WEST African countries have been urged by African legal experts to use universal jurisdiction to prosecute those accused of the murder of more than 50 migrants from Ghana, Nigeria, Senegal, Togo and Cote d’Ivoire in The Gambia in July 2005.
With the release of the report of the country’s Truth, Reconciliation and Reparations Commission (TRRC) expected at the end of November, the Gambia Bar Association, the Institute for Human Rights and Development in Africa (IHRDA), the International Commission of Jurists (ICJ) and the International Centre for Transitional Justice (ICTJ) organised a public forum this week in Banjul that discussed the importance of accountability for the crimes committed, as well as how and where such prosecutions could be carried out.
A former Special Adviser to the UN Secretary General on the Prevention of Genocide, Adama Dieng, speaking via video link to the hybrid forum on the implementation of the recommendations of the TRRC, noted that the Commission heard evidence from 392 witnesses, including victims and perpetrators.
‘The witnesses tied the former president and his accomplices to the killing and torture of political opponents, the murder of over 50 West African migrants, and abusive “witch hunts”.
‘The legal responsibility for prosecuting these crimes rests in the first instance with the government of The Gambia,’ said Dieng, a former UN Under Secretary General and currently Special Adviser to the Prosecutor of the International Criminal Court (ICC).
‘We hope and we expect that The Gambia will be able effectively to prosecute these crimes, either alone or with the support of regional or international partners.’
He said that if The Gambia was unwilling or unable to prosecute ‘these serious crimes, the International Criminal Court, in conformity with the principle of complementarity, may do its part in investigating and prosecuting those most responsible’.
Dieng went on: ‘It is also possible that many of these crimes, in particular the murder of the West African migrants from Ghana, Nigeria, Senegal and elsewhere, could be prosecuted by other states under principles such as universal jurisdiction.
‘Let us be clear, however.
‘Whether it is in The Gambia, in another African country, before a special court, or at the ICC, justice must happen and justice will happen.
‘Impunity is not an option,’ he added.
The victims were members of a group of West African migrants apprehended by Gambian security forces.
The killings occurred under the former Gambian President, Yahya Jammeh, whose 22-year period in office has been under public investigation for human rights abuses for the past three years.
As The Gambia prepares for a presidential election on December 4 and with President Adama Barrow aligning himself with the party of former President Jammeh, many Gambians have been expressing doubts over whether the government would implement the recommendations on prosecuting those with the greatest responsibility for the crimes committed between 1994 and 2017.
Evelyn Ankumah, Executive Director of Netherlands-based Africa Legal Aid, said during an experts’ meeting before the forum that everyone agreed that there was a need for accountability.
‘I believe there’s fundamental agreement that justice should be done at home or as close as possible to home,’ she said.
But she wondered how realistic it would be in this case, given that no one had been prosecuted since the killings of the migrants 16 years ago.
Many have argued that The Gambia might not be in a position to prosecute the cases recommended by the TRRC, but Ankumah said it would make sense for ‘justice to be done close to home’.
However, she went on: ‘I am not aware that any of the ECOWAS states has shown interest in hosting a trial.
‘In fact, it would be very good to host a trial in an ECOWAS state especially given recent events in Guinea, Mali and Chad.
‘But efforts to establish such a court should not only be genuine but must be seen to be genuine.
‘They must be seen to be effective.
‘Victims should not have to wait forever,’ Ankumah added.
She said that the ICC could ‘at least [try] the lead perpetrators’.
Howard Varney of the ICTJ, speaking from South Africa, said that most perpetrators of atrocities never got prosecuted
He said that crimes of the past were unlikely to be tried unless governments established dedicated units that would exclusively investigate and prosecute such cases.