A major gap in prosecuting perpetrators of human rights violations under Universal Jurisdiction in Switzerland and now, the U.S., exposes a legal gap that some offences have not been criminalised in The Gambia, in order to qualify as crimes against humanity in prosecuting countries.
In Switzerland, rape charges against Ousman Sonko have been discontinued due to the fact that they have not been categorised as Crimes Against Humanity in The Gambia. In the U.S., Michael Correa will not be tried for crimes of extrajudicial killings, rape, kidnappings, except for torture, and for the same reasons as in Switzerland.
"This is called dual criminality under Universal Jurisdiction," explains Nadja Capus, Swiss Law Professor at the Faculty of Law, University of Neuchâtel, Switzerland.
"A crucial requirement for the application of Article 6 of the Swiss Criminal Code is indeed that the conduct must also be criminalized at the place where it was committed. This rule is intended to prevent Switzerland from prosecuting actions that are not considered offenses in other countries," she further explained.
However, Swiss prosecutorial authorities and courts were able to assert jurisdiction in the case against Ousman Sonko and how they handled the issue of Gambia not having criminalised certain offenses.
According to the Association of Victim Led Organisations in The Gambia, Michael Correa's prosecution in the U.S. also demonstrates the importance of universal jurisdiction, which recognises that crimes like those allegedly committed by Correa are crimes against all people, regardless of their nationality.
Michael Correa is alleged to be among those criminally responsible for the enforced disappearances of several Gambians during the Jammeh regime. He has not been charged with these crimes by the U.S. The U.S. does not have laws to prosecute many other crimes against humanity committed outside of its borders, including enforced disappearances. Unfortunately, The Gambia also does not have the laws to try crimes of enforced disappearance, says AVLO.
Swiss criminal jurisdiction, on the other hand, is primarily based on the principle of territoriality (a principle that a state has authority to legislate and adjudicate concerning acts, things and events in its territory).
Meanwhile, under certain conditions, it allows for extraterritorial application - for instance, when an international agreement provides for it and the perpetrator is in Switzerland (article 6 of the Swiss Criminal Code. However, Prof. Capus said this requirement does not apply to serious crimes such as crimes against humanity, war crimes, and genocide.
"The loophole has been closed by the Swiss legislator by introducing article 264m of the Criminal Code. This provision applies exclusively to the mentioned offenses and enables Switzerland to prosecute them even in lack of dual criminality. Clearly an indispensable element to make the concept of universal jurisdiction really works," she maintained.
In practice, this means that Switzerland can assume jurisdiction (for the specific offenses) regardless of whether the act is criminalised in the country where it was committed.
Prof. Capus explained further: "If certain offenses are not deemed crimes against humanity, Swiss jurisdiction does not apply. This is why the court in the Sonko case did not recognize jurisdiction for certain rape charges and dismissed the proceedings as far as I've been informed (the judgment is not yet publicly available)."
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Regarding the legal situation in the United States, she could only "offer a cautious assessment."
"It is likely that the situation is similar in that different jurisdictional criteria apply to different offenses. While this is indeed complex, it seems that in the U.S., conspiracy charges often provide a far-reaching extraterritorial basis for jurisdiction, and when jurisdiction can really not be established, immigration law violations may result in severe penalties," she said.
For the Jammeh victims in The Gambia, meanwhile, Universal Jurisdiction proceedings like Correa's are an important tool to ensure that alleged human rights violators from The Gambia are held accountable wherever they are found.
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