Friday, June 24, 2016
Why The Gambia doesn't need the ICC
In response to questions uppermost in the minds of many Gambians living abroad, mainly in exile, about the human rights conditions, Mrs. Fatou Bensouda went to great lengths, unnecessarily so, in our view, to read out loud the mandate of the ICC.
Because the court's mandate is restricted to three broad area of (i) crime against humanity (ii) war crimes and (iii) genocide, The Gambian prosecutor wasted no time in assuring her listeners, repeatedly, that none of these applies to The Gambia.
We agreed with her in a previous post that the legal threshold, under the Rome Statutes, for any and all of these categories of criminal acts have deliberately been set high for a purpose. You can find that post here. The ICC was not created to replace existing judicial systems in countries that are signatories (State Parties) to the Agreement establishing the court but rather to compliment them in areas delineated in the Statutes.
We subscribe to the believe that a strong and independent judicial system is the way to go in the case of the Gambia. Unfortunately, the Gambia was on it's way to achieving this objective until it was interrupted by a military coup that ushered in the current regime that proceeded to decimate the Gambian judiciary to where it finds itself today - the laughing stock of the legal communities, regionally and beyond.
Prior to the coup d'etat in 1994, Gambia's judicial system was developed and independent enough to dispense justice fairly and equitably at reasonable standards. Where it lacked capacity, the system allowed the procurement of legal services bilaterally or through the Commonwealth in the form of magistrates, judges, prosecutors, legal drafts-persons and the like.
Following the failed coup of 1981, Gambia was able to obtain the services of judges in this fashion to handle the numerous cases resulting from it. It is not that Gambia has not been down this road before. The re-admission of The Gambia to the Commonwealth should, therefore, be among the most urgent priorities of a new government to help in the major restructuring and capacity building exercise of the country's judiciary.
Chief Prosecutor Bensouda was highly critical of those of us - specifically Gambian dissidents living abroad - demanding public reaction from the ICC following the recent "vitriolic rhetoric" of Yaya Jammeh to quote the UN's Special Adviser on the Prevention of Genocide, Mr. Adama Dieng, in reference to his remarks against the Mandinka ethnic group - the single largest tribe. Subsequent to Mr. Dieng's condemnation, we wrote, in the previously referenced blog post, appealing to Mrs. Bensouda to "join her UN colleague by adding the voice of the International Criminal Court to the list of those condemning Jammeh for inciting violence against the Mandinkas..."
It is our view that the job requires both prosecutorial as well as moral leadership.
Consequent to referring to Mr. Dieng as a "UN colleague of the Chief Prosecutor, , we received lessons in the organizational structure of the United Nations. We were also reminded about the fact that the ICC is not a human rights organization. We wish she had focused attention on the substantive issues instead by answering the interviewer's question, for instance, about how she felt as a woman reading Mrs. Nogoi Njie's sworn testimony which described, in gruesome terms, the torture she suffered at the hands of the notorious National Intelligence Agency agents rather than reminding us on numerous occasions during her interview that the "ICC is not part of the UN system" and neither is it a human rights/NGO organization.
Theoretically, these claims are true but operationally they are furthest from being accurate statements. The UN Security Council brings cases to the ICC on a regular basis since its inception which restricts the operational independence of the ICC. Without the political muscle and diplomatic cover of the UNSC, the ICC would be more ineffectual as it is today.
As regards the claim that the ICC is not a human rights/NGO, it is the International NGOs that fathered the ICC. It was as a result of the activism of the human rights organizations around the world that brought the world's attention to the need for such a Court whose activities are keenly followed and monitored by human rights organizations.
Finally however, all is not lost as far as the deteriorating human rights conditions in The Gambia are concerned. The ICC Chief Prosecutor revealed that her office is monitoring the situation and will not hesitate to issue a public statement should the situation warrants it. Time will tell.