Editorial: Ghana must file case at ICC against Yahya Jammeh under principle of ‘command responsibility’

March 3, 2021 By 0 Comments

In 2005, The Chronicle broke the story about the alleged killing of 44 Ghanaians on the orders of the then Gambian President, Yahya Jammeh.

According to the report at the time, The Gambian authorities mistook the Ghanaians for mercenaries who had come to overthrow Jammeh’s government. Upon consultation with President Jammeh, without any thorough investigations, he ordered his troops to kill the Ghanaians and other African nationals.

The sole survivor in the massacre, Martin Kyere, had, over the years, explained that he and his colleagues were not mercenaries and that they were on their way to Europe, through the Sahara Dessert, when they were accosted by The Gambian military, who sent them to a forest and murdered them.

When the story broke, Yahya Jammeh and his government flatly denied the claim. However, after persistent pressure, the West Africa nation admitted that something of the sort happened, but denied the numbers being quoted by the Ghanaian officials.

A join committee was then set up by the United Nations and Economic Committee of West Africa States (ECOWAS) to probe the incident.  The committee came out to exonerate Yahya Jammeh, saying the officers who carried out the heinous crime were not officially ordered to do so.

Listen to what the then Foreign Minister, Alhaji Mohhamed Mumuni, told parliament in 2010: “Madam Speaker, although the report did not fully address the concerns of both sides, the Governments of Ghana and The Gambia agreed to accept the findings and recommendations of the panel and work together to bring closure to that unfortunate tragedy and strive to restore normalcy to their bilateral relations.”

His pronouncement was in connection to a question posed by the Member of Parliament (MP) for Jaman South, Yaw Maama Afful, who wanted to know from the Minister whether compensation, in respect of the Ghanaians killed in The Gambia in 2005, had been received by the government, and if so, whether the beneficiaries had been paid.

Alhaji Mumuni further told Parliament that though the report did not fault The Gambian government as having a hand in the deaths of the Ghanaian nationals, The Gambian government, as custom demands in traditional African, agreed to make a donation of US$500,000 in cash to the families of the deceased persons, towards their burial and funeral rites.

The said compensation was subsequently paid, but the distribution of the money to the families of the victims is another conundrum we will visit later.

After this so-called payment of compensation, the skeletons of eight alleged Ghanaian victims were brought to Ghana and re-buried at the Osu Cemetery.

Fast forward, after Yahya Jammeh and his government had been booted out of power, a Truth and Reconciliation Commission was set by the new president. Now, the military personnel who purportedly carried out the crime have confessed to the Truth Commission that they acted upon the orders of Yayha Jammeh.

They further told the Commission that contrary to earlier claims that only eight Ghanaians were killed, as many as 38 Ghanaians, together with other nationals, were slaughtered, and went further to release the names of the victims.

The latest revelation has brought into question the so-called investigations carried out by the UN and ECOWAS, which exonerated Jammeh. In our view, the genuine confessions at the Truth and Reconciliation Commission should not end the matter.

We implore upon the government of Ghana to file a case at the International Criminal Court of Justice against Yahya Jammeh and members of his government for this atrocious crime under the doctrine of command or superior responsibility, as spelt out in the ICC’s own statutes.

This doctrine, which has become part of customary international law, stipulates that a superior – a military or civilian – leader can be held criminally responsible when his subordinates commit international crimes, which they are in a position to prevent or repress. If the military men who appeared before the reconciliation commission alleged that they received orders from Yahya Jammeh to kill the Ghanaians, it means the former Gambian President was in a position to have prevented or suppress the crime, which he failed to do.

Should the Akufo-Addo government heed our advice, it would not be the first time such an incident or decision had been made. Indeed, in November 1998, the International Criminal Tribunal for former Yugoslavia held Zdravko Mucic, the warden of the Celebici prison camp, responsible for the atrocious treatment of prisoners by the camp guards. It is instructive to note that Zdravko Mucic did not commit the crime himself, but was culpable because he failed to rein in his men and was punished for that.

In fact, we can cite examples upon examples from Nuremberg to Tokyo, where some world leaders were punished under this doctrine. We dare say that Yahya Jammeh cannot escape from the jaws of this command responsibility principle if Ghana finally takes the right steps and proceeds to the ICC.

We need to set an example so that next time no African leader will supervise the committal of such heinous crimes and go scot-free.

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