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Extraterritorial Cases and National Accountability: the Liberian Quest for Justice

June 15, 2020

Emmanuelle Marchand is a Senior Legal Counsel and the Head of the legal unit for Civitas Maxima a network of lawyers specialized in the investigation of international crimes and legal representation of victims of such crimes.  Since 2013, she has been working on Civitas Maxima cases and has been conducting investigation on international crimes committed in West Africa including conflict related SGBV. She also acts as consultant for the Institute for International Criminal Investigations (IICI) and provides trainings on different aspects of international investigation (including CRSGBV) for both NGOs and UN.  For more than 10 years she has been working on international cases including at the Extraordinary Chambers in the Courts of Cambodia, the International Criminal Tribunal for the former Yugoslavia, the African Extraordinary Chambers and war crimes cases at national level.  She graduated with degrees in International Law and Human Rights from the University of Paris II Panthéon Assas (Master)  and the University of Aix en Provence (Master).

Lisa-Marie Rudi, Deputy Head of the Legal unit, has been working at Civitas Maxima since 2014. She contributes to the majority of Civitas Maxima’s cases through her legal and analytical work, collaborates with various authorities in charge of international criminal cases in several jurisdictions, and conducts investigative missions in West Africa. She also works on investigative and operational capacity building of Civitas Maxima’s Liberian sister organization. She holds an LLM from the University of California at Berkeley Law School and law degrees from the Netherlands and Switzerland. Prior to joining Civitas Maxima, Lisa has worked as an intern/consultant at several international tribunals (ECCC, ICC, EAC) and as a researcher for the Berkeley Human Right’s Center’s Sexual Violence Program.

LIBERIA: LAND OF IMPUNITY

Between 1989 and 2003 Liberia suffered two violent civil wars (1989-1996 and 1999-2003) which resulted in the death of more than 150,000 civilians and the commission of a wide range of human rights abuses by all warring factions involved in the conflict. The scale and horror of the atrocities inflicted upon Liberia’s civilian population is hard to apprehend.  Sexual violence was widespread, more than 2 million people were displaced, and 38 000 child soldiers were recruited. The impact of the war can still be seen today as the violence also caused a breakdown of governance and economic systems. The purpose of this blog post is to illustrate that despite the fact that there are no international criminal mechanisms with competence over the crimes that were committed in Liberia, it has still been possible to find different fora to bring justice against the Liberian perpetrators, which has had an impact on the Liberian fight for the establishment of an accountability mechanism.

The authors work for Civitas Maxima, an NGO that facilitates the documentation of international crimes, and pursues the redress of such crimes on behalf of victims who do not have access to justice.

Lack of political will to prosecute

To date, no one has been held to account in Liberia despite some steps taken towards Justice and national reconciliation immediately after the war. Indeed, a Truth and Reconciliation Commission (TRC) was created in Liberia as part of the 2003 Peace agreement. Established in 2006, the TRC was tasked with investigating the gross human rights violations that occurred in Liberia between January 1979 and 14 October 2003. In the final report published in 2009, the TRC called for the creation of an “Extraordinary Criminal Court for Liberia”, commonly called the “war crimes court” to try 116 people identified as having committed serious crimes.  However, the recommendations were never implemented. One of the reasons invoked is that the TRC report targeted  persons who still held positions of power and influence in the country, such as Senator Prince Johnson, one of the most well-known former leaders of armed groups whose brutal crimes have been well-documented, or former President and Nobel Peace Prize recipient Ellen Johnson Sirleaf, who was listed to be excluded from public office for 30 years. She remained in service for the full length of the constitutionally permitted terms.

Lack of competent international mechanism with jurisdiction

Similarly, no international criminal mechanism has competence over the gruesome human rights violations committed in Liberia. The UN ad hoc tribunal set up in neighbouring Sierra Leone – a country that suffered a closely linked civil war that ended in 2002 – was only competent to  try the crimes committed in the country and was not tasked with dealing with the violations that occurred in bordering Liberia. As an example, Charles Taylor- former President of Liberia during the war and former head of the National Patriotic Front of Liberia (NPFL), one of the Liberian rebel factions, was judged and sentenced by the Special Court exclusively in relation to his involvement in the Sierra Leonean civil war. Moreover, the Rome Statute, that established the International Criminal Court was only ratified by Liberia in 2004 and thus the crimes committed in the country fall outside of its competence rationae temporis.

EXTRATERRITORIAL CASES: A CHANGE OF PARADIGM

Fighting for Justice internationally

While the majority of Liberians were yearning for justice, people generally did not dare to speak about their desire for accountability publicly for fear of retaliation.  Similarly, the Global Justice and Research Project (GJRP) – our partner organization  and the only local NGO documenting the crimes committed in Liberia – worked strictly undercover. In order to palliate this situation, the GJRP in cooperation with Civitas Maxima started to identify new tools to hold perpetrators to account and bring justice to victims of international crimes. One of these tools is the use of extraterritorial jurisdiction: We started building cases against alleged perpetrators located abroad.  In a few years several alleged perpetrators were arrested in Europe on the basis of jurisdiction based on the active personality principle. The first ground-breaking cases happened in 2014 in Belgium and Switzerland with the arrests of Martina Johnson and Alieu Kosiah, two Liberian armed group commanders. Those cases were followed by the arrests of  Agnes Taylor in the UK, Kunti K. in France and Gibril Massaqoui in Finland.

In parallel, we used immigration law to bring cases in the US against Liberia’s alleged perpetrators. The trial for immigration fraud of alleged war criminal Mohamed Jabbateh, a/k/a “Jungle Jabbah” started in October 2017. Jabbateh was charged by the U.S. Attorney’s Office with fraud in immigration documents and perjury. Indeed, when making his application for asylum and later for permanent legal residency Jabbateh was not truthful about his activities during Liberia’s First Civil War while he was a member of The United Liberation Movement for Democracy in Liberia (ULIMO) and later ULIMO-K, a rebel group that battled for control of Liberia. According to the indictment, Jabbateh, during his time as a ULIMO commander, either personally committed, or ordered ULIMO troops under his command to commit crimes such as torture, rape and murder. This historic case marked the first time that Liberian victims were able to testify about their experience of the atrocities committed during the First Liberian Civil War in a public and fair criminal trial. “Jungle Jabbah” was sentenced in April 2018 to 30 years in prison.

The same strategy was used against Thomas Jucontee Woewiyu, former Minister of Defense and Spokesman of the NPFL during the First Liberian Civil War. He faced trial in the U.S in June 2018 and he was convicted by a jury who found him guilty of 11 counts of immigration fraud and perjury for lying to the immigration authorities about his role in a rebel movement during the First Liberian Civil War (1989-1996). It was the first ever trial of someone who held a ministerial position with a major rebel faction during Liberia’s Civil Wars. Sadly for the victims, Woewiyu died in April 2020 of COVID-19 before the pronouncing of his sentence.

Bringing Justice home

Thanks to outreach campaigns, all the cases happening abroad were widely covered by the media in Liberia reinitiating the dialogue about Justice in the country. In 2018 – emboldened by the extraterritorial cases against alleged Liberian war criminals, as well as by the peaceful transition to a new President who had no role in the war – people from different spheres of Liberian society began to join forces to push openly for accountability for atrocity crimes. In February 2018, the influential Liberian Council of Churches joined the call for the implementation of the recommendations of the Liberian TRC. In March 2018, the United Nations (UN) Deputy Secretary-General, reminded the newly-elected President of Liberia that it was time to implement the TRC recommendations.

People started marching in the streets of Monrovia, calling for the establishment of a war crimes court. In May 2018 a rally was organized to deliver a petition to the House of Representatives for the establishment of such a court in Liberia. The petition received several thousand signatures. 2018 also saw Liberia’s first ever review before the UN Human Rights Committee (the Committee) in Geneva. A coalition of 76 Liberian, African, and international nongovernmental organizations filed a submission urging the UN and the Liberian Government to address ongoing impunity for past atrocity crimes in Liberia. Consequently, in July 2018, the Committee issued its formal concluding observations expressing “concern that none of the alleged perpetrators of gross human rights violations and war crimes mentioned in the TRC report, has been brought to justice, and that some of those individuals are or have been holding official executive positions, including in the government.”

In August 2018, the Joint Committee on Claims and Petitions of the Liberian Parliament held a hearing on the establishment of a war crimes court and in November of the same year a National Justice Conference organized by a coalition of national and international NGOs as well as OHCHR was  held. It brought together for the first time former TRC commissioners, civil society and government actors  to discuss the issue of accountability. Since  the conference, the calls for the establishment of a Court have continuously grown louder. In May 2019, the Independent National Human Rights Commission organized a colloquium on the implementation of the TRC recommendations, which featured many high-level attendees and a clear unanimous call for the establishment of a Court. In July 2019, a Legislative Conference was organized. A group of lawmakers had been working on a resolution to be submitted to members of both houses to rally support for the establishment of a court while the Liberian Bar Association had produced a first Draft Act to serve as a blue print for a potential bill establishing the Court. During the conference, participants worked on the resolution and the draft bill with international experts.

Shortly after formally asking the national legislature to advise him on the setting up of a war crimes court, in September 2019, President Weah addressed the UN General Assembly in New York and acknowledged that “(…) there has been a rising chorus of voices from many quarters, calling for the establishment of an Economic and War Crimes Court. These voices include not only thousands of war victims, but also some of the alleged perpetrators, who seem to wish to either clear their names or their conscience”. He asked for support from the international community on the matter. Since the end of the Civil Wars, Liberians had never heard their President acknowledge their desire for justice in such an explicit way. Upon Weah’s return from New York. he seemed to backpedal saying that he was, in fact, more concerned about fixing the country’s dwindling economy than about establishing a court.

Liberians are still waiting for the resolution calling for the establishment of a war crimes court to be put on the agenda for discussion in the Lower House of Parliament. After the aforementioned legislative conference, the resolution obtained 51 signatures, more than were needed to put it on the agenda, but it appears to be politically blocked. Similarly, the work on the draft bill has stagnated.

Even though there is still a long way to go until the establishment of a war crimes court in Liberia, there is no doubt that the extraterritorial cases spearheaded the current national movement for Justice and accountability in the country as well as the renewed calls for the implementation of the TRC report.  The Liberian quest for Justice is a good example of the impact of strategic litigation or how bringing a case to a courtroom can lead to broader changes in society.

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