By Benoit Meystre
Conditions of detention constituting acts of torture
The recognition of conditions of detention reaching the threshold of suffering required for torture as a crime against humanity constitutes another precedent of historic value (SK.2023.23 para. 8.5.2.3). Indeed, the Sonko judgment enshrines the fact that poor detention conditions (victims held in cramped, unhygienic cells with no sanitary facilities, no place to sleep, insufficient food, no right to leave the cells, no access to a lawyer, no access to the care they needed and no family visits) institutionally imposed on those who were targeted by the authorities, after they had been tortured, without access to health care and while kept in fear of being tortured again (a parallel was made here with the judgment of the ICC Trial Chamber IX, Prosecutor v. Ongwen, ICC-02/04-01/15 of 4 February 2021, § 2830 and seq) had caused considerable suffering that reached the threshold required to be considered, as such, as torture.
To reach this conclusion, the FCC carefully examined not only international criminal case law (which included a wide-ranging examination of the case law of the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Court (ICC) and the European Court of Human Rights (ECtHR)), but also looked at the question from a human rights perspective with regard to the decisions handed down by the Human Rights Committee (responsible for the application of the UN Covenant on Civil and Political Rights of 1966) as well as from the point of view of the provisions relating to international humanitarian law, in particular the Geneva Conventions of 1949.
Such a ruling is in line with the Committee against Torture’s case law, and in particular with the recent decision CAT/C/82/D/967/2019 (para. 7.1 ff) which must be commended.
Ousman Sonko was found guilty of having committed this offense in dolus eventualis as he was Minister of the Interior in supervision of the prison services, at the time of the events. Such reasoning represents a crucially important precedent from the point of view of the individual criminal liability of those who occupy a higher hierarchical position as it sends a clear and welcomed signal to senior government officials that would allow poor detention conditions taking place: these may be constitutive of torture for which they may have to answer to before a court of law.
Victims of sexual violence not recognised in the verdict
As we have seen, the Sonko ruling sets several welcome precedents. But it also contains some worrying pitfalls, that unfortunately detract from its strength. This is particularly true of the way in which sexual violence was examined by the FCC, an aspect that has already been discussed publicly and criticised, but which deserves to be highlighted again.
With regard to the accusations of rapes perpetrated on one (same) victim between 2000 and 2002 and again in 2005, the court found that she – although her husband was murdered as an alleged coup plotter in 2000 – did not fall within the category of persons who were actually persecuted by the regime (alleged participants in a coup, journalists, politicians, activists or critics) and that it did not emerge from the case file – not, in particular from the TRRC report or other NGO and government reports – that sexual violence had been used by the Jammeh regime as a weapon of repression.
The FCC merely noted that “[t]he fact that women were socially oppressed in the Gambia under Jammeh’s reign and that he showed indifference to women’s rights and equality […] does not yet constitute an attack against the civilian population within the meaning of international case law” (SK.2023.23 para. 5.4.2.3).
As a result, according to the court, these acts of rape could only be considered as isolated assaults and so called privately motivated crimes outside the scope of crimes against humanity, which do not fall under its jurisdiction. As a reminder, in Switzerland, rape and other forms of sexual violence can only be prosecuted on the basis of universal jurisdiction if they are considered part of the contextual elements of the crimes against humanity. Without such link, the court lacks jurisdiction to prosecute a rape committed abroad, by a non-Swiss national on a non-Swiss victim.
Following the same line of argument, the court was of the opinion that, in the absence of evidence to show that rape or sexual violence were used as a method of torture under Jammeh at the time of the events, it was held that a rape committed by some Junglers during a torture session on another victim in 2006 should also be considered as an isolated act, which the court could not judge for lack of jurisdiction.
Another shortcoming related to this same issue concerns the way in which the FCC judged the electric shocks imposed on the genitals of another victim: in a insufficiently motivated reasoning, it was held that such acts constituted torture but that they did not, simultaneously, constitute attacks on sexual self-determination, insofar as, according to the FCC, the Junglers who had perpetrated these acts were not motivated by sexual considerations in acting (SK.2023.23 para. 8.3.4.1).
With such reasonings, the FCC unfortunately missed the opportunity to recognize and sanction the use of sexual violence as a weapon of repression and terror. Unlike on other aspects of the judgment, it highlights a misunderstanding of the Gambian context by the court, where sexual violence was in fact deeply rooted in the structure of the State and its institutions, right up to the highest-ranked individuals of the regime. With this unsatisfactory ruling at hand, the plaintiffs who survived such violence were denied recognition of their suffering. This is to be strongly regretted, just like it is that the court did not undertake a thorough examination of the systemic nature of sexual violence under Jammeh’s regime, in which Ousman Sonko occupied a key position.
In this sense, the Sonko judgment unfortunately fails to align with international case law that recognizes rapes and sexual gender-based violence as instruments of persecution to commit war crimes and/or crimes against humanity and/or torture (for example: ICC, Appeal Chamber, Prosecutor V. Dominic Ongwen of 15 December 2022, ICC-02/04-01/15 A, ICTY, First instance Chamber, Prosecutor V. Anto Furundzija, Judgment of 10 December 1998, IT-95-17/1-T; ICTY, First instance Chamber, Prosecutor V. Zejnil Delalic at al., Judgment of 16 November 1998, IT-96-21-T.
The nature of the attacks on the Gambian civilian population
The offence of crimes against humanity may be considered where there is, alternatively, a systematic or widespread attack against the civilian population. In the Sonko case, the FCC was of the opinion that only the systematic nature of the attack was supported by sufficient evidence material to be considered as proven, whereas it judged that its widespread nature was not, contrarily to what the TRRC had previously reported. The FCC based its decision on the fact that:
The number of victims recorded during the Jammeh regime was not of sufficient magnitude in the light of international jurisprudence;
The total duration of the repression – 22 years in this case – did not play a role in the assessment of the notion; and
The argument according to which, in The Gambia, an “extended family system” implied that a crime indirectly affects a greater number of people than in Western Europe had to be rejected (SK.2023.23 para. 5.4.1.5).
While this question does not dramatically affect the outcome of the case, as Ousman Sonko was convicted of having participated in a systematic attack on the Gambian population and hence, of crimes against humanity, it certainly carries weight for the many victims of the regime, and once again stems from a regrettable, contextual misunderstanding by the FCC.
An Example of “Aggravated” Crimes Against Humanity?
In Swiss criminal law, article 264a par. 2 SCC contains an aggravating factor enabling the court to impose a life sentence on the perpetrator if the act is deemed “particularly serious”, which would be the case, according to the legal wording, notably if it affects a large number of people or if the perpetrator has acted with cruelty.
For the first time in Swiss judicial history, the FCC was asked to examine the application of this provision. After recalling that crimes against humanity are, by nature, serious offences and examining the question of aggravating circumstances under the Rome Statute (whose definition differs from that of Swiss criminal law), the court ruled that none of the legal criteria listed in the Swiss provision were met. It also ruled that the criteria deriving from international case law – such as the hierarchical level of the perpetrator or the psychological impact of the crime on the victims as being influential in the examination of the aggravated offense – were not considered sufficient to allocate the aggravating circumstance of article 264a par. 2 SCC to Ousman Sonko (SK.2023.23 para. 8.6).
Having in mind the fact that Ousman Sonko was a key actor of the repression during many years, a close ally of the President-Dictator and recalling the broader Gambian context under Jammeh – considered by the court itself as a veritable “reign of terror” (SK.2023.23 para. 5.3.1) – it seems that the FCC took a too cautious move here, in simply refusing to set a threshold for the aggravated crimes against humanity in Swiss case law, which, again, is regrettable.
The issues of accessibility of universal jurisdiction Trials
In a general consideration regarding the conduct of the trial of Ousman Sonko, and in particular the superficial interpretation offered, it will be recalled how important universal jurisdiction trials are, first and foremost, for the affected communities, far away from foreign domestic courts. In this case, the trial was a key momentum for Gambians who have been affected by more than 20 years of violence and who are currently in the process of rebuilding their own lives and nation. The Sonko trial was held in German and the FCC only offered a partial interpretation of the proceedings in a strict application of the provisions of the Swiss Code of Criminal Procedure (SK.2023.23 para. 1.6.5), which clearly – and unfortunately – undermines the significance of the case for affected communities in The Gambia.
Conclusion: Proceedings that support the transitional justice path… and more
Ultimately, despite the criticisms that may be raised, the trial of Ousman Sonko in Switzerland represents a major step forward in several respects. First of all – and most importantly – it is destined to support future trials concerning the crimes of the Jammeh regime, whether on the basis of universal jurisdiction or before the judicial bodies about to be functional in The Gambia, or under the aegis of the ECOWAS (hybrid court) as part of the transitional justice process. Secondly, Ousman Sonko’s conviction demonstrates that there are concrete ways against impunity; even years after the crimes took place. Finally, it shows that universal jurisdiction is far from being an abstract concept, but that on the contrary, it serves as a realistic means for victims, whose courage and persistence deserve our respect and support, to access justice.
The author is a Swiss lawyer and legal advisor at the International Investigations and Litigation Program of TRIAL International.
