It looks like the Gambia is heading back into the ICC fold: but what of Yahya Jammeh?

Former Gambian President Yahya Jammeh, having joined other African leaders in succumbing to the lure of withdrawal from the International Criminal Court (ICC)(( See also Gambia Follows South Africa’s ICC Exodus: Quelle Surprise, 31 October 2016.)) – no doubt out of fear of one day ending up in the ICC dock – departed the Gambia for Equatorial Guinea (a non-signatory to the Rome Statute) under a brokered deal that fell short of granting him immunity for any crimes he is alleged to have committed during his 22-year long reign.(( For more on the terms of settlement, see Antenor Hallo de Wolf, Rattling Sabers to Save Democracy in The Gambia, EJIL:Talk!, 1 February 2017.))

But let’s face it: immunity from prosecution for crimes against humanity is much like an amnesty (resulting in total amnesia and total prohibition against prosecution for crimes committed) – a thing of the past.  The days of kicking and screaming into the night as Uganda’s Idi Amin did when he fled to Saudi Arabia are becoming more difficult. The sanctity of sanctuaries is scarcely sacrosanct.

And getting asylum is not what it used to be.  As Charles Taylor found out the hard way, when he trustingly exiled himself to Nigeria, only to find himself before the Special Court for Sierra Leone.  This might explain in part why Jammeh declined Nigeria’s asylum hospitality, opting for Equatorial Guinea instead.

In any event, any immunity granted to Jammeh would have little traction were the democratically elected (and finally installed) Adama Barrow to honor his word to bring the Gambia back into the ICC fold, provided, of course, the ICC Prosecutor Fatou Bensouda were to come to the conclusion that her former boss and mentor (she was Jammeh’s Legal Advisor, Attorney General, and Justice Minister)((See Ms. Fatou Bensouda’s Biography on the ICC web site here.)) committed crimes that met the requirement of sufficient gravity (considering the scale, nature, manner of commission, and the impact of the crimes).(( ICC-OTP Policy Paper on Preliminary Examinations, November 2013, para. 9. For more on preliminary examination criteria, see The ICC-OTP’s November 2016 Report on Preliminary Examination Activities: Some Observations, 22 November 2016.))

As early as 2013, not long after she took over as ICC Prosecutor, Bensouda shied away from criticizing Jammeh:

I do not think that it is right for me to start giving opinions about the human rights situation of any country, including Gambia, except when those crimes translate into the crimes that I have to investigate.((A Lifelong Passion Is Now Put to Practice in The Hague, The New York Times, 19 Jan. 2013.))

As of June 2016, Bensouda was unconvinced that Jammeh’s alleged crimes met the ICC jurisdictional requirements. In Bensouda’s words to the Dakar-based West Africa Democracy Radio:

What we at the ICC look for is war crimes, crimes against humanity and genocide which is the mandate of the institution and this is what has to be understood.

These crimes have their specific elements and we look at them very closely to see whether those elements are present.  It has to be clear that the ICC is not a human rights court but a court that deals with specific crimes under the Rome Statute.

Those that reacted to President Jammeh’s threat of burying his critics ‘nine feet deep’ did so based on human rights, my mandate is crime and if these crimes have been committed it would have been different.  We are assessing what is going on in the Gambia but it is not yet the time for the prosecutor of the ICC to make a statement.(( Gambian Activists Disappointed at ICC’s Refusal to Investigate Jammeh, Jollof Media Network, 3 June 2016.))

Some have found Bensouda’s remarks remarkably incredulous, if not mendacious.  According to Binneh S. Minteh, adjunct professor at Rutgers University, “Mrs Bensouda’s reasons for the court’s silence in the case of the Gambia are laughable and irresponsible as the chief prosecutor.”(( Id.)) Similarly, Yankuba Dabo, an immigration lawyer and activist from the United Kingdom, finds Bensouda’s explanations to be “quite simply inaccurate, flawed and contrived, to simply justify her hypocrisy and indifference to the crimes of her former boss Dictator Yahya Jammeh, against her own people of the Gambia, including her former colleague at the Gambian Bar and opposition leader, Lawyer Ousainou Darboe.”(( Id.)) I leave it to more knowledgeable sources to reconcile Bensouda’s conclusions with the accounts of the likes of (and there are plenty) Minteh and Dabo.

Thus far, it is unclear whether Barrow is willing to go nuclear on Jammeh by requesting the ICC Prosecutor to investigate and charge Jammeh. Even if he thinks (and he probably does) that Jammeh has committed or is responsible for having committed the alleged crimes of torture, rape, and killings attributed to him and his regime, Barrow may – as he has claimed – take a more benign, though by no means ineffectual, approach of pursuing accountability through a peace and reconciliation process.  If earnestly pursued, and if successful, it may prove to be an effective tool for future situations when strong men who cling on to power after losing at the ballot box are pressured by external influences – such as seen by the intervention of the Economic Community of West African States (ECOWAS) – to serenely take their leave, and at worst be confronted with inconvenient truths invariably resulting from a truth and reconciliation process, than risk the full force of the law at the ICC or another court, be it domestic or regional.

Some may argue that truth and reconciliation commissions are inadequate, anemic, toothless.  Victims, human rights activists, and civil society NGOs tend to be dismissive or at best ambivalent when it comes to claiming that truth, justice, and accountability are possible in the absence of criminal prosecutions in credible courts of law.

The usual refrain goes something like this:

●A truth and reconciliation commission maybe can come close to the truth, and maybe (depending on the culture) can achieve a semblance of reconciliation, but is that sufficient?

●What of the guilty getting their just deserts?

●No mercy shown, none deserved.

●Enough with the excuses, justifications, obfuscations, confabulations, and what have you; why bother going through the motions of a mumbo-jumbo non-judicial process?

●Closure comes with retribution.

●We know they are guilty, so what is all the fuss about trying these rascals – especially when our courts or other legal institutions such as the ICC will give them the fair trial that they so cheerfully denied their victims?

Cynical as it may seem, these attitudes are neither farfetched nor unjustified if you are a victim.

Barrow would do well to reconsider Jammeh’s decision to pull the Gambia out of the ICC. I hasten to fully endorse the ICC, considering how much further it must go before it can establish its bona fides as a credible, reliable, and sustainable legal institution.

However, Barrow would also do well to resist the siren call of forsaking accountability through a truth and reconciliation process in lieu of a full-frontal attempt to get Jammeh before the ICC. Truth and reconciliation is not a perfect solution if crimes were indeed committed (far be it from me to pre-judge). And obviously disappointing to the alleged victims. But pragmatic solutions are often better than idealistic or inflexibly righteous pursuits.

Voltaire was partially right when he said: “To the living we owe respect. To the dead we owe the truth.” Both the living and the dead also deserve justice, and justice, as imperfect or unsatisfying as it may seem, can come through a truth and reconciliation process. This does not mean that criminal prosecutions in a court of law should not be pursued.  It may be more of a question of when as opposed to if.  Making the perfect the enemy of the good out of haste comes with consequences. And those consequences, unintended as they may be, tend to be toxic.

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