The use of universal jurisdiction to ensure accountability for international crimes committed in Liberia in the periods 1989 to 1997 and 1999 to 2003
| Author | Bosch, S. |
| DOI | https://doi.org/10.47348/AYIH/2021/a3 |
| Published date | 15 December 2022 |
| Date | 15 December 2022 |
| Pages | 67-92 |
67
https://doi.org/10.47348/AYIH/2021/a3
The use of universal jurisdiction
to ensure accountability for
international crimes committed in
Liberia in the periods 1989 to 1997
and 1999 to 2003
Shannon Bosch*
Abstract
This artic le investigates the potential for using t he principle of universal
jurisdiction to pres cribe and then prosec ute international crime s
committed in Liber ia during the two c ivil conict pe riods: 1989 to 1997
and 1999 to 2003. More part icularly, the article unpack s the concept of
universal jur isdiction and explores t he benets that it offers in end ing
impunity for heinous inter national crimes. The a rticle explores some of
the controversies that have prevented the effec tive use of the principle
of universal jur isdiction and high lights why it remains relevant, g iven
the current respon se by the Africa n Union to international prosecutions.
The article hig hlights the reason why cases suc h as Kosiah and Massaquoi
are especial ly signicant in endi ng impunity in the c ase of Liberia, and
how the success or failure of such ca ses can have a ripple effect, c reating
the necessary pres sure for the establishment of an Extraordi nary Criminal
Court for Liber ia on Liberian soil.
Keywords: univers al jurisdiction, cr iminal prosecutions, Liber ia
1 INTRODUCTION
On 18 June 2021, after a four-week trial held during an international
pandemic in December 202 0 and February 2021, a ground-break ing
20-year sentence was handed down by the Swiss Fede ral Criminal
Court sitting in Be llinzona. The accuse d, Alieu Kosiah (aka Bluff
boy), was a rebel commander of the United Liberation Movement of
Liberia for Democracy ar med group (ULIMO -K) at the time of the
rst Liberian c ivil war. ULIMO- K, under Kosiah’s commandership,
committed atrocities in Lofa Cou nty while ghting against President
* BA (Hons) LLB LLM PhD, Attorney of t he High Court of South Af rica, Associate
Professor of Law at Universit y of Kwa-Zulu Natal. Ema il: Boschs@ukzn.ac. za.
(2021) African Yearbook on International Humanitarian Law 67
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Charles Taylor’s army between 1993 and 1995.1 In 1998, after the
war, Kosiah sought asylum in Switzerland and was eventually g ranted
permanent residence status. Seven Liber ian victims bec ame private
plaintiffs in the case a nd gave evidence of the 25 charged atrocities.2
These included ‘ordering the murder, rape, pillage, cruel treatment of
civilians’, and ‘desecrating a corpse, recru itment and use of a child
soldier and the forced transportation of goods and a mmunition by
civilians’.3 The plaintiffs were assisted by t wo non-governmental
organisations (NGOs), Civitas Maxima a nd the Global Justice and
Research P roject,4 and together they amassed evidence which they
presented to the Swiss Attorney-General, who then instit uted the
prosec ution.5 Kosiah was ar rested in Switzerland in 2014, and indicted
in 2019. Civitas Maxima and the Global Justice and Research Project
have conducted investigations that have resulted in prosecutions being
sought against Liberian warlords in t he United States (US),6 the United
Kingdom (UK), Belgium7 a nd France.8
Speaking af ter the judgment was handed down, Civitas Maxima
agreed that
it is time now for the Liberian G overnment to hear this quest of
justice, and nally comply wit h the recommendations of the Liberian
Truth and Reconciliation Com mission of 2009, and ensure we put an
end to impunity for war cr imes in Liberia.9
1 Tetevi Davi and Stella Nasir umbi ‘Universal Ju risdiction in Sw itzerland:
Challenges for the War Cri mes Trial of Alieu Kosiah’ available at <h tt ps: //oh rh .
law.ox.ac.uk/universal-jurisdiction-in-switzerland-challenges-for-the-war-
crimes-trial-of-alieu-kosiah/> (accessed on 11 February 2022).
2 Ibid.
3 Ibid.
4 Ibid.
5 Imogen Foulkes ‘The long pat h to justice for war crimes v ictims’ avail able
at <https://ww w.swissin fo.ch/eng/the- long-path-to- justice-for-wa r-crimes -
victims/46744510> (accessed on 11 February 2022).
6 Julia Crawford ‘Lib erian war vic tims to testif y in US “jungle Jabbah” case’
available at ://www.justiceinfo.net/en/34811-liberian-war-victims-to-
testify-in-u s-jungle-jabbah-case.html> (access ed on 30 May 2022).
7 Gaëlle Ponselet ‘Libe ria war crime s: Belgian investigator s drag feet on Marti na
Johnson’ available at /www.justiceinfo.net/en/44069-liberia-war-crimes-
belgian-invest igators-drag-feet-on-martin a-johnson.html> (accessed on 30 May
2022).
8 Thierry Cr uvellier ‘Par is arrest a new step to justic e for Liberian war c rimes’
available at //www.justiceinfo.net/en/38794-paris-arrest-a-new-step-to-
justice-for-liberia n-war-crimes.ht ml> (accessed on 30 May 2022); Th ierry
Cruvellier ‘Acquittal of Ma ssaquoi: Reality chec k for Finnish justice’ ava ilable
at
nnish-justice.ht ml> (accessed on 30 May 2022).
9 Under President Ellen Johns on Sirleaf, a Truth and Reconciliation Comm ission
(TRC) was establi shed in 2006. A fter holding heari ngs, it published its nal
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Human Rights Watch also said that ‘Liberia n authorities bear the
primary responsibil ity to ll the massive accountability gap for brutal
crimes committed dur ing the country’s civil war s.’10
These comments refer to the 2009 re commendations of the
Liberian Truth and Reconciliation Com mission (TRC) that an
Extraordinar y Criminal Cou rt for Liberia11 should b e established to
prosecute the grave crimes that accompanied the t wo internal armed
conicts.12 To date, because of a lack of political wil l, no prosecutions
have occurred in Liber ia despite the recommendation.13 Given this
perceived impunity, this judgment from the Swiss court br ings new
hope that ‘Switzerland’s efforts on this case should help mobilize
wider accountability in Liber ia as this shows that these crimes ca n be
prosecuted.’14
The Kosiah trial was especially signi cant for two reasons. First,
Kosiah was the rst Liberia n national to be convicted for atrocities
perpetrated during t he country’s two civil con icts.15 Second,
report and recomme ndations in 2010 (Civitas Maxi ma ‘Liberian pl aintiffs
make Swiss and Libe rian legal histor y’ available at <https://civitas-maxima.
org/2021/06/18/liberian-plaintiffs-make-swiss-and-liberian-legal-history/>
(accessed on 11 February 202 2)).
10 Human Rights Watch ‘Huma n Rights Watch Liberia: L andmark Swiss conv iction
for wartime atroc ities – Switzerland a nd Liberia should bui ld on important
progress’ available at <ht tps://www.hrw.org/news/20 21/06/18/liberia-land
mark-swiss-conviction-wartime-atrocities> (accessed on 11 February 2022).
11 The proposal was for a ‘ hybrid international-n ational chamber to t ry individua ls
accused of war cr imes, crimes against hu manity, and other serious violations of
international huma nitarian law’ (Amnest y International ‘Libe ria’s Compliance
with the Internationa l Covenant on Civil and Political Rights Repor t of Civil
Society Orga nizations in Reply to the L ist of Issues Regardin g Impunity for
Past Human Rights V iolations’ paras 4 and 5, available at <https://www.
amnesty.org/en/wp- content/uploads/2021/05/AFR3487352018ENGLISH.pdf>
(accessed on 11 February 202 2)). The TRC’s report als o barred anyone linked to
factions from holding p olitical ofce for 30 yea rs. Among those named we re
high-level indiv iduals such as senators, pol iticians and even Pr esident Sirleaf.
The recommendation has yet to b e actioned.
12 These occur red in the period s 1989 to 1996 and 1999 to 2003 (Davi and
Nasirumbi op cit note 1).
13 Davi and Nasiru mbi op cit note 1; BBC News ‘Alieu Kosiah: Liberian convicte d
of war crimes in Sw iss court’ ava ilable at <https://www.bbc.com/news/world-
afr ica -5752 850 0> (accessed on 11 Febru ary 2022).
14 Emma Farge ‘Lib erian rebel se ntenced in Switzerland for wa r crimes,
cannibali sm’ available at <https://www.reuters.com/world/swiss-verdict-
due-liberia-war-crimes-trial-rape-cannibalism-2021-06-18/> (accessed on
11 February 2022).
15 Davi and Nasiru mbi op cit note 1; Aljazeera News ‘Sw iss court gives Lib erian
rebel 20-year s entence for war crimes’ ava ilable at <https://www.aljazeera.
com/news/2021/6/18/swiss-court-gives-l iberian-rebel-20-yea r-sentence-for-
war- cri mes> (accessed on 11 Februa ry 2022).
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this was the rst ti me an individual was tr ied for war crimes in a
civilian cr iminal court i n Switzerland.16 All this was made possible
because of Swiss law that recognises u niversal jurisdict ion over
international crimes.
The Swiss Crimina l Code of 21 December 193717 permits t he
prosecution of an accused for specic i nternational crimes committed
outside of Swiss territory, ‘which Switzerland is required to prosecute
either because of an international treat y, or because they are proscribed
by the international community’.18 This made it possible for Kosiah, a
foreign national, to be tried on Swiss soil for cr imes committed in Lofa
County, Liberia, against foreign nationals.19
This exercise of univers al jurisdiction in a Swi ss civil court is
uncommon. The only previous successful convict ion by the Swiss
was before a military cou rt20 in respect of a Rwandan c itizen living
in Switzerland as a refugee. 21 The us e of universal jurisdic tion has
been restricted to insta nces where the accused was present on Swiss
soil, and is ‘not in the process of being extradited or tra nsferred to an
international criminal court or tribunal’.22 In short, the verdict was
hailed as a ‘breakt hrough for Liberian victi ms and the Swiss justice
system in cracking t he wall of impunity’.23
In this art icle I explore the potential impact that the use of
universal prescript ive jurisdiction, as a means of pursu ing criminal
cases against Liberia n warlords in foreign domestic courts, wil l have
in the face of domestic inaction and pressure from civ il society groups
16 Davi and Nasir umbi op cit note 1.
17 Articles 6(1), 7(1) and (2) and 264m. States looking to incorporate u niversal
jurisdict ion may nd it useful to examine Swiss law for g reater clarity on how
the Swiss law is fashioned. T his, however, is not the focus of this artic le.
18 ‘In 2011, the Rome Statute crimes were i ncorporated into the Swiss Cr iminal
Code, and univers al jurisdict ion can now be exercised i n non-military
courts over severa l international cr imes, including war c rimes’ (see Davi and
Nasirumbi op cit note 1). The advent of the various ad hoc internationa l crimina l
tribunals a nd the subsequent creation of t he International Cri minal Cour t
have added to the impetus for memb er states to get their domestic legi slation
in order so that they ca n take steps to prosecute international c rimes. For more
on this see L Juma and L C higowe ‘The Principle of C omplementarity and
Hybrid Courts: T he Case of the Special Crim inal Court for the Central A frican
Republic’ (2018) 26:1 Lesotho Law Journal 41–78.
19 Davi and Nasiru mbi op cit note 1.
20 In the case of Prosecuto r v Niyonteze Switzerland (Mi litary Cour t of Cassation)
27 April 2001, available at <https://www.vbs.admin.ch/fr/home.html> (acces -
sed on 16 February 2022).
21 Davi and Nasiru mbi op cit note 1.
22 Ibid.
23 Aljazeera News op cit note 15.
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to pursue those who oversaw these war crimes. 24 I unpack the concept
of universal jurisd iction and explore the benets that it offers in
ending impunity for heinous international c rimes. I set out some of
the controversies that have traditionally accompanied the concept
of universal jurisd iction and explain how they have been a barr ier
to its effective use. I briey explore why universa l jurisdiction may
provide a solution for accountability in a climate where the African
Union (AU) has clashed with the International Crimi nal Court (ICC),
and the Malabo Protocol, which extends jurisd iction of the yet-to-be-
established African C ourt of Justice and Human Rights to crimes under
international law, lacks the requisite ratications to enter into effect.
I explore the potential for a ripple effect25 (li ke that which accompanied
the Pinochet arrest in t he UK) to explore whether the Kosiah case
could have the same potential in the context of the Liberian sit uation.
I conclude by explaining why the application of the principle of
universal jurisd iction in the context of the Liberian con ict has great
usefulness and high lighting why cases such as Kosiah are espec ially
signicant in ending impu nity in the case of Liber ia. I draw some
lessons from the failure of the Massaq uoi case a nd ask whether the
ripple effect is perhaps being felt in The Gambia.
2 THE HISTORIC EMERGENCE OF THE CONCEPT OF
UNIVERSAL JURISDICTION UNDER CUSTOMARY
INTERNATIONAL LAW
The concept of universal jurisd iction stems from the concept of ‘hostes
humani generis (enemies of the human race)’, 26 which was originally
formulated to apply to outlaws such as pirates whose crimes often
occurred outside the territory of a ny state.27 From its inception, the
24 O’Keefe denes unive rsal jurisdiction as pre scriptive jurisdiction over of fences
committed abroad by per sons who, at the time of commission, a re non-
resident aliens, or where such of fences are not deemed to const itute threats
to fundamental i nterests or the prescr ibing state or, in appropriate cases, to
give rise to effec ts within its ter ritory (Roger O’Keefe ‘ Universal Jurisd iction:
Clarify ing the Basic Concept ’ (2004) 2 Journal of Inter national Criminal Justi ce
745). Such civil society groups i nclude NGOs Civitas Ma xima and the Global
Justice and Research P roject operating out of Monrovia.
25 Naomi Roht-Arriaza, i n a book entitled The Pinochet Effect, com ments that ‘the
most important impac t of Pinochet’s London ar rest was that it changed the
perception of what was possible, c reating the political and psychologic al space
that allowed for the effe ctive application of previously e xisting legal t heories
and arguments’ (Stac ie Jonas ‘The Ripple Ef fect of the Pinochet C ase’ (2004)
11:3 Huma n Rights Brief 38).
26 Henry A Kissin ger ‘The Pitfall s of Universal Jurisd iction’ (2001) 80:4 Foreig n
Affairs 87.
27 Ibid.
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principle of universal jurisd iction grew around the idea that certa in
crimes were ‘too heinous to go unpunished’28 and
‘so harmful to inter national interests that states are e ntitled – and even
obliged – to bring proceed ings against the perpetrators, regard less of the
location of the crime or the nationa lity of the perpetrator or the v ictim’.29
The jurisdiction over these par ticularly heinous cri mes is based solely
on the nature of the crime. The jur isdiction is extended to all nation
states, irrespective of the terr itory where the crime was perpetrated, the
nationality of the perpet rator or victim, and without any other link to
the state. 30 When a domestic court ‘exercises prescriptive jurisdict ion …
over an international crime with wh ich it has no jurisdictional l ink31…
it is said that it exercises universal jur isdiction’.32 Universa l jurisdiction
really only refers to core ‘crimes under customar y international law, in
respect of which all states have the right to prosecute’.33 These crimes
include piracy, slavery, crimes against peace, torture, genocide, crimes
against humanity, war crimes and forced disappearances.34 Domestic
courts that act to prosecute those who perp etrate these listed crimes
act in the interests of the international communit y.35 It is important
to note that in this article any reference to the ter m ‘universal
28 Princeton Pri nciples on Universal Juri sdiction, Foreword by Hon Mar y
Robinson available at ps://lapa.princeton.edu/hosteddocs/u nive_jur.pdf>
(accessed on 23 June 2022) 18. The Pr inceton Project on Universal Jurisd iction
has been formed to contr ibute to the ongoing development of universa l
jurisdic tion.
29 Ibid at 16.
30 Ibid at 28, principle 1.
31 ‘When a domestic cou rt has no ties to territor y of the offence, the effe ct of
the offence in its terr itory, or the nationality of the vic tim or perpet rator the
domestic court has to rely on a s pecial type of jurisd iction’ (see O’Keefe op cit
note 24 at 745).
32 John Dugard et al Dugard’s Inter national Law: A South Afr ican Perspective 5 ed
(2018) 2 23.
33 Antonio Cassese ‘Is t he Bell tolling for Universa lity? A Plea for a Sensible Notion
of Universal Juris diction’ (2003) 1 Journal for International Cr iminal Justice 594.
34 Princeton Pri nciples on Universal Juri sdiction op cit note 28 at 16 and 29
(principle 2(2)). Guillaume J in his se parate opinion in the Arrest Warrant
case found univers al jurisdict ion to apply in cases of piracy ( paras 12 and
16), while Koroma J felt that it was applicable in cases of pi racy, war crimes,
crimes again st humanity, the slave trade and genocide ( para 9), and Higgins,
Kooijmans and Buergenthal ag reed that univer sal jurisdic tion was applicable
in cases of piracy, war cr imes and crimes aga inst humanity ( paras 61–65).
Van den Wyngaert in her di ssenting opinion (pa ra 59) notes that universal
jurisdict ion was applicable for war crime s, crimes against hu manity and
genocide (ICJ Arrest Warrant of 11 April 2000 D emocratic Republic of the Congo v
Belgium (14 Februar y 2002) ICJ Reports (2002) hereafte r Arrest Warrant case).
35 Princeton Pri nciples on Universal Jur isdiction op cit note 28 at 223; Attorney-
General of the Govern ment of Israel v Eichmann (1962) 36 ILR 277 at 298–304 .
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jurisdiction’ is shorthand for ‘universa l jurisdiction to prescrib e or
universal prescriptive jurisdiction’.36
O’Keefe denes universal jur isdiction as
prescriptive juri sdiction over offences comm itted abroad by persons
who, at the time of commission, are non-resident al iens, or where
such offences are not deemed to const itute threats to funda mental
interests or the prescribi ng state or, in appropriate cases, to give rise to
effec ts within its t erritory.37
In short, universal prescr iptive jurisdiction permits a state to cr iminalise
conduct even without any link between the state, the per petrators, the
victims or the offence.38 O’Keefe notes that it is ‘sufciently well ag reed
that universal jurisd iction amounts to the assertion of juris diction to
prescribe, in the absence of any other juris dictional nexus at the time
of the relevant conduc t’.39
2.1 Universal jurisdiction as reected in international
treaty law
The doctrine of univer sal jurisdiction ‘continues to develop in law
and in practice’.40 In recent years, a number of multilateral treaties
have prescribed wide jurisd ictional powers over States Parties to these
treaties, to try to extrad ite those in their territory accused of such
crimes.41 For ex ample, the four Geneva Conventions42 and Additional
36 O’Keefe op cit note 24 at 745.
37 Ibid.
38 SR Ratner and JS Abrams Accou ntability for Human Rights Atroc ities in Internati onal
Law 2 ed (2001) 161.
39 O’Keefe op cit note 24 at 745.
40 Princeton Pri nciples on Universal Jurisdiction op cit note 28 at 16.
41 Princeton Pr inciples on Universal Jurisdict ion op cit note 28 at 223.
42 Geneva Convention for the Amel ioration of the Condition of the Wounded
and Sick in Armed Forc es in the Field (First Ge neva Convention) 12 August
1949, arts 49 and 50, available at <https://www.ref world.org/docid/3ae6b3694.
html> (accessed on 3 M arch 2022); Geneva Convention for t he Amelioration
of the Condition of Wounded, Sick and Shipw recked Members of A rmed
Forces at Sea (Second Geneva Convent ion) 12 August 1949, arts 50 and 51,
available at world.org/docid/3ae6b37927.html> (accessed on
3 March 2022); Geneva Convent ion Relative to the Treatment of Prisoner s of
War (Third Geneva C onvention) 12 August 1949, arts 129 and 130, available
at 6b36c8.html> (accessed on 3 Ma rch
2022); Geneva Convention Relative to t he Protection of Civil ian Persons in
Time of War (Fourth Ge neva Convention) 12 August 1949, arts 146 and 147,
available at world.org/docid/3ae6b36d2.ht ml> (accessed on
3 March 2022).
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Protocol I43 ‘oblige states to exercise universal jur isdiction to prosecute
persons responsible for the commission of grave breaches of the
Conventions and P rotocol’.44 Because such jurisdiction is not based
on one of the traditional jurisdictiona l connections, it is considered
to be a form of universal jurisd iction.45 Andre de Hoogh argues that
the exercise of universal jur isdiction ows from the fact that territorial
states that owed the international community an obligation to prohibit
torture 46 and genocide47 failed in their obligations – part icularly when
public ofcials were implicated in the commission of these cr imes.48
This concept is expressed in ma ny international treaties ‘which place
primary responsibil ity for punishing proscribed conduct on t he state
where the crime occur red, but establish universal juri sdiction to
ensure prosecution in the event that the government most responsible
for suppressing violations fails to bring offenders to account’.49 Linking
universal jurisd iction to this failure on the par t of the sovereign state
with territorial juri sdiction, and making it the backup plan to ens ure
accountability and enforcement for international crimes, g ives the
principle of universal jurisd iction much-needed legitimacy.50 Furthe r
legitimacy can be gai ned from the argument that these foreign states
can be more ‘impartial a nd unbiased’ because they are to a greater
degree ‘disconnected from the cri mes’.51 Universal jurisdiction also
serves to act as a deterrent to foreign travel52 and emigrat ion for those
seeking to avoid prosecution, who may try to seek asylum elsewhere.
In this way, universal jurisdict ion is relied upon in European court s
to prosecute perpetrators who have ed to Europe, seeking as ylum.53
43 Protocol Additional to the Ge neva Conventions of 12 August 1949 and relating
to the Protection of Vict ims of International A rmed Conic ts (Protocol I),
available at world.org/docid/3ae6b36b4.html > (accessed on
3 March 2022) ar t 85.
44 Princeton Pri nciples on Universal Jurisdiction op cit note 28 at 782 .
45 O’Keefe op cit note 24 at 746–747.
46 ICTY (Trial Cha mber) Prosecutor v Furu ndiija (10 December 1998) Case No IT-
95-17/1-T § 151.
47 ICJ Barcelona Traction, Light and Power Company, Limited (Belgium v Spa in)
(Judgment of 5 Febru ary 1970) ICJ Reports (1970) 3.
48 A de Hoogh Obligations Erga Omnes and Int ernational Cri mes: A Theoretical
Inquiry into the Implem entation and Enforcement of the Inter national Responsibility
of States (19 95) 146 .
49 Harmen van der Wi lt ‘Universal Juri sdiction under Attac k: An Assessment of
African M isgivings towards International C riminal Justice as Admin istered by
Western States’ (2011) 9 Journal of International Criminal Ju stice 1043–1051.
50 Ibid.
51 Ibid at 1064.
52 Princeton Pr inciples on Universal Jurisdiction op c it note 28 at 226.
53 A court in Koblenz, G ermany convicted a Syria n refugee seeker when ‘evidence
brought by victims a nd human rights groups showed , he had in fact been
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The primary onus of prosecut ing perpetrators of cri mes falls to
the domestic courts of nation states.54 Domestic courts are dev ised
to protect the due process rights of accused persons whi le seeking
justice for victims through a sy stem of criminal law.55 Domestic court s
focus on those crimes per petrated in their terr itory, and on crimes
perpetrated by their nationals or against their nationals or national
interests. Even when these and direct connect ions are absent, national
courts may use universa l jurisdiction to prosecute grave cri mes on the
ground that they ‘affect the fu ndamental interests of the international
community as a whole’.56 Domestic courts can ‘exercise universal
jurisdiction to prosecute and pun ish and thereby deter, heinous acts
recognized as ser ious crimes under international law’.57 The applicat ion
of universal jurisd iction is therefore ‘a crucial means of justice’.58 When
national courts use universa l jurisdiction, they help to ‘close the gap
in law enforcement that has favoured perpetrators of serious cr imes
under international law’.59 The sad truth is that states often neglect
to investigate and prosecute serious human rights abuses under the
banner of universal jur isdiction because universa l jurisdict ion has not
been uncontr oversial,60 and it retains t his reputation today.
2.2 The controversial barriers to implementation that
have accompanied universal jurisdiction, and why
universal jurisdiction remains necessary given the
current AU response to international prosecutions
In theory, universal jurisdic tion aspires to the promise of greater justice,
but unfortunately, the jurisprudence on this concept is ‘disparate,
disjointed and poorly understood’.61 Much of the confusion that has
part of the regi me, and committed acts of torture in Sy ria’s notorious prisons’
(see Foulkes op cit note 5).
54 Princeton Pri nciples on Universal Jurisdiction op c it note 28 at 24.
55 Ibid at 23.
56 Ibid.
57 Ibid.
58 Ibid at 16.
59 Ibid at 24.
60 Kissinger op cit note 26 at 86; Van der Wilt op cit note 49 at 1049. Some
states use universa l jurisdict ion without acknowledging it, as i n the case of
South Africa . See National Commissione r of the South African Police Service v South ern
African Human Rights Lit igation Centre and Another [2 015] 1 SA 315 (CC), where the
Constitutional C ourt of South Af rica concluded that the Sout h African Police
Service had a dut y under international law and domestic law to investigate tort ure
allegations committe d against and by Zimb abweans on Zimbabwean s oil, despite
none of the suspects be ing present in South Africa.
61 Princeton Pr inciples on Universal Jurisdict ion op cit note 28 at 24.
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plagued the concept of universal juri sdiction has stemmed from a failure
to appreciate that it is, strictly speaking, pre scriptive jurisdiction, that
is, the authority to lay down legal norms. As prescriptive jur isdiction
it affords all nation states the ability to prescribe c riminal conduct
in instances where there would not otherwise b e an acceptable
jurisdictional nexu s under international law on one of the recognised
grounds at the time of its commission.62 It is most accurate to say that
‘universal jurisd iction is a manifestation of jurisdic tion to prescribe’.63
Once the prescriptive nature of univers al jurisdiction is accepted,
some potentially problematic practical and legal challenges that ow
from the exercise of universa l jurisdiction remain.64 For e xample,
under the banner of universal ju risdiction, it is possible that a judicial
ofcer may seek the extradition of a foreign national to sta nd trial
for crimes committed in a foreign ter ritory, where the individual
might have avoided domestic prosecution because of an amnesty or
reconciliation procedure.65 Where heads of state are involved, the issue
of sovereign immunity has a risen.66 There have been allegations by
some organisations, like the AU, that the principle is being abused
and used to violate sovereignty.67 The exercise of universal juri sdiction
may also result in an accused pe rson being tried subject to a legal
system different to that of their nation state, and in some instances,
the trial is held in a foreign lang uage. These objections aside, universal
jurisdiction also br ings with it the added complication of holding
hearings far from the scene of the c rime and far from the terr itory of
the witnesses. This terr itorial separation adds to the already dif cult
task of gathering credible evidence and r isks causing furt her trauma
and additional burdens in secu ring the attendance of the witnesses at
62 O’Keefe op cit note 24 at 740.
63 Ibid at 750.
64 Princeton Pri nciples on Universal Jurisdiction op cit note 28 at 17.
65 Ibid.
66 Ibid at principle 5 ‘with resp ect to serious cr imes under internationa l law as
specied in P rinciple 2(1), the ofcial position of any accused per son, whether
as head of state or government or as a respon sible government ofcial, sha ll
not relieve such person of c riminal res ponsibility nor mitigate pu nishment’
(ibid at 31). ‘Amnesties are genera lly inconsistent with the obl igation of
states to provide accountabilit y for serious cri mes under international law a s
specied in pr inciple 2(1). The exercise of universa l jurisdiction w ith respect
to serious crime s under international law as speci ed in principle 2(1) shall not
be precluded by amnest ies which are incompatible with the inter national legal
obligations of the grant ing state’ (ibid at 31).
67 In July 2008 , the AU stated that ‘abuse of the principle of universa l jurisdiction
is a clear violation of sovere ignty’ and ‘indic tments against Af rican leaders
have had a negative impact on internat ional relations’ (Princeton Pr inciples on
Universal Juris diction op cit note 28 at 833). For more on the criticisms leve lled
at the ICC by AU member states, see Van der Wilt op cit note 49.
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trial.68 Every step of separation from the territory of the crime brings
the additional challenge of remaini ng true to the cultu ral context
in which the crimes were committed .69 Trials conducted on foreig n
soil are generally protracted and ex pensive, and they run the risk
of violating the accused’s rights to a fair tr ial while simultaneously
exposing the witnesses to additional str esses.70
Given all these complications, it is not surprising that ‘the political
will to exercise univer sal jurisdiction is seldom forthcomi ng from
st at es ’.71 Even in the a rea of piracy, which was seen as the quintessential
universal cri me because it was perpetrated in international waters,
prosecutions using ‘universal jur isdiction, have been relatively few,
and many pirates have simply been released after the recovery of
the seized vessel’.72 Another practical reason may be that states are
afraid of over-burdening their cou rt systems.73 Where un iversal
jurisdiction is relied upon, bec ause those in power in the territorial
state are implicated in the crimes, witnesses fear t hat they and their
families wil l be persecuted if they give ev idence – even on foreign
soil.74 In these inst ances, the political will to assist w ith the collection
of evidence can be lacking when those i n power are implicated in the
trials.75 Ad hoc Judge Van den Wyngaert observed in the Arrest Warrant
case that ‘a practical consideration may be the difcu lty in obtaining
the evidence in trials of e xtraterritorial cri mes’.76 Often it is left to
local and international NGOs on constra ined budgets to conduct
initial investigations and interview witnesses.77 In the case of Alieu
Kosiah, the Global Justice and Research Project (ba sed in Monrovia)
collaborated with two foreign-based NGOs, Civ itas Maxima (Geneva)
and the Centre for Justice and Accountability (San Francis co).78
68 To this end, a Finnish cour t opted to organise its hearing in the cou ntry where
the crimes were pe rpetrated. Of course, this de pends on the willingness of t he
territorial state to g ive access to the courts of a fore ign jurisdic tion to hold
hearings on its terr itorial soil.
69 Kissinger op cit note 26 at 90.
70 Van der Wilt op cit note 49 at 1062.
71 See Máximo L anger ‘The Diplomacy of Univer sal Jurisdic tion: The Political
Branches and the Transnation al Prosecution of International C rimes’ (2011) 105
American Journal Inte rnational Law 1; John Dugard ‘Internationa l Criminal Law,
the International Cr iminal Court and Civi l Society’ 2016 Acta Juridica 7–8.
72 Eugene Kontorovich and Stephen Art ‘An Empir ical Examination of Universal
Jurisdiction for P iracy’ (2010) 104 American Jour nal of International La w 436;
Princeton Pr inciples on Universal Jurisdiction op c it note 28 at 558.
73 Arrest Warrant case dissenting opinion para 56.
74 Davi and Nasir umbi op cit note 1.
75 Ibid.
76 Ibid.
77 Ibid.
78 Human Rights Watch ‘Q&A: Just ice for civil wars -era crimes i n Liberia’
available at <http s://www.hrw.org/new s/2019/04/01/qa-justice- civil-wa rs-er a-
crimes-liberia> (accessed on 17 February 2022).
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Another barrier to the exerci se of universal jurisd iction by
domestic courts is that many states will ref use to prosecute a person
for an international crime ‘unless the conduct has b een criminal ised
under municipal law’,79 which is the step that the Swiss had taken
in the Kosiah case. Universal jurisd iction might act as a deterrent to
foreign travel80 and now with the Kosiah case, it might act as more
of a deterrent to emigration and those try ing to avoid prosecution
by seeking asylum elsewhere. Universa l jurisdiction is being rel ied
upon in European courts to convict p erpetrators who have ed to
Europe seeking asylum. A nother potential challenge for universal
jurisdiction is ex post fac to criminalis ation, which is prohibited under
international human rights law. O’Keefe notes that ‘in such cases, all
that has happened is that a municipal procedural competence has later
been extended to encompass conduct that was substantively crim inal,
under international law when performed.’81 The Pr inceton Pr inciples
on Universal Jurisdiction asse rt that ‘national judicial organs may rely
on universal jurisd iction even if their national legislation does not
specically provide for it’.82 The principles go on to state that ‘statutes
of limitations or other forms of prescription shall not apply to serious
crimes under international law as spec ied in Principle 2(1)’.83
Despite these obstacles, the use of universal jur isdiction by foreign
states remains a crucia l part of the international criminal law ar moury.
This means that arr esting and prosecuting perpetr ators of international
crimes can proceed despite the resista nce that the AU is showing to the
ICC and to Western states’ use of universal jurisdict ion.84 AU member
states have argued that ‘such jurisdictional overr each clearly violates
the sovereignty and territorial i ntegrity of the countries involved,
undermines the stabilit y of African states, and negatively affects t he
economic, political and social development of those states as well as
their capacity to maintain i nternational relations.’85 However, both
the jurisdiction of the ICC and the use of u niversal jurisdict ion are
built on the notion that the primary resp onsibility for prosecuting
79 Individual states have en acted legislation to give un iversal juris diction to
their own cour ts to try internationa l crimes recog nised by the Rome Statute
– genocide, crimes aga inst humanity and war crimes ( Princeton Principles on
Universal Juris diction op cit note 28 at 224).
80 Ibid at 226.
81 O’Keefe op cit note 24 at 759.
82 Princeton Pri nciples on Universal Jurisdict ion op cit note 28 at 30, principle 3.
83 Ibid at 31.
84 For more on this, see Van der Wilt op cit note 49.
85 Assembly of the Afr ican Union (AU), Decision on the Report of the C ommission
on the Abuse of the Pr inciple of Universal Jurisdict ion, Decision No Assembly/
AU/Dec.199 (XI), AU Doc. Assembly/ AU/14 (XI), 30 June–1 July 2008, § 5 and
§ ii and iii.
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international crimes lies with t he territorial state at a domestic level.
The ICC and foreign states exert their un iversal jurisdiction as a fa ll
back, subsidiary default mechani sm86 ‘in the event that the government
most responsible for suppressing violations fails to bring offenders to
ac co u nt ’.87 Sad ly, it has been argued in the past that in the Afr ican
context, ‘the performance of Africa n jurisdictions in the eld of
international crimina l justice leaves much to be desired. This arg uably
strengthens the legitimac y of the exercise of universal jur isdiction.’88
As Van der Wilt argues,
the case for universa l jurisdiction is bo osted, if states exercise th is
jurisdiction with restraint, respecting prior claims and obligations of
better qualie d jurisdictions; if t hey succeed in deliver ing judgments
which contribute to the development of international c riminal law;
and if international tribunals are involved in the distribution of
jurisd iction.89
So far, and often ‘to the dismay of victims’ organ izations, national
courts have shown great restraint in exerc ising universal juris dictions,
out of fear of offending political sensibilities’.90 Together, these
domestic courts and international criminal tribunals ‘are cooperating
and contributing to the formation of international crim inal law’.91
Moreover, the international tribunals have ‘positively sought to refer
cases to national jurisdict ions in order to be able to concentrate …
efforts on the prosecution and tr ial of those most responsible’.92 This
has come about ‘precisely because the ICC can only take a li mited
number of cases, [therefore] it would be wise to outsource cases to
willing and capable juris dictions’. 93
Universal jurisdict ion can also proceed while the Malabo P rotocol
secures the necessar y 15 AU member state ratications to bring the
protocol into effe ct.94 The proposed expansion of the jur isdiction of
the African Cou rt of Justice and Human Rights (ACJHR), as set out
in the Malabo Protocol to cover international crimes, whi le noble,
is not without its own problems. Many doubt whether a bench of
16 justices, with constrained AU resources, will be able to operationalise
86 Van der Wilt op cit note 49 at 1051.
87 Diane Orentliche r ‘Settling Accou nts: The Duty to Prose cute Human Rights
Violations of a Prior Regime’ (1991) 100 The Yale Law Journal 2537 at 2562.
88 Van der Wilt op cit note 49 at 1054.
89 Ibid at 1055.
90 Ibid at 1063.
91 Ibid at 1059.
92 Ibid at 1060.
93 Ibid at 1063.
94 Ar ticle 11.
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and ‘efciently deliver on its mandate’.95 Some note that the extended
immunity clause included in t he Malabo Protocol, which extends
immunities beyond heads of states to ‘senior state ofcials’, may ‘bring
the whole statute into disrepute as it will be portrayed as a way to
protect senior politicians from accountability for t heir crimes’.96 Given
the amount of work done by NGOs in the early investigation phases
of many international crimina l cases, it is concerning that in the
Malabo Protocol and the Amended ACJHR statute, ‘AU member states
have also introduced amendments that will l ikely restrict the ability
of international NGOs with a presence in A frica from accessing the
ACJ HR .’97 For these rea sons, it is imperative that in the Afr ican context
foreign courts use univer sal jurisdiction to purs ue those fraudulently
seeking asylum abroad as they tr y to avoid prosecution.
2.3 Exercising universal jurisdiction and securing the
presence of the accused
Once jurisdiction to prescr ibe on the ground of the nature of the crime
is achieved, the next step is to ensure that enforcement jurisd iction can
be exercised. Crim inal enforcement jurisdiction is general ly territorial
(the accused must be in the territory of the prescr ibing state at the time
of enforcement, even if the crimes were committed in a nother territory
against other nationals). The enforcement jurisdiction was achieved in
these recent cases precisely becaus e war crimina ls migrated, seeking
asylum in foreign territories, and have often lied about thei r degree
of involvement in the war-torn territories they are seeking to escape.
Another very contentious point for the concept of universal
jurisdiction is whether it can and should be exerc ised in absentia. Some
domestic jurisdictions (including Belg ium, Spain and Germany)98 have
gone so far as to permit a state to issue an arrest war rant in absentia for
95 According to art 11 of the Malab o Protocol, the Protocol shall enter into force
30 days after 15 member s deposit instrume nts of ratication with t he court.
Of the 55 AU members, only 33 have signed t he Protocol, and only eight have
ratied it. Available at <htt ps://au.int/sites/default/les/treaties/36 396-sl-
PROTOCOL%20ON%20THE%20STATUTE%20 OF%20THE%20AFR ICAN%20
COURT%20OF%20JUST ICE%20AND%20HUMA N%20RIGHTS.pdf> (access ed
on 1 June 2022).
96 Amnesty Inter national ‘Malabo Protocol: Legal and i nstitutional implications
of the merged and expa nded African court ’ available at
org/en/wp-c ontent/uploads/2021/05/AFR0130632016ENGLISH.pdf> (accessed
on 1 June 2022).
97 Ibid.
98 In most instances, some con nection to the forum st ate is a precondition for a
judge to exercise jurisd iction (Spanish Supreme Court Gu atemala Genocide Case
(2003) 42 Internati onal Legal Materials 683).
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wanted persons outside of their territory. This was one of the contested
issues before the ICJ in the Arrest Warrant case.99 The bench held w idely
divergent views on the issue. Judge President Guillaume adopted a
cautious interpretation and decided that true universal jurisdiction
was only recognised in t he case of piracy100 ‘and, in the situation of
subsidiary universa l jurisdiction provided for by various conventions,
if the offender is present in their terr itory’.101 Subsidiarity ows from
the aut dedere aut judicare maxim, and is aimed at preventing trials
in absentia.102 Judges Higgins, Kooijmans and Buergenthal, in a joint
separate opinion, were prepared to recognise the exerc ise of universal
jurisdiction (even in absentia)103 ‘over those crimes regarded as the most
heinous by the international community … such as pir acy, war crimes,
crimes against human ity and genocide’.104 The most progressive, and I
would argue most compelling, interpretation ca me from ad hoc Judge
Van den Wyngaert, who concluded that ‘there is no conventional
or customary international law or legal doctr ine in support of the
proposition that (universal) jurisdiction for war cr imes and crimes
against humanity can o nly be exercised if the defendant is present in
the territory of the prosecuting state.’105 O’Keefe points out that ‘as
a matter of international law, if universal jurisdict ion is permissible,
then its exercise in absentia is logically pe rmissible also. Whether it is
desirable is, needless to say, a separate question.’106 Nothin g prevents
a state relying on prescriptive universa l jurisdiction from requesti ng
the extradition of an accused su spect, or from requesting judicial
assistance from another state in whose territory the susp ect is based.107
However, this can be politically sensitive.
99 Max du Plessis and Shannon B osch ‘Immunit ies and Universal Jur isdiction – The
World Court Steps In (or On?)’ (2003) 28 South African Yearbook of International
Law 346. In response to polit ical pressure, the Be lgian statute confer ring
universal jur isdiction has si nce been amended and requ ires some nationalit y
or residential lin k between Belgiu m and the suspect or compla inant, or some
treaty obligation (Stefaa n Smis and Kim va n der Borght ‘Introduc tory Note
to Belgium’s Amendment to the Law of Ju ne 16, 1993 (as Amended by the
Law of February 10, 1999) Concer ning the Pun ishment of Grave Breaches of
Humanitaria n Law’ (2003) 42 International Legal Mater ials 740).
100 Arrest Warrant case at 42, para 12.
101 Separate Opinion of P resident Guillaume, Arrest Warrant case at 35, paras 5–9.
Judges Higgins, Kooijmans a nd Buergenthal also f avoured subsidiarit y (Joint
Separate Opinion Arrest Warrant case para 59).
102 Van der Wilt op cit note 49 at 1049.
103 Arrest Warrant case at 80, para 59.
104 Ibid at 81, para 60.
105 Ibid at 173, para 58.
106 O’Keefe op cit note 24 at 750.
107 Ibid at 741.
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It is worth nothing that in 1985, Spain initial ly adopted the ‘broadest
universal jurisd iction provisions in the world’,108 which permitted t he
exercise of jurisdict ion without the presence of the accused. However,
the Spanish law underwent reform in 20 09 and 2014, and now requires
that ‘the alleged perpetrators are pres ent in Spain’. 109 Sadly, ‘its success,
in terms of providing an ef fective remedy for victims of human r ights
violations amounting to international crimes, has b ecome a threat
for politicians and international relations.’110 The rece nt reforms now
require ‘an extensive and complex set of conditions that must be met
before Spanish courts can a ssert jurisdict ion over these crimes’.111 The
reform effectively closed al l open cases and will prevent fut ure cases
under the wide understanding of u niversal jurisdict ion.112
In short, the exercise of universal ju risdiction requires forethought
and guarantees that the ‘hig hest standards for prosecutorial fair ness
and of judicial independence, impartia lity and fairness’113 are obser ved
at all times. This includes obser ving international best pract ice with
regard to ‘due process norms’ to safeguard the rights of the accused
and victims.114 Thereafter, all that is requi red ‘is that the offender
subsequently be presented in the territory of the prescr ibing state’115
in order for enforcement jurisdiction to be made possible. This is in
accordance with the Princeton Pr inciples which require that the ‘person
is present before such judicial body’, but that universal jurisd iction
can be the grounds for seek ing the extradition of a person.116 In most
instances, secur ing the offender’s presence in the territory is the most
tricky politically, as ‘such a wide jurisdict ion … is not conducive to
international relations and national public opinion may not approve
of trials against foreigner s for crimes committed abroad’.117
108 Rights Inter national Spain ‘De ath of universal jur isdiction in Spa in has
taken away plaintif f’s rights’ available at ps://www.liberties.eu/en/stories/
spanish-unive rsal-jurisdiction/18997> (accessed on 27 May 2022).
109 United Nations ‘Contribut ion of Spain on the topic: The scope and application
of the principle of univer sal jurisdiction’ available at
ga/sixth/71/universa l_jurisdiction/spain _e.pdf> (accessed on 27 May 2022).
110 Rights Intern ational Spain op cit note 108.
111 Ibid.
112 Ibid.
113 Princeton P rinciples on Universal Jurisdict ion op cit note 28 at 27.
114 Ibid at 29.
115 O’Keefe op cit note 24 at 755.
116 Princeton P rinciples on Universal Ju risdiction op cit note 28 at 2 8, principles
1(2) an d 1(3).
117 Arrest Warrant case, Van den Wyngaert dissentin g opinion para 56;
O’Keefe op cit note 24 at 757.
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2.4 Harnessing the ripple effect of universal jurisdiction
In the aftermath of the P inochet arrest in the UK i n 1998, Stacie Jonas
wrote a piece entitled the ‘The Ripple Effect of t he Pinochet Case’118 in
which she argued that the Pinochet prece dent highlighted ‘ways that
international cases can help foster greater accountability at home’.119
Pinochet’s arrest warr ant was issued by a Spanish magistrate, Baltasa r
Garzón, on the ground of universal jur isdiction – ‘that certai n crimes
are so egregious that they constitute cr imes against humanity and
can therefore be prosecuted in any cour t in the world’.120 Prior to t his,
Jonas argued that any arrest of P inochet had seemed impossible as
he was shielded from prosecution by Chilean am nesty laws dating
back to 1978.121 These laws were promulgated by the military junta ‘to
pardon human rights crimes com mitted between the September 11,
1973 coup and March 10, 1978’.122 It seemed unthinkable that 20 years
later victims would regain their voices and the ageing P inochet’s past
would catch up with him under the banner of univer sal jurisdiction.
Emboldened by the UK arrest, vict ims ooded the Chilean prosecutor’s
ofces with their clai ms, which grew from only a dozen cases prior
to his arrest, to ‘nearly 300 by the end of 20 03’.123 That in turn wa s
complemented by ‘judicial reforms implemented in the late 1990s that
changed the composition of the Chilean courts a nd removed many
Pinochet-ap pointed judges’.124 These newly composed courts began
to reassess the prior interpretations of the amnest y laws. They now
concluded that in cases of forced disappearances, ‘since the bodies of
the victims had not been found, that dis appearances were actual ly
crimes of ongoing, aggravated kidnapping. Because t he crime had not
ended before the 1978 amnesty law cut-off, the amnesty did not prevent
the prosecution of the perpetrators.’125 This allowed the prosec ution of
other Chilean milita ry ofcials,126 and by July 2003 ‘over 300 mil itary
ofcers had been indicted and dozens had be en convicted’.127 So great
were the waves from the Pinochet ripple effect felt that ‘specia l judges
were appointed to work exclusively on human rights cases, allowing
for fur ther brea kthrough s’. 128 In short, it took the arrest of General
Augusto Pinochet, through the mecha nism of universal jurisd iction,
118 Jonas op cit note 25 at 36– 38.
119 Ibid.
120 Ibid at 36.
121 Decree Law 2191.
122 Jonas op cit note 25 at 36.
123 Ibid.
124 Ibid.
125 Ibid at 37.
126 Ibid.
127 Ibid.
128 Ibid.
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for the truth about his crimes to be re vealed. Thereafter, there was
a ripple effect that would fundamental ly alter Chile’s ‘transition to
de mo c ra c y’. 129
The effect also in spired other victims of huma n rights abuses,
especially in Lati n America, to challenge transitional a rrangements
that not only prevented accountability for human rights atrocities,
but often kept the abusers in power.130 Argenti ne victi ms joined
international human rights advocacy groups in u sing the principle of
universal jurisd iction and began ‘ling cases against Argentine human
rights violators in Italy, Sweden, Germany, France, and Spain’.131 Jonas
describes how ‘Pinochet’s arrest a nd investigations of Argentine
military ofcer s in foreign courts added momentum to the ex isting
movement against impunity, facilitating a wave of new cases in the
Argentine courts’.132 Jonas explains that while ‘extradition requests
from foreign courts can help cre ate the political will for prosecutions
at home, domestic political factors also inuence the extent to which
international cases have an impact’. 133 In August 20 03, Argentina’s
Congress annulled its am nesty laws and instead promulgated
legislation to facilitate the prosecution and re-openi ng of cases where
crimes against human ity had been perpetrated. 134
I would argue that cases such as Kosiah have the potential to show
the efcacy of the principle of universa l jurisdiction, and to star t a
ripple that can force greater accountability at a domestic level for
crimes committed in states like Lib eria.
3 THE ROLE OF UNIVERSAL JURISDICTION IN THE
LIBERIAN CONFLICT
Liberia exper ienced civil wars in t he periods 1989 to 1997 and 1999 to
2003 in which it is estimated that 250 0 00 people were killed, millions
were displaced, and the use of child soldiers was t he norm. 135 The war
was characterised by ‘w idespread and systematic abuses of international
human rights and violations of international humanita rian law’.136
129 Reed Brody ‘Justice: T he rst casualty of t ruth – the global moveme nt to end
impunity for human r ights abuses faces a dau nting question’ available at
<https://ww w.hrw.org/news/20 01/04/13/justice- rst-casu alty-tr uth> (ac cessed
on 26 May 2022).
130 Ibid.
131 Ibid at 38.
132 Ibid.
133 Ibid.
134 Ibid.
135 Aljazeera News op c it note 15.
136 Amnesty Inter national op cit note 11 paras 4 and 5.
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Despite the recommendation of the TRC, not one prosecution for
the serious crimes commit ted during the two civi l wars in Liberia has
taken place in Liberia. International law mandates th at international
crimes137 (l ike those committed during Libe ria’s two civil wars) should
be tried. There is a pri mary obligation upon states such as Liberia to
prosecute, under international law, international crimes such as war
crimes, crimes agai nst humanity and genocide. Moreover, Liberia is
party to a myriad of internationa l treaties that obligate it ‘to uphold
certain min imum standards and ensu re that serious violations of human
rights and war crimes a re appropriately investigated and prosecuted’.138
In acceding to or ratify ing several international treaties, Libe ria
assumed the responsibility to take steps to prosecute offenders a nd
to afford victims access to legal remed ies. Failing to hold perpetrators
accountable in a credible manner not only violates the international
right of victims, but also fa ils to deter future abuses. Sad ly, Liberia’s
history is fraught with tales of politica l unrest that led to violence
and in each case there was a fai lure to seek to hold those responsible
accountable for their actions.139 Ensuring accountability ‘can help to
bring facts to light, bolster the rule of law, and increase the prospect
of deterring fur ther abuse’.140 In omitting to act on these obligations,
despite the directive from the TRC, t he Liberian government is in
breach of its international obligations and its domestic obligations to
those who were victims of abuse dur ing the two civil war s.141
Liberian citize ns, assisted by several civil soc iety organisations,
have repeatedly taken to the streets call ing for the establishment of
special war cr imes courts to launch prosecutions. These appea ls have
also come from international NGOs. Despite the passage of time, ‘the
call for war crimes prosec utions continues to be a topic of debate in the
137 Including war c rimes, crimes against huma nity and torture.
138 International Cove nant on Civil and Politica l Rights 16 December 1966,
available at world.org/docid/3ae6b3aa0.html > (accessed on
3 March 2022); Convention Aga inst Torture and Other C ruel, Inhuman or
Degrading Treatment or P unishment 10 December 1984, ava ilable at
-massaquoi-acquittal-what-has-it-
www.refworld.org/docid/3ae 6b3a94.html> (accessed on 3 Mar ch 2022); Rome
Statute of the Internationa l Criminal Court ava ilable at
org/docid/3ae6b3a84.htm l> (accessed on 3 March 2022); Gene va Convention
Relative to the Protect ion of Civilian Pers ons in Time of War (Fourth G eneva
Convention) 12 August 1949, available at
docid/3ae6b36d2 .html> (accessed on 3 March 2 022); Protocol Additional to
the Geneva Conventions of 12 Augu st 1949 and relating to the Protec tion of
Victims of Intern ational Armed Con icts (Protocol I ) available at
www.refworld.org/docid/3ae 6b36b4.html> (accessed on 3 March 2022).
139 Human Rights Watch op cit note 78.
140 Ibid.
141 Amnest y International op cit note 11 paras 9 and 10.
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national legislature and the public’,142 supported by prominent leaders,
including 2011 Nobel Prize winner L eymah Gbowee, former President
Ellen Johnson Sirleaf, and the Liberia n Council of Churches.143 Hass an
Bility from the Global Justice and Research P roject and the Secretar iat
for the Establishment of a War Crimes Court in Liber ia argue that it is
important for justice to be seen at home and not just on foreign soil.144
This remains d ifcult as long as a number of alleged war c riminals
continue to hold political ofce and wield inuence on Liberian soi l.145
To date, the only prosecutions that have sought justice for victims
of these abuses have taken place in courts outside of Liberia – pr imarily
in Europe and the US. The son of former Liber ian President Charles
Taylor, ‘Chucky’ Taylor,146 was convicted in 2 008/2009 and sentenced
to 97 years’ imprisonment by a US court for torture, and several ot her
Liberians also faced c harges, including fraud and perjur y, in respect
of misleading information provided in their i mmigration papers
regarding their involvement in war cri mes in Liberia.147 Several leaders
and members of the National Patriotic Front of Liberia have faced
charges abroad for their participation in war c rimes in Liberia. E x-
warlord Mohammed ‘Jungle Jabbah’ Jabateh was sentenced to 30 years
in jail in Philadelphia for immig ration fraud although he was a rebel
commander of the National Patriotic Front of Liberia (NPF L) that carried
out multiple murders, rape, torture and acts of canniba lism in Liberia.
In addition, he was convicted of perjury for fail ing to disclose his
142 Ibid para s 11 and 12.
143 Ibid.
144 Kissi nger op cit note 26.
145 ‘The most notorious of t hese is Prince Johnson, a rebel leader in the rst civil
war who allegedly capt ured, tortured, mutil ated and executed former president
Samuel Doe, among other c rimes. Johnson is now a senator i n Liberia, with
considerable power to thwart t he legislative approval neede d to set up the
special cr iminal cour t that would surely put him i n the dock.’ See Kissin ger
op cit note 26.
146 The UN -backed Special C ourt for Sierra Le one tried and convicted ‘ Liberia’s
former strongman -turned-P resident’ Charles Taylor in 2012 for war cri mes and
crimes again st humanity that were com mitted in Sierra L eone, and sentenced
him to 50 years in pr ison in Britain (Human R ights Watch op cit note 78); Emma
Farge ‘Victims to tes tify in Swis s war crimes tr ial of Liberia n rebel commander’
available at <https://www.reuters.com/article/uk-swiss-liber ia-idUSKBN2AF0VD>
(accessed on 17 February 20 22). See Aljazeera News op cit note 15.
147 Human Ri ghts Watch ‘Liberia: Make just ice a priority’ avai lable at <htt ps ://
www.hr w.org/news/2018/02/12/libe ria-make -justice- priority > (accessed on 3
March 2022); see, also, Cr istian Gonz ález Cabrera and Nush in Sarkart i in Just
Securit y ‘Using U.S. courts to promote accou ntability for the 1990 Lib erian
church massacre a nd beyond’, available at <htt ps://ww w.justsec urity.org /52970/
u-s-courts-promoteaccountability-1990-liber ian-church-massacre/>. See Hum an
Rights Watch op cit note 78.
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crimes when applying for asylum and perma nent residency.148 Jucontee
Woewiyu was also charged in t he US for immigration fraud pursuant
to human rights breaches of international law committed in Libe ria.
Martina Johnson faced cha rges in Belgium for war crimes com mitted
in Liberia. Agnes Reeves Taylor was indicted in the UK for her role in
abuses committed in Liber ia. Moses Thomas faced civil charges i n the
US, on behalf of victi ms of the Lutheran Church Massacre in L iberia,
for ‘ordering extrajudicial killi ngs, torture, war cri mes, and crimes
against humanit y’.149 A Liberian rebel commander has be en indicted
for trial in France in Oc tober 2022 and other trials a re being pursued
in Belgium and the UK .
Foreign states have used the principle of universal jur isdiction to
prosecute Liberians in foreig n courts in Belgium,150 the UK,151 Fra nce,152
Finland, the US and now Switzerland. It is encouraging to note that
war crimes units have been set up in s everal European countries and
they are even starti ng to share evidence in their investigations.153 For
as long as Liberia remains u nwilling to prosecute its citizen s for war
crimes in its territory, other states may continue to use the principle
of universal jurisd iction when Liberian war cr iminals are found on
foreign soil.154 Am nesty International reports th at more than 160
countries have some form of universal jurisd iction on their books,
but only 24 have really exercised that jurisd iction. This often involves
establishing war cri mes units. Often, a prosecution is launched only
after local NGOs in form the authorities of the presence of a war crimina l
in the territory. There is a need to grow this capacity i n Europe and to
encourage these practices in Latin A merica and Africa.155 Some times,
as in the Pinochet case, increased cases b eing brought under the banner
of universal jurisd iction in third-par ty countries pressure terr itorial
states to respond to calls for prosecution and the establishment of war
crimes courts at the domestic level.
148 Peter Fabricius ‘ Liberia’s war cri minals may na lly face the music at home’,
available at /issafrica.org/iss-today/liberias-war-criminals-may-nally-
face-the-music-at-home> (accessed on 11 Februar y 2022).
149 Human R ights Watch op cit note 78
150 In 2014, Martina Johns on, former commander of the N PFL, was arr ested in
Belgium for war cr imes.
151 In 2017, UK authorities indicted Agne s Reeves Taylor for her alleged role in
torture in Lib eria during the armed con icts.
152 In 2018, French authorities ar rested Kunt I Kamara , a former ULIMO
commander, in Paris for h is alleged war crimes committe d on Liberian soil.
153 See Foulkes op cit note 5; Swiss I nfo Podcast ‘War crimes: Holding per petrators
to account’, available at <https://www.swissinfo.ch/eng/war-crimes--holding-
perp etra tors- to-a ccount /46742150> (accessed on 3 M arch 2022).
154 G Yanquoi Lavela ‘Liberia : To create a War Crimes Cour t, or not? The Liberian
senate’s dilemma’ available at <h ttp s://alla fr ica.c om/sto ries/ 20210 810043 0.
html> (accesse d on 3 March 2022).
155 See Swiss In fo Podcast op cit note 153.
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3.1 The trial of Gibril Massaquoi in Finland
Another trial that began on t he basis of universal jurisd iction in
February 2021 took place in Tampere, Finland.156 Thi s involved 51-year-
old Gibril Ealoghima Massaquoi, a Sierra Leonean nat ional who ‘was
a senior member of a rebel group that fought in Liberia from 1999 to
20 0 3’.1 57 The charges include a range of war cri mes and crimes against
humanity, including ‘killing c ivilians and soldiers who had just been
disarmed, rape and recr uiting child soldiers’.158 This is an interesting
case because the accused had a lready given evidence to the UN-backed
Special Court for Sierra L eone in the prosecution of Charles Taylor, and
had been granted legal immunit y for his role in the Sierra Leonean
conict.159 The case has sparked controversy and raised questions
about the immunity and witness protect ion that was granted by the
Special Court for Sierra L eone.160 Gibril Ma ssaquoi relocated to Finland
under a witness protec tion programme.161 His g iving of evidence
granted him ‘immunity for cr imes committed in Sierra Leone, but not
Li be r ia ’.162 Hu man rights group Civitas Max ima highlighted his role
in the Liberian con ict in 2018, and on the basis of this probe, the
Finnish police opened an investigation.163
In a landmark move, the Finnish court re located to Liberia on two
occasions for three months and to neighbouring Sierr a Leone for one
month to hear from 80 witnesses and to conduct inspect ions in loco,
while the accused remained i n Finland.164 This made t he trial more
comfortable for witnesses and victims, ‘who did not have to travel to
Europe to testify’.165 This was a lso the rst time that ‘a court try ing
war crimes was held in Liber ia’.166 Unfor tunately, neither L iberia n nor
Sierra Leonean exper ts were called, and the heari ngs were not open to
the public. The Attorney-General and Mi nister of Justice specically
156 BBC News ‘Liber ia war crimes: Rebe l commander on tria l in Finland’ avai la-
ble at ica-55916994> (accessed on
17 February 2022).
157 Ibid.
158 Ibid.
159 France 24 ‘Hear ings begin in la ndmark Liberi a war crimes tr ial’, available at
<https://www.fra nce24.com/en/live-new s/20210223-hearings- begin-in-land
mark-liberia-war-crimes-trial> (accessed on 3 March 2022).
160 Ibid.
161 Ibid.
162 BBC News op cit note 156.
163 France 24 op c it note 159.
164 BBC News op cit note 156; Civita s Maxima op cit note 9.
165 Civitas Ma xima op cit note 9.
166 BBC News ‘Lib eria war cri mes: Rebel commander on tr ial in Finland’ ava ila-
ble at ica-55916994> (accessed on
17 February 2022).
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‘rejected requests for a live broadcast of the hearing, which effec tively
limited the trial’s potential impact on debate in Liber ia about wider
war crimes prosecutions’.167
Unfortunately, the trial brought with it a ‘painful lesson for the
practice of universal jurisdiction’.168 ‘Historical expertise, the intimate
knowledge of the context of events, is always the Achilles heel of
international tribunals and national courts practicing universal
jurisd iction.’169 The lack of this expe rtise and context was the death
knell for the case when the ‘the investigation department and t he
prosecutor’s ofce were deaf to the multiple alarm bells that went off in
the early days of the trial about the contradict ions in the prosecution’s
ca se ’.170 The initia l investigations by NGOs Civitas Maxi ma and the
Global Justice and Research Project focused on Ma ssaquoi’s involvement
in the Lofa region, ‘where the presence of the accused was plausible’.
Sadly, it was the expansion of the charges by the Finnish investigators
‘to include crimes in Monrovia, causing an overre ach and a rush to
conviction that would eventually undermi ne the entire prosecution’s
ca se ’.171 This led the prosecution to
put forward an ext ravagant thesis according to which the acc used
would have left his UN-protec ted residence in Freetown in July or
August 2003 for severa l days to go to Monrovia in the middle of
the rainy season to ght and comm it massacres alongside Liber ian
President Charles Taylor and, in partic ular, his key deputy, Benjamin
Yeaten, even though he had betrayed them before an i nternational
court, and then to ret urn to Freetown without anyone notici ng the
exploit.172
This, together with conict ing testimony, started to signal doubts
‘regarding the accusations against Mass aquoi and, more seriously,
the integrity of the investigation’.173 Not surprisingly, the court
handed down an acquittal on 29 April 2 022,174 nding ‘that there was
“reasonable doubt” about Massaquoi being the person identied by
witnesse s on the cr ime scenes’.175
167 Lansan a Gberie ‘Massaquoi acqu ittal: What has it wro ught?’ available at
wrought.html> (accessed on 3 0 May 2022).
168 Civitas Ma xima op cit note 9.
169 Ibid.
170 Ibid.
171 Ibid.
172 Ibid.
173 Ibid.
174 Gberie op cit note 167.
175 Civitas Max ima op cit note 9.
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Currently, no ‘retributive justice mechanism … has been initiated
in Liberia’176 and there is litt le political will to do so in the domestic
climate that prevails in Liber ia.177 Some have suggested that the
Massaquoi tr ial did ‘undermine call s for war crimes trials i n Liberia’
and consequently the misguided tr ial did more harm than good for
the project of using universal jur isdiction to pressurise Liber ia to seek
accountability from those who committed human r ights atrocities
during the civil wa r years.178 However, ‘in all of this, one potential
collateral effect must be rm ly resisted: that the verdict may somewhat
be seen as exculpating Massaquoi from t he heinous crimes he
committed in both Sierra Le one and Liberia before the alleged cri mes
for which he was charged were committed.’179
3.2 Could these ripples of universal jurisdiction have a
similar effect in other African states?
Universal jurisdict ion permitted the prosecution of Baboucar ‘Bai’ Lowe
to begin in Celle, Norther n Germany, on 25 April 2022,180 for his role
as a driver for the paramil itary group the Junglers,181 which committed
atrocities in The Gambia.182 This is t he rst trial brought under universal
jurisdiction against a Ga mbian citizen and speaks to t he details which
emerged in the Truth, Reconciliation and Reparations Commission’s
(TRRC) recent nal re port183 about what tran spired under Yahya
Jammeh’s rule. Lowe had sought exile in Germany af ter lifting the lid
on the activities of the Junglers dur ing the period 1994 to 2017. These
ripples in foreign jurisdict ions are occurring i n response to similar
ripples already felt in other jurisdict ions as Jammeh’s henchmen have
been arrested in Switze rland, the US and Germany, and ‘the Gambian
176 Gberie op cit note 167; Ephrem Rugirir iza ‘Does the L iberian president rea lly
want a war crimes cou rt?’ available at
liberian-pre sident-war-crimes -court.html> (accessed on 30 May 2022).
177 Dounard Bondo ‘L iberia: 18 years later and still wait ing for a war crimes court’
available at <https://www.theafricareport.com/105941/liberia-18-years-later-
and-still-waiting-for-a-war-crimes-court/> (accessed on 3 March 2 022).
178 Gberie op cit note 167.
179 Ibid.
180 He was arre sted in March 2021 and has been in pre-t rial detention since then.
181 Several former memb ers of the paramilitary g roup came forward to the TR RC
to lift the veil of se crecy that shrouded the activ ities of the paramilitar y group
that went by this name.
182 He is charged w ith three counts of cr imes against huma nity. The Gambia’s
TRRC has also c alled for Bai Lowe’s prosec ution in the murder of 59 West
African m igrants in 2005.
183 Mustapha Darboe ‘ TRRC nal re port: Gambia bet ween prosecutions and
amnesties’ available at justiceinfo.net/en/86069-trrc-nal-report-
gambia-betwee n-prosecutions-and-am nesties.html> (accessed on 30 May 2022).
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truth commission has cal led for the prosecution of his accomplices in
The Gambia, and of Jammeh himself.’184 Furt hermore, as argued by
Justice Info, ‘[t]he trial of Bai Lowe is a wake-up call for the Gambia.
If we can’t nd justice in our own country, we will go elsewhere.’185 As
Reed Brody notes, these ripples will hopeful ly start to make waves back
home in The Gambia, and this makes the tr ial in Germany take ‘on
even greater importance now as potential roadblocks to accountability
have suddenly appeared in The Gambia, with the appointment of
legislative leaders who have spoken out against the transitional justice
process’.186
It is important that cases like Kosiah and Lowe are hig hlighted and
allowed to start a new Pinochet precedent, and that the wa rnings from
Massaquoi’s trial are heeded, if there is to be hope for international
justice, under universal juris diction, to force states to seek domestic
accountability for victims.
4 CONCLUSION
The implementation of universal prescriptive juris diction has brought
new hope for accountability for the international crimes committed
during the Liberia n civil wars. Act ivists in Liberia hope that foreign
judgments like that in the Kosiah case will add to the pressu re for
the Liberian government to set up a war cr imes unit in line with the
recommendations of the TRC. Perhaps through these foreign cou rts
asserting juri sdiction, greater pressure wil l be felt at domestic level
for the establishment of an Extraordinar y Criminal C ourt for Liberia.
Furthermore, ‘[i]nternational justice is already beginni ng to be a
plausible backstop when national justice fails or a perpetrator ees.’187
Each judgment will give a voice to the victim s and will bolster the
calls from civi l society groups188 to pursue those who commanded
these war crimes. Until then, foreign cou rts that nd suspects i n their
territory should use the principle of universa l jurisdiction to hold
these individuals to account. It may be 20 or more years since the
atrocities were committed, but Kosiah proves that a conviction is still
possible and that victims are prepa red to come forward and testify.189
184 Mustapha Darbo e ‘Gambian dictatorship’s cri mes go on trial in Ge rmany’
available at ://www.justiceinfo.net/en/91253-gambian-dictatorship-crimes-
trial-in-ger many.html> (accessed on 27 May 2022).
185 Ibid.
186 Ibid.
187 Jonas op cit note 25.
188 Such as NGO Civ itas Maxima, which repre sented the plaintiffs in t he Kosiah case
and the Global Justice and Res earch Project NGO operating out of Monr ovia.
189 Aljazeera New s op cit note 15.
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What can be gleaned from the Ma ssaquoi case is that foreign cour ts have
various novel ways in which they can overcome their dista nce from
witnesses and the cultu ral context of the crimes – by relocating to the
territory of the crimes for their hea rings. However, it is imperative that
‘historical exper tise, the intimate knowledge of the context of events’190
be utilised in such case s to ensure that we do not see a repeat of the
Massaquoi failings. In short, where there is internat ional will to pursue
those sought for war crimes, the mechanism of u niversal jurisdict ion
can provide the jurisdict ional nexus required. Added to that,
‘[t]here is a modest but indispensable niche for universal jurisdiction
in the project of international law enforcement’,191 provided that these
foreign jurisdictions ca n ‘mete out impartial and unbiased justice’.192
It is hoped that this option and the will ingness of foreign states to use
universal jurisd iction when they nd these war cr iminals on their soil
may be the impetus required for terr itorial states (like Liberia) to take
the initiative to pursue prosecutions at home.
190 Civitas Max ima op cit note 9.
191 Van der Wilt op cit note 49 at 1063.
192 Ibid.
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