1. Who is Kunti K. and what are the charges against him?
Kunti K. is a 48-year-old alleged former commander of the United Liberation Movement of Liberia for Democracy (ULIMO). ULIMO is a rebel group that was active during Liberia’s first civil war, which lasted from 1989 to 1996, and during which extensive international crimes were committed.
French police arrested Kunti K. on September 4, 2018, in Paris, France. Earlier that year, the nongovernmental organisation Civitas Maxima had filed a criminal complaint, which prompted the Paris prosecutor to start an investigation into his alleged responsibility for crimes against humanity.
In 2020, the prosecutor indicted Kunti K. for the crimes of torture and “barbaric acts,” such as acts of cannibalism, allegedly committed during the first Liberian civil war. After an appeal by the prosecutor in 2021, the charges were expanded to include crimes against humanity, including sexual violence.
2. What atrocities were committed in Liberia during its civil wars?
Liberia’s civil wars (1989-1996 and 1999-2003) were characterised by widespread and systematic violations of international human rights and humanitarian law. Domestic and international human rights groups, foreign embassies, the media, and the Liberian Truth and Reconciliation Commission (TRC) identified summary executions, massacres, rape and other forms of sexual violence, mutilation and torture, and forced conscription and use of child combatants, among the numerous abuses.
Crimes were committed by members of all parties to the conflict, government and rebel groups alike. This included the National Patriotic Front of Liberia (NPFL), the Independent National Patriotic Front of Liberia (INPFL), ULIMO and its splinter factions ULIMO-K and ULIMO-J, the Armed Forces of Liberia (AFL), the Liberian Peace Council (LPC), the government of Liberia (including various security forces), militias and the government-backed Anti-Terrorist Unit (ATU), the Movement for Democracy in Liberia (Model), Lofa Defense Force, and the Liberians United for Reconciliation and Democracy (LURD).
Fighters gunned down Liberian men, women, and children in their homes, villages, marketplaces, and places of worship. In a few cases, they massacred hundreds of civilians in a matter of hours. They subjected girls and women to horrific sexual violence including rape, gang rape, sexual slavery, torture, and outrages on personal dignity. They destroyed and looted villages. They abducted children from their homes and schools, and pressed them into service, often after murdering their parents in front of them. The violence blighted the lives of tens of thousands of civilians and displaced almost half the population.
The Economic Community of West African States Monitoring Group (ECOMOG), a multinational military force deployed to Liberia in 1990, was also implicated in the looting, harassment, and arbitrary detention of civilians, as well as indiscriminate airstrikes against civilians and civilian structures.
3. Why is Kunti K.’s trial taking place in France?
Kunti K.’s trial in France is possible because France recognises universal jurisdiction over certain crimes under international law, allowing for the investigation and prosecution of these crimes regardless of where they were committed, and regardless of the nationality of the suspects or victims. The use of universal jurisdiction in France can be a crucial means to limit impunity for the most serious crimes, although the legal regime needs significant improvements to maximise its application to hold perpetrators to account (see question 13 for details).
When feasible, criminal accountability should be pursued as close as possible to where the crimes were committed. This is so that proceedings can have the greatest impact in the communities most affected by the crimes. But domestic prosecutions of atrocities are not always possible whether it is due to a lack of capacity, political will, or both.
To date, Liberia has not prosecuted a single person for international crimes committed during its two civil wars (see question 2 for details).
The trial of Kunti K. will be the first French universal jurisdiction trial not connected to the Rwandan genocide since 2012, when the French war crimes unit was established.
4. How long will the trial last and what are its possible outcomes?
Kunti K.’s trial is set to take place from October 10 until November 4, 2022. In France, trials involving the most serious crimes fall under the responsibility of the Paris Criminal Court (La Cour d’assises de Paris). The Paris Criminal Court is a court on which three judges sit, along with a jury of six people.
During the expected three weeks of the Kunti K. trial, the defendant and the victims will have their rights explained and evidence will be provided by witnesses and experts. Likewise, the content and findings of the investigation led by the investigative judges of the country’s war crimes unit, called « Pôle crimes contre l’humanité, crimes et délits de guerre » of the National Antiterrorist Unit (Parquet National Antiterroriste, PNAT), will be publicly debated. The judges and the jury will confidentially deliberate and issue a judgment on the charges. Following the judgment, both the prosecutor and the accused have ten days to appeal the court’s decision. If convicted, Kunti K. could face a sentence of up to life imprisonment.
5. What are the rights of the defendant during the trial?
Under international standards of fair trial, every person who is an accused in criminal proceedings has the right to due process which commence at the moment of arrest and continue through the verdict and any sentence. These rights include the presumption of innocence and the right against self-incrimination, the right to be represented by a lawyer and have adequate facilities to prepare a defense, to be present at the hearing, to examine witnesses, to have interpretation if needed, and to appeal.
In cases involving felonies or crimes punishable with imprisonment, the right to a lawyer exists from the first police interview through any trial. Before the Paris Criminal Court, where Kunti K. will be tried, representation by a lawyer is obligatory. If the accused person lacks sufficient resources to cover the costs of the proceedings, they have the right to request to be represented by a lawyer without charge. This right exists regardless of the nationality or residence of the accused.
With regard to the right to interpretation, which applies to all questionings and proceedings, a number of essential court documents must also be translated. French is not widely spoken in Liberia. English is the official language, and some Liberians speak local languages that are only native to their counties.
6. How can victims participate in the proceedings?
In France, victims can become a “civil party” at the investigative stage, as well as during a trial. A civil party is either a person who considers themselves the victim of an offense, or an organisation with relevant interest in international crimes, whichcan apply for civil party status regardless of whether they have suffered direct harm. Ahead of the trial, civil parties can be crucial to bringing cases to the attention of prosecuting authorities. They have extensive rights at the investigative stage, such as accessing the entirety of the criminal file through their lawyers, requesting that specific investigative acts be undertaken, requesting an expert opinion, or filing legal submissions, among others. During a trial, civil parties can actively participate in the proceedings, such as by questioning witnesses. Civil parties may receive compensation for their injury in the event of a conviction. Eight victims and Civitas Maxima will be civil parties in the Kunti K. trial.
Civil parties must be represented by a lawyer during the course of the proceedings. In case they lack sufficient resources, they have the right to have a lawyer appointed to them without charge. They have several other rights, such as:
– the right to stay informed of the proceedings;
– the right to question witnesses;
– the right to make a statement before the court;
– and the right to appeal the decision in regard to their compensation. In this case, the civil parties will be represented by two French criminal lawyers.
The civil parties also have the right to interpretation. Even if it is challenging, it will be key that French authorities fulfill their obligation to provide interpretation to the civil parties, taking into account the appropriate language(s) necessary to make the proceedings accessible to both victims and witnesses.
If necessary, witnesses can also avail of a number of measures to protect their identity. Protection measures are limited to the territory of France, however, which brings challenges when witnesses are located outside of French borders.
Because universal jurisdiction cases often are tried in courts located far away from the victims’ communities, ensuring their participation and awareness of the proceedings can be challenging. To foster participation, French authorities usually provide reimbursement for expenses that arise for witnesses and civil parties, such as those related to travel. Considering the limited resources of the Liberian victims involved in the case, Civitas Maxima has made funds available in advance to allow victims to take part in the proceedings as much as possible.
Under French law, civil parties have the right to apply for reparations in the form of financial compensation or other appropriate measures to address physical, material, or emotional damages caused by the defendant. In the event of a conviction, a civil hearing to examine the claim for reparations will follow. The judges decide on the reparations without the participation of the jury.
7. How accessible is the trial to the public and affected communities in Liberia and elsewhere?
In France, subject to certain exceptions, criminal trials are typically open to the general public. The final judgment is always presented in open court.
Written records or transcripts of the trial generally are not accessible to the public and audio or video recordings of the trial generally are not prepared. However, parties can request a recording of the proceedings if it is “of interest for the creation of a historical archive of justice.” Such a recording must be requested at the Court of Appeal at least eight days prior to the beginning of the trial. In criminal trials involving crimes against humanity, as in Kunti K.’s trial, a recording request by the prosecutor should always be granted. Recording requests were granted in previous international crimes cases in France, for instance in cases relating to the Rwandan genocide, or to Pinochet-era crimes in Argentina and Chile. Civitas Maxima, in its role as a civil party, has requested recording of the Kunti K. trial which may be granted subject to judicial discretion.
If a recording is made, it may become publicly accessible after the final judgment is issued, and any appeal judgment, is rendered. However, this may take several years. In addition, the president of the Paris Criminal Court must approve the release of the recording. If no such approval is granted, the recording automatically becomes publicly accessible 50 years after the final judgement.
8. Have French authorities done any outreach to affected communities in Liberia?
French authorities have not reached out to affected communities in Liberia in advance of the trial. Research by Human Rights Watch and othershas shown that the positive impact of accountability efforts on affected communities can strongly correlate to outreach efforts.
During a trial on the 2015 Bataclan terrorist attacks in Paris, French authorities made an audio webcast of the trial available for civil parties who were unable to travel to France. Such practices increase the accessibility of trials and can increase the impact of French trials dealing with international crimes. Outreach efforts should not be limited to terrorism cases and should be applied to all cases of serious crimes equally, whenever possible.
Non-governmental organisations, such as Civitas Maxima and the Global Justice and Research Project, are working to ensure that Liberian communities can follow the proceedings. For example, they are collaborating with Liberian journalists to ensure they are able to attend and report on the trial and are directly reaching out to the local population in Liberia about the trial. Trial reports and summaries of the proceedings also will be published on the Civitas Maxima website.
9. What steps should the Liberian government take to ensure perpetrators of international crimes are held to account?
The Liberian government should request assistance from the United Nations and Liberia’s other international partners, including the United States, to establish a war crimes court for Liberia that can hold perpetrators to account through fair, credible trials.
In the aftermath of the conflicts, the Liberian government set up a Truth and Reconciliation Commission, which collected statements from approximately 20,000 people and heard direct testimony from over 800 Liberians, both in-country and from the diaspora. The commission was operational between 2006 and 2009.
The Truth and Reconciliation Commission recommended the creation of a war crimes court staffed by international and Liberian practitioners – the Extraordinary Criminal Court for Liberia – which would be mandated to try leaders of warring factions and other “most notorious perpetrators” for civil wars-related crimes. Lower-ranking perpetrators would be tried in existing courts or subject to noncriminal accountability measures.
More than a decade later, and despite intensified calls for accountability by domestic and international actors, including a video appeal released in 2019, a war crimes court has not been established, and Liberia has not prosecuted a single person for international crimes committed during its two armed conflicts.
President Weah raised hopes for accountability when he indicated he would consult on creation of a court at the UN General Assembly in 2018, but he has since essentially gone silent on the issue; simultaneously, Liberia’s senate has endorsed a concerning proposal to create a new commission to revisit the TRC’s mandate, analysis, and recommendations that would further delay justice for victims of the crimes.
10. Have there been other trials abroad?
As with Kunti K.’s case, all other cases involving alleged Liberian civil wars-era crimes have occurred outside Liberia in European and US courts.
In June 2021, Switzerland reached a landmark conviction for wartime crimes in Liberia when a Swiss court convicted Alieu Kosiah, a former United Liberation Movement of Liberia for Democracy commander, on the basis of Switzerland’s universal jurisdiction law. The defendant, Alieu Kosiah, was the first Liberian to be convicted for war crimes committed during the first Liberian civil war. The case is currently on appeal.
In 2008, a United States federal court convicted Chuckie Taylor, former head of the Anti-Terrorist Unit and son of former Liberian president Charles Taylor, for torture committed during the country’s second civil war.
Authorities abroad have also investigated, tried, and convicted individuals for crimes related to immigration that date back to the civil wars-era, such as lying on immigration forms about involvement in abuses in Liberia.
A US court convicted the former ULIMO leader, Mohammed Jabbateh, and the National Patriotic Front of Liberia spokesman, Jucontee Thomas Smith Woewiyu, for fraud and perjury related to their failure to disclose to US immigration authorities their involvement in alleged wartime crimes during the country’s first civil war.
In 2022, a US court indicted former Commanding General of the Armed Forces of Liberia Moses Wright for crimes relating to immigration fraud. He is suspected of lying about his involvement in human rights abuses in Liberia on immigration forms and interviews. In addition to criminal cases, a civil case by Liberian victims against Moses Thomas, a former Colonel in the Armed Forces of Liberia, affirmed his responsibility for a 1990 massacre, in which approximately 600 civilians were killed in a church. In August 2022, a Pennsylvania court issued a historic damages award totaling US$84 million to the four victims.
Civil wars-era crimes have also been the subject of other investigations, which have not progressed in a trial or resulted in an acquittal. For example, Belgian authorities arrested Martina Johnson, former commander of the NPFL, in 2014 for her alleged role in war crimes, but the case appears to have stalled.
In 2017, British authorities charged Agnes Reeves Taylor for her alleged role in torture in Liberia between December 1989 and January 1991, but the case was dismissed in 2019.
A Finnish trial of Gibril Massaquoifor alleged crimes in the second Liberian civil war ended in an acquittal in April 2022, as the court found that the charges were not proven beyond a reasonable doubt. That case is currently on appeal.
Civil society efforts have spurred much of this judicial activity, including the collaboration between the Monrovia-based Global Justice and Research Project and the Geneva-based Civitas Maxima, as well as the San Francisco-based Center for Justice and Accountability.
11. Does Liberia’s government support the Kunti K. trial in France?
In 2019, the Liberian government actively cooperated with French authorities in a week long fact-finding mission in Lofa County, in northwest Liberia where Kunti K. allegedly led the local ULIMO faction. The mission marks the first time since the end of the Liberian civil wars that foreign judicial authorities worked together with Liberian authorities to reconstruct alleged crime sites. For the reconstruction, the investigating judge, defense lawyers, and civil parties travelled to Liberia, in addition to prosecuting authorities. Civitas Maxima welcomed such cooperation with French authorities.
Since 2019, the Liberian government has allowed other judicial authoritiesinto Liberia in relation to war crimes cases. For the trial of Gibril Massaquoi before a Finnish court in 2021, an agreement between Finnish and Liberian authorities enabled parts of the trial to take place in Liberia, during which the Finnish judges heard multiple witnesses. In this case, the Liberian authorities provided a forum for the proceedings but were not involved in the investigation. French authorities have not announced plans of implementing such a model for Kunti K.’s trial.
12. How do French universal jurisdiction law and practice compare to other countries in Europe?
Over the past two decades, national authorities of an increasing number of countries including France, have pursued cases involving war crimes, crimes against humanity, genocide, and torture committed abroad. Most recent landmark cases include the January 2022 conviction of a former Syrian intelligence officer for crimes against humanity in Germany, and the 2021 conviction of Alieu Kosiah in Switzerland for war crimes committed in Liberia.
In the European Union, the European Network for investigation and prosecution of genocide, crimes against humanity and war crimes (commonly called “EU genocide network”) has enhanced cooperation and facilitated the sharing of best justice practices between EU member states, including on universal jurisdiction issues.
While France has been a strong supporter of international justice, actively backing mechanisms such as the International Criminal Court (ICC) and the International, Impartial and Independent Mechanism (IIIM), its universal jurisdiction laws are more limited than other European countries like Germany. Nongovernmental organisations, members of the French parliament, the specialised unit of the French police (L’Office central de lutte contre les crimes contre l’humanité et les crimes de haine, OCLCH), and others have criticised limitations in French law to address international crimes.
13. What are the limitations of French universal jurisdiction laws and what improvements are needed?
French universal jurisdiction laws are limited by four requirements, sometimes referred to as the “four locks”.
– The defendant must have their “habitual residence” in France. This requirement creates a risk insofar that a perpetrator can stay in France for long periods, and still evade accountability.
– The crimes must be expressly codified in the state where the crimes were committed. This is a restrictive approach to what is known as the “double criminality rule,” which is a norm that requires an act for which a person is being prosecuted or extradited, to be a crime in both the host country and where the act originally took place. This double criminality rule was abandoned for the crime of genocide by the French parliament in 2019.
– French prosecutors must verify whether any national or international court has asserted jurisdiction before opening an investigation, referred to as “subsidiarity” or “reverse complementarity”. This requirement – which does not apply to other crimes in France – creates an extra burden for the prosecutors and means that national proceedings initiated can shield the person from prosecution in France regardless of the quality of the justice process.
– There is “prosecutorial discretion” in which only the prosecutor can decide whether to open an investigation. This discretion, which does not exist for other crimes in Frances, restricts access of victims of serious crimes to judicial authorities to open investigations.
These limitations do not apply for instances of torture and for international crimes committed in Rwanda and the former Yugoslavia, but the restrictions continue to pose significant barriers overall to ensuring perpetrators of international crimes are held to account.
In November 2021, France’s Cour de cassation, the highest court in the French judiciary, considered that French courts did not have jurisdiction in the case of an alleged former Syrian agent who had sought asylum in France and who was accused of complicity in crimes against humanity. France’s highest court held that the prosecution could not proceed under French law because Syrian law does not explicitly criminalise crimes against humanity. This reinforces concernsthat France could serve as a safe haven for those implicated in the world’s worst crimes and undermines the urgent need to further reform France’s universal jurisdiction laws. The plenary assembly of the Cour de cassation will hold another hearing in this case in the coming months.
In the aftermath of the decision, the French government has expressed openness to reform universal jurisdiction laws, if the Cour de cassation were to confirm its latest decision on the double criminality principle, and the Public Prosecutor’s office also called for a legislative change. In June 2022, a French Member of Parliament, with the support of a Syrian victims group, filed a bill proposing the removal of all limitations of the French universal jurisdiction law, which has not yet received any support from the government. Because of France’s legislative elections in 2022, the bill was retabled and placed on the agenda of the new national assembly for future discussion.
French authorities should bring their universal jurisdiction laws in line with their commitments to justice for international crimes without delay by repealing or reforming the four requirements for a universal jurisdiction case to proceed.
14. How many cases on serious crimes have been opened in France?
In France, there are now more than 160 cases opened by the Public Prosecutor’s office on the basis of universal jurisdiction. The latest available numbersindicate that these include more than 80 judicial investigations and another 80 cases at the preliminary investigation stage. Five trials are in process and four people have been convicted.
Cases relate to crimes of nationals of more than 30 countries including Ukraine, the Democratic Republic of Congo, Libya, Côte d’Ivoire, or Sri Lanka. Rwanda remains a priority for the French investigators and there are 34 open cases related to Rwanda, although a growing number of cases concerning international crimes committed in the Middle East have been opened in recent years. The Iraq-Syria region is now the biggest situation in the war crimes unit caseload, amassing 40 potential cases.
The Cour de cassation decision from November 2021 creates uncertainty for many of these cases. According to news reports, this decision could impact over 36 of the 80 preliminary investigations concerning crimes against humanity, and 13 of the 80 investigations currently open.
Source link : https://www.fidh.org/en/region/Africa/liberia/questions-and-answers-france-s-trial-for-atrocities-committed-in
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Publish date : 2022-10-05 07:00:00
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