On Sept. 15, 31 years after surviving one of the deadliest civilian massacres during Liberia’s two civil wars, four Liberian plaintiffs achieved justice in U.S. courts. Not only is this a win for survivors and victims of the 1990 Lutheran Church Massacre, but it’s also significant for survivors of other human rights abuses who look to U.S. courts for justice.

In  Jane W. v. Moses Thomas, the Eastern District of Pennsylvania (EDPA) found Col. Moses Thomas of the Armed Forces of Liberia (AFL) liable for the Lutheran Church Massacre under the Alien Tort Statue (ATS) and Torture Victims Protection Act (TVPA). The plaintiffs in the case are four survivors of the massacre. As described previously on Just Security, the attack occurred in July 1990, at the beginning of the two civil wars that consumed Liberia for 14 years. Soldiers from the elite Special Anti-Terrorist Unit of the AFL – led by the defendant, Moses Thomas – executed approximately 600 unarmed men, women, and children who had sought refuge from hostilities in the church.

In March 2021, plaintiffs filed a motion for summary judgment, accompanied by nearly 2,000 pages of evidence and numerous witness statements from survivors, eyewitnesses, journalists, military insiders, and experts. Although Thomas opposed the motion, he failed to produce any of his own evidence sufficient to dispute the record established by the plaintiffs. On Sept. 15, the EDPA granted plaintiffs’ motion for summary judgment, finding undisputed evidence that Thomas was liable for war crimes, crimes against humanity, torture, extrajudicial killing, and attempted extrajudicial killing both because he directed the massacre and under command responsibility. This judgment is historic for Liberians because it establishes, for the first time, a detailed factual record of the Lutheran Church Massacre and confirms that government forces were responsible for the atrocities committed against its civilians. As detailed below, the judgment also advances U.S. law under the ATS and TVPA.

War Crimes Claims

In a somewhat novel approach for ATS cases, the complaint filed against Thomas pled distinct claims for each of the war crimes alleged. Historically, plaintiffs plead ATS claims generally as “war crimes” or “crimes against humanity” rather than specifying the underlying acts that were committed within the context of an armed conflict. In this case, the legal team enumerated the distinct, prohibited acts so as to accurately describe the extent of the harm caused by the massacre. Plaintiffs moved for summary judgment on two war crimes claims: intentionally directing attacks against civilians and intentionally directing an attack on a building dedicated to religion or a charitable purpose. Plaintiffs won on both claims. While these war crimes are part of customary international law and recognized in the Rome Statute and the International Criminal Court’s Elements of Crimes, prior to this decision, they had not been developed in U.S. law as unique claims under the ATS.

In last week’s ruling, the EDPA adopted the ICC’s Elements of Crimes as reflective of customary international law and adopted the elements of the war crime of intentionally directing attacks on civilians without substantive deviation; namely that “(1) the perpetrator directed the attack; (2) the victims were civilians; and (3) the perpetrator intended to attack civilians taking no direct part in the hostilities.” According to the court, plaintiffs proved each of these elements in the detailed factual record and Thomas’ intent “can be inferred from his knowledge of noncombatants sheltering at the Lutheran Church.”

Again drawing on the ICC’s Elements of Crimes, the EDPA held that the elements for the war crime of intentionally directing an attack against a building dedicated to religion or charitable purpose are: “a perpetrator must (1) direct an attack, on (2) ‘one or more buildings dedicated to religion, education, art, science or charitable purposes . . . which were not military objectives,’ and the perpetrator must (3) intend ‘such building or buildings . . . to be the object of the attack.’” The court again cited the detailed factual record in finding these elements were met. Discussing how the object of the attack was a religious or charitable building, the court pointed to evidence that the Lutheran Church continued religious services while civilians sheltered there, and in fact, “Plaintiffs considered the Church a safe place because they assumed AFL forces would not attack a place of worship.” The court likewise found that Thomas’s intent could be inferred from his knowledge that the church was used for religious and charitable purposes.

Crimes Against Humanity Claims

Like with the war crimes claims, plaintiffs also pleaded multiple distinct crimes against humanity claims, asserting that the Lutheran Church Massacre amounted to the crimes against humanity of persecution and extermination. In ruling on their motion for summary judgment, the court agreed – marking the first time that a U.S. court adjudicated the crime against humanity of extermination with specificity. After finding that the plaintiffs established the contextual element for crimes against humanity – “[t]he killings at the Lutheran Church were part of a widespread, systematic, and ethnically motivated attack against Mano and Gio civilians” – and that Thomas intended to further such attacks, the court then detailed how Thomas’s acts constituted persecution and extermination.

Elements of the crime against humanity of persecution were first established in U.S. courts in the District of Massachusetts’s 2013 decision in Sexual Minorities Uganda v. Lively as: (1) denial of fundamental rights, and (2) the intentional targeting of an identifiable group. In Jane W. v. Thomas, the EDPA found plaintiffs and their decedents were deprived of their rights to life and to be free from torture, among others. Citing the International Tribunal for the Former Yugoslavia (ICTY) Appeals Judgment in Prosecutor v. Popović, the EDPA then held that the defendant’s “intent ‘may be inferred from an accused’s knowing participation in a system or enterprise that discriminated on … racial … grounds.”

Again, relying on the ICC’s Elements of Crimes and case law from the ICTY, the EDPA established the elements for the crime against humanity of extermination. The court stated, “[t]his crime requires that (1) one or more persons were killed; (2) as part of ‘a mass killing of members of a civilian population’; and (3) ‘[t]he perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.’” Relying on the ICTY Appeals Judgment in Prosecutor v. Stanišić & Župljanin, the court further held that the large scale nature of an act of extermination – the second element – “is determined on a case by case basis, considering factors like ‘(i) the time and place of the killings, (ii) the selection of the victims and the manner in which they were targeted, [and] (iii) whether the killings were aimed at the collective group rather than victims in their individual capacity.” Here, the Lutheran Church Massacre was an act of extermination because plaintiffs’ decedents were among 600 people killed at the church – “a mass killing that was part of a systematic assault on civilians of Mano and Gio ethnicity.”

The decision in Jane W. v. Thomas is now one of the clearest U.S. decisions regarding civil liability for the war crimes of intentionally targeting civilians and directing attacks on a religious or charitable building and the crimes against humanity of persecution and extermination. Survivors of these specific crimes will now be able to cite to U.S. jurisprudence laying out and analyzing the elements of these violations, rather than attempting to construct them from customary international law. This provides a clearer path forward for pursuing specific crimes against humanity and war crimes under the ATS and enforcing the norms of international law. Particularizing war crimes or crimes against humanity claims under the ATS also enables these cases to serve a more complete narrative function, acknowledging more accurately the harm that both survivors, and the impacted communities from which they are drawn, have endured.

Torture and Extrajudicial Killing Claims

The EDPA’s decision also found that the massacre constituted torture, a holding that advanced U.S. jurisprudence on torture under both the ATS and TVPA in two ways. First, the court found plaintiffs satisfied the “custody or physical control” element because their “freedom of movement [wa]s restrained by a concrete threat.” Here, the court explained, plaintiffs were so restrained because they were “surrounded by … soldiers firing at all angles, actively trying to kill everyone,” and only survived “because they hid amongst corpses” until the morning, fearful soldiers would return. In other words, the court found that torture can be alleged under international law even outside of a traditional “custodial” context – a significant development in U.S. jurisprudence on torture, as torture outside of a more traditional custodial relationship had previously only been recognized indirectly, in judgments denying motions to dismiss in Jaramillo v. Naranjo and Boniface v. Viliena. Second, the court reinforced the jurisprudence that the element of “severe pain or suffering … whether mental or physical” can result from the threat of imminent death. The court found plaintiffs established this element in the context of the massacre because they “faced ‘threat of imminent death’ as soon as the assault on the Lutheran Church began.”

The opinion also re-affirmed that attempted extrajudicial killings are actionable under the TVPA, and attempt liability is established by a “substantial step toward commission of the crime that strongly corroborates the firmness of a defendant’s criminal purpose.” This holding may be influential in two pending cases that allege claims of attempted extrajudicial killing. Aljabri v. Bin Salman bin Abdulaziz al Saud, a suit filed by Dr. Saad Aljabri under the TVPA, alleges that the Crown Prince of Saudi Arabia, Mohammed bin Salman, attempted to assassinate him in Canada in 2018. In Soltan v. El Beblawi, Mohamed Soltan sued the former Prime Minister of Egypt, Hazem Adel Aziz El Beblawi, for attempted killings during Cairo’s 2013 Rab’a Square Massacre. El Beblawi in particular has argued that attempted extrajudicial killing claims are not cognizable under the TVPA, a claim that Jane W. v. Thomas makes more difficult to sustain.

Survivors of the Lutheran Church Massacre achieved a monumental victory in the EDPA. Not only was their cause heard and their claims vindicated, but the decision has further developed the jurisprudence on war crimes, crimes against humanity, torture, and extrajudicial killing under the TVPA and ATS. The decision in Jane W. v. Thomas is now one of the clearest U.S. decisions regarding civil liability for certain distinct war crimes and crimes against humanity claims. It also builds on the jurisprudence under the TVPA and ATS defining the control and severe mental pain or suffering elements of torture relatively broadly and recognizing that attempted extrajudicial killing is a cognizable claim. These legal developments will better enable survivors around the world to seek justice in U.S. courts for atrocities they have suffered. However, foreign courts should not be the only, or even the main, source of accountability for the Lutheran Church Massacre. Moses Thomas is now in Liberia. And so, Liberia must follow through on its duty to investigate the crime and prosecute those responsible, to ensure justice and accountability reach Liberian soil.

Note: The Center for Justice and Accountability and its pro bono co-counsel Catherine Amirfar and Elizabeth Nielsen at Debevoise & Plimpton LLP, along with Blank Rome, LLP, represent the four plaintiffs in this case against Thomas.

Image: MONROVIA, LIBERIA – AUGUST 6, 2003: Hundreds of shell casings litter the ground in Monrovia, Liberia, as negotiators try to reach a ceasefire in the country’s brutal civil war. (Chris Hondros/Getty Images)