War and commerce link revealed

Just what would happen if Kenya was to discover large quantities of a rare and precious natural resource that the developing world critically needs?

What would happen if the West decided to attack Kenya, take over the exploitation of the natural resource and try and make our cacophonous political scene more “democratic, free market based and transparent.”

What recourse would Kenyans have if a superior more developed country, say the United States, decided that the leadership was too unstable and a danger to the stability of the region and was a hot bed for al- Qaeda, and therefore decided to occupy Kenya, exploit the rare and valuable natural resource and ensure we held periodic elections every five years?

More realistically, what would happen if a private military company, such as Xe Services LLC, formerly known as Blackwater, killed and tortured hundreds of Kenyans while working for its client, the US government, in the war against terror and bombed whole villages in pursuing al-Qaeda; would Kenyan civilians be able to hold the US accountable for a private companies infractions, or would they be left high and dry with no recourse?

This is not farfetched, while operating as Blackwater, Xe Services did launch attacks on behalf of the Central Intelligence Agency (CIA) into Somalia and Yemen from Kenya while pursuing al-Qaeda operatives. In Sierra Leone, the now defunct South African private military company, Executive Outcomes, received mineral concessions for bringing the Revolutionary United Front (RUF) rebellion to an end and restoring the Sierra Leonean government. An act that the Sierra Leonean Truth Commission called “the mortgaging of the nations assets,” the question is, can the government of Sierra Leone be held responsible for any crimes committed by its employee, Executive Outcomes? In a new book, “War, Commerce And International Law” Kenyan legal scholar, Prof James Thuo Gathii, explores these issues and more. From the war on terror and the Iraq occupation, the book traces the origins of two of the great preoccupations of international law; war and commerce.

From the emergence of the United States as weak state to its current status as the sole global super power, Prof Gathii explores wars and conflicts, including those in the Democratic Republic of the Congo and in Iraq and the application of international law and how international law carries with it the legacy of imperialism and colonial conquest. An associate dean for Research and Scholarship and a professor of international commercial law at Albany Law School in New York City, Gathii is no stranger to the Kenyan legal scene, he is an advocate of the High Court of Kenya and a visiting professor at University of Nairobi’s Law School and a frequent contributor to the Business Daily.

According to Prof Makau Mutua, the dean at the State University of New York, Buffalo Law School, Gathii’s work is not only a pioneering work of African intellectual scholarship at the global stage, it is the only one on the topic he knows of.

At a time when Kenyans are extremely intrigued by the application of international law due to the looming threat of investigations and arrest of suspects of the post-election violence last year by the International Criminal Court (ICC), and having been attacked twice by al-Qaeda, Gathii’s book shows how international law is manipulated by powerful countries to make war and confiscate or destroy the property of their enemies, whereas weak nations try to use international law to protect themselves against plunder, pillage, and confiscation of their property by powerful States. At a time of great geopolitical tensions over dwindling resources, Gathii explores the relationship between commerce and war and how they depend and complement each other. We see how the US has evolved from a strong supporter of international law when it was a weak state, to its disregard in recent times.

Gathii argues that one of the reasons the US took a large role in Iraq is because it made its own national security interests the primary aim. As such, if its role meant having no regard for international law, the US was least bothered. It is in examining amorphous wars like the war on terrorism that Gathii explores how weak States like Kenya can safeguard their interests from private contractors hired by more powerful States. Gathii seeks to establish the laws that regulate such private armies and whether these laws are adequate or not.

For Kenyan lawyers, the proliferation of acts of piracy and armed robbery at sea against vessels off the coast of Somalia which has now prompted the international community to intervene and to carry out law enforcement measures in the Horn of Africa region, beckons new opportunities and areas of practice and War Commerce and International Law gives a good grounding of how to utilise domestic and international laws while fighting non State combatants like the pirates.

The book also illustrates the actions that can be used in law to combat private military companies working for State governments.