While Gambia wrestles with its past and decides how to hold those accused of human rights violations to account, the United States must similarly determine what to do with a former Gambian soldier now in U.S. custody.
Gambia’s former dictator, Yahya Jammeh, is perhaps best known internationally for his outlandish claims to have invented a cure for AIDS or his vow to rule “for a billion years.” But to the Gambian people, he is best known for his administration’s corruption and atrocious human rights record. Though Jammeh came to power in 1994 in a bloodless coup, his 22-year authoritarian rule was anything but. Before being pushed into exile in January 2017 following an election defeat and a multinational military intervention by the Economic Community of West African States, Jammeh’s regime was characterized by brutal crackdowns on political dissent. The vanguard of his repression was the Junglers, a paramilitary division of the presidential guard that reported directly to him. As described in a 2015 report by the U.N. Special Rapporteur on Torture, the Junglers operated with impunity outside the formal structure of law enforcement and carried out the regime’s worst abuses – arbitrary detention, torture, and extrajudicial killing – creating a culture of fear.
Finally, with the inauguration of Jammeh’s democratically elected successor, Adama Barrow, there is an opportunity for domestic accountability for the many crimes recorded during the Jammeh years by the international community (including by dogged factfinders at Human Rights Watch, TRIAL International, and Amnesty). In January, Gambia’s Truth, Reconciliation, and Reparations Commission (TRRC) began broadcasting public hearings on YouTube that have gripped the nation. The hearings are intended to“investigate and establish a historical record of the nature, causes, and extent of violations and abuses of human rights committed” under Jammeh’s rule.
The TRRC mandate does not include prosecutions, which may come at the conclusion of the Commission’s investigative work, perhaps through the establishment of a special court constituted for that purpose. For now, Attorney General and Minister of Justice Aboubacarr Tambadou has said the country is not yet prepared to try members of the Junglers given the “magnitude” of the undertaking. In August, four former Junglers – Pa Ousman Sanneh, Malick Jatta, Omar Jallow, and Amadou Badgie – were released after testifying at the TRRC amid outcry.
The Case of “Jungler” Michael Correa
Against this backdrop, the United States must decide what to do with Michael Sang Correa, a captain in the Gambian National Army and former Jungler, who was discovered and detained in Colorado on Sept. 17 by U.S. Immigration and Customs Enforcement officials. Correa has since sought continuances in the removal proceedings against him. He retained counsel through the Rocky Mountain Immigrant Advocacy Network (RMIAN).
At a hearing before an immigration judge in November, Correa indicated that he wished to apply for asylum in the U.S. based on his likely persecution in Gambia as a member of a particular social group. He allegedly entered the U.S. in 2016, so an asylum application now would not be timely, but Correa may argue that material changes in conditions in Gambia within the past six months have given rise to some eligibility for asylum that he could not claim before. (It is difficult to speculate as to what such a change might be; the TRRC process began more than six months ago, and Correa’s compatriots have not been prosecuted, much less persecuted, in Gambia.) Correa’s asylum case will be decided at the next hearing in his removal proceedings, currently set for Jan. 14, 2020.
As a long-time member of the Junglers, Correa has been named in media coverage, human rights reporting, and the TRRC process for his involvement in torture and extrajudicial killing under Jammeh. Among other incidents, Correa has been accused of involvement in the arrest, torture, and disappearance of the journalist Ebrima Manneh. He has been implicated in and named by fellow Jungler Malick Jatta in the 2004 killing of Deyda Hydara, a journalist and co-founder of a Gambian newspaper. After an attempted coup in March of 2006, the Junglers tortured and interrogated alleged coup participants until they confessed to the alleged crimes. Three survivors, including Alagie Martin and Demba Dem, provided statements to the TRRC that Correa was personally involved in torture and present while other members of the Junglers committed acts of torture. Correa and his co-conspirators tortured their victims in a variety of ways, from beatings to electrocution of the genitals. Around the same time, Gambian Lt. Col. Bunja Darboe also accused Correa of torture and pressing a dagger to his throat as he took him to the headquarters of the National Intelligence Agency.
Perhaps most notably for U.S. interests, Correa has been named by other Junglers – including Ousman Sanneh, Amadou Badjie, and Omar Jallow – as participating in the 2013 capture, torture, and murder of two Gambian-American citizens, Alhagie Mamut Ceesay and Ebou Jobe. They were spied on, abducted, tortured, decapitated, “chopped into pieces,” and their remains discarded in a well by the Junglers.
There are several causes of action under which Correa could be charged for these crimes in the U.S. Congress has specifically passed legislation criminalizing torture and the killing of U.S. citizens abroad, and there is a dedicated interagency team within the U.S. government, the Human Rights Violators and War Crimes Center, that works to “identify and prosecute individuals who have been involved in and/or are responsible for commission of human rights abuses across the globe” to ensure such perpetrators find no safe haven in the U.S.
Challenges to Prosecution and Alternatives
Given the nature and severity of this class of crime and the difficulty obtaining evidence and witnesses in the U.S. of crimes committed abroad, these prosecutions have been rare. In most cases against these perpetrators – especially where no American statute would support criminal prosecution – the U.S. government will seek deportation, if possible. In November, for example, the Department of Homeland Security (DHS) removed Juan Alecio Samayoa Cabrera, a former patrol leader accused of participating in the genocide against the Guatemalan Mayan population in the early 1980s. While Cabrera’s alleged conduct in Guatemala is substantively covered by 18 U.S.C. §1091, the federal statute criminalizing genocide, it occurred before the statute was enacted, leaving removal as the only available remedy in Cabrera’s case. (Cabrera will likely face prosecution in Guatemala, however.)
When alleged human rights violators are prosecuted in the U.S., the majority are charged with immigration violations rather than their underlying crimes abroad. Immigrant and non-immigrant visa applicants are required to certify they have not participated in certain human rights violations before entering the U.S., and can later be prosecuted for fraud if that certification is found to be false. Liberian warlord Mohammed Jabbateh, for example, received a 30-year prison sentence in 2018 for immigration fraud and perjury.
While Correa may be deported if found to have overstayed his visa, he could be charged for having attested to false information in his visa paperwork, a crime under 18 U.S.C. §1546. All non-immigrant visa applicants, including Correa or someone on his behalf, must submit a DS-160 non-immigrant visa application, which includes the following questions: “Have you ever committed, ordered, incited, assisted, or otherwise participated in torture?” and “Have you committed, ordered, incited, assisted, or otherwise participated in extrajudicial killings, political killings, or other acts of violence?” Presumably, to avoid being found ineligible for a visa under the Immigration and Nationality Act’s Section 212(a)(3)(E)(III) (barring entry to participants in torture or extrajudicial killings), Correa would have answered “No” to each of these.
Typically, an applicant making such a material misrepresentation could be prosecuted for visa fraud. Yet, what complicates Correa’s case is that he may have entered the U.S. on a diplomatic visa. According to press reports, Correa arrived in America accompanying Jammeh’s vice president, Isatou Njie Saidy, on a diplomatic visit to the U.N. headquarters in New York in September 2016, less than two months before the general election that precipitated Jammeh’s removal. While he was not listed in the official delegation, he was listed as a protocol officer at other diplomatic conferences at the time and likely possessed a diplomatic or official passport.
Diplomatic and official visitors are exempt from most visa ineligibilities, including 212(a)(3)(E)(III). Therefore, even if he misrepresented his background on his application, given the exception to the ineligibility, his misrepresentation likely would not be “material” because Correa would have been eligible for a diplomatic visa regardless. It is unlikely he would have received diplomatic immunity given it does not appear he was permanently stationed in the U.S. and therefore unlikely to be accredited with the U.S. government. Even if he did possess some form of immunity, which would depend on his diplomatic position, he no longer holds any official position and could therefore be charged in the U.S. for his past crimes, apart from visa fraud.
With an uncertain path to a visa fraud charge, prosecutors could need to charge Correa with a more serious offense, potentially torture under 18 U.S.C. §2340A. This provision allows the U.S. to prosecute anyone who has attempted to, conspired to, or committed torture abroad. The law applies within an eight-year statute of limitations to perpetrators of torture “irrespective of the nationality of the victim or alleged offender,” requiring only that the perpetrator be present in the U.S. to establish jurisdiction.
Many of the acts ascribed to Correa by victims and perpetrators as part of the TRRC process fall under the extraterritorial torture act’s definition of torture, defined as
“[A]n act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.”
Prosecutions under this 1994 law are uncommon; only Charles “Chuckie” Taylor Jr., the son of the former Liberian president Charles Taylor, has been successfully prosecuted for torture abroad.
Finally, it is certainly the purview of the U.S. government to prosecute those in the U.S. accused of killing U.S. citizens abroad. The Department of Justice could charge Correa under 18 U.S.C. §2332, which enables the prosecution of anyone who kills, attempts to kill, or conspires to kill U.S. citizens abroad, regardless of the alleged perpetrator’s nationality. One requirement for such prosecution is that the U.S. government certify the “offense was intended to coerce, intimidate, or retaliate against a government or a civilian population.” This should not be difficult given Jammeh was known for his efforts to induce fear through dramatic reprisals and in this case he ordered the two Americans cut to pieces to send a message to other would-be suspected coup plotters.
Beyond the criminal charges available, a victim of Correa’s actions could bring a civil suit in the U.S., potentially under the Torture Victim Protection Act (1991), in pursuit of monetary damages. A civil action against Correa could be initiated while immigration and/or criminal charges are still pending. Such was the case for the Colombian paramilitary commander Carlos Mario Jiménez Naranjo (known as Macaco), who is currently serving a federal prison sentence for drug-related offenses, and also faces a civil suit for alleged torture, extrajudicial killing, crimes against humanity and war crimes brought by the Center for Justice and Accountabilty in 2010 (while he was in federal custody). Correa could be served as a civil defendant as long as he is present in the U.S. – including while he is in immigration detention, or if he is later detained as a criminal defendant.
International Avenues for Accountability
The U.S. would not be alone in prosecuting extraterritorial offenses under the Jammeh regime. A case against the former head of the Gambian Presidential Guard Ousman Sonko is pending in Switzerland. Sonko sought asylum there before his arrest in 2017 following a complaint filed by TRIAL International.
The U.S. should not miss this opportunity to act. According to Gambian victim groups, the U.S. has already deported Momodou Hydara, the former head of Gambia’s National Intelligence Agency, who has been accused of torture and was reportedly living in Alaska until his removal.
“I’m concerned about Correa’s potential return to Gambia because Hydara is back and walking the streets a free man in Gambia,” said Nana-Jo N’dow of the African Network Against Extrajudicial Killings and Enforced Disappearances (ANEKED) in October. She added, “He’s not even been brought before the TRRC yet.”
Nominally, there is an arrest warrant for Correa in Gambia. But the TRRC’s investigative work – which would precede any prosecution – is set to continue until at least 2021; Gambia’s attorney general has already cited challenges to prosecuting former Junglers; and several admitted members of the infamous hit squad walk free today.
What Comes Next
DHS has brought removal proceedings against Correa. He could be deported as soon as Jan.14, the date of his next scheduled immigration court appearance. Even as this process proceeds, the U.S. government could, and should, initiate a criminal prosecution before the January hearing. While deportation seems to be the most straightforward remedy, it would be wise to prosecute Correa in the U.S. for torture and the extrajudicial killing of American citizens given the likelihood of delayed or denied justice overseas.
The views expressed in this article are the author’s and do not necessarily reflect those of the Department of State or the U.S. government.
Image: On October 15, 2018, Gambia swore in an 11-member commission tasked with shedding light on summary executions, disappearances, torture, rape and other crimes under ousted dictator Yahya Jammeh. Photo by Claire BARGELES/AFP via Getty Images