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Monday, September 28, 2020

A Gambian perspective on The Gambia v. Myanmar Case on the Crimes of Genocide at the ICJ with Lawyer Abdoulie Fatty

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By Logan Cochrane

The Nokoko journal is committed to a world where people are free from all forms of oppression and exploitation, where respect for individuals’ varied differences is maintained, and where everyone can realise their full potentials. NokokoPod is a companion to the journal, covering current African issues. It aims to bring forth new perspectives that broaden, trouble, complicate and enrich current discourses.

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This issue of NokokoPod presents a Gambian perspective on the case brought to the International Court of Justice on crimes of genocide against Myanmar by The Gambia. This conversation took place on January 23rd, with Logan Cochrane in Canada and lawyer Abdoulie Fatty in The Gambia.

Logan: You could probably build on those contradictions in that, maybe not at the present moment, but certainly injustices of recent history, not only within Gambia, but also in the region, which Gambians and their government would know much more about and be connected to in a much more direct way. Those cases are not being brought forth in various forms of judicial processes. Yet, there is one that is geographically quite far that is.

Abdoulie Fatty: There are some Gambian writers and commentators, perhaps their assessment of the whole situation is a bit unfair to the Attorney General, but there are assumptions that perhaps the Attorney General, in doing all of this, is basking in the international glory of what he is doing. Post Rwanda and Darfur, the international community, especially the West, sometimes want to see African leaders who take the moral high stand because it makes them feel better. Some people are saying that the Attorney General, because of his experience from the ICTR, the Rwandan tribunal, that perhaps he is setting himself up for a really prominent and lucrative position within the UN or within one of the other international agencies.

This is said in the context that he is taking this leading role, putting himself in the limelight as a crusader and a custodian of the moral values and virtues, from this small country, on behalf of the Rohingya. Whether that assumption is just and fair is another debate. Nonetheless, that is one of the narratives by some Gambian intellectuals, that perhaps there is an element of a personal benefit to all of this by the Attorney General. However, that does not diminish the really strong stand, morally, that The Gambia has taken. What is important in all of this is that over the last two weeks something really important is emerging in this country.

The former president has released an audio, speaking to members of his party, telling them that he is coming back to The Gambia and even suggesting that he is coming back as a normal citizen and may even one day rule this country. A lot of Gambians are appalled by that and there are a lot of Gambians in fear. At the Legal Year opening Ceremony, held on Sunday, five days ago, the Attorney General, in his statement, said that if Jammeh were to ever return to The Gambia, he will be arrested and charged with very serious crimes of offenses that he allegedly committed. In the meantime, members of his party, people are still loyal, and you have thousands of people, regardless of the revelations before the TRRC who are still loyal to the former president dictator. You have other parts of the population calling for the incumbent president to resign. You have these really conflicting and competing positions. In the middle of all of this, Jammeh has come to the fore of our political conversation.

Abdoulie Fatty: What many Gambians are saying is that there is more than sufficient evidence that what Jammeh has done hits the threshold for the jurisdiction of the ICC to be invoked. This is in terms of systematic oppression of political dissidents, the killing of people, systematically, to silence them for his political gain, and the really brutal offenses of a sexual nature that he carried out against several women.

The debate at the moment is the reason why Jammeh continues to release these audios and to provoke the Gambian people (this may be a way to remain relevant in our political discourse). The Attorney General, with vigor and enthusiasm, is trying to consolidate international efforts and resources to push this case at the ICJ to make sure that Aung San Suu Kyi and people at the helm of power in Myanmar are accountable as a state. At the same time, as there is more than sufficient evidence on the ground in The Gambia, why could not the Attorney General have taken the same step to make sure that efforts are made to seek Jammeh’s capture, or removal from Equatorial Guinea, to face criminal accountability for what he has done? While this milestone and really historic action by the Government of The Gambia is generating really serious international applaud, much closer to home, sentiments are more divided, and on occasions with serious justification in relation to what they perceive to be the Attorney General’s inability, or lack of strong effort, to ensure that Jammeh is accountable for his crimes against Gambian people.

Logan: Moving forward, and potentially months or years down the line, do you think that this case could turn into a positive narrative not only for The Gambia, but potentially for other countries? Much reporting on this case has emphasized the small size, geographic and population, of The Gambia. I think the Vice President described the country as “a small country with a big voice.” There has been this narrative that new voices are entering into this international conversation. It is no longer the permanent members of the Security Council, anyone can raise these cases. That has theoretically always been the case, but maybe this could be one of those moments where the way things work change, as a result of the actions of The Gambia.

Abdoulie Fatty: Absolutely. I think out of all of this, that is a strong positive. Had the ICJ refused to order provisional measures, then the narrative could have been that the same status quo remains. It would have been the norm that the highest court, for political reasons or otherwise, always shy away from the bold or assertive decisions. That could have had negative consequences. The fact that the ICJ ordered these provisional measures, I think, in the long term, would have a serious effect on the way states view their roles within the international community. Namely, in terms of their obligations under international law. In that respect, I think this may have a snowball effect and rightly so, because fundamentally this is a significant victory for international human rights law. This is important for international law as a whole, but also international criminal justice.

Generally, what would happen, as you alluded to, would be that the permanent members, for one reason or the other and after a bit of lobbying, would raise this. However, in this case, this is not coming from Nigeria or South Africa or Brazil or Iran. This is coming from a country with a population of less than 2 million, a small country in West Africa. Perhaps this has awoken the conscience of the international community. Hence, it is having this really positive reception. Going forward, if a similar situation were to occur, you may have a country in another part of Africa or have one of the ASEAN countries or somewhere else in another part of the world, not directly connected or directly affected by what is happening on the ground.

They may say: Gambia set a precedent. It should no longer be the case that we say the atrocities or a genocide that is occurring is not anywhere near our borders and therefore we will take this passive bystander role. Going forward, I think this will really have serious consequences on the way states assess and view their obligations, not from a legal point of view, but from a moral point of view. I think, morally speaking, this is a victory not only for The Gambia, but it is a victory for international human rights, a right precedent going forward.

Logan: Another example of that may be that in the past we may have thought that, as you said, the lobbying of countries that have greater power in the international system, that they need to be leaders in taking action in order for justice to be pursued. I think regardless of the outcome of this case, just based on what we have seen thus far, we potentially have broadened and deepened the potential observers for international justice and the protection of human rights around the world.

Abdoulie Fatty: Absolutely. It is really incredible. One cannot over emphasize the importance of what Gambia has done. I do not think this will have any serious effect on the way that the global powers work, the usual suspects. However, for relatively smaller countries, countries with less strategic and less geopolitical influence and importance in global international matters, they may look at the actions of The Gambia and perhaps this may even set precedent for countries in the Global South, particularly those in sub-Saharan Africa or in Asia, the relatively smaller countries that have similar political limitations like the Gambia.

They may say, you know what, let us form something; a club, an informal club, where we share data when we believe there are atrocities at a genocidal scale done in pursuit of justice for people who perhaps are unable to do it for themselves. You may have these smaller countries coming together, pooling their resources together, looking at how Gambia’s done it, and probably even seeking assistance in the way Gambia has approached the issue, and filing cases at the ICJ on behalf of other countries. In terms of the way this has occurred in the past, I think there will be a shift and this will perhaps create that momentum.

Other states may think that if Gambia can do it, we can do it, too. For smaller countries, I think this is really significant. I would not be surprised if another smaller country, in the near future, decide to take a bold step and emulate what Gambia has done. It would no longer be the case where these smaller countries have to lobby or wait for the usual, bigger powers to take on the mantle of leadership in relation to genocide and other international crimes. Smaller countries will say, you know what, where we believe that there is evidence then we will take the moral high stand and seek remedy. That will continue to push the boundaries of this normative customary practice of jus cogens and ensuring that we create a more peaceful, a more human rights friendly world. I know I am being too optimistic.

Logan: Sometimes optimism is a good thing.

Abdoulie Fatty: It is a good thing. It is better to be optimistic than to be a doomsayer.

Logan: Maybe it is worth noting a scholar based in Canada, Bonny Ibhawoh, and his 2018 book, Human Rights in Africa, traces some of the ups and downs, the progress and the challenges, that human rights have encountered across the continent. This may be one of those instances where 5, 10 or 20 years down the line has changed the way we engage with human rights, particularly about who can raise the case. And, potentially, and this is yet to be seen, about against whom cases could be raised. It could be. I think optimism in this case is something we should be hopeful for.

Abdoulie Fatty: Absolutely. I agree entirely. Generally, when it comes to state accountability and state obligations under international law, traditionally, in the past, it would have been the case that perhaps the number one argument that Myanmar would have made at the ICJ would have been that Gambia is not directly affected by what is happening and therefore making this legal argument about jurisdiction, notwithstanding that both are parties to the 1948 Genocide Convention. Now there is this customary practice that pushes the doctrine even further. I agree entirely. In 10, 15 or 20 years from now, I am guessing that in the international discourse and narrative, and while we try to strengthen human rights, especially in regions that are troubled, I am guessing we will refer to this as a really important milestone in pursuit of global accountability in terms of state obligations. Perhaps my optimism is not misplaced.

Logan: We can hope that the optimism is not misplaced and that this is one of those moments where we see a shift. As you look at the case, and your country is at the center of it and playing a leadership role in moving it forward, what are you watching for both in the case itself, but also for the citizens of The Gambia and how they engage with it?

To be continued…

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