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Opinions of Tuesday, 24 April 2012

Columnist: Ata, Kofi

Agyapong’s Genocide and Terrorism Charges: Bizarre or Ludicrous?

By Kofi Ata, Cambridge, UK

It was reported on Thursday that Kennedy Agyapong has been charged with “treason felony, attempt to commit genocide and terrorism”. As someone with knowledge in International Humanitarian Law, I am not sure what the state stands to gain from these charges, particularly, the attempt to commit genocide and terrorism. I am concerned that the state or the Executive is not only abusing its powers but also trivialising very serious international crimes of genocide and terrorism. In this two part article, I will try to explain what constitute crimes of genocide and terrorism and analyse if they are applicable to the pronouncements by Kennedy Agyapong. A lot has already been written on treason felony under Ghanaian laws and therefore I will exclude that charge as I am not conversant with Ghanaian treason laws.

Before I go any further, let me make it abundantly clear that, I have no sympathy whatsoever for what Kennedy Agyapong said. I condemn his declaration of war and incitement to ethnic hatred because they were obnoxious, abominable, abhorrent, irrational, etc. It is also disappointing that when he had the opportunity to speak to NPP supporters shortly after his release from detention, he did not consider it prudent to offer a public apology to the people of Ghana. It’s not too late and he can still do it if he could lower his supper-ego. Again, due to the manner that the state handled the matter, his supporters are giving him a hero’s status and that is unfortunate and regrettable. Notwithstanding my position, as a human rights practitioner, I am equally concerned by the treatment meted out to him (his detention and the bizarre charges that have been preferred against him).

The term “genocide was first coined by a Polish jurist, Raphael Lemkin in his 1944 work entitled “Axis Rule in Occupied Europe”. He derived the term from two words, “genos” Greek word meaning race, nation or tribe and “caedor” Latin word which means to kill. He also stressed that genocide did not necessarily mean the immediate physical destruction of all members of a target group, but also applied to a coordinated plan of different actions aiming at the destruction of the essential foundations of their life with the aim of annihilating the groups themselves. His work greatly influenced the prohibition of genocide as over time it achieved the status of “Jus Cogens”, and has become a norm of International Customary Law (Jus Cogens is a norm accepted and recognised by the International Community of States as a whole from which no derogation is permitted and which can only be modified by a subsequent norm of general International Law having the same character).

The 1948 International Convention on the Prevention and Punishment of the Crime of Genocide defines genocide in Article 2 as follows: “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious groups, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; and (e) forcibly transferring children of the group to another group.

It is equivocally clear that and from what is contained on the audio recordings of what Kennedy Agyapong said, none of the above crimes were committed or were in the process of being committed individually and severally (imminent or later) either by the accused himself and or by this words or any other person/s. Therefore for the purposes of Article 2, there is no case to answer and the charge of attempt to commit genocide will be dismissed and the accused discharged.

However, Article 3 of the Convention makes the following acts punishable: (a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; and (e) complicity in genocide.

From the above, it is “potentially” and legally possible that some or the words (collectively) used by Kennedy Agyapong do come under Article 3, at least, on face value and under especially, 3(c) above. Why Mr Agyapong was charged under 3(d) and not 3(c) or both is a mystery to me.

The questions for the state to address in court are, did the actions and or omissions of Kennedy Agyapong constitute attempt to commit genocide and or direct and public incitement to commit genocide? My answer to both questions is emphatically No and it’s a big No. My answer may appear strange or even illogical to some readers bearing in mind the inference I made in the last paragraph.

To prove a crime of genocide, there must be an “intent” to destroy “in whole or in part”. Though there are different schools of thought on the concept of intent, it is generally accepted that the determination of intent is dependent on existence of specific evidential characteristics such advance planning, organisation, facilitation and or complicity. Unless the state can provide evidence that the accused had plans in place such as acquisition of arms, pickaxes, sledgehammers, machetes, poison, etc to be used in committing the crime of genocide (attacking and killing Gas and Ewes on a large scale), the charge fails.

The intent must be buttressed by evidence of organisation to put in action the planned destruction of the target group/s as well as evidence of facilitation either by agencies or groups and huge number of willing individuals to perpetrate the crime of genocide. This is because the killing or transfer of the target group/s must be on such a scale that it constitutes destruction in whole or in part. Finally, there must be complicity because without some agencies giving tacit approval to what is being planned, organised and facilitated, no such mass killing, transfer or destruction of the target group/s could take place. In other words, without complicity by agencies, such massive killing, transfer and or destruction are not possible. Can the state prove that there have been any planning, organisation, facilitation and complicity on large scale to kill, transfer and or destroy Gas and Ewes? I am afraid so far the answer is no.

It should be pointed out that the elements of facilitating and complicity could not be successful without the knowledge and direct or indirect participation of institutions and organisations, even including state agencies such as the police. It is practically impossible for an individual or a group of individuals to plan, organise and facilitate the crime of genocide without official or unofficial complicit from at least, some state institutions. The practice and experience from both Rwanda and Former Yugoslavia (Bosnia) showed that a single individual with even willing supporters could not commit genocide without state complicit. Can the state prove complicity by individuals, groups and state agencies? My answer is a fat, No.

In addition to the intent there must also be a motive to commit genocide. Again, the motive if established must lead to a crime of genocide. For the purposes of argument let as assume the state determines the motive of the accused. That is, the desire for NPP to win the 2012 Presidential Elections by preventing the target groups from registering to vote and voting in the 2012 General Elections. Will this motive directly or indirectly lead to massive and widespread killing and transfer of Gas and Ewes? The answer is obese No. Since the motive is actually different from the destruction of the target groups, then the motive for his war declaration and incitement to ethnic hatred cannot constitute genocide.

Another burden of proof on the state is, how many of the target groups in Asante region must be killed, destroyed transferred from the region to achieve this motive? How many is many enough to constitute genocide? The Genocide Convention does not prescribe the size of the “in part” necessary to constitute genocide. The approach that has been taken by the international community is that the killing, transfer or destruction of the target group/s must not only be on a large scale but also widespread and systematic. According to the late Raul Hilberg, the world’s preeminent scholar on the Holocaust, for the killing, transfer or destruction to be widespread and systematic, it must pass through various stages. He identified three main stages but contemporary studies of crime of genocide identify eight stages that do not always follow strictly a linear pattern but can co-exit.

Classification: The categorisation of cultures into distinguishable people of “us and them” by ethnicity, race, religion, or nationality such as German and Jew, Hutu and Tutsi, Muslims and Christians and others;

Symbolization: The target groups are given names or symbols to their classifications to distinguish them by colours or dress (such as the yellow star for Jews under the Nazi rule). Classification and symbolization are universally human and do not necessarily result in genocide unless they lead to the third stage, dehumanization;

Dehumanization: One group (often the perpetrator) denies the humanity of the target groups. Members of the groups are equated with animals, vermin, insects or diseases such as Tustis being referred to as snakes and cockroaches (inyezi) by Hutus. Dehumanization overcomes the normal human revulsion against murder and therefore allows mass murder to take place. At this stage, hate propaganda in print and on radios is used to vilify the victim group.

Organisation: Genocide is always organised as stated above, usually by the state, often through militias to provide deniability of state responsibility. Sometimes organization is informal or decentralized.

Polarization: Extremists drive the groups apart with hate groups broadcasting polarizing propaganda. Intermarriage or social interaction are forbidden or frown upon and moderates from the perpetrators’ own group are targeted, intimidated and silenced or even eliminated.

Preparation: Victims are identified and separated out on the basis of their ethnic, religious identity or by association such as intermarriage. Death lists of prominent members of the target groups are drawn up. Members of victim groups may be forced to wear identifying symbols and their property is expropriated. They are often segregated and confined to or deported into ghettoes, concentration camps, a famine-struck region and starved and to make the next stage easy.

Extermination or Annihilation: This begins and quickly becomes the mass killing legally called “genocide.” It is extermination or annihilation because the killers do not believe their victims to be fully human. Sometimes the genocide results in revenge killings by victim groups against each other, creating the downward whirlpool-like cycle of bilateral genocide as was in Rwanda.

Denial: This stage is the surest indication of further genocidal massacres. The perpetrators try to destroy the evidence of widespread and systematic killings by digging up the mass graves to burn bodies, try to cover up the evidence and intimidate the witnesses. They deny that they committed any crimes, and often blame what happened on the victims.

The above show the systematic nature of crime of genocide, though as pointed out earlier all the stages do not have to happen for genocide to take place but some must be present for charges of attempt to commit genocide to be proven. As already mentioned, there is no possible for any individual/s or group/s to attempt to commit a crime of genocidal nature without the state’s participation through its institutions of law enforcement taking part at least in the planning and organisation. The last stage also presupposes that the perpetrators are often but not always in power otherwise they cannot cover up their crimes. Can the sate prove that at least, some of the above evidence of widespread and systematic killings or stages have been or imminent of being committed by Kennedy Agyapong? Definitive No is the answer.

For the above reasons, I conclude that what Kennedy Agyapong said on air on 13 April 2012 cannot amount to a crime of genocide under the Genocide Convention. If the state finds evidence of genocide as described in the article (the planning, organisation, facilitation, complicity to be widespread and systematic as in the eight stages above, then the state itself must be guilty of security failure and therefore the government has failed in its duty to provide peace and security for all Ghanaians.

What he said was incitement to ethnic hatred and the state is more likely to secure a successful conviction by charging him with public order offence, instead of these trumped-up charges. Is the state seriously saying that the accused or any of those he asked to attack Gas and Ewes would have taken up his call? Even if they did, how could they have carried out the crime of genocide (that is, in a systematic manner) without the state not intervening to stop it? Would Kennedy Agyapong have made Nana Akufo Addo a widower or left NPP without a National Chairman?

We must all condemn him but we must not allow the state to play politics with international crimes because Ghana will be ridiculed in the eyes of the international community. Ghanaians should be concerned that the state is abusing its powers and not only victimising the accused by teaching him a lesson but also jeopardising citizens’ rights and liberty. Today, it’s may be an NPP loud-mouth, arrogant politician, so we do not care but remember tomorrow, it could be you and me and Kennedy Agyapong will not be there to make noise for us. No matter how heinous his outbursts were, he is human and Ghanaian and his human rights must be respected and protected.

I will consider the crime of terrorism in part two.

Kofi Ata, Cambridge, UK