By Sanna Camara

A major gap in prosecuting perpetrators of human rights violations under Universal Jurisdiction in Switzerland and now, the U.S., exposes a legal gap that some offences have not been criminalised in The Gambia, in order to qualify as crimes against humanity in prosecuting countries.

In Switzerland, rape charges against Ousman Sonko have been discontinued due to the fact that they have not been considered as part of the crimes against humanity acts by the Swiss Court.
In the U.S., Michael Correa will not be tried for crimes of extrajudicial killings, rape, kidnappings, except for torture, and for the same reasons as in Switzerland.

“This is called dual criminality under Universal Jurisdiction,” explains Nadja Capus, Swiss Law Professor at the Faculty of Law, University of Neuchâtel, Switzerland.
“A crucial requirement for the application of Article 6 of the Swiss Criminal Code is indeed that the conduct must also be criminalized at the place where it was committed. This rule is intended to prevent Switzerland from prosecuting actions that are not considered offenses in other countries,” she further explained.

Swiss Law Professor Nadja Capus (Faculty of Law, University of Neuchâtel) explains the legal background. In fact, Swiss prosecutorial authorities and courts were able to assert jurisdiction in the case against Ousman Sonko even though Gambia has not criminalised certain offenses: «The loophole has been closed by the Swiss legislator by introducing article 264m CC. This provision applies exclusively to the mentioned offenses and enables Switzerland to prosecute them even in lack of dual criminality. Clearly an indispensable element to make the concept of universal jurisdiction really work.», explains Nadja Capus,

According to the Association of Victim Led Organisations in The Gambia, Michael Correa’s prosecution in the U.S. also demonstrates the importance of universal jurisdiction, which recognises that crimes like those allegedly committed by Correa are crimes against all people, regardless of their nationality.

Michael Correa is alleged to be among those criminally responsible for the enforced disappearances of several Gambians during the Jammeh regime. He has not been charged with these crimes by the U.S. The U.S. does not have laws to prosecute many other crimes against humanity committed outside of its borders, including enforced disappearances. Unfortunately, The Gambia also does not have the laws to try crimes of enforced disappearance, says AVLO.

The general legal context of Swiss criminal jurisdiction is, on the other hand, that it is primarily based on the principle of territoriality (a principle that a state has authority to legislate and adjudicate concerning acts, things and events in its territory). While, under certain conditions, it allows for extraterritorial application – for instance, when an international agreement provides for it and the perpetrator is in Switzerland (article 6 of the Swiss Criminal Code. However, as Prof. Capus’ previously mentioned statement makes clear, these requirements do not apply to serious crimes such as crimes against humanity, war crimes, and genocide for which art. 264m CC provides the legal basis for jurisdiction.

If, however, judges do refuse to consider certain criminal acts as having been committed as part of the crime against humanity context, Switzerland cannot assume jurisdiction (for the specific offenses) on the basis of art. 264m CC.

Prof. Capus explained further: “If certain offenses are not deemed crimes against humanity, Swiss jurisdiction does not apply. This is why the court in the Sonko case did not recognize jurisdiction for certain rape charges.” This will be challenged in appeal according to Benoît Meystre, lawyer from the NGO TRIAL.
Regarding the legal situation in the United States, Prof. Capus could only “offer a cautious assessment.”

“It is likely that the situation is similar in that different jurisdictional criteria apply to different offenses. While this is indeed complex, it seems that in the U.S., conspiracy charges often provide a far-reaching extraterritorial basis for jurisdiction, and when jurisdiction can really not be established, immigration law violations may result in severe penalties,” she said.

For the Jammeh victims in The Gambia, meanwhile, Universal Jurisdiction proceedings like Correa’s are an important tool to ensure that alleged human rights violators from The Gambia are held accountable wherever they are found.