The case of Augusto Pinochet illustrates that international law has fundamentally changed to make it difficult for the perpetrators of international crimes to escape justice by hiding in safe havens. Individual criminal acts cannot be attributable to an impersonate state for the purpose of absolving one from criminal liability. It is therefore incumbent upon the new government of The Gambia to take all measures necessary to deliver justice for the victims of crimes committed by former ruler Jammeh.
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 sates’ cautious approach to interference 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.
Their lordships took the view that state immunity should not be invoked as a 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 former president 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 an extradition treaty with Spain which provides that the perpetrators such of offences 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 the state immunity doctrine.
Turning to human right abuses allegedly committed by state officers in the Second Republic: First, 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 an enforceable extradition treaty between The Gambia and their country of residence. Absence of an 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 an undisputable fact that the both Republics had abysmally failed to give effect to one of the most seminal human rights instruments 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 Gambian 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 a 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 that 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 a peremptory norm. That being 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 to facilitate proper dispensation of justice.
They could either execute arrest warrants 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 crimes against humanity. Such decisive action is likely to be lauded by many around the world. Importantly, it would provide an opportunity for a 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, a truth and reconciliation process may also deliver justice as well as unify the nation. The story -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 happened. Despite this, there is a danger that the process may be stymied, if tension is allowed to be 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 a commission. Whatever the circumstances, it helps greatly if the perpetrators are remorseful about their crimes.
If the new government managed to reverse the decision of leaving the International Criminal Court (ICC) announced by former President Jammeh, it can allow the 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 to investigate any relevant crimes if they meet the necessary criteria. The power has been the 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 a state’s consent, deriving its authority from the membership. Fatou 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 propaganda 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 havens. Individual criminal acts cannot be attributable to an 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 of The Gambia to take all measures necessary and deliver justice for the victims. This can be achieved through a 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 a verdict as to whether the government has the tenacity to avoid “show trials”.
* Solomon Demba holds an LLM degree in international and medical law from University of Kent (UK). He is a healthcare professional working in clinical and healthcare management. His interests include international and African politics.
* THE VIEWS OF THE ABOVE ARTICLE ARE THOSE OF THE AUTHOR AND DO NOT NECESSARILY REFLECT THE VIEWS OF THE PAMBAZUKA NEWS EDITORIAL TEAM
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