Justice Delayed, Justice Denied?
By Kelsey Guthrie-Jones,
Capacity Building Coordinator and Legal Counsel at Civitas Maxima
Civitas Maxima et le GJRP have seen many successes in the eight years since our establishment in 2012. Across Europe and in the U.S., we have contributed to the arrest, and/or conviction of 8 high-ranking former commanders or officials of multiple rebel groups who were allegedly involved in widespread atrocities during the Liberian Civil Wars. In these and our other ongoing cases, we have engaged with approximately 800 victims on whose behalf we pursue justice and accountability. While these successes are undeniably significant for a multitude of reasons, they also conceal an uncomfortable truth of the casualties and risks posed by extraordinarily slow-moving proceedings. Particularly in historical cases where the alleged atrocities occurred between 17 and 30 years ago in Liberia, justice delayed can amount to justice denied for the victims and witnesses involved if investigations and prosecutions are not undertaken with relative expeditiousness.
Of the many concluded and ongoing cases Civitas Maxima has been involved in, it is only the minority that have progressed at a worryingly slow pace, some with no end in sight. This is precisely the case in respect of the criminal prosecution by Belgian authorities of Martina Johnson, a former front-line commander of Charles Taylor’s NPFL rebel faction during the First Liberian Civil War.
Ms Johnson was arrested over five and a half years ago, in September 2014, for her suspected involvement in war crimes and crimes against humanity, including mutilation and mass killing, allegedly committed during the infamous “Operation Octopus” during the First Liberian Civil War in 1992. However, even this protracted time period since her arrest and indictment does not accurately reflect the extraordinary length of the proceedings: which were first initiated over eight years ago, in January 2012, with the filing of a criminal complaint with Belgian prosecutors by a Belgian lawyer who Civitas Maxima partners with, Luc Walleyn. In the context of crimes that were allegedly committed by Ms Johnson 27 years ago, this slow-moving process is incredibly problematic. Not only is this the longest-standing investigation that Civitas Maxima has been involved in, but there is also no clear end in sight with the investigation still ongoing.
Justice delayed before international and hybrid accountability mechanisms
National prosecutions of alleged war criminals are not the only proceedings that can suffer from extraordinarily long processes. International and hybrid criminal courts and tribunals have also suffered from extremely long-running proceedings – however these extended timeframes must be placed within the context of the vast scale of such cases – with as many as hundreds or thousands of victims and witnesses involved, and often multiple accused.
Of the seven cases before the ICC that have proceeded to conviction or acquittal since it was established in 2002, the vast majority ran for between seven to ten years from the issuing of an arrest warrant (investigation would have preceded this) to final judgment. The ICTY and ICTR also had some extraordinarily long-running cases of nine and 16 years (involving six accused), respectively, between case initiation and final judgment. The Extraordinary Chambers in the Courts of Cambodia (which were established to prosecute senior leaders of the Khmer Rouge for serious crimes committed during the period of Democratic Kampuchea in the 1970s) have similarly suffered from some long-running proceedings – with Case 002/01 lasting for nine years from the date the accused were detained until final judgement, and Case 002/02 lasting for 11 years from the date the accused were detained to their conviction and sentencing. In Case 003, the accused were investigated by the co-prosecutors for over five years before being charged, and have still not faced trial another five years on.
The casualties of long-running international crimes proceedings
Extended proceedings raise a multitude of dire issues relating to both accused persons and victims/witnesses. In respect of accused persons, long-running proceedings risk violating their right to be tried ‘without undue delay’ or ‘within a reasonable time’. In respect of victims/witnesses, delayed proceedings can endanger their ability to participate in the accountability process. This sadly manifested in the Martina Johnson case this year, with the untimely death of a victim, who was a civil party represented by Mr Walleyn. This is not the only instance of an elderly or sick victim Civitas Maxima represents sadly perishing before the justice they had fought so hard for was attained.
Unfortunately, deaths of victims and witnesses during proceedings before international or hybrid accountability mechanisms can be even more prolific, due to the vast number of victims and witnesses involved.
When victims or witnesses die in these circumstances, it is not only devastating that they were not able to live to see the day their alleged abusers were brought to justice, but can also hamper or derail the whole accountability process, if vital evidence is lost with their passing. It is undeniably unacceptable for alleged perpetrators of horrific war-time crimes to escape justice merely because impunity prevailed for decades following the conflict, and because proceedings initiated abroad are unnecessarily drawn-out.
Sadly, the distressing headcount of casualties of lengthy criminal proceedings doesn’t stop with victims and witnesses. Accused too can die before the finalization of proceedings against them – leaving victims bereft of the opportunity to see their alleged abuser face justice.
Civitas Maxima’s first direct experience with the death of an accused occurred in 2016 with the sudden and unexpected passing of accused war criminal, Michel Desaedeleer. Desaedeleer took his own life while in custody in Belgium, just one year after he was arrested for his alleged involvement in the illicit blood diamond trade during the Liberian and Sierra Leonean Civil Wars, and just months before he was expected to stand trial. Civitas Maxima and its partners on the case, the Center for Accountability and the Rule of Law (CARL) in Freetown and Belgian lawyer Luc Walleyn, had worked for years with Sierra Leonean victims towards bringing Desaedeleer to justice, but his death entailed the end of the criminal case against him. Such a blow is understandably devastating for the victims and witnesses – as their chance to testify before a criminal court about the atrocities they and/or their families experienced, and to face their alleged abuser, suddenly evaporates.
International and hybrid international justice mechanisms have also suffered numerous deaths of accused persons. To name just a few – this has occurred before the ICC, ICTY, ICTR and the ECCC – with multiple accused in cases before each of these courts deceased before their arrest, before judgment is rendered, or before serving their full sentence. The ECCC is one of the most striking examples of this – with over half of the accused in Case 002 dying – two of them before standing trial, and one after being convicted and sentenced to life imprisonment.
However, the deaths of accused persons during proceedings before such international and hybrid courts must be distinguished from national proceedings. In many instances before the ICC, accused persons were indicted while still involved in ongoing wars – and died during the course of these conflicts, before they could be arrested. Ongoing conflict and immediate post-conflict complexities also contributed to the significant lapse in time before the ECCC began prosecuting accused persons – as the Khmer Rouge continued fighting in some capacity until their political and military structures were finally dismantled in 1998: 20 years after the crimes in question allegedly occurred. However, when these circumstances are not present: when an accused person dies during the course of a national prosecution that finally proceeds after decades of post-conflict impunity, this should not be accepted as an unfortunate, but unavoidable, outcome.
Are long-running proceedings avoidable in international crimes cases?
It must be acknowledged that the task of investigating and prosecuting alleged perpetrators of international crimes in extraterritorial proceedings is inherently complex. It requires difficult and costly investigations and evidence-gathering – often in circumstances where the crimes happened years or decades prior, and the victims and witnesses are located in a foreign country. However, the experiences of many national authorities Civitas Maxima and the GJRP have worked with proves that these complexities need not preclude expeditious investigations and prosecutions.
Even in situations where external factors have the potential to hamper evidence-gathering – for example when the Liberian Government was not providing authorization for foreign authorities to conduct investigative missions in Liberia prior to April 2019 – Civitas Maxima and the GJRP are able to assist those national authorities who are sufficiently motivated and willing to find creative workarounds. This included, for example, multiple missions by a European authority to neighboring Guinea and nearby Ghana, where Civitas Maxima and the GJRP arranged for victims/witnesses to travel in order to attend interviews with investigators.
Unfortunately, some national authorities Civitas Maxima has worked with appear to take such circumstances as an opportunity to stall their investigations or prosecutions – sometimes for years – even when perceived obstacles are easily surmountable in our experience.
Civitas Maxima is obviously cognizant that the national authorities who are progressing these cases against alleged perpetrators of atrocities during the Liberian Civil Wars can be under-resourced and stretched thin – often with responsibility for investigating or prosecuting not only these kinds of historic international crimes cases, but also more recent cases – potentially spanning gross human rights abuses and terrorist offences, as well as other domestic crimes. However, in accordance with States’ international obligations, a lack of resources cannot be used to justify delays in such proceedings.
States across the world are also obliged – under international treaties they voluntarily negotiate, sign, and accept into their domestic law – to ensure that impunity is not tolerated for international crimes, including by bringing the perpetrators to justice through national mechanisms where possible. In discharging their international obligations, national authorities must not risk the denial of justice to the victims and witnesses of these horrific crimes by drawing proceedings out for an innumerable number of years.
This blog entry was originally written for our Annual Report 2019.