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Thursday, January 28, 2021

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. (Continued from yesterday).

Logan:We can hope that the optimism is not misplaced and that this is 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?
Abdoulie Fatty:Firstly, in terms of when the matter formally concludes, I hope that the ICJ finds against the state of Myanmar because I think that there is strong evidence, there is really strong evidence both by the independent international fact finding mission and by the independent investigative mechanism for Myanmar. I believe there is credible evidence against the state of Myanmar. If that were the case, considering that this was not filed even by Bangladesh, but filed by a state so far away, in terms of precedent and in terms of really expounding the realms of international law and international justice, I think that will be a fantastic outcome. I am looking for an outcome that is positive, in terms of Gambia’s application because it will be far reaching. As we have discussed, in terms of motivating other smaller countries to follow suit.

Abdoulie Fatty: In terms of The Gambia, it is incredibly satisfying that a country that only five years ago expressed to the ICC its intention to withdraw from the Rome Statute, a country that was almost becoming a pariah state, even within the subregion and the region. Within Ecowas, Jammeh was isolated. Within the AU as well, never mind the relationship with the international community.

Fast forward to five years later, The Gambia disregarded that request to withdraw from the Rome Statute. This country, for 22 years, was headed by a really brutal autocrat who had no respect for human rights, had no respect for the rule of law, and had no respect for political discourse and dissent. A leader that completely disregarded international law and international organizations like the UN. You fast forward to 2018 when this all began, you now have the same country under a different leadership taking this international leadership position at the highest UN office (court) in respect of state obligations, championing human rights for people so far away.

For people that they relatively do not have anything in common with, apart from religion. It is trying to invoke that moral principle, that there is a moral duty and an obligation on all of the 149 member states, and the Security Council, for that matter,to rise to the challenge and ensure that never again, as Kofi Annan said many, many years ago does not operate in a vacuum.Post Rwanda and post Srebrenica and post Darfur, you look at all of this that remains a scar on the collective conscience of all of us, especially those in the Global South, who are normally at the receiving end of these atrocities, the parallels could not be more different.

From a really brutal, pariah head of state, by and large that had Attorney Generals who were just dancing to his tune, to now when we have a government and an Attorney General (albeit accusations of self-indulgence or seeking prominent positions for himself, unless one comes with really compelling evidences for those assumptions, I am not going to labour myself too much on those) leading this case. As a Gambian, when I saw him speak at the ICJ I was really proud of my country. Just five years ago, when I returned to The Gambia from the UK after so many years, I never thought in my lifetime that anything remotely like this was ever going to be possible, because I believed at the time that Jammeh was still going to be in power and it was going to be a continuation of serious human rights violations in this country. But not only that, you look at our own context, in Ecowas or within the African Union and being a leader.When Gambians went to the polls and removed that really autocratic regime from power through the ballot box, not through civil war, the country did not disintegrate into any civil conflict or anything like that. A one-day vote and the results went out in 24 hours, or slightly more than that, and Jammeh was voted out.

For places like Zimbabwe and places like Cameroon, maybe it was a catalyst. Maybe they said, we can do this, we can remove a dictator through the ballot box rather than resort to violence. In the same way, The Gambia is now championing human rights at the ICJ on behalf of the Rohingya against Myanmar. I would not be surprised, and it would not be too speculative to say, that within Ecowas and within the AU, the smaller countries will look at this and say, you know what, perhaps the time has come for African states to take a more leadership position or role in the international human rights debate, discourse and human rights work in general. I would not be surprised if this serves as a catalyst, as a springboard, to motivate other African countries to follow suit in the future. More likely than not, this kind of action will occur in the Global South, rather than in the West. I believe that this is a really positive outcome. One that will have really positive implications at the way we view our obligation as a state and the way we view ourselves, as individuals in the Global South, in terms of our responses to really serious, gut wrenching human rights violations.

Logan:If we can end on another thread of optimism: it could also be the case that there are unintended directions that emerge. I am thinking specifically about the domestic contradictions that you raised earlier. It could be the case that as the as the Minister gains more media attention and The Gambia has come to stand for justice and is getting global recognition for that, there may be more questions asked in the domestic civil society about issues of justice that you raised earlier. This may be an opening of new directions domestically as well.

Abdoulie Fatty:You have raised a very important point. Even though that may not have been the intended aim of Gambia notwithstanding, I believe that the more exposure that The Gambia gets in terms of the publicity of this matter and the more respect and accolades that the Attorney General gathers as this case progresses (as Tambadou receives glowing remarks from all over the world) and in the event that the ICJ actually finds in favour of The Gambia against Myanmar, it would be a perfect outcome.

That would create, I would speculate, a certain level of political leverage that the Attorney General may capitalize upon to get countries that assisted The Gambia and expert organizations that assisted The Gambia in pursuit of justice on behalf of the people of Myanmar (e.g. organizations like the Global Center for Justice). With this international prominence that has been generated by this case, this is a golden opportunity, even though that may not have been the primary objective. But secondarily, The Gambia may capitalize on the opportunities that this will present as a way or as a means of getting the level of international support that it requires to get Jammeh to account. He is based in a country that is headed by a dictator, so he is not going to be easily handed over to any organization.

However, with pressure from France and some other countries, the UN and the US, the bigger regional powers could force them to do so. This action by The Gambia can only amplify its status and its position and its influence internationally. If it is properly managed and properly utilized, then I will assume that it may be a means to getting Jammeh to account, with the help and assistance of the more influential countries. Again, they would have looked at what Gambia has done and achieved. And again, it may be a guilt of conscience. After all this has been done, and the ICJ finds against Myanmar, and the same Attorney General goes to these people and says: we have done it for the Rohingya, but, now closer to home, I want your help to seek justice, not for the Rohingya, but for the people of the Gambia, who for 22 years endured the most brutal human rights atrocities.

Therefore, because of what The Gambia would have achieved at the ICJ, politically and morally, it may be difficult for these countries and these organizations to turn a blind eye because they would feel they are really under a moral obligation to repay the excellent work that Gambia has done by filing in favour of the Rohingya against Myanmar. This may, in the end, really play out in strong interests of The Gambia, even though at the moment, as I said earlier, a lot of people see it as a mixed bag.

Logan:I would like to thank you. I appreciate all of your explanations and elaboration on many different aspects of this case. The whole world is watching. We look forward to seeing justice upheld in that case and we also are optimistic that it will have some of those unintended consequences of bringing justice home to the Gambia as well.

Abdoulie Fatty:Absolutely. I hope so. My final remark would be: this doctrine of the responsibility to protect, after Rwanda, after the Balkans, after Darfur, I think it is high time that this doctrine of the responsibility to protect, which perhaps you can argue is now a customary norm, I hope it is embraced. I hope it is strengthened.

I hope that universally, it becomes a really strong yardstick and benchmark in terms of how states assess their responsibilities in terms of human rights obligations. In terms of my own small country’s contribution in the face of international human rights and international justice, I could not be more proud of what we have done thus far and what we achieved today. While I await the final conclusion at the ICJ, I am optimistic.

The Rohingya deserve justice. I think the hundreds of thousands in Bangladesh should return home, be given full citizenship rights, and enjoy the basic decent human rights under international law that many of us enjoy in several parts of the world. International human rights and the indivisibility of human rights should not be about isolated incidents; rather it should be all of our business. I am happy that my country emerged from a dictatorship, transitioning into a democracy, holding itself as a beacon of hope for international human rights. I am proud. I am happy. I hope that justice for the Rohingyas would not deviate the Gambia government’s commitment to the people of The Gambia in the not too distant future.
Logan:Thank you very much.
Abdoulie Fatty:Thank you, Logan.

Logan Cochrane PhD, is an Assistant Professor in Global and International Studies, Carleton University, Canada.
Abdoulie Fatty is a former Magistrate. He studied in the U.K and was called to the Bar of England and Wales. He has LLM in International Human Rights Law and Practice.

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