By Sanna Camara
Among the charges against Ousman Sonko filed by the Federal Office of Prosecution in Switzerland was rape as a crime against humanity. However, the court said the offence of a crime against humanity has not been applicable and, as a result, its criminal jurisdiction for the charged offences (multiple rape) is not given. It also found that a procedural requirement was lacking, which is why the proceedings on the said charges under section 1.5.2 of the indictment must be discontinued. This means that the charges of rape as a crime against humanity did not stick.
In the third part of this series, we examine the matters of the rape charges against Yahya Jammeh’s former interior minister, state guards commander, and inspector general of police, Ousman Sonko, in the trial held at the Federal Criminal Court of Switzerland in 2024. The prosecutors had not listed the rape as individual offence. Rather, as a crime against humanity – which the trial chamber found to be unconvincing enough due to procedural and technical issues, and therefore discontinued, or dropped it. However, they did not aver that Sonko was innocent of the rape and conspiracy to commit rape charges filed by the prosecution.
For rape to be considered a crime against humanity, it must be an extensive or systematic attack against a civilian population. According to the judgement of the Swiss Federal Criminal Court based in the Ticino region of Bellinzona, the rapes allegedly committed by Mr Sonko over a period of years “appear unsuitable” for achieving the alleged objective asserted by the Office of the Attorney General in the indictment and in the parties’ submissions.
A victim’s statement about what happened to her were additionally supported by another’s that she heard her screaming and saw her being water boarded; in “Mile 2” she was crying, her body was bleeding and swollen and her clothes were torn. Furthermore, a psychological report attests that the events described by her in 2006 are compatible with her clinical picture.
Ironically, it said that Ousman Sonko was the only person in the main proceedings who denies in his statements that Jammeh’s rule was terrible and explicitly or implicitly takes the view that the civilian population in The Gambia was not terrorised or that there was no reason to fear the power apparatus. Yet in his own handwritten notes discovered in his possession to support his application for asylum, Sonko wrote that he fled The Gambia “in mortal danger”, as most of the colleagues and senior officials who had been dismissed so far had been arrested and detained.
“Some had disappeared without trace. The reason for fleeing or running for my life. Most colleagues and senior officials who have been relieved of their appointment or dismissed got arrested, detained and some disappeared without trace; the president is known for assassinating, detaining and putting up frivolous charges against dismissed officials,” Sonko stated in words quoted in the judgement.
The rape and sexual integrity offences
The widow of a deceased army commander was not the only victim of rape to file charges against Sonko in Switzerland. Several others did. Sonko has also been found guilty of accessory, or conspiracy to commit rape, as other victims of these crimes identified him as a panel member of the 2006 coup attempt that was led by General Ndour Cham. Sonko was the inspector general of police at the time, and participated in the investigations as a panel member. The court said that Sonko had asked questions and saw the injuries… The panel instructed the “Junglers” and told them which persons to bring in for questioning. Female detainees alleged multiple rape actions by Junglers during interrogations, among other forms of torture, to establish their knowledge of the coup.
“…Men from a paramilitary unit arrested her and took her to Mile 2 Central Prison, where she was held in solitary confinement for 14 days. On the sixth day of solitary confinement, she was taken to the NIA headquarters, to the NIA conference room, where many people were present, including the accused as IGP, the Chief of Defence Staff, the Chief of the Presidential Guard, and the Director of the NIA. The accused and [DD] were sitting next to each other. She had the impression that these three persons had conducted the interrogation, especially since they were the respective chiefs of the security forces.
“Four men in black uniforms and face masks, ‘Black Blacks’ or ‘Junglers’, then took her, grabbed her under her clothes on the stairs and touched her between her legs and breasts. The “Junglers” only let go of her after [MM] intervened…
“However, the ‘Junglers’ then put a plastic bag over her head, tied it up, hit her on the back with belts, ropes or sticks so that the skin burst open, and at the same time asked her questions about the coup attempt. One man pushed her legs apart and penetrated her…the next ‘Jungler’ prepared to violate her, [again]. Her head was then pushed under water several times in the yard until she lost consciousness and she was then taken back to Mile 2″.
Dismissing rape charges
Notwithstanding the varied and cruel crimes of torture and ill treatments held by the Federal Criminal Court, the judgement stated that other rape charges as crimes against humanity, would also, among other reasons, have to be dismissed because the statute of limitations had expired with regard to those rape allegations that allegedly occurred before 1 January, 2001.
“The rapes charged in section 1.5.2 of the indictment – if established – would be directed against one person (G – name withheld). Thus, the element of multiple offences is already missing. Any multiple rapes committed in the period from 2000 to April 2002 and in January 2005 do not have a collective character within the meaning of Article 264a, Paragraph 1 StGB of the (German Criminal Code, known as Strafegesetzbuch). Rather, the acts would have to be seen as isolated individual acts committed several times against [the alleged victim] and not as an attack against the Gambian women as part of the civilian population,” the court stated.
Accordingly, the statements of the Office of the Attorney General and the victim’s legal representation, according to which Sonko had raped her over a period of years, among other things, which corresponded to President Jammeh’s political objectives, are not convincing, the court stated.
It said that its files do not reveal any regular incidents of rape by civil servants in the sense of a plan or pattern of acts for the period relevant to the indictment. Neither did it find any evidence in the files that show or prove that rape was a targeted means of oppression in the period from 2000 to April 2002 and in January 2005. Nor is it apparent to what extent Sonko’s acts would have required the use of considerable resources. Such use would in principle indicate a systematic approach.
For the statements in the indictment on the overall offence, the federal criminal court said that reference can be made to the considerations on indictment regarding other alleged rape victims.
From the statements on the extent (of an attack), according to which, in quantitative terms, the civilian population of The Gambia is said to have been the victim of rape in addition to intentional killing, and so forth, as well as from the section on the asserted systematic nature specifically in the period 2000 to 2005, it follows that rape under Jammeh’s rule is said to have been one of the asserted means of attack.
According to the indictment, Sonko had allegedly raped her several times with the aim of obtaining information from her about the coup attempt against President Jammeh planned by her husband in January 2000, and to prevent her from acting against the regime. On the other hand, the accused committed these crimes with the aim of preventing her from doing so; to make statements about the killing of her husband and to denounce the regime and the accused acting on behalf of the regime.
The prosecution believed that Sonko had wanted to keep her silent in order to protect the regime and keep the extrajudicial killing of her husband a secret. Sonko repeatedly denied the accusations concerning her rape. His denials relate primarily to the individual acts charged, whereby he fundamentally denied the existence of a systematic or widespread attack under Jammeh’s rule.
With regard to the requirement of the overall offence, the Office of the Attorney General of Switzerland first refers to its general statements on the contextual elements, according to which crimes against sexual integrity, torture and deprivation of liberty were “deliberately and systematically committed” in the Gambian state apparatus between 1994 and January 2017.
In addition, the Office of the Attorney General of Switzerland emphasises the TRRC’s finding in the final report that President Jammeh and senior state officials had made women and girls victims of sexual violence by raping, violating and harassing women, among others, without holding the perpetrators accountable. In the opinion of the Swiss Attorney General’s Office, this sufficiently established that the alleged victim belonged to the civilian population that was attacked and that the accused committed the (individual) acts charged to the detriment of her; had committed the offence explicitly or at least implicitly on behalf of and in accordance with the reprisal policy of the perpetrator collective.
In the opinion of the Office of the Attorney General, the “connection” between the overall offence and the individual offences was fulfilled, since she, as the closest family member of her husband, was also considered an enemy of the state apparatus, as was her husband.
“[Sonko’s] behaviour towards her had mainly served to spy on and control her. On the surface only, the accused rapes would appear to be ‘personal’ acts of the accused. However, the crimes against her were not primarily about satisfying the accused’s sexual urges, but rather about the state interests of President Jammeh’s power apparatus, which the accused wanted to protect with his behaviour.
“The massive reaction of the accused towards her after her return to The Gambia in January 2005 would show the danger she posed to President Jammeh’s state apparatus. The defendant’s appearances vis-à-vis the alleged victim were always of an official nature, in that the former always appeared to her in uniform, equipped with his service weapon, in an official car and accompanied by soldiers as a representative of the army.
“In addition to his appearance as a state functionary, the defendant had used state power to achieve his goals by restricting her and her family in their everyday lives by excluding their children from school and temporarily preventing her from working at the immigration office. This demonstrates the conduct of the accused as a representative of the state in the commission of the crime,” the prosecution charged.
Regarding the situation of women in The Gambia, the victim in her statement said that under President Jammeh, the state collective of perpetrators created a system in which women were regarded as mere objects and treated as such. Not only the accused, but also President Jammeh and other high-ranking members of the regime had perpetrated sexualised violence against women under abuse of power and could rely on impunity.
She was not a random victim, but was targeted as the widow of a suspected coup leader. The prosecutors maintained that the accused had always acted with the specific intention of punishing her as the widow of his eliminated adversary or to possess her or to intimidate, humiliate, dominate and destroy her, to obtain information from her and to prevent her from talking to anyone about what had happened. Since the accused acted in the exercise of his function or at least by exploiting his position of power or the resources available to him through his position, his actions against her do not constitute an isolated act.
Despite these strong arguments from the prosecution, the court said it has also not been established that in the period 2000 to 2002 and in January 2005, women in The Gambia were extensively or systematically attacked by means of sexual violence, for the purpose of maintaining President Jammeh’s power and oppressing the civilian population.
“Even if the existence of an extensive or systematic attack against the civilian population (so-called overall offence) and the accused acts were proven – which is not the case here – the defendant’s criminal liability would also fail due to the lack of a connection between the acts,” it stated.
Citing international case law in connection with crimes against humanity, it referenced several judged cases of crimes against humanity with the single act of rape had in common that numerous women were raped. This made the connection between the commission of the crime and the overall crime clearly evident… If, on the other hand, only one incident of rape is proven, it can be inferred that it was committed if rape is one of the interrogation methods.
As such, it said there was no evidence in the case file that mass rape took place in The Gambia in the period 2000 to 2002 and in January 2005 or that mass rape was practiced as a method of torture.
