In addition to discussing developments at the international criminal tribunals, addressed in Parts I and II of this series, the IHL Dialogs also offered insights into human rights cases moving forward in domestic courts. Some of these cases involve ICC situation countries, reflecting the phenomenon of complementarity. Notwithstanding the Supreme Court’s judgment in Jesner v. Arab Bank, in which the Court ruled that it would be inappropriate to extend Alien Tort Statute (ATS) liability to foreign corporations absent further action from Congress (see our online symposium here), a number of human rights cases continue to move forward in U.S. courts. These cases join dozens of other human rights cases proceeding in foreign courts around the world.
Haiti: A U.S. District Court in Massachusetts recently ruled that torture, murder, and arson claims can proceed against former Haitian mayor Jean Morose Viliena. The plaintiffs are Haitian media activists and human rights defenders who survived a campaign of violence led by Mayor Viliena and his political supporters. Although the ATS crimes against humanity allegations were dismissed on extraterritoriality grounds, claims under the Torture Victims Protection Act (TVPA) and arson claims under Haitian law remain in the case via supplemental jurisdiction. This civil case in the United States is all the more important because a criminal case against Viliena in Haiti involving charges of murder, battery, and property destruction has been stalled. Indeed, Viliena fled to the United States once these criminal charges were filed against him. He became a legal permanent resident and managed to obtain a license to be a school bus driver, a position that presumably requires a background check. The day after the U.S. civil case was filed, plaintiff Nissage Martyr died suddenly in Haiti under mysterious circumstances. Controversially, the results of the autopsy have not been made public. Nissage’s son has been substituted as a plaintiff in the U.S. case.
Syria: A judgment is expected any day in the civil suit against Syria under the Foreign Sovereign Immunity Act, Colvin v. Syrian Arab Republic. (See our coverage here). This case is part of a number of Syrian accountability efforts (note this National Public Radio story) moving forward around the world given that access to the International Criminal Court remains largely blocked. Marie Colvin, the intrepid war correspondent who was assassinated in Syria for her coverage of the war, is featured in a new film, Under the Wire.
With the help of my ace research assistance Rohan Jain, of the West Bengal National University of Juridical Sciences, I have been surveying domestic cases involving the war in Syria that are pending in domestic courts around the world. What we see is that most cases more often take the form of national security prosecutions against nationals who traveled to the front to join an armed group, foreign nationals who managed to slip into the country from the war zone, or nationals who provided forms of material support to others engaged in combat. States are charging various manifestations of terrorism, weapons violations, and membership in a terrorist organization (see, e.g., the Hamza B. case). The Harun P. case in Germany is instructive. The defendant, a German citizen, traveled to Syria in 2013 and joined a militant group with whom he participated in an attack on a prison in Aleppo. After leaving the group, he was arrested in the Czech Republic and extradited to Germany. He eventually cooperated with the authorities and was sentenced to 11 years’ imprisonment.
Fewer states are prosecuting war crimes cases, stricto sensu. Most of these targets for prosecution appear to be members of the rank-and-file rather than individuals in a leadership position. States are building mutual legal support networks and benefiting from the work of documentation groups, such as the Commission on International Justice and Accountability (CIJA).
Liberia: The civil wars in Liberia (1989-2003) are generating a number of domestic cases in U.S. and other foreign courts, even as that country renews a national dialogue about its unfinished transitional justice process. In the United States, cases involving Liberian perpetrators have resulted in steep sentences for individuals charged with immigration offenses (for intentional misstatements on visa applications, for example; see our coverage here). Many of these defendants cannot be charged for the underlying substantive crimes because the acted prior to the enactment of the relevant statute. Their immigration offenses, however, are more recent and are ongoing. For example, a U.S. jury convicted Mohammed Jabbateh (a.k.a. “Jungle Jabbah”) for immigration fraud; he received an unprecedented 30-year sentence. We await sentencing this fall in the related case involving Thomas Woewiyu for his role in Operation Octopus. Woewiyu was convicted of lying during immigration proceedings and could face 110 years’ imprisonment. Operation Octopus—a multi-tentacled offensive launched by Charles Taylor to take Monrovia—led to the death of five humanitarian workers form the United States.
Meanwhile, across the pond, Agnes Reeves Taylor—the second wife of Charles Taylor—is coming up for trial this fall in a London court. She is charged with conspiracy to commit torture while a part of her husband’s National Patriotic Front of Liberia (NPFL). Likewise, Martina Johnson, head of heavy artillery for Charles Taylor, will be tried in Ghent, Belgium, under principles of universal jurisdiction. Another Liberian, Alieu Kosiah, a commander from the opposing United Liberation Movement of Liberia for Democracy, will be prosecuted in Berne, Switzerland, for ordering the massacre of civilians. And just this week, France intiated a crimes against humanity case against a naturalized Dutch citizen, Kunti K.
These Liberia cases have all been spearheaded by the doggedly creative Civitas Maxima, working with other organizations such as the Center for Justice & Accountability (CJA) and the Global Justice Research Project in Liberia, the latter of which is under the leadership of the indomitable Hassan Bility. CJA has also launched a civil case in the United States against Moses Thomas for his role in the Lutheran Church Massacre when he headed Liberia’s brutal Special Anti-Terrorism Unit. Collectively, these efforts in foreign courts have galvanized a debate in Liberia about the country’s truncated transitional justice process and renewed calls for the establishment of a hybrid tribunal.
Guatemala: In Guatemala, although the Efraín Ríos Montt case never made it to a final judgment; other cases of the dirty war era are moving forward in domestic courts. (Montt—one of a handful of heads of state to be charged with genocide—died in April 2018). These cases are made possible by a collaboration between the Guatemalan Attorney General’s Office and the United Nations-backed International Commission against Impunity in Guatemala (CICIG). In addition to human rights cases, CICIG has also prosecuted a number of corruption cases, including against Former President Otto Pérez Molina and former Vice-President Roxana Baldetti. CICIG recently opened an investigation into potential campaign financing violations committed by the current President, Jimmy Morales, in connection with his 2015 campaign. Morales has fought back, attempting to expel the lead commissioner Iván Velásquez of Colombia (a move that was blocked by the courts). Even more troubling, he has taken steps in the last few days to shut CICIG down completely by failing to renew its mandate and blocking the issuance of visas for its personnel.
Democratic Republic of Congo: A mobile military court in the Democratic Republic of the Congo recently convicted 11 soldiers of crimes against humanity (murder and rape) for their involvement in the horrific Kivumu child rapes. The court handed down life sentences, including a provincial lawmaker charged under a command responsibility theory of liability. The perpetrators reportedly were told that the blood of virgins would make them invincible in battle. Although the case proceeded in the Congolese military justice system, it applied international criminal law jurisprudence as binding precedent. This summer, the High Military Court upheld the convictions. The victims also received reparations. The rapes were brought to light by, among others, the courageous Dr. Denis Mukwege, who has helped heal thousands of sexual violence survivors in the DRC, once called the “rape capital of the world.”
Uganda: As the Dominic Ongwen case unfolds before the ICC, parallel proceedings are slowly underway before a special division of the Ugandan High Court, the International Crimes Division (ICD), against another former LRA member, Thomas Kwoyelo, who has been in Ugandan custody since 2008. His confirmation of charges hearing has been postponed several times, most recently for lack of funds apparently. Kwoleyo unsuccessfully applied for amnesty under a Ugandan law that is meant to encourage LRA members to defect and renounce violence. Like Ongwen, Kwoyelo is also a forcibly-conscripted child soldier turned accused. An example of complementarity in action, the ICD is mandated to try the perpetrators of war crimes and crimes against humanity, including commanders of the LRA and other rebel groups. Proposals for the ICD emerged amidst controversy surrounding Uganda’s self-referral to the ICC.
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