Mohammed Jabbateh Conviction: A Human Rights Trial Cloaked in Immigration Crimes

On Oct. 18, a U.S. federal jury issued the first criminal conviction involving mass atrocities committed during Liberia’s First Civil War in the 1990s by a ULIMO rebel commander. Following a nine-day jury trial in the Eastern District of Pennsylvania, Mohammed Jabbateh, aka “Jungle Jabbah,” was found guilty of two counts of fraud and two counts of perjury related to statements he made during immigration interviews and on documents after entering the United States from Liberia. (See our prior coverage of the trial here).

According to the indictment, Jabbateh provided false information to U.S. immigration authorities and procured asylum in the U.S. through fraud and wilful misrepresentation of material fact by failing to disclose his role as a high-ranking rebel commander during the Liberian civil war, and by withholding information about his criminal actions while in that position. Jabbateh was a commander of the United Liberation Movement of Liberia for Democracy (ULIMO), a rebel group that fought against Charles Taylor’s National Patriotic Front of Liberia in a bid for power, following the assassination of former Liberian President Samuel Doe. The protracted armed conflict, known as Liberia’s First Civil War, lasted from 1990 to 1996 and resulted in the death of 150,000 people and the displacement of a majority of the country’s population. Each side of the conflict has been accused of serious crimes, and Jabbateh himself was accused of perpetrating sexual slavery; rape; torture, murder, maiming, and enslavement of civilian non-combatants; conscription of child soldiers; cannibalism, and other serious violations of international law committed while commanding his ULIMO forces.

Although he was convicted for immigration-related offenses, the trial itself included witnesses of atrocities committed by Jabbateh and the men under his command in Liberia. Upon conclusion of the trial, the jury found that Jabbateh lied to immigration officials when he denied having ordered, incited, assisted or otherwise participated in the killing of any person because of race, religion, nationality, ethnic origin or political opinion. A sentencing hearing is scheduled for Jan. 18, and Jabbateh faces up to 30 years in prison.

Jabbateh’s prosecution for immigration-related crimes, rather than war crimes or torture, is typical. The most frequently used method in the U.S. to pursue criminal accountability for serious violations of international law, or atrocity crimes committed abroad when the perpetrator is present here, is through violations of U.S. immigration laws. Immigration proceedings fill the void left by the constraints in the U.S.’ extraterritorial criminal statutes that address atrocity crimes and provide valuable redress to victims who often have no other avenues for a just outcome. 

Indeed, Jabbateh was charged with immigration-related crimes as opposed to war crimes or other related violent crimes because the substantive statutes were foreclosed for various reasons. For example, the War Crimes Act, enacted in 1996, provides that an offense is prosecutable only if the perpetrator or the victim is a U.S. national or member of the U.S. armed forces. The statute does not apply retroactively and therefore any acts before 1996 are excluded. Jabbateh, who is not a U.S. national, held his position as commander of the ULIMO rebel group from 1990 to 1994. Together these facts fail to satisfy the statute’s nationality and temporal requirements.

Unlike the War Crimes Act, the Torture Act and the Child Soldiers Accountability Act, two additional federal statutes criminalizing violations of international law outside the U.S., provide jurisdiction over any individual, irrespective of the nationality of the victim or alleged offender, as long as the alleged offender is present in the United States. However, the Torture Statute and the Child Soldiers Act came into force in 1994 and 2008, respectively, and therefore do not cover Jabbateh’s period of criminality. Lastly, the Torture Statute does not apply to non-state actors absent some state action, such as a rebel commander, however serious the crime, thus marking another gap in the United States’ ability to hold perpetrators of serious crimes accountable for the substantive violations of international law. Such impunity gaps leave prosecutors faced with evidence of war crimes and crimes against humanity with an “Al Capone” option: having to convict on lesser offenses, such as immigration-related crimes, rather than the serious crimes themselves.

The chance for domestic prosecutions in Liberia is also quite slim. In Liberia, recommendations for prosecution of alleged war criminals by the Truth and Reconciliation Commission have gone unanswered, and prosecutions in Liberian courts are currently not possible due to the political influence of alleged war criminals, insufficient judicial capacity, and the lack of prosecutorial independence to try mass atrocity crimes. Additionally, none of the existing international tribunals is mandated to prosecute Liberia’s past crimes.

Nevertheless, justice for Liberian war crimes is possible in foreign states when the alleged perpetrators are present on their soil, through principles of universal jurisdiction (civil and criminal) and statutes that directly apply to the substantive violations. Even when these laws don’t apply for whatever reason, countries can, at a minimum, pursue immigration-related offenses and ensure that perpetrators of human rights violations and war crimes are not able to seek haven.

The U.S. Immigration and Nationality Act (INA) contains several provisions that apply to perpetrators of human rights and war crimes violations. The gamut of immigration actions available under the INA for these abuses ranges from the denial of immigration relief, such as entry or visas, to removal and even criminal prosecution for fraud. Denial of immigration relief is frequently due to the “persecutor bar,” which erects a mandatory exclusion of aliens who have committed acts of persecution. Removability is based on grounds such as material misrepresentations of facts in immigration applications, past involvement in human rights offenses, or “crimes involving moral turpitude” such as torture, extrajudicial killing, genocide, and recruitment of child soldiers. Human rights abusers can also face criminal prosecution for committing fraud or making false statements in their visa, passport, or naturalization applications related to these offenses.

Although the terms “genocide,” “war crime,” or “crimes against humanity” are not explicitly used, the INA includes mandatory bars to asylum that help guarantee applicants who have been involved in crimes of that nature are not granted asylum. Most frequently used is the provision which precludes asylum for aliens that:

“ordered, incited, assisted or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.”

Case law has confirmed that this list of forms of participation includes superior or command responsibility. Cases of fraud and making false statements in immigration documents are brought before U.S. criminal courts (not immigration judges). Statutes of limitations can prevent the possibility of pursuing criminal charges if the fraud is not discovered before they expire. In cases like Jabbateh’s, where the individual filed an application containing false statements and then subsequently lied under oath to immigration authorities, the statute of limitations is tolled from the last act of fraud.

In criminal prosecutions of immigration fraud, such as Jabbateh’s, evidence of the defendant’s’ international criminal acts is used to show that they lied on their immigration applications. This provides many victims with the first opportunity to testify about the horrors they endured, irrespective of the fact that the defendant is not being tried for war crimes. Ultimately, by denying defendants immigration benefits and exposing their criminal conduct, immigration cases provide at least some degree of justice for victims. Throughout the course of the Jabbateh trial, the jury heard from 20 Liberian citizens who testified about the harms they directly or proximately suffered due to the defendant’s acts, as well as testimony from immigration officials who had contact with Jabbateh. The case provided many victims, most of whom traveled from Liberia for the trial, their first opportunity to testify about the atrocities that occurred during the war.

The Jabbateh trial is the first of many cases to confront individuals accused of committing crimes during Liberia’s civil wars, using the various laws that are now available to end impunity for such crimes. Most similar to the Jabbateh case are the pending charges in Philadelphia against Jucontee Thomas Woewiyou, a former leader of the National Patriotic Front of Liberia (NPFL), who is indicted for lying on his application for U.S. citizenship. Additionally, three other Liberian cases are moving forward internationally under universal jurisdiction laws: the trial of NPFL Commander Martina Johnson in Belgium, ULIMO Commander Alieu Kosiah in Switzerland, and Agnes Reeves Taylor, Charles Taylor’s ex-wife, in the United Kingdom. Each was arrested for allegations of war crimes, crimes against humanity or torture.

The views expressed herein are those of the author and do not reflect the organization for which she works. 

Image: Getty

 

About the Author(s)

Alexandra Insinga

Legal Fellow with the Center for Justice & Accountability, Former Legal Trial Monitor with Civitas Maxima for the Mohammed Jabbateh Trial