Sunday, June 21, 2015

A case to try Yaya Jammeh locally

ICC's Fatou Bensouda
Fatou Bensouda, the Gambian-born ICC's Chief Prosecutor has come under heavy criticism lately from the Gambian dissident communities strewn across Europe, the United States and Africa, for what is seen as her refusal to open up a case file against the Gambian dictator, as if there is solid ground for Jammeh's case to be taken up by the ICC.

First let us look at the mandate of the ICC under the Rome Statute which clearly mandates of the Court to try individuals (and not States), " and to hold such persons accountable for the most serious crimes of concern to the international community as a whole, namely the crime of genocide, war crimes, crimes against humanity and the crime of aggression, when the conditions of the Court's jurisdiction over the latter are fulfilled."

Even the most vociferous opponents of Jammeh will agree that Jammeh's crimes, however odious, cannot be classified as genocide, war crimes or crime of aggression which is defined as "the planning, preparation, initiation or execution by a person in a leadership position" against a State.  Unless Jammeh plans, prepares, initiates and executes a plan of aggression against his neighbors, he cannot be charged with crime of aggression either.

The only charge left on the table that Jammeh could possibly be charged with appears to be extremely remote, and that is crimes against humanity which is defined as "acts committed as part of a widespread or systematic attack directed at any civilian population, with knowledge of the attack. "

Generally, lawyers agree that the threshold for crimes against humanity is very high and thus difficult to attain, and when it is attained, it is difficult to secure conviction.  In the case of Jammeh, reaching the threshold of "widespread or systematic attack directed at any civilian population" will be difficult, legally speaking, that is.

Yes, you've guessed it - Yaya can and should be tried in The Gambia where most the crimes against the Gambian people are being committed.  It is not as if it will be the first time that the country has collaborated with the international community, through the affiliated agencies of the United Nations and the Commonwealth Secretariat, to successfully prosecuted individuals accused of crimes against the State, in an open court of law.

We've done it after the 1981 coup d'etat, and we can do it again after removing Yaya Jammeh from office.  By going this route, we are certain of Jammeh being prosecuted.  The court proceedings will be more efficiently efficiently handled as evidenced in our 1981/82 experience.  It will also be less expensive to the national treasury because a significant portion of the costs associated with the trials will be underwritten by the international community and traditional donors.