The sensational year-end arrest and bail hearing in Cape Town of convicted international arms trader Guus Kouwenhoven has brought the terrible decades-long Liberian civil war back into focus in SA.
During his absence from Holland, millionaire Kouwenhoven has already been convicted and sentenced for the part he played in one of Africa's longest and most destructive regional conflicts, a civil war that left an estimated 250 000 people dead. Now, following his December arrest, the Dutch authorities have begun extradition proceedings to have him return and serve his 19-year sentence.
Kouwenhoven (75) waits out this battle over his future under tough bail conditions, including reporting to a local police station twice a day and house-arrest over weekends.
But it turns out that SA is not the only far-removed country whose courts have become involved in the aftermath of the 1989 - 2003 Liberian civil war.
Strangely enough, given that US immigration services have been forced to adopt an unsavoury, anti-human rights policy under the Trump administration, it is some of the officers in that very same service who have been for some years at the forefront of an unusual strategy to catch war criminals in the US attempting to evade their just deserts.
Within the next fortnight one of these, Mohammed Jabbateh (51), alias 'Jungle Jabbah', will know his fate. The Liberian, who now owns and runs an international shipping company based in Philadelphia, was arrested in March 2016 on charges that he lied when he applied for asylum in the US: two counts of fraud related to his immigration application papers and two counts of perjury.
Jabbateh was recently convicted by a jury in Philadelphia, after its members heard witnesses brought from Liberia to speak of the atrocities committed or ordered by him. Most told of their horrific first-hand experiences. Now he is waiting for sentence, due early February.
Also in February, Thomas Woewiyu, another suspected Liberian war criminal and former Defence Minister under Charles Taylor, will stand trial in Philadelphia. Among the charges he faces is that he lied in his US Immigration forms by failing to disclose his ties with a 'violent political group in Liberia'.
What these and other similar cases have in common is that the accused are alleged war criminals who try to immigrate to the US but lie in their application papers. When their true identity is discovered they are tried for technical breaches related to immigration documentation via a trial that allows information about their crimes back home to be led in court. So far, this strategy has netted suspects from Bosnia, Serbia, Croatia, Rwanda and Ethiopia among others.
One of the driving forces behind the trials is Civitas Maxima, an NGO that helps coordinate a network of international lawyers and investigators working in the interests of victims of crimes against humanity. When I was alerted to the Jabbateh trial through an international human rights expert associated with Civitas Maxima, Professor Roland Adjovi, I discovered that the organisation sees matters like this, centred on immigration-related offences, as rapidly becoming 'the go-to prosecution strategy for war criminals caught in the US'.
That's because immigration offences are easier to prosecute than trials involving more serious human rights or war crimes statutes since these often raise problems about jurisdiction.
Adjovi, originally from Benin, now teaching in the US while working with a number of human rights organisations including the UN, said that each country had its own mechanisms that could be used to try and sentence war criminals 'and it is our job as lawyers to find them and make them work'. The US had used its immigration law extensively in such cases and the Jabbateh case was the first in which a Liberian suspect was involved.
The most difficult question in each case, however, is sentence. Because the accused are not actually charged with war crimes, the court has to consider whether to impose a sentence that relates strictly to the lies or perjury committed when the accused applied to enter or stay in the US, or whether to take the wider evidence that emerged into account so that sentence reflects the true reality.
In each case, victims of the crimes committed by the accused have given evidence, often extremely harrowing, and the outcome matters a great deal to them especially because there has often been no other way that they have been able to tell their story or gain any form of redress.
As courts hearing these cases have differed in their approach, sentences imposed span a wide range: from a year to more than 20 years. Like the other judges in such matters, the judge in Jabbateh's case could choose to consider the fraud and perjury offences only, in arriving at the sentence - or could increase the sentence to reflect the seriousness of the other crimes described by the witnesses, in other words have regard to the crimes that caused Jabbateh to lie in his application. Adjovi said he hoped that the sentence passed in this case would reflect the seriousness of the evidence led at the trial including multiple rape, particularly gruesome murders and cannibalism.
According to Web-based details of Jabbateh's trial, prosecutor Nelson Thayer said the questions in immigration documents were specially designed to give people like Jabbateh a choice: 'tell the truth and potentially risk losing residency or lie, and risk prosecution for perjury and fraud'. Jabbateh had lied on many occasions in his written applications and in oral interviews, said the prosecutor. 'You can't commit heinous war crimes in your home country and then come here and ask to stay, and lie about it,' Thayer warned.
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