21 April 2017

Gambia: Letter to Minister of Justice - Accountability for Past Serious Crimes

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Abubacarr M. Tambadou

Attorney General

Minister of Justice

Banjul, Gambia

Re: Accountability for Past Serious Crimes

Dear Minister Tambadou,

Please accept Human Rights Watch's greetings and congratulations on your appointment as Attorney General and Minister of Justice. We are an international human rights organization that monitors and reports on human rights in more than 90 countries worldwide. We worked extensively to document the human rights violations that occurred in Gambia under the government of former president Yahya Jammeh.

We welcome the important steps the government of President Adama Barrow has already taken to end the impunity that underpinned Jammeh's time in power, including reversing Gambia's withdrawal from the International Criminal Court, releasing political prisoners and committing to investigate the fate of individuals who disappeared during the Jammeh era. We also note that your government has begun the process of investigating and prosecuting officials implicated in serious crimes, including the April 15, 2016 death of Solo Sandeng at the National Intelligence Agency (NIA) headquarters.

We hope that these efforts represent a precursor to a wider effort to hold accountable those most responsible for human rights violations during Jammeh's rule. Accountability for the gravest crimes is crucial to building respect for the rule of law and contributing to the deterrence of future abuses.

Human Rights Watch has interviewed dozens of torture survivors, former detainees and family members of Gambians killed or forcibly disappeared during the Jammeh era, including people targeted as long ago as 1996 and as recently as January 2017. Many described to us how the government's failure to investigate and prosecute abuses enabled future violations and prevented victims from speaking openly about their mistreatment.

Drawing from our work to promote justice for grave crimes committed in West Africa and around the world, we respectfully share with you below some of our recommendations for ensuring fair, credible accountability for past violations in Gambia.

I. Gambian courts can play a leading role in accountability

Whenever possible, national-level courts are the best forum for ensuring justice for serious human rights violations. Prosecuting criminal offenses at the national level maximizes the opportunity for the proceedings to resonate with victims and the general public, and contributes to reestablishing their trust in justice institutions.

This is consistent with the complementarity principle of the International Criminal Court (ICC), which provides that the ICC only steps in when national courts are unable or unwilling to prosecute crimes under the court's jurisdiction. An ICC spokesman notably said in January that it is not currently conducting investigations in Gambia, and it appears unlikely to do so in future.

The Gambian justice system faces significant challenges as it struggles to overcome more than two decades of neglect and misuse, and investigating and prosecuting serious past crimes will inevitably be one part of a wider justice sector reform project.

But the prominent and courageous role that Gambian lawyers played in representing political prisoners during the Jammeh era, as well as the appointment of a widely respected chief justice with experience in international criminal law, reinforces that Gambian lawyers and judges are well placed to pursue accountability domestically.

At the same time, the Gambian justice system will also need--and will in all likelihood have the opportunity to benefit from--significant financial investment and technical assistance from international donors. Such investment should give your government the opportunity to learn from and build on other countries' experience with accountability.

In some cases, the possible subjects of future prosecutions, including former president Jammeh, are not in Gambia. For some, including criminal suspects arrested in Senegal, it might be possible for Gambia to seek the individual's extradition or transfer, a request that would be strengthened by efforts by Gambian courts to demonstrate their willingness and capacity to try crimes in a credible, independent and impartial manner. For others, extradition may prove more difficult or less relevant. Where that is the case, Gambia can support cases brought in other jurisdictions on the basis of the principle of universal jurisdiction, as discussed below.

II. Truth-telling and reconciliation measures are not a substitute for criminal judicial proceedings

President Barrow's stated support for a truth and reconciliation commission to investigate crimes committed during Jammeh's rule offers the potential for families to learn the fate of their loved ones, as well as the opportunity to begin a national dialogue about reforms to assure that Jammeh-era abuses are never repeated.

At the same time, truth and reconciliation measures are not a substitute for fair, credible trials before courts of law and do not satisfy victims' rights to have access to justice.

Criminal investigations and prosecutions should not be delayed for truth and reconciliation initiatives, and these processes can operate in parallel. Experience from Sierra Leone, where a truth and reconciliation commission operated alongside the Special Court for Sierra Leone, a hybrid international-national tribunal that was established in 2000 to try grave crimes committed during that country's conflict, may be relevant. Consideration will, nevertheless, need to be given to how judicial institutions and a truth and reconciliation commission might share information while protecting the rights of victims, witnesses and alleged perpetrators.

III. Developing a prosecutorial strategy can help direct finite resources and manage expectations

The development and implementation of a coherent prosecutorial strategy - one that includes criteria used by prosecutors to make decisions about case selection  - will be important to achieving justice for serious human rights violations committed during the Jammeh era.

Because of the large number of victims and alleged perpetrators (and with crimes committed over more than two decades), it will not be possible to investigate and prosecute every serious human rights violation that occurred during Jammeh's rule. To help investigators direct finite resources effectively, your government should develop a prosecutorial strategy that defines the types of crimes and the perpetrators who will be the focus of criminal proceedings.

One basis for a prosecutorial strategy could be to focus on the alleged perpetrators deemed to bear the greatest responsibility for serious crimes, an approach that was followed by the Special Court for Sierra Leone. The strategy should also consider, however, the importance of reflecting the breadth of crimes committed and the different categories of victims targeted, including women. Individuals who did not occupy prominent positions within the chain of command, but who committed numerous and particularly brutal crimes, may also merit investigation and prosecution.

To the extent possible, the parameters of a prosecution strategy should be made public. This will help manage expectations about the possibility of justice among victims and reassure many lower level former civil servants or Jammeh supporters that they will not be targeted simply on the basis of their past affiliation.

IV. Judicial reforms are necessary to fairly investigate and prosecute past violations

In order to provide justice to victims and defendants, as well as to reestablish trust in judicial institutions, it is essential that trials of criminal suspects for past human rights violations not only take place, but are credible and fair in accordance with international standards and practice.

Experience from other accountability processes suggests several important components for Gambia:

Enacting an appropriate legal framework: The Ministry of Justice should scrutinize the Gambian Criminal Code to ensure it includes the offenses necessary to properly prosecute a broad range of human rights violations and to analyze the extent to which the law needs to be revised and amended. Notably, although section 21 of Gambian Constitution bars torture and inhuman and degrading treatment or punishment, the Criminal Code does not define an offense of torture or enforced disappearance.[1] The Ministry of Justice should also consider whether Gambian law provides for adequate modes of liability. Command responsibility can be particularly important in cases involving serious crimes to establish culpability by perpetrators at higher levels of power who bear responsibility, but did not physically commit the crimes.

Abolishing the death penalty: The Gambian government should impose a moratorium on carrying out the death penalty and act to abolish the death penalty. Anyone sentenced to death should receive a commutation of their sentence. Human Rights Watch opposes the death penalty in all circumstances, as it is an inherently cruel and inhuman punishment.

Building investigative and prosecutorial capacity: Investigations of serious human rights violations can be complex and require specialized expertise. Gambia should consider establishing a special law enforcement unit dedicated to investigating torture, enforced disappearances and extrajudicial executions. Experience in Côte d'Ivoire and across Europe has reinforced that such a step can be an important way to concentrate relevant expertise and support. Gambia should also consider inviting international experts to work alongside Gambian investigators and prosecutors.

This could allow Gambia to benefit from expertise that has been developed internationally in handling sensitive cases involving past crimes. For example, the panel of judges in Guinea investigating the 2009 Conakry massacre, in which over 150 peaceful protestors were killed and over 100 women were raped during an opposition rally, has benefited from the deployment of an international expert--a former justice minister from Mauritania - to assist their efforts. The expert's work was arranged and supported by the UN Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict.

Establishing an independent judiciary: Independence and impartiality are especially critical when it comes to trying serious crimes in violation of international law, which are often high-profile, sensitive cases with significant political implications. Human Rights Watch documented widespread executive interference in the judiciary when Jammeh was president, including executive pressure on foreign judges on temporary assignment in Gambia.

The new Gambian chief justice should work with the Ministry of Justice to devise a system for the training and appointment of judges that protects them from executive interference, both in law and practice. Judicial panels that include national and international judges have been utilized to valuable effect in some cases involving serious crimes, such as at the Special Court for Sierra Leone and the Extraordinary African Chambers in the Courts of Senegal.

This enabled international expertise in international criminal law to be leveraged, and better insulated decision-making from perceived or actual domestic political interference. However, given Gambia's particularly tainted history with the use of foreign judges, should international judges be deployed to Gambia, the Ministry of Justice should explain clearly and publicly the guarantees in place to ensure those judges are independent.

Creating a system for witness protection and ensuring security of judicial personnel: Judges, prosecutors, victims and witnesses must be able to participate in cases involving human rights violations without fear of reprisal. Gambia currently lacks of any formal program for victim or witness protection, and should devise mechanisms, ideally through the passage of legislation, to protect victims and witnesses involved in sensitive cases. Plans to provide sufficient security for judicial personnel working on sensitive cases should also be put in place.

Strengthening defense rights: Criminal defendants in the Jammeh era were routinely denied a fair trial, primarily due to executive interference in the judiciary, but also because of a failing legal aid system and frequent refusals to allow lawyers access to detainees in pre-trial detention. The Ministry of Justice, in partnership with the Gambian Bar Association, should consider how to ensure defendants, regardless of their past political affiliation, receive a fair trial, including by ensuring adequate legal representation. The full range of protections under article 14 of the International Covenant on Civil and Political Rights should be afforded to defendants.

Respecting victims' rights: The Gambian Criminal Procedure Code currently contains no specific provisions giving victims the right to participate in criminal proceedings, separate from serving as witnesses. Although the role of victims is often limited in common law legal systems, several Gambian lawyers told Human Rights Watch that before beginning trials of serious crimes, the Ministry of Justice should consider how to integrate victims into proceedings. This could include, for instance, giving victims the opportunity to provide an impact statement prior to sentencing.

V. Universal jurisdiction may provide an additional avenue for accountability

Where alleged perpetrators are outside of Gambia, universal jurisdiction may provide an important additional vehicle to ensure accountability.

Universal jurisdiction refers to the ability of domestic judicial systems to prosecute some crimes--regardless of where they were committed--due to their gravity. This includes war crimes, torture, crimes against humanity, genocide, piracy, hijacking, acts of terrorism, and attacks on United Nations personnel. In 2016, universal jurisdiction enabled a court in Senegal to convict the former head of state of Chad, Hissène Habré, of crimes against humanity, war crimes, and torture.

Given the widespread torture perpetrated by the security forces during Jammeh's administration, universal jurisdiction might provide a basis for states to prosecute Jammeh-era officials. Switzerland has already used universal jurisdiction to initiate legal proceedings against Jammeh's minister of the interior, Ousman Sonko, alleging he "could not have ignored the large-scale scale torture" that occurred in detention centers.

In practice, universal jurisdiction prosecutions are only possible in states that have enacted the relevant legal framework, and have the political will, to take on such cases. Habré's prosecution in Senegal was only possible after a decade-long campaign, led by victims of his regime, overcame several attempts to insulate Habré from prosecution and ultimately helped convince incoming Senegalese President Macky Sall that Habré should be arrested and prosecuted.

The Gambian Ministry of Justice should support universal jurisdiction cases as part of its strategy for pursuing accountability for past crimes in Gambia. This could include sharing evidence with states conducting universal jurisdiction investigations and facilitating their investigations inside Gambia. The establishment of a focal point inside the Ministry of Justice to liaise with universal jurisdiction investigations could be a useful starting point.

Conclusion

We understand that your government has many pressing priorities as it takes office, and the process of providing justice to victims of the Jammeh-era and their families will undoubtedly take years to complete. At the same time, we believe the ultimate success of accountability efforts will depend on the timely foundation laid in the early phase of your administration.

We also urge you to communicate non-confidential information about the accountability process clearly with victims and the wider Gambian public. This should include a public explanation of how the recent charges filed against senior NIA officials in relation to Solo Sandeng's death relate to wider efforts to pursue accountability for the full range of crimes committed during the Jammeh era.

We are writing to you privately at this time to share the above recommendations, and look forward to further dialogue with your government on these issues. However, in the interest of generating public debate around the crucial aspects of justice and accountability in Gambia, we intend to make this letter public on or around March 31, 2017.

We respectfully urge you to consider the recommendations in this letter and would be happy to discuss its contents at your convenience.

Yours sincerely,

Elise Keppler

Associate Director

International Justice Program

Human Rights Watch

Corinne Dufka

Associate Director

Africa Division

Human Rights Watch

[1] Such reforms should not conflict with the principle of non-retroactivity where the conduct was already established as a crime under international law at the time of commission. As article 15 of the International Covenant on Civil and Political Rights (ICCPR) states: "Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations."

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