A Single Comment — Permalink

Comment on the Withdrawal Question: “In recent weeks, the governments of the Republic of Burundi, the Republic of South Africa, and the Islamic Republic of the Gambia have announced their intention to withdraw from the ICC. How will this affect the emerging system of international criminal justice in the short and long term? What steps might be taken to strengthen that project?”

cgsanchez
4987
November 15, 2016
11:32 am

Alternative Reasons for Gambia’s Withdrawal from the International Criminal Court

Although Gambia cited the International Criminal Court’s bias against African countries as their reason for withdrawing from the Court, Gambia’s president, Yahya Jammeh, may have instead withdrawn the country from the Court based on a whim or in an attempt to avoid the Court starting an investigation into his alleged human rights violations.

I. Introduction

Within the span of a few weeks, Burundi, South Africa, and Gambia announced their intentions of withdrawing from the International Criminal Court (ICC).1 Although the ICC had been criticized for being biased against African countries in the past, international observers were surprised that Gambia intended to withdraw from the ICC because the ICC’s current prosecutor is Fatou Bensouda, a former Gambian justice minister.2 In announcing Gambia’s withdrawal, Gambian Information Minister Sheriff Bojang, stated:

There are many Western countries, at least 30, that have committed heinous war crimes against independent sovereign states and their citizens since the creation of the ICC and not a single Western war criminal has been indicted. [The withdrawal] is warranted by the fact that the ICC, despite being called International Criminal Court, is in fact an International Caucasian Court for the persecution and humiliation of people of color, especially Africans.3

Thus, the first impression from Gambia’s withdrawal is that the country is leaving due to the Africa bias issue. However, there are two alternative explanations for Gambia’s withdrawal. First, Gambia’s withdrawal could have been based on a whim by President Yahya Jammeh. Second, Gambia’s withdrawal could be predicated on Jammeh’s fear that the ICC may open a future investigation into his alleged violation of human rights, especially as an upcoming presidential election in the country threatens further crackdown on political opposition groups.

II. Gambia’s Withdrawal was Based on a Whim by President Jammeh

On October 1, 2013, Gambia surprised the international community when it announced its withdrawal from the British Commonwealth.4 While the Commonwealth had recently been vocal in encouraging President Jammeh to improve his human rights record, there had been no question of it trying to expel Gambia or suspend its membership.5 The language used in Gambia’s Commonwealth withdrawal announcement mirrored the language it later used in its withdrawal from the ICC. For example, Gambia stated that it was withdrawing from the Commonwealth because it was a “neo-colonial institution.”6

Some sources stated that Gambia’s withdrawal from the Commonwealth was based on a whim by President Jammeh.7 Rather than having actual frustrations that the Commonwealth was a neo-colonial institution, Jammeh may have decided on a whim to withdraw his country from the Commonwealth as a way to retaliate after he was barracked by human rights activists when he stayed at a hotel in New York before the UN General Assembly meeting.8 Journalists covering the announcement wrote that the withdrawal largely kept with Mr. Jammeh’s general style of governance by whim, which sees ministers reshuffled almost on a weekly basis and regularly jailed for crossing him.9 The parallels between this previous withdrawal and Gambia’s intention to withdraw from the ICC suggest that Gambia’s announcement to withdraw from the ICC could simply be a continuation of Jammeh’s governance by whim.

III. Gambia’s Withdrawal was Based on a Fear of Future Investigation into Jammeh’s Alleged Human Rights Violations

A. Jammeh’s History and Recent Escalation of Alleged Human Rights Violations

Over the past 22 years, President Jammeh and the Gambian security forces have allegedly used enforced disappearances, torture, intimidation, and arbitrary arrests to suppress dissent and preserve Jammeh’s grip on power.10 In response, on December 30, 2014, with the president conveniently out of the country, several gunmen attacked the presidential house, hoping to overwhelm the presidential guard with the rifles and other military equipment that they had smuggled into the country.11 One gunmen reportedly believed that members of the Gambian military, fed up with Jammeh’s 20-year autocratic rule since coming to power in a bloodless coup in 1994, would support their cause.12 They did not, and the plotters were outgunned and outmanned, taking heavy casualties—including several deaths—before abandoning the attempt.13 Dozens of soldiers and civilians were arrested and tortured following the foiled coup bid.14

Shaken and incensed by the failed coup, Jammeh tightened his iron fist. With a presidential election upcoming in December 2016, Jammeh imprisoned and tortured political opposition groups. Jammeh repeatedly threatened opposition parties. “Let me warn those evil vermin called opposition,” he said in May.15 “If you want to destabilize this country, I will bury you nine-feet deep.”16 When a prominent political opposition activist Solo Sandeng led a rare public protest calling for electoral reform, he was arrested by Gambian police, taken to the headquarters of the National Intelligence Agency (NIA), and brutally beaten to death.17 Many protesters arrested with Sandeng were also tortured at the NIA; several were beaten and doused in water while being forced to lie on a table.18 Gambian authorities have in 2016 arrested more than 90 opposition activists. Gambian courts have convicted 30 opposition members and sentenced them to three-year prison terms.19 The presidential election indicates that the political crackdown on dissidents will escalate further.

B. The Possibility of an Investigation into these Abuses by the ICC

The Prosecutor may start an investigation of a situation referred to it when there is a reasonable basis to believe that crimes have been committed or are about to be committed.20 In addition to the situations referred by states parties and by the Security Council, the Prosecutor may also receive from other sources, such as individuals or non-governmental organizations, information relating to crimes within the jurisdiction of the Court.21 The Prosecutor will conduct a preliminary examination of the information in each case.22 Then, if the Prosecutor decides that there is evidence supporting the fact of an inquiry, she will ask the Pre-Trial Chamber to authorize the investigation.23

The ICC has not announced any preliminary examination or investigation into Jammeh’s alleged prior human rights violation. The escalation of human rights violations, first with the crackdown after the coup and now with the crackdown on political opponents during the president election, may motivate the ICC to take a closer look at Gambia. This motivation coincides with the arrival of a new valuable source of information that could serve as a basis for an authorized investigation.

In September 2016, Gambian Interior Minister Ousman Sonko was fired by Jammeh and fled to Sweden for political asylum.24 Sonko served as Jammeh’s Interior Minister since 2006.25 He was complicit in the murder of the late respected Gambian journalist Deyda Hydara, and a host of other state organized crimes.26 Sonko is also privy to Jammeh’s drug trafficking, money laundering, Jammeh’s affiliation with the Hezbollah financiers in Banjul, and the destabilization of the Casamance region through the arming of the MFDC rebels.27 Sonko is an intelligence goldmine for the West. If quizzed, Sonko could reveal certain information that would warrant the ICC to take Gambia’s case seriously.

The arrival of Sonko in Europe and the escalation of human rights violations in Gambia would increase the possibility of the ICC opening an investigation into Gambia. The escalation of human rights violation due to the upcoming presidential election would establish a reasonable belief that crimes under the ICC’s jurisdiction are about to be committed. Sonko then could provide the individual source of information relating to those crimes which would allow the Prosecutor to then eventually ask the Pre-Trial Chambers to authorize an investigation into Gambia. Potentially afraid of this possibility, Jammeh may have announced Gambia’s withdrawal from the ICC in an attempt to save himself from future investigation and prosecution.

IV. Conclusion

Gambia cited neo-colonialism concerns as the reason behind the country’s withdrawal from the ICC. However, the similarities between Gambia’s recent withdrawal from the Commonwealth and the ICC suggests that Gambia’s exit from the ICC may have been motivated by President Jammeh’s governance by whim. Additionally, Jammeh has faced increased scrutiny domestically after ruling the country with an iron fist for 22 years. Jammeh has escalated a brutal crackdown on dissidents after a failed coup at the beginning of 2015 and with an upcoming president election looming in the background. At the same time, Ousman Sonko, who served as Gambia’s Interior Minister since 2006 and reportedly has important intelligence involving Jammeh’s human rights violations, fled to Sweden. Thus, the ICC has recently obtained the motivation and potential means for opening an investigation into Jammeh’s past human rights violations. The increased potential of an ICC investigation may have motivated Jammeh to have Gambia withdraw from the ICC.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
See Gambia announces intention to withdraw from International Criminal Court, PressTV, Oct. 26, 2016, available online. ↩
2.
See Gambia withdraws from International Criminal Court, Al Jazeera, Oct. 25, 2016, available online. ↩
3.
Id. ↩
4.
See Colin Freeman, New York hotel protest ‘led to Gambia’s Commonwealth exit’, The Telegraph, Oct. 3, 2013, available online. ↩
5.
Id. ↩
6.
Id. ↩
7.
See David Blair, Gambia to leave the Commonwealth, The Telegraph, Oct. 2, 2013, available online. ↩
8.
See Freeman, supra note 4. ↩
9.
Id. ↩
10.
See Jim Wormington, More Fear Than Fair: Gambia’s 2016 President Election, HRW (Nov. 2, 2016), available online. ↩
11.
Simon Allison, ‘The Gambia coup didn’t just fail, it backfired’, Daily Maverick, Jan. 7, 2015, available online. ↩
12.
Id. ↩
13.
Id. ↩
14.
See AFP, Dozens arrested after failed coup in Gambia, Daily Nation (Jan. 2, 2015), available online. ↩
15.
See Wormington, supra note 10. ↩
16.
Id. ↩
17.
Id. ↩
18.
Id. ↩
19.
Id. ↩
20.
See International Criminal Court, General Organization, Office of the Prosecutor (Jun. 6, 2007), available online. ↩
21.
Id. ↩
22.
Id. ↩
23.
Id. ↩
24.
See AFP, Fired Gambian minister flees to Sweden, The Local, Sep. 23, 2016, available online. ↩
25.
Id. ↩
26.
See Pa Nderry M’Bai, The Great Escape: How Gambia’s Sacked Interior Minister Ousman Sonko Made It To Senegal; Then Sweden?, Freedom Newspaper, Sep. 22, 2016, available online. ↩
27.
Id. ↩

Home Page for This Issue

Issue Background Materials Page

Featured Comments

muma2018: The International Criminal Court should not Respond Politically to South Africa’s Declaration of Intent to Withdraw from the Court If the International Criminal Court responds politically and negotiates with South Africa on the obligation to arrest, the Court will further threaten its credibility and set a negative precedent of political negotiations. In the past few weeks three countries have declared their intent to withdraw from the... (more)
magli: Do African ICC Parties Wish to Withdraw from the ICC? Let Them Leave! The purported withdrawal of a small number of African states from the ICC has created a rather unacceptably high degree of hype, which obscures the undeniable positive developments that the international criminal justice has achieved. International criminal justice is a project, which, for better or for worse, has been principally... (more)
kbanafshe: What are the Consequences of Withdrawing from the International Criminal Court? In the past decade millions of African lives have been lost; this is due to a series of gross genocidal campaigns and humanitarian crimes that have swiftly taken place across the nation. The integral role of the International Criminal Court (ICC) is to administer justice, punish perpetrators of crimes and deter future atrocities from taking place. That being said a number of critics... (more)
isaac.brown: The Registry Should Focus Outreach Efforts on States Parties at Risk for Withdrawal from the Rome Statute The Assembly of States Parties should provide more funding to the Registry for its outreach function. The registry should expand its operations beyond situation states to states parties seen as a risk for withdrawal. This outreach strategy should focus on States where the governments are sufficiently democratically accountable for public... (more)
Katelyn_Rowe: The ICC Should Investigate More Non-African Countries to Dissuade Other African Withdrawals Summary In order to dissuade additional African countries from withdrawing from the International Criminal Court, the Office of the Prosecutor should open more investigations in non-African countries, particularly Colombia, because this may counter the current geopolitical bias narrative that Burundi has used to justify its... (more)
Shirin.Tavakoli: Traditional Justice Mechanisms Can Satisfy Complementarity Summary The recent decision by the governments of South Africa, Brundi, and Gambia to leave the International Criminal Court (“ICC” or the “Court”) has created various reactions from the international community. One main reason that these countries’ notice to withdraw is significant is the fear that other African nations will soon follow their footsteps and... (more)
emrenslo: Sanctions as a Penalty for Withdrawing from the ICC Summary Targeted sanctions should be imposed by states parties of the ICC on the leaders of Burundi and Gambia, and not ruled out against South Africa, as a result of these countries announcing their intent to withdraw from the ICC. Argument In recent weeks, the governments of the Republic of Burundi, the... (more)
Mehrunisa Ranjh: Diplomacy as a Response to ICC Withdrawals Summary The International Criminal Court (ICC) should deploy a strategy of radical diplomacy in response to the recent withdrawal from the court of South Africa, Burundi, and the Gambia, before taking any action that could potentially compromise the integrity, independence, or enforcement power of the court. Argument South Africa, Burundi, and the... (more)
taylmer: From what I have noticed, African nations are seeing crimes against humanity being committed by Western countries, with little being done to show accountability. African nations believe they are being targeted, and by many accounts that's exactly what has happened. African nations appear easy to target. Western nations appear much harder, due to their legal systems still being intact. One example is that of Australia. Asylum seekers and refugees are being tortured in detention centres, with... (more)
Terminusbound: I Support the Withdrawal. The logic that underpins the African states decision to withdraw from the ICC is not that the ICC is a racist institution. The Logic addresses the basic problem that the ICC is a impotent outside of the context of third world states. It is not that the ICC only wants to prosecute Africans, it is that the ICC can only prosecute Africans. The ICC has no power to prosecute living European war criminals or American war criminals. The ICC has no power to prosecute living... (more)