To
draw plausible conclusions as to whether justice would be served for alleged
human rights abuses committed by state officers in the Second Republic, it is necessary
for one to revisit the case of Senator Augusto Pinochet as it may allow us to
understand the importance international law attaches to the protection of
peremptory norms. This will also help us to examine the extent to which
international human rights law has evolved to disallow the use of state
immunity doctrine to shield perpetrators of deplorable crimes from prosecution.
Augusto
Pinochet was significant and a symbolic figure in many ways. In diplomatic
sense, it was unprecedented for a state to arrest another sovereign state’s
former head at a request of another foreign power. It constituted the end of
states’ cautious approach to interfere in internal affairs of another state. No
wonder it had generated ceaseless glare of media attention. The Spanish
authorities were not prepared to settle for anything less than a speedy
extradition of the General to face criminal trial for alleged human rights
abuses commissioned under his watch.
.’It was contended that Chile had a vested right to immunity to the General and
that no other State had the right to exercise jurisdiction over his crimes.
Moreover, such protection is in accord with the Vienna Convention on Diplomatic
Protection which provides former heads of state with immunity ratione materiae.
It follows that Chile as an independent and sovereign state has the necessary
legal capacity to confer such right on its former head of state. The House of
Lords rejected this argument by displacing the state immunity doctrine for
justice to take its course.
Your
lordships took the view that state immunity should not be invoked as facade to
cover up international crimes. Certainly, it defies common sense for an
abstract state to commit serious crime against the very citizens it has a
sovereign duty to protect. In the words of Lord Slyn ‘it is artificial to say
that an evil act can be treated as a function of a head of state’. In my view,
perpetrators of such crimes represent the controlled mind of the state.
Therefore, they should face the full force of the law if found guilty of their
crimes. There can be no doubt if international law fails to hold such men
responsible for culpable crimes; impunity seems the likely consequence.
It was a known fact that the Senator had a
well-established close nexus with the UK’s political establishment. But as a
state party to the Torture Convention, the UK has an obligation to make sure
that crimes within the scope of the Convention are punishable by national laws.
It is also the case that the UK has extradition treaty with Spain which
provides that the perpetrators such of offence be extradited within a
reasonable time. Undoubtedly, the case affirmed that no head of state has
blanket immunity against crimes that have a character of Jus cogen.
Importantly, it places the community’s security over individual’s security that
is crafted in state immunity doctrine.
Turning
to human right abuses allegedly committed by state officers in the Second
Republic. Firstly, The Gambia must bring criminal charges against those
perpetrators for their role in such distasteful crimes to create the right
momentum. Indeed, the perpetrators must be presumed innocent until proven
guilty by a competent court. That is an important principle of fair trial. It
will be against all principles of justice for defendants to be tried by the
public opinion or the media.
Subsequently,
the government may choose to seek extradition of the perpetrators provided that
there is enforceable extradition treaty between The Gambia and their country of
residence. Absent of extradition treaty is likely to stall any proceedings. For
instance, In 2004 Equatorial Guinea did not secure the extradition of foreign
mercenaries who were allegedly involved in a plot to oust its government
because there was no extradition treaty. A deliberate omission designed to
insulate a culture of impunity, but sounded death knell for the efforts to
bring the perpetrators to justice. It is interesting to note that, there is no
extradition treaty agreement between Equatorial Guinea and The Gambia. Perhaps,
this explains why Equatorial Guinea is seen as a preferred destination for
anyone who might be implicated in the alleged human rights abuses that occurred
in the Second Republic.
What
is more striking is that The Gambia has not yet ratified the Torture
Convention. This raises the question whether state officers who were complicit
in commission of torture could be brought to justice under the Convention. It
is undisputable fact that the both Republics had abysmally failed to give
effective to one of the most seminal human rights instrument that accords
comprehensive protection to the citizens’ human rights. The Torture Convention
has been ratified by majority of states; even Equatorial Guinea has acceded to
the Convention in 2002.
The
inaction of successive Gambia governments suggests, there could be inherent
difficult legal challenges ahead to bring any successful prosecution.
Nevertheless, if justice is to be delivered the new government must be ready to
take bold actions to overcome such challenges.
The 1997 constitution of the Gambia prohibits
torture under Section 21. However, it could be argued that it is not precise to
make attempts and complicity as criminal offences. If there are no national
laws pertaining to such offences, the secret services agents and law
enforcement officers may be absolved from certain criminal liabilities under
the Convention. The other important
point is that the Convention has the necessary ingredients that can compel
state party to take training and educational measures, in order to equip
relevant state officers with the knowledge and skills on how to relate with the
civil populace. That way , they can perform their duty with diligence in
respect of citizens’ human rights. Therefore, It is incomprehensible, a government
that supposed to have the interest of its people at heart failed to confer much
needed protection on citizens. The omission can only be seen as a travesty to
the intelligence of Gambians, an absolute failure to govern in good faith. It
suggests here that governments were more interested in asserting their grip on
power rather than guaranteeing the security of Gambians.
Notwithstanding,
the torture Convention categorically prohibits torture and no state can
derogate from it because it has become peremptory norms. That been the case
there is a glimpse of hope for justice
if Equatorial Guinea and other state parties adhere to their obligation under
the Convention, by taking reasonable steps and facilitate proper dispensation
of justice.
They
could either execute arrest warrant put forward by a requesting state, or they
may well assert jurisdiction over the crimes under the ambit of the Convention.
This is illustrated in the recent Swiss case where a former government officer
was reportedly arrested for crime against humanity. Such decisive action is
likely to be lauded by many around the world. Importantly, it would provide an
opportunity for state such as Guinea to unmask its perceived ‘rough state
image’ and uphold international justice.
While
punitive justice seems desirable because of its deterrence effect on the
perpetrators, the truth reconciliation process may also deliver justice as well
as unify the nation. The story telling of the historical facts can bring
closure to the sufferings and pains of those affected by the atrocities as they
learn the unambiguous truth about what had happened. Despite this, there is a danger that the
process may be stymied, if tension is allowed to rife between those who want
retributive justice as opposed to those who favour reconciliation. Therefore,
there is a need for an active political leadership to engage all stakeholders
in good faith for the construction of the Commission. Whatever the
circumstance, it helps greatly if the perpetrators are remorseful about their crimes.
If the new government managed to reverse the
decision of leaving the ICC, it can allow court to have jurisdiction over some
cases. However, crimes against humanity must meet the requirement of widespread
and systematic to fall under the ambit of the ICC. This requires adduction of
creditable evidences that are crucial to the success of any future trial. The
Chief Prosecutor could invoke the power of proprio motu power to investigate
any relevant crimes if they meet the necessary criteria. The power has been a subject of selectivity
because it has been mostly deployed to investigate African cases. Although the court has been seen by some
African leaders as an instrument of foreign powers that only target Africans,
the court is treaty based on state’s consent, depriving its authority from the
membership. Bensouda, the Chief Prosecutor, responding to such criticism said
this: ‘‘What offends me most when I hear
criticisms about the so-called African bias is how quick we are to focus on the
words and propaganda of a few powerful, influential individuals and to forget
about the millions of anonymous people that suffer from these crimes.’’ Surely
such propagandas are designed to undermine the authority of the Court. Let me
make it clear, the court has achieved justice for powerless Africans who were
brutalised by repressive regimes. I wonder if there is any strength in the
‘African bias argument when in fact these atrocities were committed on African
soils by callous Africans for political power.
The
case of Augusto Pinochet illustrates the point that international law has
fundamentally changed to make it difficult for the perpetrators of
international crimes to escape justice by hiding in safe haven. Individual
criminal act cannot be attributable to impersonate state for the purpose of
absolving one from criminal liability.
It is not only unrealistic but also offensive to all notions of justice
if state immunity is employed to cover up serious crimes committed by state
officers who have fallen from grace. Therefore, it is incumbent on the new
government to take all measures necessary and deliver justice for the victims.
This
can be achieved through truth and reconciliation mechanism or proper
application of the law. From now
onwards, the clock starts ticking while the jury is sent out to consider
verdict as to whether the government has the tenacity to avoid ‘‘Show Trials’!!
God
bless
Solomon
Demba
