This month, the Swiss Federal Court at Bellinzona will hold the first ever trial of a Liberian citizen for war crimes committed during the African country’s horrendous civil wars. Victims will be represented by the Geneva-based lawyers group Civitas Maxima, which played a major role in bringing victims to give testimony in a major case just completed in the United States (See the Global Geneva article by William Dowell on how this small group of lawyers has taken on perpetrators of war crimes and crimes against humanity).
On 8 September 2020, the United States Court of Appeals for the Third Circuit in Philadelphia upheld the conviction and 30-year sentence passed on Mohammed Jabbateh, the former commander of a Liberian armed group accused of serious human rights violations. A Philadelphia jury had convicted him of fraud and perjury for lying on his U.S. immigration application about his connection to war crimes. Jabbateh, better known by his nom de guerre “Jungle Jabbah”, used to be part of the United Liberation Movement of Liberia for Democracy (ULIMO), one of the main factions of the first Liberian civil war (1989-1997).
Liberia’s brutal civil wars were waged along both ethnic and political lines: members of the Krahn and Mandingo tribes were seen as loyal to the government in Monrovia while Samuel Doe, president at the time and a member of the Krahn tribe, accused members of the Gio and Mano tribes of disloyalty and sedition.
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Government persecution of these two tribes included some of the most violent episodes of the war, including what became known internationally as the Monrovia Lutheran Church massacre (mainly of civilians from the Gio and Mano tribes) in Monrovia on 29 July 1990. The massacre was perpetrated by government forces seven months after the 1989 invasion of Liberia by the Libyan-funded rebel National Patriotic Front of Liberia (NPFL).
Such violence proved to be a valuable recruitment tool for the NPFL, led by U.S.-educated Charles Taylor, a former member of Doe’s cabinet. Before the invasion, Taylor had become a protégé of Muammar Gaddafi in Libya, where he received extensive training. In 1990, a senior NPFL commander, Prince Johnson, broke away from the group and formed an independent rebel force that took Monrovia, depriving Taylor of outright victory.
Decades of murder, rape and pillage
Following Taylor’s 1989 “Christmas invasion” of Liberia and the brutal execution of Doe by Johnson’s forces, a number of Doe’s former soldiers and supporters banded together to create ULIMO. Initially, the founders of ULIMO claimed to fight on behalf of Krahns and Mandingos against the bloody onslaught of Charles Taylor’s NPFL. When ULIMO forces entered western Liberia in September 1991, they responded to the NPFL’s campaign of murder, rape and pillage with an equally ruthless campaign of terror.
As Liberia sank further into chaos, with seven factions competing violently to control the economy’s resources, the initial strategic goals of the warring sides sank into a muddle. Warlords preyed on the defenceless civilian population. Armed groups became almost indistinguishable from each other and all sides committed rapacious looting and mass killings. It is in this context that Mohammed Jabbateh is accused of having ordered the murder, torture, rape, sexual enslavement and maiming of civilians. (See Christophe de Ponfilly’s and Frederic Laffornt’s 1990s BBC2 documentary on Frontline Doctors about Médecins sans Frontières, which includes coverage of Liberia’s civil war by Global Geneva’s Edward Girardet)
U.S. Immigration: Jabbateh concealed his role in Liberia’s civil war
Following the end of the first Liberian civil war and Taylor’s rise to power in the 1997 general election, Jabbateh applied for U.S. asylum and, later, permanent residency. During the process, he lied by answering “No” when asked if he had “ordered, incited, assisted or otherwise participated in the killing of any person because of race, religion, nationality, ethnic origin or political opinion”. Jabbateh also concealed his role as a battalion-level commander in an armed faction and tried to characterize his role as largely clerical and administrative.
The ruse worked. Jabbateh settled quietly in a Philadelphia neighbourhood known as “Little Liberia” because of its concentration of Liberian-American immigrants. There, living amongst some of the people who were victimized by the very armed group he belonged to, Jabbateh established a successful international shipping business and became the father of five children in the U.S. At the same time, he tried to obtain immigration visas for some of the seven other children he had left behind in Liberia and other parts of Africa.
While the brutal dictatorship of Charles Taylor plundered Liberia, Jabbateh led a tranquil life of luxury in Pennsylvania. After a second civil war ousted Taylor in 2003, Liberia was left completely devastated, its ruins haunted by the shadow of the former warlords, many of whom retained positions of power.
Ranking last on the UNDP’s Human Development Index, Liberia had the highest child mortality rate in the world and an unemployment rate of 85 per cent. For years, even the capital, Monrovia, did not have full access to running water or electricity. Many former warlords chose the path of exile, using the wealth they had amassed to buy themselves new lives in Europe and North America.
Liberia’s social fabric had been shredded by the war. Nevertheless, fearfully at first, but then with growing confidence, a burgeoning Liberian civil society began to demand accountability for the ghastly crimes committed during the wars. The protagonists of this nascent quest for accountability had an arduous journey ahead. Indeed, economic and political power remained largely in the hands of former commanders, who wanted to ensure that impunity remained the norm, if not the culture. Nevertheless, undeterred by such obstacles, the movement demanding justice for the victims of the war grew exponentially. It eventually coalesced around one man: Hassan Bility, one of the few Liberian journalists to have remained active in the country during the civil wars.
Editor-in-Chief of “the Analyst”, one of Liberia’s leading newspapers during the wars, Bility was an impassioned critic of the abuses committed by all armed factions.
In retribution for his incorruptible reporting, he was kidnapped by Taylor’s security apparatus in June 2002 and viciously tortured. During his seven-month detention, he was subjected to electric shocks, nearly drowned, and had his shoulders dislocated. Bility would very likely have died if it had not been for international pressure on the Taylor regime, which secured the journalist’s release (Editorial note: In 2011, Charles Taylor was sentenced to 50 years imprisonment for crimes committed by his forces in Sierra Leone. His 2013 appeal was rejected and he is now serving time in a British jail under an agreement with U.K. authorities).
In 2012, less than a decade after the end of the war, Bility founded the Global Justice and Research Project (GJRP), a non-governmental organization seeking justice for the victims of war crimes committed in Liberia.
The birth of the GJRP was possible because of the concurrent establishment of a sister-organization based in Geneva, Civitas Maxima (CM). Founded by Swiss human rights lawyer Alain Werner, CM is a network of international lawyers and investigators working with victims of war crimes and crimes against humanity. Its objective is to bring the perpetrators of international crimes to justice.
Werner represented victims at the trials of Kaing Guek Eav, alias “Duch”, before the Extraordinary Chambers in the Courts of Cambodia and of Hissène Habré before the Extraordinary African Chambers in Senegal. He also participated in the trial of Charles Taylor before the Special Court for Sierra Leone, the first trial of a head of state by an international tribunal since the Nuremberg trials of Nazi war criminals after World War II.
The principle of complementarity: legal priority of states on atrocity crime cases
Werner soon learned that international justice can be exceedingly slow and is often paralyzed by political considerations. The surest path to justice for victims of international crimes, he realized, is the principle of complementarity, according to which states, rather than the International Criminal Court (ICC), have priority in proceeding with international crime cases within their jurisdiction.
In the case of Liberia, CM and the GJRP set out to hold exiled Liberian war criminals accountable for their past atrocities before competent foreign courts. These cases are often complex and involve foreign nationals in countries that have vastly different jurisdictions and legal cultures.
Liberia’s Parliament-enacted Truth and Reconciliation Commission (TRC) which filed its final report in 2009, recommended that a special war and economic crimes court be created to prosecute civil-war era commanders responsible for human rights violations.
Verdicts often set new precedents and can lead to important jurisprudence in the legislations of countries where the cases are tried.
Despite the inherent difficulties, the staff of CM has contributed to no less than eight criminal cases related to international crimes in six different countries (United States, United Kingdom, Switzerland, France, Belgium and Finland).
Initially, such a court seemed to be dead on arrival. Most of Liberia’s political establishment was against implementing the TRC recommendations. However, after the CM and the GJRP partnership secured the first arrests of Liberian war criminals living abroad and trials followed in foreign courts, the attitude in Liberia began to change. The arrests and trials had a tremendous impact in Liberia and resonated with many sectors of Liberian society.
As of today, a combination of bottom-up grassroots demands from Liberian civil society and international pressure has slowly shifted the position of the Liberian Government. In September 2019, current Liberian President George Weah acknowledged calls for the creation of a war crimes court before the 74th UN General Assembly. A few days later, 51 of the 73 members of the Liberian House of Representatives signed a resolution calling for the creation of a war crimes court. According to some Liberian pundits and political commentators, the creation of a special war crimes court could be only years away. Such a mechanism would allow for Liberian war criminals to be tried in Liberia, an outcome that the UN and major human rights organizations are actively promoting.
Liberia’s war crimes victims: seeking to end impunity
This extraordinary momentum is due in no small measure to the well-publicized arrests of Liberian war criminals living abroad. These arrests made the perspective of justice tangible for ordinary Liberians. They also emboldened advocates of transitional justice: those yearning for accountability were no longer afraid to voice their demands out loud.
The investigation of Jabbateh in the United States
Meanwhile, in the United States, it was an open secret in the intelligence community that Liberian war criminals were living under their real identities in west Philadelphia. Linwood Wright and Nelson Thayer, assistant U.S. attorneys in Philadelphia, were determined to go after them. Thayer had previously served as a war crimes prosecutor with the International Criminal Tribunal for the former Yugoslavia, in The Hague. However, without the assistance of the GRJP and CM, gaining access to witnesses living 6,000 kilometres away in rural Liberia would have been extremely difficult. Thus, a few months after their creation, both organizations started working with the U.S. Human Rights Special Prosecutions Section and the U.S. Attorney’s Office for the Eastern District of Pennsylvania.
Prosecuting war criminals living on U.S. soil is complicated. The U.S. lacks many of the universal jurisdiction tools at the disposal of European authorities. Attempts to provide the U.S. government with a more robust framework to prosecute war criminals are caught in the partisan crossfire between Republican representatives hostile to international law and Democrat representatives fearful of stigmatizing immigrant communities.
Consequently, there have been few war crime cases litigated by the U.S. Human Rights Special Prosecutions Section (HRSPS). Often, as in the case of Liberian rebel leader George Boley, rulings do not result in jail time but in deportation. While European war crimes units prosecute dozens of suspected perpetrators every year, the last case litigated by the HRSPS under human rights statutes dates back to 2009. For Civitas Maxima and the Wright-Thayer team, it became clear that attempting to prosecute Mohammed Jabbateh directly for war crimes committed in Liberia would be virtually impossible. It would have to be for immigration fraud (See video on Jabbateh’s court case).
On 10 March 2016, Jabbateh was indicted and charged by the U.S. Attorney’s Office for the Eastern District of Pennsylvania with two counts of fraud in immigration documents and two counts of perjury stemming from statements he made in connection with his applications for asylum and later for legal permanent residence. A month later, in the early morning of 13 April 2016, Jabbateh was arrested in his Delaware County home in Lansdowne, Pennsylvania.
Jabbateh’s trial began on 2 October 2017, presided over by the Honorable Judge Paul S. Diamond. In order to prove that Jabbateh had provided false information to U.S. immigration authorities and that he had procured asylum in the U.S. by fraud, the prosecution had to demonstrate that he was a high-ranking rebel commander during the first Liberian civil war and had committed criminal acts while in that position. Twenty Liberian witnesses were flown in to testify before the court.
Most of the witnesses had never left the rural counties they were born in, much less travelled abroad. For them, travelling to the U.S. was an intimidating, almost surreal, experience. Nevertheless, as they marvelled at the streets and skyscrapers of Philadelphia, the witnesses were determined and eager to be heard, demonstrating admirable courage and tenacity. It was the first time any court inquired about the atrocities they had seen and suffered. On the 4th of October, the first witnesses were called to give evidence. Their testimonies told stories of unspeakable horror which left the jury of 12 Philadelphians shaken, and sometimes in tears.
One witness recalled how Jabbateh had placed his gun between her four-month pregnant sister’s legs, in the vagina, before pulling the trigger and killing her. Jabbateh had then ordered a child soldier to guard the body as it lay in the street to ensure that she was left to rot.
A second witness described how Jabbateh’s men would put tires over prisoners’ shoulders, pour gasoline on them and light them on fire, burning the prisoners to death.
A third witness, a woman in her 60s, explained how Jabbateh had ordered his men to kill her husband, a village chief. The men had then cut out her husband’s heart and forced her to cook it for Jabbateh to eat.
“Make yourself strong, ma,” the teenage rebel who delivered the order had said. “If you don’t do it, he’ll kill us both.”
Giving testimony in front of a court audience, a mere three metres from their tormentor, was emotionally overwhelming for some of the victims and their relatives, who on several occasions had to take breaks to regain their composure.
Jabbateh said nothing throughout the hearing, staring ahead as victims and witnesses shared their testimonies.
In turn, the deliberation of the jury was brief: after spending about five hours discussing the case, it unanimously found Jabbateh guilty on all counts.
This was the first ever trial against a ULIMO commander. It was also the first time that victims had testified in a trial about crimes committed during the first Liberian civil war.
Immigration-related charges are becoming the go-to prosecution strategy for war criminals caught in the U.S. But while charging immigration violations creates an opening for prosecutors to hold perpetrators accountable where they might otherwise evade justice, doing so challenges conventional federal sentencing practices. It pushes the question of sentencing for these cases into largely uncharted territory.
On April 20 2018, Mohammed Jabbateh was handed a prison sentence of 30 years, the maximum he could have received, and one of the longest sentences for immigration fraud in U.S. history. During an hour-long hearing, judge Paul S. Diamond explained the legal basis for his sentencing: “I want to be clear,” Diamond cautioned. “I am departing [from federal sentencing guidelines] not based on the horror of the atrocities the defendant committed abroad. Rather, I am departing based on the egregiousness of his lies … and their effect on our asylum laws and immigration system.”
An unsuccessful appeal
Jabbateh subsequently appealed his conviction and sentence. In September 2020, the U.S. Court of Appeals for the Third Circuit in Philadelphia rejected his appeal – upholding his conviction and 30-year prison sentence. The Appeal Court’s decision describes Jabbateh’s actions as being carried out “with bone-chilling cruelty”, and stated that: “The horrors recounted at trial, retold only in part here, are indescribably tragic. […] None, including the jury that weighed impartially the mountain of evidence marshalled against Jabbateh, would view his conduct as anything less than monstrous.”
Robert A. Zauzmer, Chief of Appeals for the U.S. Attorney’s Office in Philadelphia, explained the decision as follows: “The point that’s being made here is, if you’re a war criminal like this and a leader of war criminals like this, then you face a significant sentence for abusing U.S. immigration law. The judge wanted to communicate to the abusers of our world that we are not your refuge.”
Hassan Bility sees this case as a major success for victims of Liberia’s civil wars. “This has re-enforced the faith of the victims in the international justice system. It should also serve as an encouragement to all Liberians to stand up for justice and fight impunity”, he declared.
Alain Werner added: “The work of the U.S. prosecutors on this case was extraordinary. We hope that in the future these types of crimes can be prosecuted in the U.S. for what they are – war crimes and crimes against humanity.”
The hope for a Liberian war crimes court
In the Liberian localities which had been occupied by Jabbateh’s battalion, news of his conviction led to public jubilation and rejoicing. Memories of Jabbateh’s atrocities were still fresh in the villagers’ memories.
The 60-year old widow whose husband had been murdered and mutilated by Jabbateh said that testifying at the trial gave her a measure of peace for the first time since the ULIMO attack on her village. She still grieves for her deceased husband “but not like before the trial”. Her son, whom she was carrying when her husband was killed, graduated from high school last year – a not-so-common feat in largely illiterate rural Liberia. “God is great”, she says with a sigh.
In Geneva, Civitas Maxima’s team continues the fight to hold perpetrators of war crimes and crimes against humanity accountable before national and international courts. Eighteen months after Jabbateh’s conviction, CM’s work also contributed to bringing to trial another Liberian perpetrator living in the U.S., Thomas Woewiyu, former defence minister under Charles Taylor, who was found guilty in 2018 of eleven counts of immigration fraud and perjury.
A new trial in Bellinzona
This month, Civitas Maxima’s lawyers will directly represent Liberian victims in the trial of ULIMO commander Alieu Kosiah, who will be tried for war crimes before the Swiss Federal Criminal Court in Bellinzona, the first war-crimes trial in held in Switzerland since the Second World War.
Alieu Kosiah was the commander of a faction of ULIMO between 1993 and 1995. He allegedly directed and participated in the commission of systematic killings, rapes and enslavement of civilians in the county of Lofa, eastern Liberia. In 1997 Kosiah obtained a permanent residency permit in Switzerland.
Seven persons living in Liberia, assisted by Civitas Maxima, alerted the Swiss Attorney General of Kosiah’s alleged crimes and filed a complaint against him in 2014. Switzerland has jurisdiction over the alleged crimes on the basis of universal jurisdiction: After ratifying the Rome Statute of the International Criminal Court (ICC) in 2001, Switzerland incorporated war crimes provisions into the Swiss Criminal Code.
Kosiah was arrested in Bern on 10 November 2014 and has been in custody ever since. On 22 March 2019, some four years after deciding on an investigation, the Office of the Attorney General presented an indictment against Kosiah to the Federal Criminal Court and a trial was first set for April 2020 but later postponed till November.
During the investigation, victims and witnesses accused Kosiah of numerous crimes : committing acts of sexual violence, recruiting child soldiers, looting, ordering the forced transport of looted goods and ammunition, ordering the forced labour of civilians in cruel conditions, ordering and committing murder, and committing acts of cannibalism. Alieu Kosiah’s trial will start on 30 November and is due to end on 23 December of this year.
Nakil Bieri works with Swiss lawyer Alain Werner at Civitas Maxima in Geneva, Switzerland.
18 November 2020: Alain Werner recognised for his fight in protecting victims of war crimes. “He identifies flaws in the system and finds new entrepreneurial ways to achieve his goals. He has the potential to transform the judiciary system and increase the efficiency of international justice.” geneva solutions (LINK)