These conclusions were supported by the following reasoning:

Arguments on crimes against humanity

After recalling the genesis of the concept of crimes against humanity in history and under international law, the defense noted that the definition of the crime in Swiss law differs from that adopted in the Rome Statute of the International Criminal Court (ICC), it does not require that such an offense be committed in application or continuation of a policy of a state or organization.

Nevertheless, in order to interpret the Swiss provision, it was necessary to examine in particular the international case law, since there was no existing – definitive – legal precedent in this country regarding this crime. (N.B. The first conviction for crimes against humanity in Switzerland is referred to as the Kosiah case. The written motivation on the conviction and sentencing of Alieu Kosiah was notified on 1 March 2024 to the defense, who is also Ousman Sonko’s council. The 30-days period for filing an appeal with the FCC is currently running.)

In light of the above – and as already argued at the opening of the Sonko trial in January 2024 – the defense argued that the fundamental principle of non-retroactivity of the law should lead the Court to conclude that, since the Swiss provision on crimes against humanity (Art. 264a of the Swiss criminal code – SCC) entered into force in January 2011, it could not be applied to acts that took place before that date. (N.B. The defense was referring to the 2000 and 2006 events, which should therefore not be prosecuted or judged.)

It was further argued that most of the charges in question should also be considered time-barred, which could not lead to a conviction.

Furthermore, it could not be concluded in the present case that the so-called attack against the population described in the indictment between 1994 and 2017 constituted a continuous offense. It was argued that the nature of the charges in question was not such that it could be concluded that there was a unity of action between each of them. As a result, it was not possible to apply the Swiss jurisprudence according to which the new law (Art. 264a SCC) would apply in the case of continuous offenses.

With regard to the contextual elements of the crime, it was denied that a systematic or generalized attack took place in The Gambia during the presidency of Yahya Jammeh (1994-2017) and it was further argued that the indictment did not describe any other acts that could be taken into account in the examination of the existence – or not – of the said attack. As a result, such an examination should only be based on the specific crimes described (N.B. mostly those denounced by plaintiffs) which – according to the defense – were not of the same nature and consequently could not support the existence of a systematic and widespread attack.

As a counter-argument, the defense claimed that the Swiss administrative authorities and courts, when called upon to decide on the return of Gambian nationals seeking asylum in the country, had always judged that there had been no situation of generalized violence in The Gambia.

In conclusion, the defense stated that the indictment did not describe the generalized or systematic nature of the attack as alleged by the Prosecutor.

Furthermore, it was claimed that the plaintiffs did not meet the characteristics of a “civilian population”, in particular because some of them were soldiers (see reference to the 2000 events), some others were civilians involved in a coup d’état or journalists who had published false information (see reference to the 2006 events) or civilians who had organized an illegal demonstration (see reference to the April 2016 events).

The analysis of the contextual elements in the Sonko case had to be distinguished from the analysis carried out by the German judiciary in the case of Bai L., a former member of the Junglers convicted of crimes against humanity in 2023. While in the latter case there was a systematic repetition of identical crimes committed by a group of persons formed for this purpose, in a short timeframe and a limited geographical area, was applicable, the situation in the Ousman Sonko case was quite different, in particular because it covered a much longer period of time and because there was no link between each of the crimes within which the accused was charged.

Given that there was no “attack”, Ousman Sonko had no knowledge of its occurrence and was therefore lacking the awareness and will to participate.

The defense also criticized the plaintiffs’ attempts to construct a form of persecution of the Mandinka population by the Gambian regime of Jammeh, who belongs to the Diola ethnic group. It was further alleged that the plaintiffs were sowing some discord and working against the desired reconciliation of the Gambian people in all its parts.

Arguments on the individual acts

In view of the absence of the contextual element of crimes against humanity alleged by the defense, it was concluded in particular that Switzerland had no jurisdiction to prosecute or try Ousman Sonko for the murder of a State Guard member in 2000, and that the offense was in any case time-barred.

For the same reasons, Ousman Sonko had to be acquitted of the charges of rapes against the widow of the aforementioned individual. In addition, the facts were not sufficiently proven, since they were based only on the plaintiff’s statements, in which numerous inconsistencies and lies were found. In any case, Ousman Sonko was not present in The Gambia at the end of 2001/beginning of 2002 and therefore had an alibi.

The defense acknowledged the veracity of the acts of torture suffered by the plaintiffs in March 2006 but denied Ousman Sonko’s responsibility. First, they stressed that the Government was responding to a coup attempt. Secondly, it was argued that – although a form of complicity could be identified between the investigation panel and the Junglers, and that it could be maintained that Ousman Sonko was present at the first day of the Panel, possibly at other times– it was not proven that the accused had been there after the plaintiffs had been tortured, nor that he had actually been part of the panel or that he had had any kind of power there. It was the NIA that was in control of the events – including of the police at the time – and the Junglers were only responding to the President. Furthermore, Ousman Sonko had never exercised any kind of control or effective authority over the NIA or the Junglers and therefore could not be found guilty of the charges of torture in question.

With regard to the detention of the plaintiffs, Ousman Sonko, as IGP in 2006, did not have the power to order the detention – or release – of individuals and did not have control over prisons. Therefore, he could not be found guilty of these charges.

In any case, Switzerland had no jurisdiction over these facts, which were also timed-barred. Furthermore, the UN Convention against Torture could not be applied, because of the lack of a specific provision prohibiting torture in the Swiss criminal code, where it is criminalised in the context of crimes against humanity.

It was then reiterated that the murder of the politician in 2011 could not be part of any broader attack, adding that Ousman Sonko had not played any role in the commission of this crime. The TRRC’s findings on this event were not relevant.

Finally, it was argued that the events of 14 April 2016 could not be considered as part of crimes against humanity and that Ousman Sonko did not participate in the torture of the plaintiffs, nor did the forces under his command. The defense also argued that the demonstration of 14 April 2016 was not peaceful, that the presence of Ousman Sonko at the PIU on the day of the arrests had not been proven, that he had never facilitated the NIA to commit torture (and that there had been no plan to do so), that it had not been proven – taking into account the so-called “NIA 9 trial “, which is a Gambian domestic criminal case that established the responsibility of the NIA for these facts – that he had been present at the NIA headquarters during the events.

In view of the conclusions of the defense in favor of the total acquittal of the accused, it was requested that Ousman Sonko be compensated for the time spent in prison in Switzerland, in conditions which, according to the defense, were not always compatible with the fundamental guarantees provided by international conventions.

Coming next: Replies of the parties to the closing arguments.