since the spokesperson of Riak Machar, Mr. Gadet Dak, was arrested and deported to South Sudan, many people who are ignorant of the implications of nationals or foreign nationals staging a war against other countries have been trying to show that they know the law by putting forward a flawed and baseless legal argument. The argument they put forward is that James Gadet Dak is an American citizen since he holds the passport of the USA and he should have been deported to the USA instead of South Sudan.
For instance, Collins Hinamundi, the Facebook user who posted to South Sudan Youth Online Forum (SSYOF) made the same argument by making a reference to the fact that Gadet is a US Citizen. He said, “Earlier Machar had also contacted UNHCR officials as Nairobi prepared to deport Dak, who also is a United States citizen”. Many other people have made the same comment since yesterday. The question is: what does the crime of treason he committed against South Sudan do with James Gadet Dak being a citizen of the USA?
As the position of law stands, the argument people are trying to put forward based on the line that Gadet being a citizen of the USA he cannot be deported by Kenya to South Sudan is flawed and cannot be sustained either under the international law or national laws of South Sudan. In short, Gadet has fallen into wrong side of the law and does not have any protection under the international law and the laws of South Sudan.
Under the common law system which South has adopted, a person who attacks or incites the people to attack the country or the president of that particular country with the intention of overthrowing the government is guilty of treason.
In law, treason is the crime that covers some of the more extreme acts against one’s nation or sovereign. Historically, treason also covered the murder of specific social superiors, such as the murder of a husband by his wife or that of a master by his servant. Treason against the king was known as high treason and treason against a lesser superior was petty treason.
A person who commits treason is known in law as a traitor. Oran’s Dictionary of the Law (1983) defines treason as citizen‘s actions to help a foreign government overthrow, make war against, or seriously injure the parent nation.
In many nations, it is also often considered treason to attempt or conspire to overthrow the government, even if no foreign country is aiding or involved by such an endeavor. Treason is a crime against the laws of South Sudan.
Article 4 of the Transitional Constitution of the Republic of South Sudan of 2011 prohibits any attempt by any person or a group of persons from taking or retaining control of State power except in accordance with the Constitution. Thus, any person or group of persons who attempts to overthrow the constitutional government of South Sudan, or suspend or abrogate the Constitution commits treason.
With that regard, the punishment for treason is provided for under section 64 of the Penal Code Act, 2008 of south Sudan. It provides that whoever being a citizen of or a resident in Southern Sudan— (a) does any act, whether inside or outside Southern Sudan, with the intent of overthrowing the Government; or (b) incites, conspires with or assists any other person to do any act, whether inside or outside Southern Sudan, with the intent of overthrowing the Government, commits the offence of treason, and upon conviction, shall be sentenced to death or to life imprisonment.
In relation to the above arguments for treason, Gadet Dak has committed a crime of treason against South Sudan and if proved by the prosecution then he is guilty of it. The penalty of treason in accordance with section 64 cited above is either death penalty or imprisonment for life.
To those who have been arguing that Gadet is a citizen of the USA the fact that Gadet is a Citizen of the USA does not deprive South Sudan of the jurisdiction to punish Gadet under its laws if he has committed any of the offences as provided for under section 64 referred to above.
In fact, the offence of treason is punished by all countries including the USA. In the United States, the federal courts have recognized an important mechanism for acquiring jurisdiction over foreign defendants known as the effects doctrine. The effects doctrine is an offshoot of the territorial principle. Briefly, the effects doctrine says that if the effects of extraterritorial behavior or crimes adversely affect commerce or harm citizens within the United States, then jurisdiction in a U.S. court is permissible.
The first case to establish the effects doctrine was United States v. Aluminum Company of America, 148 F.2d 416 (2d Cir. 1945) (Learned Hand, J.). The principle in this case came became to be known as the ALCOA case.
The case above was brought as charges against a foreign consortium of aluminum traders and producers who had affected the price of raw aluminum and goods manufactured from aluminum in the United States through unfair trade practices of price fixing in violation of section 1 of the Sherman Antitrust Act.
The effects doctrine has also been incorporated into section 402 of the Restatement of Foreign Relations Law of the United States, Thus: “a state has jurisdiction to prescribe law with respect to … (c) conduct outside its territory that has or is intended to have substantial effect within its territory.”
As seen in the above case and the law of the USA, treason is one of those crimes committed against the State and as a result, national courts are endowed with jurisdiction to prosecute the nationals of foreign countries who commit crime against them. In other words, they are traitors.
As it has been observed somewhere, outside legal spheres, the word “traitor” may also be used to describe a person who betrays (or is accused of betraying) their own political party, nation, family, friends, ethnic group, team, religion, social class, or other group to which they belong.
At times, the term “traitor” has been used as a political epithet, regardless of any verifiable treasonable action. In a civil war or insurrection, the winners may deem the losers to be traitors.
Likewise the term “traitor” is used in heated political discussion – typically as a slur against political dissidents, or against officials in power who are perceived as failing to act in the best interest of their constituents.
In certain cases, as observed with the German Dolchstoßlegende, the accusation of treason towards a large group of people can be a unifying political message. Hence, treason is considered to be different and on many occasions a separate charge from ‘Treasonable Felony’ in many parts of the world.
In relation to our case, James Gadet Dak committed treason against South Sudan and the argument that he is a citizen of America does not whole water because America is bound by Article 2 (4) of the United Nations Charter of 1945 which prohibits the intervention of any country into internal affairs of another country.
As a general rule, a nation which sponsors the armed groups against another nation is guilty of breaching the principle of international law of non-intervention into internal affairs of the sisterly country. This principle was laid by the International Court of Justice (ICJ) in the case of the Republic of Nicaragua v. The United States of America (1986) ICJ 1 (this case is available on Wikipedia.org/Nicaragua’s case). Nicaragua is a case that deals with a public international law principle of non-interference and non-use of force under Article 2 (4) of the UN Charter 1945.
In Nicaragua’s case above, the ICJ ruled in favor of Nicaragua and against the United States and awarded reparations to Nicaragua. The ICJ held that the U.S. had violated international law by supporting the Contras in their rebellion against the Nicaraguan government and by mining Nicaragua’s harbors.
The Court found in its verdict that the United States was “in breach of its obligations under customary international law not to use force against another State”, “not to intervene in its affairs”, “not to violate its sovereignty“, “not to interrupt peaceful maritime commerce”, and “in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956.”
As the ICJ observed in the above case of Nicaragua, the prohibition on the use of force is found in Article 2(4) of the UN Charter and in customary international law.
Importantly, the Court held that the United States violated the customary international law prohibition on the use of force when it assisted the contras (contras were armed groups supported by the USA against Nicaragua) by “organizing or encouraging the organization of irregular forces and armed bands for incursion into the territory of another state” and participated “in acts of civil strife in another State “when these acts involved the threat or use of force.
As it can be understood from the above decision of the International Court of Justice, a State that supports armed groups’ activities to commit crimes in the country which they are against or overthrow the government in that country is in breach of the international law principle of non-interference and non-use of force by one country against the other country. Thus, it is in the best interest of the USA that it must observe the principle of international law of non-interference, non-intervention and non-use of force against friendly nations.
However, in the case of James Gadet Dak, though he would have been a pure USA citizen, South Sudan would still have jurisdiction against him because he committed crime against South Sudan.
In case of Gadet Dak it is worse. He has been inciting citizens against each other and he deserves to be deported because deporting one person who may be a threat to peace not only against South Sudan but against international peace is an appropriate action taken by the Government of Kenya.
After all under the international law, a rebel is not protected under the humanitarian law unless he or she denounces the rebellious conduct without the reservation and surrendered to the country to stay as a refugee or an asylum-seeker. In other words, the principle of non-refoulment that protects refugees and asylum-seekers does not protect rebels.
Thus, it is within the right of Kenya to deport James Gadet Dak to South Sudan if it deems that he is a threat to the national security of Kenya and that of South Sudan.
In summary, Kenya is not guilty of any breach under the international law, regional law and national law. Thus, many people who have been relying on phantom or illusive hope that America may intervene to save Gadet since he is a citizen of the USA by virtue of the American passport he holds are wasting their hope on baseless ground.
America has a duty under the international law not to interfere with the independence and sovereignty of South Sudan. The only thing the USA cannot do in such circumstances is to ask South Sudan to surrender Gadet to be tried under the American law and not to shield him from criminal liability. Otherwise, Gadet is a criminal and he must face music.
NB// the author is a South Sudanese lawyer residing in Uganda and can be reached via: juoldaniel@yahoo.com or +256783579256
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