By Omar Bah
Stephen J. Rapp, an American lawyer has urged President Adama Barrow to seek UN’s assistance for the establishment of a Hybrid Court that would make it possible to prosecute Yahya Jammeh and others who committed crimes under his watch with or without a new Gambian constitution.
“It is a matter of the Gambian president representing the people of The Gambia turning to the UN and say, we will like your help on a Hybrid court. That’s what the late president Tijan Kaba of Sierra Leone did, and the UN said yes. We have to definitely go tough but it will fundamentally come down to a political will,” he told The Standard.
Rapp is in the country to make a follow-up on recommendations made by stakeholders on the need for the government to initiate a taskforce to identify the possible avenues for the post-TRRC prosecution of crimes committed from 1994 to 2017 ahead of the truth commission’s report expected in early 2021.
He said a Hybrid court “doesn’t have to follow the immunities in the 1997 Constitution, rather it follows International Law and under International Law there are no immunities for former Heads of State. That is the kind of law we applied in Sierra Leone to prosecute crimes against humanity, torture and sexual violence,” he said.
A Hybrid court was among key recommendations made by stakeholders during the online meeting in March this year. According to Mr Rapp, who also met the TRRC chairman and the Attorney General, the Gambia’s Justice Minister had promised that the government will be in favor of a Hybrid court.
Hybrid courts are mixed composition and jurisdiction, encompassing both national and international aspects, usually operating within the jurisdiction where the crimes occurred.
“I am particularly concerned with the defeat of the new constitution in the National Assembly. We hope this isn’t the last hope. But if it doesn’t happen then you have a constitution of 1997 that makes it very hard to prosecute powerful individuals who were involved from 1994 and 1997 and the provision cannot be amended under the 1997 constitution. Even the Attorney General has said it will be an uphill task to do that trial in Gambian courts,” the expert said. He added that the only solution to that “is a Hybrid court which is a court in which the statue is established by an agreement between this country and an international organisation like the UN, AU and even Ecowas.”
“So with these treaties then you can put provisions that are consistent with international law that would ensure that perpetrators who will say, I didn’t do anything but they allowed people under their watch to commit crimes will be found guilty under international law. You don’t have to prove that they instigated or ordered it,” he said.
Rapp, a former chief of prosecutions of the ICTR in 2005, under Chief Prosecutor Hassan Jallow prosecuting perpetrators of the 1994 Rwanda genocide, said: “If there is an arrest warrant against Jammeh, then there will be a question of whether the country he is in will give him up and send him to stand trial or not. We had the Sierra Leone court where Taylor was indicted and eventually arrested and brought there but we reached an agreement to have that trial done in Europe and the witnesses phoned to testify. So we might reach that agreement in Jammeh’s case. The question is the pressure that should be brought to bear on the country where he is in exile. In the case of Taylor, when it was time to bring him to justice the new president of Liberia at the time didn’t like it but countries like the US supported it and put pressure on Olusegun Obasanjo of Nigeria where Talyor was in exile and indeed in the end, President Bush said he would not meet with President Obasanjo unless Taylor was transferred from Nigeria. It could be more difficult with Equatorial Guinea but every country has pressure points and appropriate issues that can be raised in terms of aid and other things and eventually one can put together incentives to reach a compromise. So it is possible to get Jammeh but it takes international cooperation – one country cannot do it on its own,” he said.