Universal Jurisdiction — Opportunities and Hurdles

At a time when the International Criminal Court is facing significant challenges, many are questioning the trajectory of the global international criminal justice project. However, universal jurisdiction presents refreshed avenues for justice, particularly in the case of the atrocities committed in Liberia during the civil war in 1989-2003.

Last week, the Swiss Office of the Attorney General announced that former United Liberation Movement of Liberia for Democracy (ULIMO) commander Alieu Kosiah, will be prosecuted in Switzerland. As handy and advantageous universal jurisdiction is, it is unfortunately not without its complications.

Kosiah’s crimes were allegedly committed between 1993 and 1995 in the course of the first Liberian civil war which began in 1989 and ended in 1996. The second civil war followed swiftly thereafter from 1999-2003. Both wars were characterised by blatantly widespread and systematic human rights violations as well as violations of international humanitarian law. Rape, sexual slavery, torture, use of children in conflict, summary executions and mutilation were just a few of the abuses that traumatised the civilian population as warring factions jostled for power and control over the country.

Unsurprisingly, all parties to both conflicts were complicit in the violence and crime and this includes the,  National Patriotic Front of Liberia (NPFL), Independent National Patriotic Front of Liberia (INPFL), United Liberation Movement of Liberia for Democracy (ULIMO), ULIMO-K, ULIMO-J, Armed Forces of Liberia (AFL), Liberian Peace Council (LPC), the government of Liberia and its specialised security forces such as the Anti-Terrorist Unit (ATU), private militia groups, Movement for Democracy in Liberia (Model), Lofa Defense Force, and Liberians United for Reconciliation and Democracy (LURD).

Liberia, Africa’s oldest republic lost an estimated 250 000 people during the civil war and yet, according to Human Rights Watch, Liberia has been unable to prosecute a single person for crimes committed during that time. Campaigns for domestic justice regained new hope with the appointment of President George Weah in January 2018 however, 10 years after the Truth and Reconciliation Commission Report which recommended criminal prosecutions, was released, and over a year since he began his term in office- domestic justice remains elusive.

At least there has been movement internationally as many suspected perpetrators of heinous crimes have found themselves living overseas where universal jurisdiction is slowly bringing them to justice- Kosiah is one such individual.

As a former commander of the ULIMO, Kosiah has been implicated in the commission of war crimes including sexual violence, looting, recruitment of child soldiers, acts of cannibalism and ordering as well as committing murder.  Kosiah has been under investigation by the Swiss authorities since his arrest in November 2014. According to Civitas Maxima, one of the organisations that have been working with the victims and have been instrumental in bringing Kosiah to justice, this case is unique for two reasons: it is the first time that a member of ULIMO has been indicted for war crimes and it is also the first time that the Swiss Federal Criminal Court will be trying an alleged war criminal.

Universal jurisdiction represents a meeting of global minds united in the understanding that some crimes, for example torture and genocide, constitute an affront to humanity and the international community as a whole and therefore must not go unpunished. Wherever the suspected perpetrator finds himself/herself, they must face justice.

Despite its value and potential universal jurisdiction has not quite weathered the storm when it comes to political interference, particularly from powerful states with powerful allies. In 2001 Belgium attempted to prosecute Ariel Sharon for his alleged responsibility in the Sabra and Chatila massacre in 1982 in Lebanon where an estimated 800-1500 people in refugee camps were killed under Sharon’s watch as Defence Minister.  Israel’s own Kahan Commission Report found Sharon to be “indirectly responsible” for the massacre but he was never brought to justice in Israel. 23 survivors from the massacre laid a formal complaint with the Belgian examining magistrate accusing “Messrs. Ariel Sharon, Amos Yaron and other Israelis and Lebanese.”

On the basis that Sharon was not resident in Belgium the matter was deemed inadmissible and it was taken to the Cour de Cassation (Belgian Supreme Court) who ruled that presence was not a requirement to initiate proceedings in matters pertaining to genocide, war crimes and crimes against humanity. At the time, this was hailed as a precedent setting ruling by activists who were hoping to see more universal jurisdiction cases pass through the halls of Belgian courts including that of former Chadian dictator Hissène Habré. However, Sharon was saved by his immunity as a foreign Prime Minister, preventing the matter from going any further whilst he was in office. His co-accused were not so lucky as the court ruled that their cases could continue.

Sharon was not the only one who could have ended up before a Belgian court. In 2003 George H. W. Bush was the next target as victims sought to hold him accountable for the bombing of Baghdad during the first Gulf War.  After both of these cases the US needed no further urging to exert pressure on Belgium and this took the form of threats to remove the NATO base from Brussels should Belgium fail to limit the remit of its universal jurisdiction laws.

Under extreme international political pressure, the Belgian parliament amended its laws on universal jurisdiction restricting it to cases where there was a direct nexus to Belgium. That same year the Cour de Cassation stated that Belgium had no jurisdiction and both cases were closed.

An unfortunate example of the erosion of justice at the hands of politics. Both Sharon (2014) and Bush Snr (2018) died without answering for their alleged crimes.

Spain also witnessed a similar erosion of its universal jurisdiction laws in a bill that became law in November 2009 after pursuing cases relating to the 2002 Israeli “al-daraj” bombing which resulted in the deaths of 16 Palestinians, including 9 children. A March 2009 investigation targeting six former officials of the Bush administration for acts of torture allegedly committed in Guantanamo Bay, and the injudicious political pressure exerted by the US government (which for obvious reasons was not happy about the investigation), have also been linked to the manoeuvres that resulted in Spain limiting its universal jurisdiction laws.

However, the Liberian justice story seems to be unfolding differently as Kosiah is not the only Liberian to be facing justice in foreign courts. Agnes Reeves Taylor, Charles Taylor’s former wife was arrested in 2017 by UK Metropolitan Police- War Crimes Unit, and charged with torture committed during the First Liberian Civil War.

Martina Johnson, former artillery commander of the NPLF was arrested in September 2014 and is being investigated for war crimes and crimes against humanity.

Mohammed Jabbateh, otherwise known as Jungle Jabbah, was a ULIMO-K commander who ordered the conscription of children, murder and acts of cannibalism. He was arrested in the US and charged with immigration fraud for having lied to the authorities about his role during the first civil war.  He was convicted in October 2017 and sentenced to 30 years in prison.

Then there is Thomas Woewiyu who was also arrested in the US and charged with fraud in relation to his immigration documents having lied about his direct and indirect involvement in the commission of war crimes.  He was found guilty and sentencing is expected to take place in the near future.

The use of universal jurisdiction to achieve justice for heinous crimes is important but not without its complexities and hurdles. The primary argument that has been raised against it is one that has been levelled against the ICC as well that international justice is being used to prosecute the “weak” with more powerful states and their leaders remaining out of reach. This is not a position I subscribe to however, it should go without saying that international criminal justice should apply equally to all.

Hopefully, this accusation of the limited application of universal jurisdiction, will not be used to discredit fair and essential justice proceedings brought by victims seeking closure, truth and accountability. Liberian human rights activists and Secretary General of the Civil Society Human Rights Advocacy Platform of Liberia called the indictment of Alieu Kosiah a “boost to the national justice campaign.” Surely justice, wherever it is meted out, in particular when relentlessly pursued by victims’ groups, should be facilitated and indeed applauded?