In accordance with the code of criminal procedure, the parties were allowed to provide rebuttal arguments.

Crimes against humanity

It was again demonstrated – and supported in particular by Swiss case law – that there are no obstacles to the prosecution and judgement of the crimes in question, including those that took place before 2011.

The prohibition of crimes against humanity is considered customary international law and the arguments of the defense that the legal elements were not fulfilled in this case could not be followed.

In the case of Ousman Sonko, the attack, its systematic and widespread character – as sufficiently described in the indictment – and the civilian nature of the targeted population were all proven elements. With regard to the latter, it was emphasized that the defense implying that some victims were criminals in the first place – or putschists with regard to the 2006 events – was irrelevant and not in line with case law.

Bai L.’s conviction in Germany was, in fact, further evidence that the contextual elements of the crime were met in The Gambia.

The persecution of journalists in the Gambia has been sufficiently proven and the Bai L. case in Germany was another example in support of this fact.

With regard to the defendant’s participation, it was recalled that he had been one of the strategists, planners and organizers and that he had always had an influential position in the overall structure of the cooperating authorities within the State.

Individual acts

Murder of a member of the State Guard in 2000 and subsequent sexual violence against the victim’s widow from 2000 onwards.

With regard to the murder, it was pointed out that the defense has ignored the results of the investigation as well as the findings of the TRRC in its closing arguments. Both actually proved that the victim was murdered, that the defendant was involved, and that the official government version to cover up this crime was a lie.

It was then recalled that the plaintiff’s credible statement regarding the sexual crimes she suffered was sufficient evidence to prove that the accused had committed the crimes. The allegation that she has accused him in revenge for the elimination of her husband was simply not plausible.

Acts of torture and deprivation of liberty in 2006

It was argued that the defense alibi that he was not in the country was not proven in the case file.  

Further, it was further emphasized that the TRRC’s findings, as well as the results of the investigation, were evidence that Ousman Sonko had been part of the panel, had discussed and made important decisions together with other members. The defense’s argument that the police had been placed under the control of the NIA – where tortured was described by the UN Special Rapporteur as “routine” and “regular” – was entirely new and not supported by any evidence in the case file. Moreover, the victims who were subsequently detained were under the control of the Panel. As a result, it was argued that Ousman Sonko shares a criminal responsibility for the fate of the detainees.

Contrary to the defense’s argument, the said subsequent detention of the plaintiffs was unlawful, in particular because they were kept in custody without an arrest warrant – which was contrary to the Gambian law – and because they were not brought before a judge within the 72-hour period required by the Gambian constitution.

As for the sexual offenses that occurred during these events, and during torture, they should be tried on their own merits, in addition to the torture charges.

Killing of a politician in October 2011

It was reiterated that the victim status was fully included within the notion of “civilian population” and that there was a clear nexus between this individual offense and the attack that took place. Even if this was disputed, there was no doubt – in the view of the Prosecutor – that the accused has given instructions for the Junglers to have access to the victim when he was hospitalized. It was also proven that Ousman Sonko knew of the ins and outs of the Mile 2 detainees and that he was always aware of the President’s fear of this political opponent.

Acts of torture, murder and deprivation of liberty in 2016

The lack of evidence was argued in relation to the defense argument that the 14 April 2016 demonstration was violent. In fact, the accused written notes – together with the witnesses’ statements and material evidence – showed that it was peaceful. Likewise, it had to be concluded from the accused’s statement, that it was controlled “without any problem or resistance”. In any case, this argument could not justify the subsequent acts of torture.

It was again notably emphasized that the accused had shared the responsibility forwhat had happened to the detainees at the NIA after his police officers had handed them over to the agency, knowing what would happen to them there.

It was wrong to read from the so-called NIA-9 verdict that the accused was not present at the PIU on 14 April 2016. In fact, these proceedings did not investigate Ousman Sonko’s individual responsibility, but rather the NIA’s involvement in torture. Nevertheless, the judgment was indeed useful to understand the factual development of the events that took place on 14 and 15 April 2016 and what had happened to the victims at that time.

Irrespective of the presence of the accused at the PIU on the day of the arrests, it was clear that Ousman Sonko gave orders to take the detainees to be the NIA. Furthermore, it was never alleged that the accused himself committed acts of torture at that time, but rather that his criminal responsibility stemmed either from his active or passive co-participation in the crimes or, subsidiarily, from his hierarchical position over the acts committed by his subordinates at that time.

The case file also clearly demonstrated the accused’s responsibility for the conditions of detention imposed on the plaintiffs following their arrest and torture.

Coming next: Rebuttal of the defense.