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Tuesday, October 20, 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.

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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: Today, we will be talking about the case that The Gambia has raised in the International Court of Justice against Myanmar. Today is an excellent day to be speaking about this, it being Thursday, January 23rd, because as of today, the court has ordered Myanmar to take preliminary action while the proceedings of the of the case go forth. It demanded that Myanmar take action to ensure that the persecution and atrocities are not continued. That is not a result of the case, but that is based on the available evidence that the court was able to give this direction, as of this morning. To speak about this from a perspective from The Gambia, we are joined by Abdoulie Fatty, a barrister of England and Wales and a barrister and solicitor of the Supreme Court of The Gambia. He is a former senior magistrate in The Gambia. From 2016 onward, until the present, he has been working in private practice. His legal degrees were obtained from University of York and was called to the Bar of England and Wales.

Abdoulie Fatty: Thank you, Logan.

Logan: As we mentioned, today is a really important day in the case proceedings. Before we get to that, could you tell us a little bit about how this case came to be, and specifically about the Justice Minister Abubacarr Tambadou? How have we arrived at having a case in the first place?

Abdoulie Fatty: I think it is the work of fate, perhaps, or some bit of a coincidence. The former vice president, who is no longer in office, was actually supposed to visit Cox Bazar in Bangladesh. Unfortunately, he could not. He asked the Justice Minister if he could travel on his behalf. He checked his diary and agreed. That is where this actually began. He went. Probably troubled by the severity of the atrocities that he saw on the ground, and remember that this is somebody that previously worked at the ICTR, I think his conscience was affected. This was the beginning of Gambia’s taking the case to the ICJ against Myanmar.

Logan: For those who have not heard it, the opening remarks made by the Justice Minister Abubacarr Tambadou were really quite powerful and moving and worth a listen. From there, could you tell us a bit about the legal case itself? The case that The Gambia has brought to the court itself or a summary of what is being brought forth?

Abdoulie Fatty: You have the Convention on the Prevention and Punishment of the Crime of Genocide of 1948. Both The Gambia and the State of Myanmar are signatories; they are parties to that convention. Neither party, neither The Gambia nor Myanmar, have registered any reservations in respect of that actual convention. The Gambia, therefore, believed that as a party, it had a legal, moral and political responsibility to actually act on behalf of the Rohingya, who perhaps, at the time, could not speak for themselves or could not do this or on their own behalf. Gambia is also member of the Organisation of Islamic Cooperation and I think they have been heavily involved in the matter in the background since Gambia expressed an interest in taking this matter to the ICJ. Effectively, the matter before the ICJ, the one actually filed by the Government of The Gambia, is that there are evidences of genocide being perpetrated, systematically, by the State of Myanmar against Rohingya people. The Gambia will seek a remedy on behalf of the Rohingya in order to stop the genocidal intentions being perpetrated by the state and those in the highest office.

The case will seek remedy and reparations. Amongst others, this includes that the Rohingya people have been deprived of citizenship rights. Based on compelling evidence, women have been subjected to very grotesque forms of sexual violence. The evidence compounded in its entirety, The Government of The Gambia is telling the ICJ that there is strong evidence, based on fact-finding missions led by the Independent International Fact-Finding Mission on Myanmar (IIFFMM), credible, compelling and cogent evidence that the Rohingya were being killed, systematically, with a genocidal intention by the State of Myanmar. And, therefore, since Myanmar is a party to the 1948 Genocide Convention, the ICJ has jurisdiction to intervene, to prevent, to stop and to punish the State of Myanmar, if subsequently it is found that the state is culpable. In a nutshell, that is Gambia’s case before the ICJ.

Abdoulie Fatty: However, the case is also symbolic because Gambia is a very small country. It is relatively unknown. And, in the context of international geopolitics and international discourse, it is the last country that one would expect to actually take a leading role in the crusade, of what it is aimed to be, an assault on the conscience of the international community as a whole.

This case goes beyond the traditional, normative assumptions and discussions in relation to state obligations under international law. What The Gambia is trying to say is: look at what happened in the Balkans in the early 90s, what happened in Rwanda in 1994, what happened in Darfur around 2003 and 2004 and afterwards. It is no longer the case, and it should no longer be the case, that the international community as a whole plays a bystander role, to be indifferent, to what Gambia believes to be the most palpable human rights abuses, at a genocidal scale, right before the international community, in Myanmar. Perhaps it is to provoke and stir our conscience, as a community of nations. It is about time, that we do not only respond to our obligations in international law, in a purely legal manner, but morally and politically.

We need to rise to the challenge, to make sure that in the 21st century the wrongs that are occurring in Myanmar do not only have to be the immediate business of only the people that are affected. All of us among the 149 states that are party to the convention have a legal and moral duty to stand up, to make sure that remedy is sought for the population that is affected. And if I may add, a population, that perhaps, is unable at this juncture, due a lack of resources or otherwise, to make this claim for themselves. One has to understand the nuances and all the intricate complexities and political motivations that are linked to this issue. We can put those to one side and perhaps just look at the leadership role taken by The Gambia for a country that has a population of 2 million and that is so far removed geopolitically from strategic interest of the global powers and is far away in West Africa, yet it is going to the ICJ and telling the US, Canada, Britain, France, Germany, Japan and the rest of the global community that there is a moral, legal and political duty to intervene. That is exactly what Gambia has done. I think it is really commendable.

Logan: If I may, and you can correct me if I am wrong, I think that this is a historic case because the accused is the state itself, as opposed to individuals. Do you have any reflections on how that changes the proceedings of the case itself?

Abdoulie Fatty: I do not want to make a mistake here, but I think there are individual investigations being undertaken. I am not sure if final conclusions or reports have been submitted in relation to the jurisdiction of the ICC in respect of individual accountability. However, in this case, as you said and I agree entirely, that this is really important because what Gambia is seeking is the accountability of the state. It is really an important milestone, an important step in the pursuit of accountability of state responsibility and state obligations under international law. As far as the case at the ICJ is concerned, substantive arguments and submissions will be made before the court.

The provisional measures ordered or imposed on the state of Myanmar do not in any way conclude that the court believes that Myanmar is guilty of genocide. However, for the court to actually impose these provisional measures means that the court would have been satisfied based on the evidence adduced so far before the court that it is of a reasonable belief that there is a case that the state of Myanmar is committing or there is a risk of it imminently committing acts of genocide, and therefore it is reasonable for the court to intervene and impose restrictions, and order mandatory obligations on the State in terms of ensuring that the military and the police cease what they are doing, to make sure that evidence collected in relation to genocidal acts are preserved, and effectively complying with the order of the court. But, again, the Security Council has to intervene under Article 41 of the Court’s statute.

Logan: I believe this morning the presiding judge over the case, to build on your remarks there, said that the Rohingya are at “serious risk of genocide” and that these preliminary measures are calling for Myanmar to “take all measures within its power” to prevent all acts that are prohibited under the 1948 Genocide Convention. As you said, the judge is making an indication here that the evidence is quite serious and that the proceedings will present some strong challenges for the state of Myanmar. As our focus is not actually about the atrocities themselves, but more on the perspective from where you sit and the perspective of the people of The Gambia and its government and so on, could you share your reflections on how this case is being talked about by the public and by local media in the Gambia? In so doing, could you reflect on the fact that there is a potential for negative repercussions. For a country that, as you said, is geographically quite far and has relatively minimal direct connections with the conflict or the states involved. There could be negative consequences of sticking your foot out and standing up for justice. How are the people in the media speaking about the case?

Abdoulie Fatty: Before I answer the question, again, the provisional measures are really significant because the evidence suggests that hundreds of thousands of Rohingya are at threat of genocide, that women are exposed to extreme forms of sexual abuse, and therefore these provisional measures are mandatory to ensure, if complied with by the state of Myanmar, that those do not continue. To answer your question, in relation to the Gambian perspective, you will be amazed that it is mixed in the Gambia. This is a really important step taken by the Government of The Gambia, taking the state of Myanmar to the ICJ. However, the recognition that Minister Abubacarr Tambadou has received, in the international community, particularly in the West, I do not think we have the same enthusiasm for it in The Gambia, and perhaps there are reasons for that. Now and again, especially when the Attorney General Abubacarr Tambadou spoke really compellingly before the ICJ, it was widely reported in The Gambia. But, other than that I think the reports have been very sporadic, and sometimes less enthusiastic. Culturally, you have to understand that the majority of the Gambians do not have even the remotest idea or relative connectivity emotionally to what is actually happening at the ICJ. A great number of the Gambian population live in rural areas. I do not think they really understand the rationale or the context.

Abdoulie Fatty: I am guessing that it is a small minority of the population, around the urban areas, perhaps the educated elite, who know exactly what is going on with The Gambia’s case at the ICJ. Even within that demography, you will find split assessments of this issue. Firstly, Gambia went through, from 1994 to January 2017, a really autocratic and brutal dictatorship. There is an ongoing Truth, Reconciliation and Reparations Commission, TRRC. Testimonies are startling the Gambian population. Some of the things that are being revealed at the TRRC are things that, in the past, we assumed were just rumours; really brutal, grotesque, systematic, human rights abuse by the state and the state security apparatus against the citizens of The Gambia. The person responsible for that, the former president Yahya Jammeh, a really brutal dictator, is in Equatorial Guinea.

Gambians do not believe that the Attorney General or the Gambian government as a whole are taking very strong steps or efforts to ensure that Jammeh is accountable for his atrocities. This could be at the ICC or at any level. Gambians sometimes see this as an irony. While the Attorney General is championing human rights for the Rohingya people, who The Gambia does not have anything in common with geographically apart from the Rohingya being Muslim and The Gambia being predominantly Muslim, that is perhaps the only thing that the Rohingya and The Gambia have in common. Perhaps one can understand why a lot of people here, while they to some extent believe that what the Attorney General or what the government of the people of The Gambia is doing in terms of taking this case to the ICJ is quite noble, at the same time there is this argument that charity begins at home. Equally, the same effort internationally that The Gambia has generated in trying to pursue justice for the Rohingyapeople, there seems to be an absence of the same energy and enthusiasm by The Gambia government on behalf of victims of human rights abuses and violations in The Gambia.

To really reinforce this point, sometime around July, August or September of last year, some individuals, members of the military and the police intervention force testified before the TRRC and admitted to taking part in murdering civilians, people who were considered to be political opponents of the Jammeh regime. These are people who had been in custody for a couple of years, and legally I believe there was no legal basis for their continuous detention. It was argued that it was important that they remain in custody, however, the Attorney General sanctioned their release. As a result, you can find some Gambians are bemused and perplexed by the idea that while Gambia is pursuing justice for the Rohingya, back home it looks like the state, to some extent, is failing victims of really serious human rights abuses and violations. It is a mixed bag in The Gambia and the reporting of the case is not as prominent as you would find internationally.

To be continued.

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