First Trial for Crimes Against Humanity in The Gambia Comes to an End
Notes from Observing Universal Jurisdiction in Germany
On 30 November 2023, the first trial worldwide to address crimes against humanity committed in The Gambia during the ruling of former president Yahya Jammeh (1994 to 2016) came to an end. The Celle Higher Regional Court sentenced Bai L. to life imprisonment for murder together with crimes against humanity (Section 7 Para. 1 No. 1 of the German Code of Crimes Against International Law, CCAIL) by killing in three cases (one of which was attempted) as part of a widespread or systematic attack directed against the civilian population. The trial adds to the growing number of international criminal cases before German courts based on universal jurisdiction. According to this principle, war crimes, crimes against humanity and genocide can be prosecuted in Germany regardless of where, by whom or against whom they have been committed. As yet another trial has come to an end, it is time to ponder how Germany, the sometimes proclaimed international criminal justice ‘champion’, is handling these cases.
What Was the Case About?
Bai L. is a Gambian citizen who entered the country’s military in 1998. Between 2003 and 2006, he acted as the driver of a patrol team known as the Junglers. According to the extensive Report of the Gambian Truth, Reconciliation and Reparations Commission (TRRC), the Junglers were a clandestine group of soldiers acting under Jammeh’s direct orders. They were involved in extrajudicial killings, arbitrary arrests, detentions and torture, amongst other serious human rights violations (see Vol. 8, A., Para. 3 of the TRRC Report), notably targeting journalists and political opponents. Bai L. was responsible for driving members of this unit to their missions, including ‘liquidations’.
In March 2021, Bai L. was arrested and placed in pre-trial detention in Hannover. One year later, in March 2022, he was indicted and now also convicted as co-perpetrator for murder and attempted murder along with crimes against humanity – concretely for the murders of journalist Deyda Hydara and former Gambian soldier (and perceived political opponent) Dawda Nyassi, as well as the attempted murders of Ida Jagne, Nian Sarang Jobe (who were with Deyda Hydara at the time of his murder) and lawyer Ousman Sillah. The judgment rendered by the Celle Higher Regional Court can still be appealed at the German Federal Court of Justice.
Tensions and Challenges during the Trial
The trial, which started on 25 April 2022, revealed the complexity of universal jurisdiction cases, which usually stem from contexts of severe violence and macro criminality. Survivors often celebrate trials based on the universality principle as a means to provide justice and accountability in cases where other avenues have proven fruitless. However, these trials, too, might disappoint.
One of the challenges that frequently arises has to do with security issues with regard to both witnesses who testify in the courtroom and third persons on the ground who might face danger once sensitive information is revealed during the proceedings. This problem has been widely discussed in the context of universal jurisdiction trials concerning torture in Syria. Having jurisdiction only in Germany, the courts have little (to zero) capacity to protect individuals outside the country. One of the witnesses heard by the court in Celle was a former NGO worker who, while documenting crimes committed in The Gambia, had interviewed a number of Junglers and thus gained knowledge of the crimes at stake. Whilst testifying, the witness – who was not under any anonymity or protective measure – was reluctant to share certain information out of fear of possible consequences for them and for their family living outside Germany. Faced with this situation, the court contemplated the applicability of Section 53 Para. 1 No. 5 of the German Code of Criminal Procedure (Strafprozessordnung, StPO) – the right to refuse testimony on professional grounds. Ultimately, it concluded that this section was not applicable to the situation at hand. As the witness nevertheless refused to testify, the court imposed a fine (which, however, was later revoked) and, ultimately, they had to testify despite the security concerns.
A further recurring problem is language barriers in the courtroom. The language of (universal jurisdiction) proceedings is German, and no translation for the general public is provided. This has led to criticism by Syrian journalists and civil society groups attending the trial in Koblenz, and requests for in-court interpretation – which were denied by the court. Of course, one could argue that the Syrian case is exceptional, given that the scope of the Syrian diaspora exceeds the Gambian beyond comparison. Nonetheless, the argument for translation of (at least) the main court decisions is not a quantitative one but rather one that pleads for a more open forum of dialogue and pushes for the communicative and expressive potential of universal jurisdiction trials.
Another – yet connected – important issue in this context is outreach. Criminal trials in Germany are often criticized for their lack of (publicly available) substantive records – let alone audio or video recordings of such proceedings. Particularly in universal jurisdiction trials, this can lead to the unfortunate situation that they are hardly accessible to the general (national and international) public and especially to the affected communities. While press releases published by the court in Celle in English are to be welcomed, they only slightly improve the communication problem. The dissatisfaction of those affected is increasingly countered by trial monitoring projects organized by NGOs and/ or universities. In line with this, the trial against Bai L. was closely followed by a project established for these purposes at the Georg-August-University of Göttingen. The notes taken in this context were shared with NGOs and Gambian civil society groups that are in direct contact with the communities on the ground.
Despite these efforts, the systemic (institutional) problem remains unsolved and has prompted far-reaching demands for access to information to the wider (international) public. Nonetheless, it should be borne in mind that full transparency could eventually backfire. Courts are (naturally) limited as to their jurisdiction and witness protection capacities. Once sensitive and potentially dangerous information is out in the world, it will be virtually impossible to control its dissemination. The Bai L. trial is a good example showing that unlimited access to information is not necessarily beneficial to everyone. In incidents like the one described above, in fact, non-transparency might be more favourable given the possible negative impact on the security of witnesses as well as third persons on the ground. This should be taken into account when calling for a comprehensive, publicly available record of proceedings. Even so, granting selective access to information is neither realistic nor desirable, as the thorough documentation of (in particular) universal jurisdiction trials is crucial – certainly a topic that merits further discussion.
Some of the outlined tensions and challenges which surfaced during this and previous universal jurisdiction trials could soon be overcome. While the trial against Bai L. was ongoing, the German Ministry of Justice proposed a Draft Bill on the Further Development of International Criminal Law. It envisages that courts may provide official court interpretation to international media as well as (audio and/ or video) recordings. On 1 November 2023, based on the Ministry’s proposal, the Federal Government published its Draft Bill on the Further Development of International Criminal Law, accepting these suggestions. While this is certainly a promising first step showing Germany’s willingness to adjust its legal framework in order to better meet the complexity of universal jurisdiction cases, courts will enjoy a wide margin of discretion. It remains to be seen how they will exercise it in the universal jurisdiction trials still to come.
The Trial’s Context: Transitional Justice in The Gambia
While Bai L. faced criminal charges in Germany, a truth and reconciliation process has been ongoing in The Gambia since 2018, designed to address gross human rights violations under Jammeh’s regime. This context significantly distinguishes the Bai L. case from other universal jurisdiction trials in Germany: in contrast to trials against Syrian intelligence officers or former members of the Islamic State – which took place amidst (almost) complete lack of political will for accountability – the Gambian TRRC has documented (international) crimes committed under the Jammeh regime through public hearings and inquiries. In its Report, the Commission even shed light on the role of the Junglers and recommended the prosecution of Bai L. as well as other persons who formed part of the unit (see Vol. 8, p. 59). In May 2022, the Gambian Government published a White Paper accepting almost all recommendations of the TRRC. One year later, in May 2023, the Government put forward the Implementation Plan for the TRRC recommendations, stating its intention to establish both a Special Prosecutors’ Office and an internationalized tribunal in The Gambia under the auspices of the Economic Community of West African States (ECOWAS).
In light of these events at the domestic and regional level, one might wonder why the trial against Bai L. was brought before a German court under the principle of universal jurisdiction – as it is apparently not the only option for the prosecution of international crimes committed in The Gambia. However, while this might hold true for the future, at the time of Bai L.’s arrest in Germany in early 2021, this development was not yet foreseeable. Taking into account the situation at that time, it can thus be concluded that the trial is a positive example of complementarity in international criminal justice. Besides, the amnesty process in the context of the TRRC has raised concerns as to possible impunity gaps and the overall role of the current Gambian Government in implementing the TRRC recommendations has equally been criticised. Nevertheless, the sentence of Bai L. could be a tipping point in the Gambia’s transitional justice process, gaining momentum and pushing for the implementation of the TRRC recommendations.
Last but not least, international criminal cooperation remains the corner stone of universal jurisdiction. The trial against Bai L. shows that extradition efforts between The Gambia and Germany merit further critical scrutiny – both regarding fruitless intents to extradite and the fact that The Gambia (despite announcements for its abolishment) retains the death penalty to date.
What Follows after the Trial?
As the court also had to investigate the larger context in The Gambia in order to determine whether the offences meet the contextual element of crimes against humanity, the judgment may also influence future proceedings against higher-ranking perpetrators. This holds particularly true for the criminal trials in Switzerland against Ousman Sonko (the former Gambian Interior Minister) and in the USA against Michael Correa (a former Jungler), but mostly for former president Yahya Jammeh, whom reports and witnesses link to the crimes that took place during his tenure.
A ‘new phase’ of universal jurisdiction trials in Germany is still in the making and certain (systemic) problems reoccur in most if not in all of them. This holds especially true for security concerns, documentation, outreach, and the recurring language hurdles, as outlined above. Importantly, the German legislator has shown willingness for implementing changes to foster the prosecution of international crimes before domestic courts. Despite this promising development, further critical monitoring is needed – not least given the broad discretion granted to the courts in applying the (yet to be adopted) rules. While such legislative initiatives certainly have the potential to mitigate some of the existing problems, universal jurisdiction trials carry an inherent tension between the international macro-criminal dimension of the crimes at stake and the domestic criminal justice context – both of which are not easy to reconcile.