Transnational justice: impunity under challenge
Two current international trials are giving hope to victims and survivors that those responsible for atrocities can be held to account. One trial, of an alleged perpetrator of crimes against humanity in Liberia, is taking place in a French court under the principle of universal jurisdiction, which holds that any state may take action in cases involving crimes against international law. The second is being held at the International Criminal Court against a Central African Republic rebel leader charged with war crimes and crimes against humanity. The two cases show the importance of using and expanding multiple international pathways to challenge impunity, no matter where human rights violations take place.
A grim catalogue of horror is currently being recounted in a Paris courtroom, where survivors of gross human rights violations are finally being heard. The occasion is the trial of Kunti Kamara, a former Liberian warlord accused of committing crimes against humanity during Liberia’s first civil war. The conflict, which lasted from 1989 to 1996, left an estimated 200,000 people dead. Kamara is accused of enforcing a brutal reign of terror on the people of Lofa, in diamond-rich north-western Liberia.
Kamara’s trial remains ongoing and is expected to end on 4 November. It’s offering a measure of hope to survivors of the war, those who experienced atrocities first-hand or lost family members, that the people responsible can be held to account and some form of redress can be achieved.
Kamara is on trial under the principle of universal jurisdiction, which means a state can exercise jurisdiction over crimes committed against international law, even when they do not directly involve the state taking action. The principle, incorporated into French law, recognises that gross crimes against international law, such as crimes against humanity, are offences against us all. If broadly enforced, the principle would make it increasingly difficult for the perpetrators of atrocities to hide.
Voices from the frontline
Adama Dempster is Secretary General of Civil Society Human Rights Advocacy Platform of Liberia, a network that brings together human rights civil society organisations (CSOs) to advocate for human rights and bring justice and redress to the victims of human rights violations.
Kamara’s trial is significant because it offers hope to the victims and survivors of Liberia’s civil wars, and especially to the direct victims of the atrocities he committed. It is also an indication that no one is above the law regardless of the position of power they occupy.
Kamara is the former commander of the United Liberation Movement of Liberia for Democracy. a rebel group active in the early 1990s. He stands accused of imposing a state of terror on the population of Lofa.
Widespread atrocities – unspeakable crimes – were committed in Liberia. Kamara is charged with crimes against humanity, torture and acts of barbarism. He appears to have been involved or complicit with the forced recruitment of child soldiers, gang rapes, sexual slavery, looting, extrajudicial executions and even cannibalism. Nobody who commits such crimes should be able to avoid judgment.
Kamara is among the second group of people to be prosecuted for their role in the civil wars. His trial has recently begun at a French Court of Appeals in Paris, where he is being prosecuted under the legal principle of universal jurisdiction, according to which crimes against humanity know no borders.
This means that no matter where the perpetrators find themselves, whether in the country where they committed their crimes or anywhere else, they can still be held accountable, and justice can be served. CSOs on the ground have had the opportunity to speak in trials involving Liberians abroad and victims and survivors have had their say. The international community is helping us seek justice by bringing the accused to trial. That makes it unique and important to the quest for justice in Liberia.
The Kamara trial has given Liberians hope that when crimes are committed, there is a possibility of justice being done. The fact that charges were brought and Kamara was put on trial made us believe justice will be served. It is also an opportunity for the accused to prove his innocence.
The trial also made us more hopeful that the Liberian government will realise it must urgently implement a mechanism capable of bringing justice in the country. We understand this might take time due to lack of resources and capacity, but a plan should be put in place towards that end. Kamara’s trial highlights the importance of establishing a mechanism in Liberia so that other people who stand accused can be brought to justice and victims and survivors can receive justice no matter the time or place.
This is an edited extract of our conversation with Adama. Read the full interview here.
Universal jurisdiction: challenges and steps forward
International justice however faces many barriers. The principle of universal jurisdiction remains deeply contested. Many powerful states resist it, citing grounds of sovereignty, the principle of immunity for leaders and the potential for prosecutions to be brought on political grounds. These arguments help protect heads of state and senior officials from prosecution even when they are responsible for gross human rights violations.
But the principle of immunity is also increasingly contested. Prosecutions in cases such as the civil war in Sierra Leone and the wars that followed the break-up of Yugoslavia have held that leaders can be denied immunity, as did the indictment in Spain of former Chilean dictator Augusto Pinochet – the first time a former head of state was arrested under the principle of universal jurisdiction.
Article 27 of the Rome Statute, the 1998 treaty that established the International Criminal Court (ICC), rejected the principle of immunity. This was further confirmed in a 2019 decision of the ICC’s Appeals Chamber, which ruled that heads of state have no immunity from ICC prosecution in cases where the ICC has jurisdiction.
Many states continue to push back regardless, and in practice heads of state largely continue to evade justice. Such is the case, for example, of Sudan’s former dictator Omar al-Bashir, who has long been subject to a warrant that required ICC member states to arrest him if he visited their countries.
In large measure, the people with the most power continue to be those who have the least prospect of facing justice. Inevitably, more progress has come in less politicised cases, often resulting in the prosecution of mid-ranking perpetrators no longer sheltered by proximity to power.
Despite the obstacles, however, cases under the principle of universal jurisdiction are increasing. European states have taken the lead, in part haunted by their failure to act early enough on the Rwandan genocide. In 2010, Finland convicted François Bazaramba and handed him a life sentence for his role in the genocide. Belgium also convicted four Rwandan citizens in 2001, under its 1993 universal jurisdiction law. But this law was replaced with a less expansive version in 2003, after multiple controversial cases brought in relation to Israel, Palestine and the USA.
Switzerland passed a universal jurisdiction law in 2001, which has helped bring some accountability over atrocities in Liberia’s civil wars: in 2021 former rebel leader Alieu Kosiah became the first Liberian person convicted for human rights violations committed during the country’s civil wars. A Swiss court found him guilty of war crimes on charges similar to those faced by Kamara, including murder, rape and cannibalism.
Given its history, Germany has unsurprisingly taken a strong line on prosecuting atrocity crimes. Since the principle was written into domestic law in 2002, German courts have convicted people for crimes of genocide in Bosnia and Rwanda.
In January 2022, the impunity enjoyed by the regime of Syrian President Bashar al-Assad was challenged when a German court convicted Anwar Raslan, a former senior official in Syria’s intelligence services, of crimes against humanity. Raslan’s trial heard evidence of murder, rape and torture from over 80 witnesses. He received a life sentence. CSOs, including the European Centre for Constitutional and Human Rights, filed complaints that contributed to the trial, along with many others still pending in Germany and elsewhere.
Raslan’s conviction followed that of ex-intelligence officer Eyad al-Gharib in February 2021. These were the first convictions anywhere in cases involving Syria’s state-sponsored torture.
President al-Assad himself can be confident of continuing to evade justice for the atrocities committed at his behest in the Syrian conflict, protected by his ally Russia, which alongside China has consistently blocked action on the matter at the United Nations (UN) Security Council. But when an official who has ordered or directly carried out crimes, such as Raslan, is tried and sentenced, it sends a signal: that impunity can be challenged through cross-border action, and that there is a measure of justice in the world.
Liberia: more action needed
High-profile international prosecutions are valuable, but don’t change the fact that even if Kamara is found guilty, more needs to be done – as Liberian civil society is acutely aware.
Manny Liberians still carry the trauma of the civil wars. Liberia had a Truth and Reconciliation Commission that carried out its work between 2005 and 2010. While it was criticised as inadequate and insufficiently resourced, civil society did everything it could to engage with it. The Commission’s recommendations included the creation of a special court, prosecutions of key figures, reparations for victims and the barring of some people from public office. But many of its recommendations have simply never been followed up.
Some of those who should have faced trial have gone on to hold powerful positions in government and some former warlords still wield considerable power and influence. President George Weah has backtracked on a commitment he once made to establish a war crimes court, insisting there are more pressing current issues. Justice largely remains frozen.
Kamara’s trial highlights the importance of establishing a mechanism in Liberia so that other people who stand accused can be brought to justice and victims and survivors can receive justice no matter the time or place.
In the case of Kunti Kamara, cooperation between the French and Liberian governments helped unlock progress. They worked together on a fact-finding mission in 2019 that included crime scene reconstructions to gather evidence – a first for the Liberian government. Civil society has also played an active role. Civitas Maxima, a CSO that helps document international crimes and provide legal representation for victims, filed the complaint against Kamara and is representing several victims. It also helped bring the earlier case against Alieu Kosiah.
Impunity has present-day consequences. It’s dangerous for civil society to work on atrocity crime cases in Liberia. People have received threatening messages, have been followed by associates of those they’re investigating and have been subjected to surveillance. No laws or policies protect civil society carrying out this work.
The Liberian government – and governments of other states where justice for atrocities remains suspended – need to do more to hold perpetrators accountable. For this they need the support of the international community, always quick to move onto the next conflict without ensuring the lessons of previous ones have been learned and at least some wounds have been able to heal. It’s important that justice is done – and seen to be done – internationally, but justice must also be carried out at home.
ICC action on Central African Republic
Another international case currently underway offers further hope. In September, the trial of Mahamat Said Abdel Kani began at the ICC. Said faces charges of crimes against humanity and war crimes committed in the Central African Republic.
Mahamat Said Abdel Kani, suspected of alleged war crimes & crimes against humanity in #CAR, will appear for the first time before the #ICC on 28/01 at 10:00 (CET). How to follow the hearing, info about the case, and more ⤵ https://t.co/WTJ28AYFoe— Int'l Criminal Court (@IntlCrimCourt) January 26, 2021
In 2013, the Séléka rebel alliance took control of much of the country, including the capital, Bangui. The group, predominantly made up of Muslims, slaughtered Christians, supporters of the ousted president, François Bozizé, and anyone else who got in their way. They conducted a campaign of mass executions and rape of civilians.
Said is a former Séléka commander. He’s so far the highest-ranking person to face accountability. The ICC has also issued an arrest warrant for his superior, Noureddine Adam, believed to be a fugitive in Sudan. A trial of two members of the Anti-balaka militia, which waged violence in opposition to Séléka and targeted Muslims, is also underway.
Conflict and insecurity continue to dominate the landscape of the Central African Republic. There are numerous active armed groups, some evidently associated with former president Bozizé, and violence flared around the disputed December 2020 elections, in which Bozizé was barred from standing.
A UN-backed Special Criminal Court was established in 2018 to investigate and prosecute serious human rights violations committed since 2003 but it has faced serious difficulties: arrest warrants it has issued have not been acted upon and the court is accused of lacking transparency. Meanwhile established domestic justice processes have ground to a halt.
Human rights abuses continue to be committed by all sides – rebel groups, government forces and Russian mercenaries – and impunity is widespread. In such circumstances, ICC investigations and trials can offer a valuable corrective to the failings of domestic-level justice. While ICC actions may be insufficient given the scale of what is needed – many perpetrators of atrocities continue to walk free –they at least show that impunity can be challenged.
ICC part of the patchwork
The ICC was designed as a court of last resort, there to step in to investigate and prosecute people for atrocity crimes when national and regional justice mechanisms are incapable of acting or fail to do so. It can act when one of its member states asks it to, or when the UN Security Council refers a case to it. Its lead official, the Prosecutor, can also instigate investigations in cases involving a member state or a non-member state that has accepted its jurisdiction. Most referrals come from member states, including the current Central African Republic case.
In the 20 years since the Rome Statute came into force, 50 people from a range of countries have been publicly indicted. Several of those indicted have managed to evade being handed over to the ICC’s headquarters at the Hague, and others have died before this could happen. Others still await or are currently on trial. So far the Court has convicted 10 people.
Clearly, the wheels of international justice move slowly. And the really powerful people accused of crimes have managed to evade serious scrutiny: the arrest warrant against al-Bashir remains pending while cases against Kenya’s then-president and vice president, Uhuru Kenyatta and William Ruto – Ruto is now Kenya’s president – were dropped amid accusations of witness intimidation and bribery and withholding of evidence.
The ICC remains reliant on the cooperation of states. The refusal of several major powers to join the ICC – including China, Russia and the USA, three of the UN Security Council’s five permanent members – means it must take a patchwork rather than a universalist approach, working with the states that are members or accept its jurisdiction. This has meant many of those investigated and indicted have been from African states, something that has been a point of contention between the ICC and Africa’s leaders over the years.
But the footprint of international justice can be extended. States that claim to uphold human rights norms should back their words with action by joining and cooperating with the ICC. The same goes for the principle of universal jurisdiction. A few states have passed specific laws, mostly in response to joining the ICC. More states need to enact such laws – and apply them.
There’s a complementary role for these different pathways to justice. The ICC must keep functioning as a global court of last resort, including when other systems of justice don’t act for political reasons. It’s vital but on its own it can’t be enough, and must be complemented by states taking action under the universal jurisdiction principle and the creation of special courts with the UN’s assistance, including in the case of Liberia, as part of a still-developing architecture of international justice.
Multiple building blocks are needed to help create a world free of impunity. Until then, many who deserve to be held to account will escape justice, and victims will be denied redress. But each trial, such as those currently underway in Paris and the Hague, offer hope that this can change.
OUR CALLS FOR ACTION
States should pass universal jurisdiction laws and use them to prosecute the perpetrators of atrocity crimes.
States that are not members of the International Criminal Court should ratify the Rome Statute.
The Liberian government should commit to establishing a war crimes court and investigating suspected perpetrators.
Cover photo by Peter Dejong/Reuters via Gallo Images