By Susan Kendi
Numerous commentators have drawn parallels between the successful 22-year campaign by victims and activists to bring former Chadian dictator Hissène Habré to justice and the current push to ensure ousted Gambian dictator Yahya Jammeh pays a price for the brutal excesses of his regime. But according to author and legal researcher Mark Kersten, who recently paid a working visit to The Gambia, the desire to see Jammeh meet the same fate as Habré should be tempered with a realistic appraisal of the limitations of such a campaign in a country where loyalties to the former strongman still run deep.
“I think there is a question as to whether the Gambia is currently in a position, to prosecute leaders of the Jammeh regime and potentially also Jammeh himself. There is very little capacity currently in The Gambia. The average age of the staff members in the Ministry of Justice is 24 years. Some of the same police officers who would have perpetrated human rights abuses are still police officers, and still on the streets. This is very much a country in transition,” says Kersten.
“Even if it were possible and Equatorial Guinea would permit it to happen, bringing back someone like Jammeh at this point could create instability and raise issues of insecurity. He still has a very loyal following, particularly among the people that he shared a degree of wealth with,” he explains.
Despite these challenges, Kersten takes some comfort in the fact that the Gambian government “is very committed to justice” and believes that a lot can achieved on behalf of victims and survivors by “sequencing justice and capacity building”.
Kersten made his comments about the justice process in The Gambia during a recent sit-down interview with Journalists For Justice (JFJ). This the second and final part of that interview. The first part can be read here. Besides The Gambia, Kersten also weighed in on the ICC opening up an investigation on the situation in Burundi and the implications of the African Union’s plan to approach the International Court of Justice (ICJ) for an advisory opinion on head of state immunity. The interview has been condensed for clarity.
What is the likelihood that bringing Hissène Habré to account in an African country will repeat itself with Gambia’s Yahya Jammeh?
There are lot of questions around the similarities. There are similarities between Habré, especially his departure to Senegal, and that of Jammeh to Equatorial Guinea after relinquishing power in the Gambia. There is a certain energy after the Habré case to see whether it could be replicated. I think there’s a large and powerful sentiment among victim and survivor communities, in particular in the Gambia right now, who are inspired by the activities that led to the Habré prosecution at the Extraordinary African Chambers.
Human Rights Watch (HRW) and Reed Brody, who of course was quite instrumental in galvanizing victims and survivors in Chad and Senegal, are now working in The Gambia with victims and survivors to eventually bring Jammeh and other members of his regime to justice. While it’s understandable that we have this temptation to replicate good things, I think there’s a need for sobriety and understanding that Habré spending 22 years in exile in Senegal and then being prosecuted is not the same as what the Gambia is going through right now.
The Government of Chad, during those 22 years, is not the same as the government that in the Gambia, which is extremely devoted and committed to justice and accountability as well as democracy and stability. Having spent a number of days there doing consultancy with most of the ministries involved in these issues and with the victims, survivors, the press union and students, I can honestly say that I think there’s a genuine commitment to achieve justice and accountability.
I think there is a question as to whether the Gambia is currently in a position, to prosecute leaders of the Jammeh regime and potentially also Jammeh himself. There is very little capacity currently in The Gambia. The average age of the staff members in the Ministry of Justice is 24 years. Some of the same police officers who would have perpetrated human rights abuses are still police officers, and still on the streets. This is very much a country in transition.
Even if it were possible and Equatorial Guinea would permit it to happen, bringing back someone like Jammeh at this point could create instability and raise issues of insecurity. He still has a very loyal following, particularly among the people that he shared a degree of wealth with. So I think, there is an issue about how you sequence peace, you know not necessarily peace and justice but stability and justice in this instance. But, it’s not the cynical kind of sequencing that we often hear which is, “Put peace first then justice later”, which is often really about protecting perpetrators of international crimes and potentially sacrificing or pushing the justice ball down the line and potentially not even being pursued later on.
This is a government that is very committed to justice. So it’s more about sequencing justice and capacity building with justice. I think in the next month or so the Truth, Reconciliation and Reparations Commission will come into being. You also do have the prosecution of 10 former intelligence agents for the torture and enforced disappearance of Solo Sandeng, an opposition activist.
I don’t want to be too cynical because I think there is sequencing here and it is of the non-cynical variety. The kind that says, “Look, we’re facing real capacity issues and we need to ensure the security of people in the Gambia, but we’re committed to justice.” Eventually, I am of the belief, and not some wishy-washy one, that all those who are most responsible for committing crimes against humanity and human rights abuses in the Gambia will eventually be brought to justice.
Q: In November, ICC Judges authorised the Prosecutor to open an investigation into the situation in Burundi. Do you think this was a good move given the criticism the court has faced for its alleged fixation with Africa?
The opposite of that question would be “do you think it is a good idea that the ICC is seeking to open an investigation in Afghanistan because of its alleged bias in African states?” I don’t think it works that way. I don’t think there are investigators and prosecutors who will seek to open an investigation just because of how it will reflect the broader perceptions of the court’s geographical focus. I do think there is a real problem with the fact that the International Criminal Court has only issued arrest warrants after 15 years for African citizens. But, I think that it’s not the problem of an inherent bias against Africa. I think it pertains to the fact that the ICC intervenes where it can intervene, and it primarily can intervene in states that have either a weak judiciary or lack of a judiciary and states that are experiencing these situations of very severe forms of violence and atrocity.
When we talk about ICC selectivity, two questions are important. One is “Why has the ICC intervened in the situations that it has intervened in?” and that includes of course most recently, in Burundi. I genuinely don’t think that not a single one of those situations doesn’t warrant an ICC investigation. Not one. They all warrant scrutiny from an international body for different reasons. The crimes are grave enough. The judicial systems are unwilling or unable or simply inactive on particular types of cases, and there’s genuine interest within the continent for those investigations.
Then there’s another issue which is “Why isn’t the ICC intervening elsewhere?” I think those are two separate types of questions. I do think there are issues of power. I do think that there are issues of politics. I don’t think that should come as a surprise or even necessary as a criticism of the ICC. You can’t escape politics. In a sense I have always believed that the ICC is one of the greatest political projects not just legal projects in the world. It promises better politics, where politics doesn’t require the commission of mass atrocities. So, I think politics is mixed in there.
I hope that the ICC does intervene more regularly in situations that warrant it, including those outside of the continent. For someone like me, I am very happy that finally the ICC is opening an investigation in Afghanistan that will have under its remit some alleged crimes perpetrated by United States forces and the Central Intelligence Agency. I don’t necessarily believe that will make a difference to those individuals who will still say that the ICC is biased against Africa, because I don’t think it has to do with the actual investigations here, I think it has to do with a lot of other issues like the UN Security Council and the desire for some individuals to have impunity.
Burundi is a perfect example of that. I don’t think anybody could possibly say that Pierre Nkurunziza withdrew from the ICC for any other reasons than he was worried about what the ICC would do if it opened an investigation. He just bet on the wrong horse, and they opened the investigation the day before he had a chance to officially withdraw.
Q: The African Union (AU) has expressed the intention to approach the International Court of Justice (ICJ) for an opinion on head of state immunity. Prompted by controversial visits by Omar Al-Bashir, courts in South Africa and Kenya have already eviscerated the head of state immunity argument. What do you think are the legal dilemmas that need to be resolved?
Well I think there are legal dilemmas and political dilemmas and they all kind of mix in a blender because this is a political issue in a legal issue. Legally, I think it’s important to recognize that the issue of an ICC state’s obligations, in terms of surrendering heads of states of non-members states of the International Criminal Court remains a controversial issue under the law. This isn’t an issue of good versus bad. I think it sometimes gets painted as that. If you suggest that there’s any room under customary international law for heads of states of non-member states of the ICC to have immunity, then you’re somehow bad or evil, and that if you don’t then in your fate in favour of some of the ICC rulings, then you’re somehow good.
This isn’t the issue, even among dispassionate legal academics, this is an issue that is unresolved. It is true that the International Criminal Court’s rulings on the matter, which are at times incompatible with each other, haven’t helped to clarify where exactly the obligations of states in certain instances of immunity for heads of state again of states that are not members of the ICC, actually resides. This is an unsolved problem and it’s an issue that isn’t just relevant to African states but many more states as well in particular, Jordan now that it also hosted Omar al-Bashir.
I believe that the decision by the African Union to seek an advisory opinion from the International Court of Justice was a move to seek a negotiated engagement. This isn’t a cynical move, this shows that there is still interest in international law on this issue; that they’re willing to explore what an ICJ advisory opinion would say. I am convinced and know that it came from individuals and states and representatives within the African Union that want continued engagement with the International Criminal Court. It is not coming from the ICC skeptics or those states or individuals that might want protection from prosecution or investigation for international crimes. I think that’s really important to recognize.
There are two primary challenges moving forward. One is the AU resolution also requested that a working group within the Assembly of States Parties of the International Criminal Court be created to put forward an interpretive declaration on the relationships between Article 27 and 98, which is where the issue of obligations versus having obligations to the ICC, versus to state and to heads of state given their immunity, really lies.
What that interpretive declaration says I don’t think anybody knows at this point. The bigger issue here is how that fits in with any ICJ advisory opinion, and how does the African Union with its requests to the UN General Assembly to seek that advisory opinion see those two issues functioning in sequence or at the same time. That is one issue.
The second issue is “What’s the question?” They have to ask the UN General Assembly to submit a question to the International Court of Justice, because the African Union itself can’t do it. What that question is will be very important. There could be narrow questions, which simply relate to the Omar al-Bashir situation, or they could be very broad questions like, “What is the current status of head of state immunity under international law?” It is not clear whether there’s a Goldilocks Zone somewhere between that most narrow question the most broad question but this is something that the African Union is going to have to think through very carefully because they will have to convince the UN General Assembly that this is the right question to ask.
It is not clear that they would be able to. The African Union has to convince more than half of the states in the UN General Assembly that the answer to the question from the ICJ would be useful to the international community and to international law more generally. Those are the two main issues and how the politics and law around those two questions intermix, intermingle and get negotiated will determine exactly what happens next.