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
• Citation: (2021) African Yearbook on International Humanitarian Law 67
• 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 article investigates the potential for using the principle of universal

jurisdiction to prescribe and then prosecute international crimes

committed in Liberia during the two civil conict periods: 1989 to 1997

and 1999 to 2003. More particularly, the article unpacks the concept of

universal jurisdiction and explores the benets that it offers in ending

impunity for heinous international crimes. The article explores some of

the controversies that have prevented the effective use of the principle

of universal jurisdiction and highlights why it remains relevant, given

the current response by the African Union to international prosecutions.

The article highlights the reason why cases such as Kosiah and Massaquoi

are especially signicant in ending impunity in the case of Liberia, and

how the success or failure of such cases can have a ripple effect, creating

the necessary pres sure for the establishment of an Extraordi nary Criminal

Court for Liberia on Liberian soil.

Keywords: universal jurisdiction, criminal prosecutions, Liberia

1 INTRODUCTION

On 18 June 2021, after a four-week trial held during an international

pandemic in December 2020 and February 2021, a ground-breaking

20-year sentence was handed down by the Swiss Federal Criminal

Court sitting in Bellinzona. The accused, Alieu Kosiah (aka Bluff

boy), was a rebel commander of the United Liberation Movement of

Liberia for Democracy armed group (ULIMO-K) at the time of the

rst Liberian civil war. ULIMO-K, under Kosiah’s commandership,

committed atrocities in Lofa County 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

© Juta and Company (Pty) Ltd

68AFRICAN YEARBOOK ON INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2021/a3

Charles Taylor’s army between 1993 and 1995.1 In 1998, after the

war, Kosiah sought asylum in Switzerland and was eventually granted

permanent residence status. Seven Liberian victims became private

plaintiffs in the case and gave evidence of the 25 charged atrocities.2

These included ‘ordering the murder, rape, pillage, cruel treatment of

civilians’, and ‘desecrating a corpse, recruitment and use of a child

soldier and the forced transportation of goods and ammunition by

civilians’.3 The plaintiffs were assisted by two non-governmental

organisations (NGOs), Civitas Maxima and the Global Justice and

Research Project,4 and together they amassed evidence which they

presented to the Swiss Attorney-General, who then instituted the

prosecution.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 the United States (US),6 the United

Kingdom (UK), Belgium7 and France.8

Speaking after the judgment was handed down, Civitas Maxima

agreed that

it is time now for the Liberian Government to hear this quest of

justice, and nally comply wit h the recommendations of the Liberian

Truth and Reconciliation Commission of 2009, and ensure we put an

end to impunity for war cr imes in Liberia.9

1 Tetevi Davi and Stella Nasirumbi ‘Universal Jurisdiction in Switzerland:

Challenges for the War Cri mes Trial of Alieu Kosiah’ available at <https://ohrh.

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 path to justice for war crimes victims’ available

at <https://www.swissinfo.ch/eng/the-long-path-to-justice-for-war-crimes-

victims/46744510> (accessed on 11 February 2022).

6 Julia Crawford ‘Liberian war victims to testify 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 ‘Liberia war crimes: Belgian investigators drag feet on Martina

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 Cruvellier ‘Paris arrest a new step to justice for Liberian war crimes’

available at //www.justiceinfo.net/en/38794-paris-arrest-a-new-step-to-

justice-for-liberian-war-crimes.html> (accessed on 30 May 2022); Thierry

Cruvellier ‘Acquittal of Massaquoi: Reality check for Finnish justice’ available

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 established in 2006. After holding hearings, it published its nal

© Juta and Company (Pty) Ltd

UNIVERSAL JURISDICTION TO ENSURE ACCOUNTABILITY FOR

INTERNATIONAL CRIMES 69

https://doi.org/10.47348/AYIH/2021/a3

Human Rights Watch also said that ‘Liberian authorities bear the

primary responsibility to ll the massive accountability gap for brutal

crimes committed during the country’s civil wars.’10

These comments refer to the 2009 recommendations of the

Liberian Truth and Reconciliation Commission (TRC) that an

Extraordinary Criminal Court for Liberia11 should be established to

prosecute the grave crimes that accompanied the two internal armed

conicts.12 To date, because of a lack of political will, no prosecutions

have occurred in Liberia despite the recommendation.13 Given this

perceived impunity, this judgment from the Swiss court brings new

hope that ‘Switzerland’s efforts on this case should help mobilize

wider accountability in Liberia as this shows that these crimes can be

prosecuted.’14

The Kosiah trial was especially signicant for two reasons. First,

Kosiah was the rst Liberian national to be convicted for atrocities

perpetrated during the country’s two civil conicts.15 Second,

report and recommendations in 2010 (Civitas Maxima ‘Liberian plaintiffs

make Swiss and Liberian legal history’ available at <https://civitas-maxima.

org/2021/06/18/liberian-plaintiffs-make-swiss-and-liberian-legal-history/>

(accessed on 11 February 202 2)).

10Human Rights Watch ‘Huma n Rights Watch Liberia: L andmark Swiss conv iction

for wartime atrocities – Switzerland and Liberia should build 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).

11The 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 Organizations in Reply to the List of Issues Regarding Impunity for

Past Human Rights Violations’ 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 political ofce for 30 years. Among those named were

high-level individuals such as senators, politicians and even President Sirleaf.

The recommendation has yet to b e actioned.

12These occurred in the periods 1989 to 1996 and 1999 to 2003 (Davi and

Nasirumbi op cit note 1).

13Davi and Nasiru mbi op cit note 1; BBC News ‘Alieu Kosiah: Liberian convicte d

of war crimes in Swiss court’ available at <https://www.bbc.com/news/world-

africa-57528500> (accessed on 11 Febru ary 2022).

14Emma Farge ‘Liberian rebel sentenced in Switzerland for war crimes,

cannibalism’ available at <https://www.reuters.com/world/swiss-verdict-

due-liberia-war-crimes-trial-rape-cannibalism-2021-06-18/> (accessed on

11 February 2022).

15Davi and Nasirumbi op cit note 1; Aljazeera News ‘Swiss court gives Liberian

rebel 20-year sentence for war crimes’ available at <https://www.aljazeera.

com/news/2021/6/18/swiss-court-gives-liberian-rebel-20-year-sentence-for-

war-crimes> (accessed on 11 Februa ry 2022).

© Juta and Company (Pty) Ltd

70AFRICAN YEARBOOK ON INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2021/a3

this was the rst time an individual was tried for war crimes in a

civilian criminal court in Switzerland.16 All this was made possible

because of Swiss law that recognises universal jurisdiction over

international crimes.

The Swiss Criminal Code of 21 December 193717 permits the

prosecution of an accused for specic international 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 universal jurisdiction in a Swiss civil court is

uncommon. The only previous successful conviction by the Swiss

was before a military court20 in respect of a Rwandan citizen living

in Switzerland as a refugee. 21 The use of universal jurisdiction has

been restricted to instances where the accused was present on Swiss

soil, and is ‘not in the process of being extradited or transferred to an

international criminal court or tribunal’.22 In short, the verdict was

hailed as a ‘breakthrough for Liberian victims and the Swiss justice

system in cracking the wall of impunity’.23

In this article I explore the potential impact that the use of

universal prescriptive jurisdiction, as a means of pursuing criminal

cases against Liberian warlords in foreign domestic courts, will have

in the face of domestic inaction and pressure from civ il society groups

16Davi and Nasir umbi op cit note 1.

17Articles 6(1), 7(1) and (2) and 264m. States looking to incorporate universal

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 incorporated into the Swiss Criminal

Code, and universal jurisdiction can now be exercised in non-military

courts over several international crimes, including war crimes’ (see Davi and

Nasirumbi op citnote 1). The advent of the various ad hoc internationa l crimina l

tribunals and the subsequent creation of the International Criminal Court

have added to the impetus for member states to get their domestic legislation

in order so that they ca n take steps to prosecute international c rimes. For more

on this see L Juma and L Chigowe ‘The Principle of Complementarity 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.

19Davi and Nasiru mbi op cit note 1.

20In the case of Prosecutor v Niyonteze Switzerland (Military Court of Cassation)

27 April 2001, available at <https://www.vbs.admin.ch/fr/home.html> (acces -

sed on 16 February 2022).

21Davi and Nasiru mbi op cit note 1.

22Ibid.

23Aljazeera News op cit note 15.

© Juta and Company (Pty) Ltd

UNIVERSAL JURISDICTION TO ENSURE ACCOUNTABILITY FOR

INTERNATIONAL CRIMES 71

https://doi.org/10.47348/AYIH/2021/a3

to pursue those who oversaw these war crimes.24 I unpack the concept

of universal jurisdiction and explore the benets that it offers in

ending impunity for heinous international crimes. I set out some of

the controversies that have traditionally accompanied the concept

of universal jurisdiction and explain how they have been a barrier

to its effective use. I briey explore why universal jurisdiction may

provide a solution for accountability in a climate where the African

Union (AU) has clashed with the International Criminal Court (ICC),

and the Malabo Protocol, which extends jurisdiction of the yet-to-be-

established African C ourt of Justice and Human Rights to crimes under

international law, lacks the requisite ratications to enter into effect.

I explore the potential for a ripple effect25 (li ke that which accompanied

the Pinochet arrest in the UK) to explore whether the Kosiah case

could have the same potential in the context of the Liberian situation.

I conclude by explaining why the application of the principle of

universal jurisdiction in the context of the Liberian conict has great

usefulness and highlighting why cases such as Kosiah are especially

signicant in ending impunity in the case of Liberia. I draw some

lessons from the failure of the Massaquoi case and 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 jurisdiction 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 any state.27 From its inception, the

24O’Keefe denes unive rsal jurisdiction as pre scriptive jurisdiction over of fences

committed abroad by persons who, at the time of commission, are non-

resident aliens, or where such offences are not deemed to constitute threats

to fundamental interests or the prescribing state or, in appropriate cases, to

give rise to effects within its territory (Roger O’Keefe ‘Universal Jurisdiction:

Clarifying the Basic Concept’ (2004) 2 Journal of International Criminal Justice

745). Such civil society groups include NGOs Civitas Maxima and the Global

Justice and Research P roject operating out of Monrovia.

25Naomi Roht-Arriaza, i n a book entitled The Pinochet Effect, com ments that ‘the

most important impact of Pinochet’s London arrest was that it changed the

perception of what was possible, c reating the political and psychologic al space

that allowed for the effective application of previously existing legal theories

and arguments’ (Stacie Jonas ‘The Ripple Effect of the Pinochet Case’ (2004)

11:3 Huma n Rights Brief 38).

26Henry A Kissinger ‘The Pitfalls of Universal Jurisdiction’ (2001) 80:4 Foreig n

Affairs 87.

27Ibid.

© Juta and Company (Pty) Ltd

72AFRICAN YEARBOOK ON INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2021/a3

principle of universal jurisdiction grew around the idea that certain

crimes were ‘too heinous to go unpunished’28 and

‘so harmful to international interests that states are entitled – 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 particularly heinous crimes is based solely

on the nature of the crime. The jurisdiction is extended to all nation

states, irrespective of the terr itory where the crime was perpetrated, the

nationality of the perpetrator 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 perpetrate these listed crimes

act in the interests of the international community.35 It is important

to note that in this article any reference to the term ‘universal

28Princeton Principles on Universal Jurisdiction, Foreword by Hon Mary

Robinson available at ps://lapa.princeton.edu/hosteddocs/unive_jur.pdf>

(accessed on 23 June 2022) 18. The Pr inceton Project on Universal Jurisd iction

has been formed to contribute to the ongoing development of universal

jurisdiction.

29Ibid at 16.

30Ibid at 28, principle 1.

31‘When a domestic court has no ties to territory of the offence, the effect of

the offence in its territory, or the nationality of the victim or perpetrator the

domestic court has to rely on a s pecial type of jurisd iction’ (see O’Keefe op cit

note 24 at 745).

32John Dugard et al Dugard’s International Law: A South African Perspective 5 ed

(2018) 2 23.

33Antonio 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.

34Princeton Principles on Universal Jurisdiction op cit note 28 at 16 and 29

(principle 2(2)). Guillaume J in his separate opinion in the Arrest Warrant

case found universal jurisdiction to apply in cases of piracy (paras 12 and

16), while Koroma J felt that it was applicable in cases of piracy, war crimes,

crimes against humanity, the slave trade and genocide (para 9), and Higgins,

Kooijmans and Buergenthal agreed that universal jurisdiction was applicable

in cases of piracy, war crimes and crimes against humanity (paras 61–65).

Van den Wyngaert in her dissenting opinion (para 59) notes that universal

jurisdiction was applicable for war crimes, crimes against humanity 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).

35Princeton 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 .

© Juta and Company (Pty) Ltd

UNIVERSAL JURISDICTION TO ENSURE ACCOUNTABILITY FOR

INTERNATIONAL CRIMES 73

https://doi.org/10.47348/AYIH/2021/a3

jurisdiction’ is shorthand for ‘universal jurisdiction to prescribe or

universal prescriptive jurisdiction’.36

O’Keefe denes universal jurisdiction as

prescriptive jurisdiction over offences committed abroad by persons

who, at the time of commission, are non-resident aliens, or where

such offences are not deemed to constitute threats to fundamental

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 ‘sufciently well ag reed

that universal jurisdiction amounts to the assertion of jurisdiction to

prescribe, in the absence of any other jurisdictional nexus at the time

of the relevant conduct’.39

2.1 Universal jurisdiction as reected in international

treaty law

The doctrine of universal jurisdiction ‘continues to develop in law

and in practice’.40 In recent years, a number of multilateral treaties

have prescribed wide jurisdictional powers over States Parties to these

treaties, to try to extradite those in their territory accused of such

crimes.41 For example, the four Geneva Conventions42 and Additional

36O’Keefe op cit note 24 at 745.

37Ibid.

38SR Ratner and JS Abrams Accou ntability for Human Rights Atroc ities in Internati onal

Law 2 ed (2001) 161.

39O’Keefe op cit note 24 at 745.

40Princeton Pri nciples on Universal Jurisdiction op cit note 28 at 16.

41Princeton Pr inciples on Universal Jurisdict ion op cit note 28 at 223.

42Geneva Convention for the Amelioration of the Condition of the Wounded

and Sick in Armed Forces in the Field (First Geneva Convention) 12 August

1949, arts 49 and 50, available at <https://www.refworld.org/docid/3ae6b3694.

html> (accessed on 3 March 2022); Geneva Convention for the Amelioration

of the Condition of Wounded, Sick and Shipwrecked Members of Armed

Forces at Sea (Second Geneva Convention) 12 August 1949, arts 50 and 51,

available at world.org/docid/3ae6b37927.html> (accessed on

3 March 2022); Geneva Convention Relative to the Treatment of Prisoners of

War (Third Geneva Convention) 12 August 1949, arts 129 and 130, available

at 6b36c8.html> (accessed on 3 March

2022); Geneva Convention Relative to the Protection of Civilian Persons in

Time of War (Fourth Geneva Convention) 12 August 1949, arts 146 and 147,

available at world.org/docid/3ae6b36d2.html> (accessed on

3 March 2022).

© Juta and Company (Pty) Ltd

74AFRICAN YEARBOOK ON INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2021/a3

Protocol I43 ‘oblige states to exercise universal jur isdiction to prosecute

persons responsible for the commission of grave breaches of the

Conventions and Protocol’.44 Because such jurisdiction is not based

on one of the traditional jurisdictional connections, it is considered

to be a form of universal jurisdiction.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

torture46 and genocide47 failed in their obligations – particularly when

public ofcials were implicated in the commission of these crimes.48

This concept is expressed in many international treaties ‘which place

primary responsibility for punishing proscribed conduct on the state

where the crime occurred, but establish universal jurisdiction to

ensure prosecution in the event that the government most responsible

for suppressing violations fails to bring offenders to account’.49 Linking

universal jurisdiction to this failure on the part of the sovereign state

with territorial jurisdiction, and making it the backup plan to ensure

accountability and enforcement for international crimes, gives the

principle of universal jurisdiction much-needed legitimacy.50 Further

legitimacy can be gained from the argument that these foreign states

can be more ‘impartial and unbiased’ because they are to a greater

degree ‘disconnected from the crimes’.51 Universal jurisdiction also

serves to act as a deterrent to foreign travel52 and emigration for those

seeking to avoid prosecution, who may try to seek asylum elsewhere.

In this way, universal jurisdiction is relied upon in European courts

to prosecute perpetrators who have ed to Europe, seeking asylum.53

43Protocol Additional to the Ge neva Conventions of 12 August 1949 and relating

to the Protection of Victims of International Armed Conicts (Protocol I),

available at world.org/docid/3ae6b36b4.html> (accessed on

3 March 2022) ar t 85.

44Princeton Pri nciples on Universal Jurisdiction op cit note 28 at 782 .

45O’Keefe op cit note 24 at 746–747.

46ICTY (Trial Chamber) Prosecutor v Furundiija (10 December 1998) Case No IT-

95-17/1-T § 151.

47ICJ Barcelona Traction, Light and Power Company, Limited (Belgium v Spain)

(Judgment of 5 Febru ary 1970) ICJ Reports (1970) 3.

48A de Hoogh Obligations Erga Omnes and International Crimes: A Theoretical

Inquiry into the Implem entation and Enforcement of the Inter national Responsibility

of States (19 95) 146 .

49Harmen van der Wilt ‘Universal Jurisdiction under Attack: 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.

50Ibid.

51Ibid at 1064.

52Princeton Pr inciples on Universal Jurisdiction op c it note 28 at226.

53A court in Koblenz, G ermany convicted a Syria n refugee seeker when ‘evidence

brought by victims and human rights groups showed, he had in fact been

© Juta and Company (Pty) Ltd

UNIVERSAL JURISDICTION TO ENSURE ACCOUNTABILITY FOR

INTERNATIONAL CRIMES 75

https://doi.org/10.47348/AYIH/2021/a3

The primary onus of prosecuting perpetrators of crimes falls to

the domestic courts of nation states.54 Domestic courts are devised

to protect the due process rights of accused persons while seeking

justice for victims through a system of criminal law.55 Domestic courts

focus on those crimes perpetrated in their territory, 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 universal jurisdiction to prosecute grave crimes 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 punish 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 universal jurisdiction, they help to ‘close the gap

in law enforcement that has favoured perpetrators of serious crimes

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 jurisdiction because universa l jurisdiction has not

been uncontroversial,60 and it retains this 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).

54Princeton Pri nciples on Universal Jurisdiction op c it note 28 at 24.

55Ibid at 23.

56Ibid.

57Ibid.

58Ibid at 16.

59Ibid at 24.

60Kissinger op cit note 26 at 86; Van der Wilt op cit note 49 at 1049. Some

states use universal jurisdiction without acknowledging it, as in the case of

South Africa. See National Commissione r of the South African Police Service v South ern

African Human Rights Litigation Centre and Another [2015] 1 SA 315 (CC), where the

Constitutional Court of South Africa concluded that the South African Police

Service had a dut y under international law and domestic law to investigate tort ure

allegations committed against and by Zimbabweans on Zimbabwean soil, despite

none of the suspects be ing present in South Africa.

61Princeton Pr inciples on Universal Jurisdict ion op cit note 28 at 24.

© Juta and Company (Pty) Ltd

76AFRICAN YEARBOOK ON INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2021/a3

plagued the concept of universal juri sdiction has stemmed from a failure

to appreciate that it is, strictly speaking, prescriptive jurisdiction, that

is, the authority to lay down legal norms. As prescriptive jurisdiction

it affords all nation states the ability to prescribe criminal conduct

in instances where there would not otherwise be an acceptable

jurisdictional nexus under international law on one of the recognised

grounds at the time of its commission.62 It is most accurate to say that

‘universal jurisdiction is a manifestation of jurisdiction to prescribe’.63

Once the prescriptive nature of universal jurisdiction is accepted,

some potentially problematic practical and legal challenges that ow

from the exercise of universal jurisdiction remain.64 For example,

under the banner of universal jurisdiction, it is possible that a judicial

ofcer may seek the extradition of a foreign national to stand trial

for crimes committed in a foreign territory, 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 arisen.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 person 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 brings with it the added complication of holding

hearings far from the scene of the crime and far from the territory of

the witnesses. This territorial separation adds to the already difcult

task of gathering credible evidence and risks causing further trauma

and additional burdens in securing the attendance of the witnesses at

62O’Keefe op cit note 24 at 740.

63Ibid at 750.

64Princeton Pri nciples on Universal Jurisdiction op cit note 28 at 17.

65Ibid.

66Ibid at principle 5 ‘with respect to serious crimes under international law as

specied in P rinciple 2(1), the ofcial position of any accused per son, whether

as head of state or government or as a responsible government ofcial, shall

not relieve such person of criminal responsibility nor mitigate punishment’

(ibid at 31). ‘Amnesties are generally inconsistent with the obligation of

states to provide accountability for serious crimes under international law as

specied in principle 2(1). The exercise of universal jurisdiction with 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).

67In July 2008 , the AU stated that ‘abuse of the principle of universa l jurisdiction

is a clear violation of sovereignty’ and ‘indictments against African 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.

© Juta and Company (Pty) Ltd

UNIVERSAL JURISDICTION TO ENSURE ACCOUNTABILITY FOR

INTERNATIONAL CRIMES 77

https://doi.org/10.47348/AYIH/2021/a3

trial.68 Every step of separation from the territory of the crime brings

the additional challenge of remaining true to the cultural context

in which the crimes were committed.69 Trials conducted on foreign

soil are generally protracted and expensive, and they run the risk

of violating the accused’s rights to a fair trial while simultaneously

exposing the witnesses to additional stresses.70

Given all these complications, it is not surprising that ‘the political

will to exercise universal jurisdiction is seldom forthcoming from

states’.71 Even in the a rea of piracy, which was seen as the quintessential

universal crime because it was perpetrated in international waters,

prosecutions using ‘universal jurisdiction, 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 court systems.73 Where universal

jurisdiction is relied upon, because those in power in the territorial

state are implicated in the crimes, witnesses fear that they and their

families will be persecuted if they give evidence – even on foreign

soil.74 In these instances, the political will to assist with the collection

of evidence can be lacking when those in 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 difculty in obtaining

the evidence in trials of extraterritorial crimes’.76 Often it is left to

local and international NGOs on constrained budgets to conduct

initial investigations and interview witnesses.77 In the case of Alieu

Kosiah, the Global Justice and Research Project (based in Monrovia)

collaborated with two foreign-based NGOs, Civitas Maxima (Geneva)

and the Centre for Justice and Accountability (San Francisco).78

68To 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 give access to the courts of a foreign jurisdiction to hold

hearings on its terr itorial soil.

69Kissinger op cit note 26 at 90.

70Van der Wilt op cit note 49 at 1062.

71See Máximo Langer ‘The Diplomacy of Universal Jurisdiction: 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.

72Eugene Kontorovich and Stephen Art ‘An Empir ical Examination of Universal

Jurisdiction for Piracy’ (2010) 104 American Journal of International Law 436;

Princeton Pr inciples on Universal Jurisdiction op c it note 28 at 558.

73Arrest Warrant case dissenting opinion para 56.

74Davi and Nasir umbi op cit note 1.

75Ibid.

76Ibid.

77Ibid.

78Human Rights Watch ‘Q&A: Justice for civil wars-era crimes in Liberia’

available at <https://www.hrw.org/news/2019/04/01/qa-justice-civil-wars-era-

crimes-liberia> (accessed on 17 February 2022).

© Juta and Company (Pty) Ltd

78AFRICAN YEARBOOK ON INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2021/a3

Another barrier to the exercise of universal jurisdiction by

domestic courts is that many states will refuse to prosecute a person

for an international crime ‘unless the conduct has been criminalised

under municipal law’,79 which is the step that the Swiss had taken

in the Kosiah case. Universal jurisdiction 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 trying to avoid prosecution

by seeking asylum elsewhere. Universal jurisdiction is being relied

upon in European courts to convict perpetrators who have ed to

Europe seeking asylum. Another potential challenge for universal

jurisdiction is ex post facto criminalisation, 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 criminal,

under international law when performed.’81 The Princeton Principles

on Universal Jurisdiction assert that ‘national judicial organs may rely

on universal jurisdiction even if their national legislation does not

specically 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 specied in Principle 2(1)’.83

Despite these obstacles, the use of universal jurisdiction 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 jurisdiction.84 AU member

states have argued that ‘such jurisdictional overreach clearly violates

the sovereignty and territorial integrity of the countries involved,

undermines the stability of African states, and negatively affects the

economic, political and social development of those states as well as

their capacity to maintain international relations.’85 However, both

the jurisdiction of the ICC and the use of universal jurisdiction are

built on the notion that the primary responsibility for prosecuting

79Individual states have enacted legislation to give universal jurisdiction to

their own courts to try international crimes recognised by the Rome Statute

– genocide, crimes aga inst humanity and war crimes ( Princeton Principles on

Universal Juris diction op cit note 28 at 224).

80Ibid at226.

81O’Keefe op cit note 24 at 759.

82Princeton Pri nciples on Universal Jurisdict ion op cit note 28 at 30, principle 3.

83Ibid at 31.

84For more on this, see Van der Wilt op cit note 49.

85Assembly 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.

© Juta and Company (Pty) Ltd

UNIVERSAL JURISDICTION TO ENSURE ACCOUNTABILITY FOR

INTERNATIONAL CRIMES 79

https://doi.org/10.47348/AYIH/2021/a3

international crimes lies with the territorial state at a domestic level.

The ICC and foreign states exert their universal jurisdiction as a fall

back, subsidiary default mechani sm86 ‘in the event that the government

most responsible for suppressing violations fails to bring offenders to

account’.87 Sadly, it has been argued in the past that in the African

context, ‘the performance of African jurisdictions in the eld of

international crimina l justice leaves much to be desired. This arg uably

strengthens the legitimacy of the exercise of universal jurisdiction.’88

As Van der Wilt argues,

the case for universal jurisdiction is boosted, if states exercise this

jurisdiction with restraint, respecting prior claims and obligations of

better qualied jurisdictions; if t hey succeed in deliver ing judgments

which contribute to the development of international criminal law;

and if international tribunals are involved in the distribution of

jurisdiction.89

So far, and often ‘to the dismay of victims’ organizations, national

courts have shown great restraint in exercising universal jurisdictions,

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 criminal law’.91

Moreover, the international tribunals have ‘positively sought to refer

cases to national jurisdictions in order to be able to concentrate …

efforts on the prosecution and trial of those most responsible’.92 This

has come about ‘precisely because the ICC can only take a limited

number of cases, [therefore] it would be wise to outsource cases to

willing and capable jurisdictions’. 93

Universal jurisdiction can also proceed while the Malabo Protocol

secures the necessary 15 AU member state ratications to bring the

protocol into effect.94 The proposed expansion of the jurisdiction of

the African Court of Justice and Human Rights (ACJHR), as set out

in the Malabo Protocol to cover international crimes, while noble,

is not without its own problems. Many doubt whether a bench of

16 justices, with constrained AU resources, will be able to operationalise

86Van der Wilt op cit note 49 at 1051.

87Diane Orentlicher ‘Settling Accounts: The Duty to Prosecute Human Rights

Violations of a Prior Regime’ (1991) 100 The Yale Law Journal 2537 at 2562.

88Van der Wilt op cit note 49 at 1054.

89Ibid at 1055.

90Ibid at 1063.

91Ibid at 1059.

92Ibid at 1060.

93Ibid at 1063.

94Ar ticle 11.

© Juta and Company (Pty) Ltd

80AFRICAN YEARBOOK ON INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2021/a3

and ‘efciently deliver on its mandate’.95 Some note that the extended

immunity clause included in the Malabo Protocol, which extends

immunities beyond heads of states to ‘senior state ofcials’, may ‘bring

the whole statute into disrepute as it will be portrayed as a way to

protect senior politicians from accountability for their crimes’.96 Given

the amount of work done by NGOs in the early investigation phases

of many international criminal cases, it is concerning that in the

Malabo Protocol and the Amended ACJHR statute, ‘AU member states

have also introduced amendments that will likely restrict the ability

of international NGOs with a presence in Africa from accessing the

ACJHR.’97 For these rea sons, it is imperative that in the Afr ican context

foreign courts use universal jurisdiction to pursue those fraudulently

seeking asylum abroad as they try 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. Criminal enforcement jurisdiction is generally 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 because war criminals migrated, seeking

asylum in foreign territories, and have often lied about their 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

95According to art 11 of the Malab o Protocol, the Protocol shall enter into force

30 days after 15 members deposit instruments of ratication with the court.

Of the 55 AU members, only 33 have signed t he Protocol, and only eight have

ratied it. Available at <https://au.int/sites/default/les/treaties/36396-sl-

PROTOCOL%20ON%20THE%20STATUTE%20OF%20THE%20AFRICAN%20

COURT%20OF%20JUSTICE%20AND%20HUMAN%20RIGHTS.pdf> (access ed

on 1 June 2022).

96Amnesty Inter national ‘Malabo Protocol: Legal and i nstitutional implications

of the merged and expa nded African court ’ available at

org/en/wp-content/uploads/2021/05/AFR0130632016ENGLISH.pdf> (accessed

on 1 June 2022).

97Ibid.

98In most instances, some connection to the forum state is a precondition for a

judge to exercise jurisd iction (Spanish Supreme Court Gu atemala Genocide Case

(2003) 42 Internati onal Legal Materials 683).

© Juta and Company (Pty) Ltd

UNIVERSAL JURISDICTION TO ENSURE ACCOUNTABILITY FOR

INTERNATIONAL CRIMES 81

https://doi.org/10.47348/AYIH/2021/a3

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 the case of piracy100 ‘and, in the situation of

subsidiary universal jurisdiction provided for by various conventions,

if the offender is present in their territory’.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 exercise 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 humanity and genocide’.104 The most progressive, and I

would argue most compelling, interpretation came from ad hoc Judge

Van den Wyngaert, who concluded that ‘there is no conventional

or customary international law or legal doctrine in support of the

proposition that (universal) jurisdiction for war crimes and crimes

against humanity can only 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 jurisdiction is permissible,

then its exercise in absentia is logically permissible also. Whether it is

desirable is, needless to say, a separate question.’106 Nothing prevents

a state relying on prescriptive universal jurisdiction from requesting

the extradition of an accused suspect, or from requesting judicial

assistance from another state in whose territory the suspect is based.107

However, this can be politically sensitive.

99Max 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 political pressure, the Belgian statute conferring

universal jurisdiction has since been amended and requires some nationality

or residential link between Belgium and the suspect or complainant, or some

treaty obligation (Stefaan Smis and Kim van der Borght ‘Introductory Note

to Belgium’s Amendment to the Law of June 16, 1993 (as Amended by the

Law of February 10, 1999) Concerning the Punishment of Grave Breaches of

Humanitaria n Law’ (2003) 42 International Legal Mater ials 740).

100Arrest Warrant case at 42, para 12.

101Separate Opinion of P resident Guillaume, Arrest Warrant case at 35, paras 5–9.

Judges Higgins, Kooijmans and Buergenthal also favoured subsidiarity (Joint

Separate Opinion Arrest Warrant case para 59).

102Van der Wilt op cit note 49 at 1049.

103Arrest Warrant case at 80, para 59.

104Ibidat 81, para 60.

105Ibid at 173, para 58.

106O’Keefe op cit note 24 at 750.

107Ibid at 741.

© Juta and Company (Pty) Ltd

82AFRICAN YEARBOOK ON INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2021/a3

It is worth nothing that in 1985, Spain initial ly adopted the ‘broadest

universal jurisdiction provisions in the world’,108 which permitted the

exercise of jurisdiction 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 effective remedy for victims of human rights

violations amounting to international crimes, has become a threat

for politicians and international relations.’110 The recent reforms now

require ‘an extensive and complex set of conditions that must be met

before Spanish courts can assert jurisdiction over these crimes’.111 The

reform effectively closed all open cases and will prevent future cases

under the wide understanding of universal jurisdiction.112

In short, the exercise of universal ju risdiction requires forethought

and guarantees that the ‘highest standards for prosecutorial fairness

and of judicial independence, impartia lity and fairness’113 are obser ved

at all times. This includes observing international best practice with

regard to ‘due process norms’ to safeguard the rights of the accused

and victims.114 Thereafter, all that is required ‘is that the offender

subsequently be presented in the territory of the prescribing 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 jurisdiction

can be the grounds for seeking the extradition of a person.116 In most

instances, securing the offender’s presence in the territory is the most

tricky politically, as ‘such a wide jurisdiction … is not conducive to

international relations and national public opinion may not approve

of trials against foreigners for crimes committed abroad’.117

108Rights International Spain ‘Death of universal jurisdiction in Spain has

taken away plaintiff’s rights’ available at ps://www.liberties.eu/en/stories/

spanish-unive rsal-jurisdiction/18997> (accessed on 27 May 2022).

109United 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).

110Rights Intern ational Spain op cit note 108.

111Ibid.

112Ibid.

113Princeton P rinciples on Universal Jurisdict ion op cit note 28 at 27.

114Ibid at 29.

115O’Keefe op cit note 24 at 755.

116Princeton Principles on Universal Jurisdiction op cit note 28 at 28, principles

1(2) an d 1(3).

117Arrest Warrant case, Van den Wyngaert dissenting opinion para 56;

O’Keefe op cit note 24 at 757.

© Juta and Company (Pty) Ltd

UNIVERSAL JURISDICTION TO ENSURE ACCOUNTABILITY FOR

INTERNATIONAL CRIMES 83

https://doi.org/10.47348/AYIH/2021/a3

2.4 Harnessing the ripple effect of universal jurisdiction

In the aftermath of the Pinochet arrest in the UK in 1998, Stacie Jonas

wrote a piece entitled the ‘The Ripple Effect of the Pinochet Case’118 in

which she argued that the Pinochet precedent highlighted ‘ways that

international cases can help foster greater accountability at home’.119

Pinochet’s arrest warrant was issued by a Spanish magistrate, Baltasar

Garzón, on the ground of universal jurisdiction – ‘that certain crimes

are so egregious that they constitute crimes against humanity and

can therefore be prosecuted in any court in the world’.120 Prior to this,

Jonas argued that any arrest of Pinochet had seemed impossible as

he was shielded from prosecution by Chilean amnesty laws dating

back to 1978.121 These laws were promulgated by the military junta ‘to

pardon human rights crimes committed 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 Pinochet’s past

would catch up with him under the banner of universal jurisdiction.

Emboldened by the UK arrest, vict ims ooded the Chilean prosecutor’s

ofces with their claims, which grew from only a dozen cases prior

to his arrest, to ‘nearly 300 by the end of 2003’.123 That in turn was

complemented by ‘judicial reforms implemented in the late 1990s that

changed the composition of the Chilean courts and removed many

Pinochet-appointed judges’.124 These newly composed courts began

to reassess the prior interpretations of the amnesty laws. They now

concluded that in cases of forced disappearances, ‘since the bodies of

the victims had not been found, that disappearances were actually

crimes of ongoing, aggravated kidnapping. Because the 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 military ofcials,126 and by July 2003 ‘over 300 military

ofcers had been indicted and dozens had been convicted’.127 So great

were the waves from the Pinochet ripple effect felt that ‘special judges

were appointed to work exclusively on human rights cases, allowing

for further breakthroughs’. 128 In short, it took the arrest of General

Augusto Pinochet, through the mechanism of universal jurisdiction,

118Jonas op cit note 25 at 36– 38.

119Ibid.

120Ibid at 36.

121Decree Law 2191.

122Jonas op cit note 25 at 36.

123Ibid.

124Ibid.

125Ibid at 37.

126Ibid.

127Ibid.

128Ibid.

© Juta and Company (Pty) Ltd

84AFRICAN YEARBOOK ON INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2021/a3

for the truth about his crimes to be revealed. Thereafter, there was

a ripple effect that would fundamentally alter Chile’s ‘transition to

democracy’.129

The effect also inspired other victims of human rights abuses,

especially in Latin America, to challenge transitional arrangements

that not only prevented accountability for human rights atrocities,

but often kept the abusers in power.130 Argentine victims joined

international human rights advocacy groups in using 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 and investigations of Argentine

military ofcers in foreign courts added momentum to the existing

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 create the political will for prosecutions

at home, domestic political factors also inuence the extent to which

international cases have an impact’. 133 In August 2003, Argentina’s

Congress annulled its amnesty laws and instead promulgated

legislation to facilitate the prosecution and re-opening of cases where

crimes against humanity had been perpetrated. 134

I would argue that cases such as Kosiah have the potential to show

the efcacy of the principle of universal jurisdiction, and to start a

ripple that can force greater accountability at a domestic level for

crimes committed in states like Liberia.

3 THE ROLE OF UNIVERSAL JURISDICTION IN THE

LIBERIAN CONFLICT

Liberia experienced civil wars in the 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 the norm. 135 The war

was characterised by ‘w idespread and systematic abuses of international

human rights and violations of international humanitarian law’.136

129Reed Brody ‘Justice: The rst casualty of truth – the global movement to end

impunity for human rights abuses faces a daunting question’ available at

<https://www.hrw.org/news/2001/04/13/justice-rst-casualty-truth> (ac cessed

on 26 May 2022).

130Ibid.

131Ibid at 38.

132Ibid.

133Ibid.

134Ibid.

135Aljazeera News op c it note 15.

136Amnesty Inter national op cit note 11 paras 4 and 5.

© Juta and Company (Pty) Ltd

UNIVERSAL JURISDICTION TO ENSURE ACCOUNTABILITY FOR

INTERNATIONAL CRIMES 85

https://doi.org/10.47348/AYIH/2021/a3

Despite the recommendation of the TRC, not one prosecution for

the serious crimes committed during the two civil wars in Liberia has

taken place in Liberia. International law mandates that international

crimes137 (like those committed during Liberia’s two civil wars) should

be tried. There is a primary obligation upon states such as Liberia to

prosecute, under international law, international crimes such as war

crimes, crimes against humanity and genocide. Moreover, Liberia is

party to a myriad of international 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 ratifying several international treaties, Liberia

assumed the responsibility to take steps to prosecute offenders and

to afford victims access to legal remedies. Failing to hold perpetrators

accountable in a credible manner not only violates the international

right of victims, but also fails to deter future abuses. Sadly, Liberia’s

history is fraught with tales of political unrest that led to violence

and in each case there was a failure 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 further abuse’.140 In omitting to act on these obligations,

despite the directive from the TRC, the Liberian government is in

breach of its international obligations and its domestic obligations to

those who were victims of abuse during the two civil wars.141

Liberian citizens, assisted by several civil society organisations,

have repeatedly taken to the streets calling for the establishment of

special war crimes courts to launch prosecutions. These appeals 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

137Including war c rimes, crimes against huma nity and torture.

138International Covenant on Civil and Political Rights 16 December 1966,

available at world.org/docid/3ae6b3aa0.html> (accessed on

3 March 2022); Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment 10 December 1984, available at

www.refworld.org/docid/3ae6b3a94.html> (accessed on 3 March 2022); Rome

Statute of the Internationa l Criminal Court ava ilable at

org/docid/3ae6b3a84.html> (accessed on 3 March 2022); Geneva Convention

Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva

Convention) 12 August 1949, available at

docid/3ae6b36d2.html> (accessed on 3 March 2022); Protocol Additional to

the Geneva Conventions of 12 August 1949 and relating to the Protection of

Victims of International Armed Conicts (Protocol I) available at

www.refworld.org/docid/3ae 6b36b4.html> (accessed on 3 March 2022).

139Human Rights Watch op cit note 78.

140Ibid.

141Amnest y International op cit note 11 paras 9 and 10.

© Juta and Company (Pty) Ltd

86AFRICAN YEARBOOK ON INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2021/a3

national legislature and the public’,142 supported by prominent leaders,

including 2011 Nobel Prize winner Leymah Gbowee, former President

Ellen Johnson Sirleaf, and the Liberian Council of Churches.143 Hassan

Bility from the Global Justice and Research Project and the Secretariat

for the Establishment of a War Crimes Court in Liberia argue that it is

important for justice to be seen at home and not just on foreign soil.144

This remains difcult as long as a number of alleged war criminals

continue to hold political ofce and wield inuence 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 Liberian President Charles

Taylor, ‘Chucky’ Taylor,146 was convicted in 2008/2009 and sentenced

to 97 years’ imprisonment by a US court for torture, and several other

Liberians also faced charges, including fraud and perjury, in respect

of misleading information provided in their immigration papers

regarding their involvement in war crimes in Liberia.147 Several leaders

and members of the National Patriotic Front of Liberia have faced

charges abroad for their participation in war crimes in Liberia. Ex-

warlord Mohammed ‘Jungle Jabbah’ Jabateh was sentenced to 30 years

in jail in Philadelphia for immigration 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 cannibalism in Liberia.

In addition, he was convicted of perjury for failing to disclose his

142Ibid para s 11 and 12.

143Ibid.

144Kissi 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 crimes. Johnson is now a senator in Liberia, with

considerable power to thwart the legislative approval needed to set up the

special criminal court that would surely put him in the dock.’ See Kissinger

op cit note 26.

146The UN-backed Special Court for Sierra Leone tried and convicted ‘Liberia’s

former strongman-turned-President’ Charles Taylor in 2012 for war crimes and

crimes against humanity that were committed in Sierra Leone, and sentenced

him to 50 years in pr ison in Britain (Human R ights Watch op cit note 78); Emma

Farge ‘Victims to testify in Swiss war crimes trial of Liberian rebel commander’

available at <https://www.reuters.com/article/uk-swiss-liberia-idUSKBN2AF0VD>

(accessed on 17 February 20 22). See Aljazeera News op cit note 15.

147Human Rights Watch ‘Liberia: Make justice a priority’ available at <https://

www.hrw.org/news/2018/02/12/liberia-make-justice-priority> (accessed on 3

March 2022); see, also, Cristian González Cabrera and Nushin Sarkarti in Just

Security ‘Using U.S. courts to promote accountability for the 1990 Liberian

church massacre a nd beyond’, available at <https://www.justsecurity.org/52970/

u-s-courts-promoteaccountability-1990-liberian-church-massacre/>. See Hum an

Rights Watch op cit note 78.

© Juta and Company (Pty) Ltd

UNIVERSAL JURISDICTION TO ENSURE ACCOUNTABILITY FOR

INTERNATIONAL CRIMES 87

https://doi.org/10.47348/AYIH/2021/a3

crimes when applying for asylum and perma nent residency.148 Jucontee

Woewiyu was also charged in the US for immigration fraud pursuant

to human rights breaches of international law committed in Liberia.

Martina Johnson faced charges in Belgium for war crimes committed

in Liberia. Agnes Reeves Taylor was indicted in the UK for her role in

abuses committed in Liberia. Moses Thomas faced civil charges in the

US, on behalf of victims of the Lutheran Church Massacre in Liberia,

for ‘ordering extrajudicial killings, torture, war crimes, and crimes

against humanity’.149 A Liberian rebel commander has been indicted

for trial in France in October 2022 and other trials are being pursued

in Belgium and the UK.

Foreign states have used the principle of universal jurisdiction 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 several European countries and

they are even starting to share evidence in their investigations.153 For

as long as Liberia remains unwilling to prosecute its citizens for war

crimes in its territory, other states may continue to use the principle

of universal jurisdiction when Liberian war criminals are found on

foreign soil.154 Amnesty International reports that more than 160

countries have some form of universal jurisdiction on their books,

but only 24 have really exercised that jurisdiction. This often involves

establishing war crimes 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 in Europe and to

encourage these practices in Latin America and Africa.155 Sometimes,

as in the Pinochet case, increased cases b eing brought under the banner

of universal jurisdiction in third-party countries pressure territorial

states to respond to calls for prosecution and the establishment of war

crimes courts at the domestic level.

148Peter Fabricius ‘Liberia’s war criminals may nally 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).

149Human R ights Watch op cit note 78

150In 2014, Martina Johnson, former commander of the NPFL, was arrested in

Belgium for war cr imes.

151In 2017, UK authorities indicted Agnes Reeves Taylor for her alleged role in

torture in Lib eria during the armed con icts.

152In 2018, French authorities arrested Kunt I Kamara, a former ULIMO

commander, in Paris for h is alleged war crimes committe d on Liberian soil.

153See 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-

perpetrators-to-account/46742150> (accessed on 3 M arch 2022).

154G Yanquoi Lavela ‘Liberia : To create a War Crimes Cour t, or not? The Liberian

senate’s dilemma’ available at <https://allafrica.com/stories/202108100430.

html>(accesse d on 3 March 2022).

155See Swiss In fo Podcast op cit note 153.

© Juta and Company (Pty) Ltd

88AFRICAN YEARBOOK ON INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2021/a3

3.1 The trial of Gibril Massaquoi in Finland

Another trial that began on the basis of universal jurisdiction in

February 2021 took place in Tampere, Finland.156 Thi s involved 51-year-

old Gibril Ealoghima Massaquoi, a Sierra Leonean national who ‘was

a senior member of a rebel group that fought in Liberia from 1999 to

2003’.157 The charges include a range of war crimes and crimes against

humanity, including ‘killing civilians and soldiers who had just been

disarmed, rape and recruiting 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 immunity for his role in the Sierra Leonean

conict.159 The case has sparked controversy and raised questions

about the immunity and witness protection that was granted by the

Special Court for Sierra L eone.160 Gibril Ma ssaquoirelocated to Finland

under a witness protection programme.161 His giving of evidence

granted him ‘immunity for crimes committed in Sierra Leone, but not

Liberia’.162 Human rights group Civitas Maxima 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 relocated to Liberia on two

occasions for three months and to neighbouring Sierra Leone for one

month to hear from 80 witnesses and to conduct inspections in loco,

while the accused remained in Finland.164 This made the trial more

comfortable for witnesses and victims, ‘who did not have to travel to

Europe to testify’.165 This was also the rst time that ‘a court trying

war crimes was held in Liberia’.166 Unfortunately, neither Liberian nor

Sierra Leonean experts were called, and the hearings were not open to

the public. The Attorney-General and Minister of Justice specically

156BBC News ‘Liberia war crimes: Rebel commander on trial in Finland’ availa-

ble at ica-55916994> (accessed on

17 February 2022).

157Ibid.

158Ibid.

159France 24 ‘Hearings begin in landmark Liberia war crimes trial’, 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).

160Ibid.

161Ibid.

162BBC News op cit note 156.

163France 24 op c it note 159.

164BBC News op cit note 156; Civita s Maxima op cit note 9.

165Civitas Ma xima op cit note 9.

166BBC News ‘Liberia war crimes: Rebel commander on trial in Finland’ availa-

ble at ica-55916994> (accessed on

17 February 2022).

© Juta and Company (Pty) Ltd

UNIVERSAL JURISDICTION TO ENSURE ACCOUNTABILITY FOR

INTERNATIONAL CRIMES 89

https://doi.org/10.47348/AYIH/2021/a3

‘rejected requests for a live broadcast of the hearing, which effectively

limited the trial’s potential impact on debate in Liberia 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

jurisdiction.’169 The lack of this expertise and context was the death

knell for the case when the ‘the investigation department and the

prosecutor’s ofce 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

case’.170 The initial investigations by NGOs Civitas Maxima 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 overreach and a rush to

conviction that would eventually undermine the entire prosecution’s

case’.171 This led the prosecution to

put forward an extravagant thesis according to which the accused

would have left his UN-protected residence in Freetown in July or

August 2003 for several days to go to Monrovia in the middle of

the rainy season to ght and commit massacres alongside Liberian

President Charles Taylor and, in particular, his key deputy, Benjamin

Yeaten, even though he had betrayed them before an international

court, and then to return to Freetown without anyone noticing the

exploit.172

This, together with conicting testimony, started to signal doubts

‘regarding the accusations against Massaquoi and, more seriously,

the integrity of the investigation’.173 Not surprisingly, the court

handed down an acquittal on 29 April 2022,174 nding ‘that there was

“reasonable doubt” about Massaquoi being the person identied by

witnesses on the crime scenes’.175

167Lansana Gberie ‘Massaquoi acquittal: What has it wrought?’ available at

-massaquoi-acquittal-what-has-it-

wrought.html> (accessed on 3 0 May 2022).

168Civitas Ma xima op cit note 9.

169Ibid.

170Ibid.

171Ibid.

172Ibid.

173Ibid.

174Gberie op cit note 167.

175Civitas Max ima op cit note 9.

© Juta and Company (Pty) Ltd

90AFRICAN YEARBOOK ON INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2021/a3

Currently, no ‘retributive justice mechanism … has been initiated

in Liberia’176 and there is little political will to do so in the domestic

climate that prevails in Liberia.177 Some have suggested that the

Massaquoi trial did ‘undermine calls for war crimes trials in Liberia’

and consequently the misguided trial did more harm than good for

the project of using universal jurisdiction to pressurise Liberia to seek

accountability from those who committed human rights atrocities

during the civil war 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 the heinous crimes he

committed in both Sierra Leone and Liberia before the alleged crimes

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, Northern 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 Gambian citizen and speaks to the details which

emerged in the Truth, Reconciliation and Reparations Commission’s

(TRRC) recent nal report183 about what transpired under Yahya

Jammeh’s rule. Lowe had sought exile in Germany after lifting the lid

on the activities of the Junglers during the period 1994 to 2017. These

ripples in foreign jurisdictions are occurring in response to similar

ripples already felt in other jurisdictions as Jammeh’s henchmen have

been arrested in Switzerland, the US and Germany, and ‘the Gambian

176Gberie op cit note 167; Ephrem Rugiririza ‘Does the Liberian president really

want a war crimes cou rt?’ available at

liberian-pre sident-war-crimes -court.html> (accessed on 30 May 2022).

177Dounard 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).

178Gberie op cit note 167.

179Ibid.

180He was arre sted in March 2021 and has been in pre-t rial detention since then.

181Several former memb ers of the paramilitary group 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.

182He is charged with three counts of crimes against humanity. The Gambia’s

TRRC has also called for Bai Lowe’s prosecution in the murder of 59 West

African m igrants in 2005.

183Mustapha Darboe ‘TRRC nal report: Gambia between 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).

© Juta and Company (Pty) Ltd

UNIVERSAL JURISDICTION TO ENSURE ACCOUNTABILITY FOR

INTERNATIONAL CRIMES 91

https://doi.org/10.47348/AYIH/2021/a3

truth commission has called for the prosecution of his accomplices in

The Gambia, and of Jammeh himself.’184 Furthermore, 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 trial 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 highlighted 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 jurisdiction, to force states to seek domestic

accountability for victims.

4 CONCLUSION

The implementation of universal prescriptive jurisdiction has brought

new hope for accountability for the international crimes committed

during the Liberian civil wars. Activists in Liberia hope that foreign

judgments like that in the Kosiah case will add to the pressure for

the Liberian government to set up a war crimes unit in line with the

recommendations of the TRC. Perhaps through these foreign courts

asserting jurisdiction, greater pressure will be felt at domestic level

for the establishment of an Extraordinary Criminal Court for Liberia.

Furthermore, ‘[i]nternational justice is already beginning to be a

plausible backstop when national justice fails or a perpetrator ees.’187

Each judgment will give a voice to the victims and will bolster the

calls from civil society groups188 to pursue those who commanded

these war crimes. Until then, foreign courts that nd suspects in their

territory should use the principle of universal 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 prepared to come forward and testify.189

184Mustapha Darboe ‘Gambian dictatorship’s crimes go on trial in Germany’

available at ://www.justiceinfo.net/en/91253-gambian-dictatorship-crimes-

trial-in-ger many.html> (accessed on 27 May 2022).

185Ibid.

186Ibid.

187Jonas op cit note 25.

188Such 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.

189Aljazeera New s op cit note 15.

© Juta and Company (Pty) Ltd

92AFRICAN YEARBOOK ON INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2021/a3

What can be gleaned from the Massaquoi case is that foreign cour ts have

various novel ways in which they can overcome their distance from

witnesses and the cultural 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 cases 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 universal jurisdiction

can provide the jurisdictional 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 can ‘mete out impartial and unbiased justice’.192

It is hoped that this option and the willingness of foreign states to use

universal jurisd iction when they nd these war criminals on their soil

may be the impetus required for territorial states (like Liberia) to take

the initiative to pursue prosecutions at home.

190Civitas Max ima op cit note 9.

191Van der Wilt op cit note 49 at 1063.

192Ibid.

© Juta and Company (Pty) Ltd