The Different types of Jurisdiction
There are several different types of national and international jurisdictions under which alleged perpetrators of international crimes can be investigated, arrested and tried.
Notably these are:
The International Criminal Court (ICC):
The ICC has jurisdiction to preside over genocide, war crimes and crimes against humanity as defined by the Rome Statute, which were committed after 1 July, 2002, provided that said crime was committed by a national of a State that has ratified the Rome Statute or on the territory of such a State. Jurisdiction can also be triggered through a request from the United Nations Security Council or by a State (whether signatory or not to the Rome Statute) asking the Prosecutor to open an investigation of crimes committed on its territory.
As a general rule, national criminal courts have jurisdiction to try all persons, native or foreign, who have committed any crime within their national borders, regardless of the nationality of the victim and the alleged perpetrator.
Some states have provisions in their laws granting their domestic courts jurisdiction to investigate and try all persons, regardless of their nationality and their location or residence, suspected to have committed international crimes, even if such crimes were committed on the territory of another state against foreign nationals. In many countries, however, the exercise of universal jurisdiction in practice is restricted to potential accused persons who are present in their territory and who can realistically be investigated and/or arrested (forum deprehensionis).
Jurisdiction based on active personality:
Most national legal systems provide for jurisdiction over their own nationals suspected of certain international criminal activity, even if the crime(s) were committed outside their own borders against a foreign national.
Jurisdiction based on passive personality:
In a certain number of countries, laws provide for jurisdiction over any person committing certain international crimes against one of its nationals, even if the crime was committed by a foreign national in a foreign country.
When victims of international crimes cannot obtain justice in the country where the crimes were committed (territorial jurisdiction) because of political or other reasons, Civitas Maxima strives to pursue justice on their behalf in other countries, using one of the remaining forms of jurisdiction (universal jurisdiction/forum deprehensionis, active personality and passive personality), or in international legal fora, such as the International Criminal Court (ICC).
In spite of the large number of types of jurisdiction available to domestic and international prosecutors and investigators, recent history shows that prosecution of perpetrators of international crimes remains the exception rather than the rule. Since the end of World War II and up to 2008, it is estimated that the world has experienced 313 conflicts, which have taken the lives of 92 million people, most of whom were civilians. According to Professor Cherif Bassiouni, less than 1% of those responsible for these deaths were tried and legal proceedings were initiated in only 53 of the 313 conflicts (17% of the cases). At the same time, it is worth noting that in 126 of the 313 conflicts mentioned, 40% of the cases, amnesty laws were passed for the crimes committed.
While the ICC has undeniably had a very important impact on the struggle against impunity since its establishment in 2002, it is also true that the number of crimes that the prosecutor has pursued have been marginal in relation to the total number of crimes committed since its establishment. From 2002 to 2011, 9332 communications were addressed to the Office of the Prosecutor; as of today, 23 cases have been brought before the ICC. Only 3 individuals have so far been convicted and 10 accused remain at large.
The Files of Civitas Maxima
The lawyers and investigators mandated by Civitas Maxima are working on three distinct geographic situations:
- Ivory Coast
- Sierra Leone
Civitas Maxima has assembled over 500 files of victims of international crimes in these three countries and has identified certain individuals suspected of committing international crimes and, in several cases, has assisted national prosecutors in initiating criminal cases.
Martina Johnson, Liberian citizen and former artillery commander of the National Patriotic Front of Liberia (NPFL) of Charles Taylor, was arrested in September 2014 in Gent, Belgium, and charged with war crimes and crimes against humanity.
This was the first time ever a Liberian was criminally charged for international crimes allegedly committed during the 1st civil war in Liberia (1989-1996).
Civitas Maxima and the Global Justice and Research Project (GJRP) had documented crimes allegedly committed by Martina Johnson and the NPFL in Liberia and helped victims to file a criminal complaint against her in Belgium with the Belgian lawyer Luc Walleyn. The Belgian authorities conducted a two-year non-public investigation based on the information Civitas Maxima and GJRP collected.
Throughout 2015 the criminal investigation carried on and a decision is likely to be made in the course of 2016 by Belgian judges on whether or not to send Martina Johnson to trial.
Alieu Kosiah, Liberian citizen and former commander of the United Liberation Movement for Democracy in Liberia (ULIMO) was arrested and charged for war crimes in Switzerland in November 2014 and his arrest was made public in January 2015.
This was the first time ever a member of the armed group ULIMO which was fighting against Charles Taylor and the NPFL during the Liberian civil war was arrested and charged.
Civitas Maxima and the GJRP documented crimes committed by ULIMO in Liberia and Alain Werner, Director of Civitas Maxima, filed on behalf of five Liberian victims a criminal complaint against Alieu Kosiah in 2014 in Switzerland after having discovered that he had resided in Switzerland for several years. Alieu Kosiah is suspected by the Swiss authorities to have committed war crimes between 1993 and 1995.
Throughout 2015, the criminal investigation proceeded and a Swiss Judge decided several times to prolong M. Kosiah’s detention. A decision may be made in 2016 on whether or not to send Alieu Kosiah to trial for the alleged crimes committed against Liberian victims in Liberia.
A criminal trial of Alieu Kosiah would be the first time someone would be tried for war crimes in front of a non-military criminal court in Switzerland (the Federal Criminal Court).
Civitas Maxima and the Center for Accountability and Rule of Law (CARL) in Freetown have worked in partnership and documented for several years the accounts of people used by the Revolutionary United Front (RUF) as slaves in the diamonds pits of Kono in the Eastern part of Sierra Leone as part of the trade of so-called « blood diamonds ». A criminal complaint against M. Desaedeleer, US and Belgian citizen, was filed in 2011 in Belgium on behalf of several Sierra Leonean plaintiffs. This complaint prompted an official and non-public federal investigation by Belgian authorities against M. Desaedeleer.
This is the very first time that someone has been arrested and indicted for participation in the trade of blood diamonds, qualified as a war crime – pillage - and crime against humanity – forced labor.
In September 2015, after several years of investigation, M. Desaedeleer was arrested in Malaga, Spain, following the issuance of a European arrest warrant against him. He was then transferred to Belgium where he was charged for war crimes and crimes against humanity, being accused of having participated with Charles Taylor and the rebels of the RUF in Sierra Leone in the trade of so-called «blood diamonds».
Desaedeleer passed away in Belgian custody on 28 September 2016, a few months before his trial was scheduled to commence.