By Sanna Camara
Imagine fleeing The Gambia from Yahya Jammeh, having served as his minister for the interior for ten years. You supervised arrests, false imprisonments, acquired great depth of knowledge of his acts of torture, enforced disappearances, alleged cases of rape and child marriages, among several other human rights violations. With a Switzerland visa in hand acquired for an earlier Geneva intergovernmental meeting on human rights, you packed up official documents, medical records, minutes of meetings, personal handwritten notes, mostly pointing to your knowledge of these crimes thinking the piles of information would help you attain asylum in Europe – far away from the fangs of the Jammeh autocracy.
It was a smart plan. At least on the surface. But not smart enough for the Swiss laws. Ousman Sonko, after his dismissal as minister for the interior of The Gambia on 16th September, 2016, fled from The Gambia to Senegal on 18th September, 2016, and finally reached Sweden on 20th September, 2016, where he submitted an application for asylum. His application in Sweden was rejected He then travelled to Switzerland, where he arrived on 10th November, 2016. The day he entered the country, he applied for asylum there, again. Before his arrest in January 2017, Ousman Sonko lived for several months as an asylum seeker in a transit centre in Bern Canton of Switzerland.
The Federal Court of Switzerland over the weekend released a comprehensive report on Ousman Sonko’s case – one that many saw as a test to the application of universal jurisdiction principle of law for Switzerland. He is the second non-Swiss, high profile official to be tried for crimes against humanity in Switzerland.
The 360-page Swiss Federal Court document yesterday, 12th June, 2025, made public a “RAND” notebook belonging to Ousman Sonko with various handwritten notes on functions, names of members of the Gambian police, army, NIA, “Junglers”, arrests of civilians and employees of the Gambian government, investigations, student demonstration in 2000, execution of prisoners of Mile 2 Prison in 2012, pardon of prisoners in 2015, reasons for flight, and so forth.
Others include online media reports of arrests of civilians including journalists and members of the opposition, state employees, members of the armed forces, abuses in connection with political rallies in 2016, disappeared civilians, elections, online media reports of NGOs on arrested opposition members, EU Parliament on the human rights situation, ICC, mail correspondence between Ousman Sonko and his wife, Facebook correspondence, handwritten notes on email accounts, threatening e-mails, and so forth.
All of these would have presented an excellent case of asylum in Ousman Sonko’s mind; but not suspecting that these documents incriminated him in such a way that he would be charged and imprisoned. When it dawned on him that he would be prosecuted, one of his smart arguments has been to contest Switzerland’s criminal jurisdiction for the acts alleged in the indictment (committed in The Gambia), especially those said to have occurred before 1st January, 2011 (retroactive application) of coming into force of Crimes Against Humanity under Swiss laws.
Sonko and his lawyer, Phillipe Currat of Currat & Associates – with whom the relations over time have grown to become more personal – thought of several options available to pursue a new quest, this time, from asylum application to his freedom. Swiss office of public prosecutions, under the Office of the Attorney General counter-argued that admissibility of crimes identified in his own notes and documents “were not yet time-barred on 1st January, 2011 and qualify as crimes against humanity within the meaning of Article 264a of the Swiss Criminal Code [and] are to be regarded as not time-barred”.
The facts described in Sonko’s indictment of 5th July, 2023 in the period from 2000 to 2006 correspond to the following common offences in the version of the German Criminal Code (StGB) valid at the time of the offence:
- Murder pursuant to Article 112 StGB (Section 1.5.1 AKS);
- Rape pursuant to Article 190 SCC (Sections 1.5.2, 1.5.3 AKS);
- Serious bodily injury pursuant to Article 122 SCC (Sections 1.5.2, 1.5.3 AKS);
- Coercion pursuant to Article 181 SCC (Sections 1.5.2, 1.5.3 AKS);
- Qualified deprivation of liberty in accordance with Article 183 in conjunction with Article 184 SCC. Art. 184 SCC (para. 1.5.2, 1.5.3 AKS);
- Endangerment of life pursuant to Article 129 SCC (Section 1.5.3 AKS).
Contesting jurisdiction
The Federal Criminal Court therefore decided that “until 30th September, 2002, prosecution is time-barred after 20 years if the offence is punishable by life imprisonment”. It argued that the period of limitation is 10 years if the offence is punishable by imprisonment for more than three years imprisonment, and five years if the offence is punishable by any other penalty.
Furthermore, the provisions of the Criminal Code concerning the statute of limitations for prosecution were amended by the Federal Act on 5th October, 2001, in force since 1st October, 2002 until 1st January, 2007, prosecution is time-barred after 30 years if the offence is punishable by life imprisonment; after 15 years if the offence is punishable by a custodial sentence of more than three years and after seven years if the offence is punishable by any other penalty.
“On 1st January 2011, Article 264m ofthe Swiss Criminal Code came into force, according to which a perpetrator who has committed an offence abroad under the twelfth title(genocide and crimes against humanity), the twelfth title(war crimes) or Article 264kof the Swiss Criminal Code is also liable to prosecution if he is in Switzerland and is not extradited to another state or transferred to an international criminal court whose jurisdiction Switzerland recognises,” the court stated.
In the area of crimes under international law, the principle of universality applies – set out in Article 264m(and Article 7 paragraph 2 lit. b) SCC – according to which certain crimes can be prosecuted and punished by any state, regardless of where they were committed and regardless of the nationality of the perpetrator or victim.
Crimes under international law are directed against the interests of the international community as a whole. Due to the universal recognition of their punishability, crimes under international law are subject to the principle of universal jurisdiction which came into force for Switzerland on 17 July 1998.
In a judgment delivered on 5th May, 2024 in Bellinzona, Ticino Canton of Switzerland, federal criminal court judge Alberto Fabbri, who presided over the trial, assisted by panel members Martin Stupf and Joséphine Contu Albrizio, and court clerk Fiona Krummenacher, the court explicitly maintained that the principle of universality under customary international law, which was enshrined in the Nuremberg Trials, is recognised for genocide, war crimes and crimes against humanity.
“These crimes are directed against the interests of the community as a whole. It follows from this universal nature of crimes under international law that not only the international community is in principle authorized to prosecute and punish these crimes, but also every state,” it stated.
Detentions during investigations
On 28th January, 2017, the Regional Coercive Measures Court of Bernese Jura Seeland ordered Ousman Sonko’s pre-trial detention until 25th April, 2017. Subsequently, the Cantonal Coercive Measures Court of the Canton of Bern repeatedly approved the requested extension of the pre-trial detention. Ousman Sonko defended himself against several of these decisions, with the appeals being dismissed in each case, most recently in Federal Supreme Court ruling of 19th June, 2023.
The Office of the Attorney General of Switzerland argued that it derived its retroactive criminal jurisdiction for the acts alleged in the indictment that occurred before 1st January, 2011 concerning the killing of Almamo Manneh, multiple rape and torture of G (identity withheld) as well as torture and deprivation of liberty of five others) from the provision in Article 101 paragraph 3 of the SCC.
Enter the lawyers for the plaintiffs (several victims of torture who were represented in both joint and separate suits against Sonko. They argued that the facts charged in a section of Sonko’s indictment already constituted criminal offences against international law in the period from 2000 to 2006 (when Sonko was Inspector General of Police) and that the retroactive application of the elements of the crime against humanity is permissible under customary international law. They cited that Switzerland’s criminal jurisdiction is based on Article 6 of the SCC (in conjunction with the Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment Convention (UN Convention Against Torture) of 10th December, 1984.
One of the plaintiffs who sued Sonko in Switzerland was Nogoi Njie, who passed away before the case drew to a close on 25th September, 2023. The family of the deceased informed the Criminal Division via a legal counsel that they would participate in the proceedings as legal successors in the criminal and civil proceedings.
Sonko also further asked the court to expunge from the records the interrogation transcripts and letters from the private legal advisors of plaintiffs – a request that was also rejected by the court. He was also critical of the investigative activities carried out in The Gambia by these counsel, who travelled to Banjul several times to interview witnesses to further strengthen the indictment against him. He referred to these as “secret investigative activities”.
“…it is unclear what the reason for and the result of certain trips to The Gambia were,” his lawyer argued.
The court said that the Gambian authorities granted legal assistance to the Swiss investigating authorities. “The claim that secret investigations may have taken place in The Gambia or that other irregularities or illegal actions relevant to the proceedings may have occurred is not supported by the files. As a result, these are conjectures and ultimately unsubstantiated allegations by the accused. As a result, the files and hearings obtained from The Gambia by way of mutual legal assistance remain in the files and are subject to the free judicial assessment of evidence. The defendant’s application was therefore rejected.”
“If the evidence is to be based on statements made by those involved, all the circumstances must be taken into account to determine which account is convincing. A criminal conviction can only be made if the guilt of the accused is proven with sufficient certainty. If there are significant or insurmountable doubts after the assessment of the evidence has been completed, these are to be assessed in favour of the accused. Accordingly, it is the task of the judge, bound by his conscience, to objectively assess the entire evidence to determine whether he is convinced of a certain fact and whether he is able to overcome possible doubts as to its correctness,” the court ruled.
Use of evidence found with Sonko
Sonko’s lawyer also argued against the use of information found in his possession and taken into evidence by immigration authorities, maintaining that they were for asylum application proposes. For this, the Federal Criminal Court stated that criminal proceedings cannot be ruled out from the outset or are even to be expected. In such cases, the person concerned is released from their duty to cooperate and may not be obliged to testify. He cited the European Court for Human Rights decision of 5th April, 2012 and the Federal Supreme Court of Switzerland that recognises not only a punishable request, but also procedural, administrative consequences…
On the specific matter of his handwritten notes, the court said that it was not clear whether they were prepared or submitted following an explicit request for cooperation. In any case, this cannot be ruled out or seems possible in view of the temporal connection with the interview of November 11, 2016, the inclusion of the handwritten notes as evidence in the same interview and the file note that these were letters that the accused had submitted to the asylum authority regarding his reasons for asylum.
Whoever thought a man, as powerful as Ousman Sonko, who sought to outsmart a dictator in The Gambia, would end up being outsmarted by Swiss laws based on his handwritten notes and other official documents supporting his asylum application in far land of Switzerland?
Watch out for Part 2. Sanna Camara is a Gambian journalist who covered sessions of the trial of Laurent Gbagbo. He was a key witness in the FAJ Vs. Gambia Government case at the Ecowas Court, and covered the trial of Ousman Sonko in Switzerland.