Rare United States Use of Universal Jurisdiction
- What happened in Gambia?
- Who is Michael Sang Correa and what is this case about?
- Have victims of Jammeh-era crimes been able to get justice in Gambia?
- How is a US court able to try Correa if the allegations against him took place in Gambia?
- Are courts in other countries using universal jurisdiction?
- Have US courts prosecuted other people under the Torture Statute?
- What steps are being taken in Gambia now toward accountability for those responsible for international crimes?
- What are Correa's fair trial rights?
- Why have there been so few criminal prosecutions in the US of crimes committed abroad? What can be done in the future?
On September 16, 2024, Michael Sang Correa, an alleged former member of a Gambian death squad, will stand trial in a US federal court in Denver, Colorado. Correa faces charges of torture and conspiracy to commit torture. This trial is possible because US laws recognize universal jurisdiction over certain serious crimes under international law, often termed atrocity crimes, including torture, genocide, and war crimes, allowing for the investigation and prosecution of these crimes no matter where they were committed, and regardless of the nationality of the suspects or victims.
This trial, while only the third of its kind in the United States, is part of ever-increasing efforts to use universal jurisdiction to ensure that victims of the most heinous crimes - including those committed during Yahya Jammeh's brutal rule in Gambia - have additional pathways to justice. The following question and answer document provides background on understanding the implications of this important case.
- What happened in Gambia?
Yahya Jammeh's 22-year rule in Gambia, from 1994 to 2016, was marked by widespread human rights abuses. The systematic oppression of alleged opponents of the government such as journalists, human rights defenders, student leaders, religious leaders, political opposition members, judiciary officials, and lesbian, gay, bisexual, and transgender (LGBT) people resulted in serious human rights violations, including torture, extrajudicial killings, enforced disappearance, and sexual violence. These violations were carried out by state security forces and shadowy paramilitary groups, including a paramilitary unit created by Jammeh known as the "Junglers." Jammeh sought exile in Equatorial Guinea in January 2017 after losing the December 2016 presidential election.
- Who is Michael Sang Correa and what is this case about?
Michael Correa is a Gambian national and former army captain who is alleged to have been a member of the Junglers. The Junglers, created in 1996, operated outside the structure of the country's law enforcement agencies. It is believed to have reported directly to Jammeh, based on accounts of former members and other government insiders. Human Rights Watch research implicated the Junglers in serious human rights violations, which include torture, enforced disappearance, and killings.
In its final report issued in 2021, Gambia's Truth, Reconciliation and Reparations Commission (TRRC) concluded that the crimes committed by the Junglers and others amounted to war crimes and crimes against humanity.
Correa entered the United States in 2016, and in September 2019 was arrested on immigration grounds after overstaying his visa. Following his arrest, Correa sought to apply for asylum. Gambian and international civil society groups urged US authorities to investigate and prosecute Correa on torture charges, as did US lawmakers. Gambian human rights organizations expressed concern over the possible deportation of Correa to Gambia, stating that this risked allowing him to escape justice.
On June 11, 2020, a grand jury indicted Correa and charged him with six counts of torture under the US Torture Act, and one count of conspiracy to commit torture following a failed coup attempt against Jammeh. His trial will begin on September 16, 2024, before the US District Court of Colorado in Denver and is expected to last for about two weeks. The Gambian government has cooperated in the case.
The Center for Justice and Accountability (CJA), TRIAL International, the Alliance of Victim-Led Organizations (AVLO), the African Network Against Extrajudicial Killings and Enforced Disappearances (ANEKED), the Solo Sandeng Foundation, the Women's Association for Victims' Empowerment (WAVE), and Women in Liberation & Leadership (WILL) are supporting alleged victims seeking justice for crimes committed during the Jammeh-regime, including by providing legal and psychological support.
- Have victims of Jammeh-era crimes been able to get justice in Gambia?
Many of the human rights violations committed under Jammeh were brought to light during the hearings of the TRRC, which was set up in 2018. The TRRC's final report, published on December 24, 2021, concluded that Jammeh and 69 of his associates committed crimes against humanity and called for their prosecution. The report highlighted the need to prosecute Jammeh and the Junglers, members of the junta, senior military officers, and other state officials; along with "enablers and accomplices" for alleged crimes, including enforced disappearances, killings, unlawful detention, torture, and inhumane and degrading treatment of people in custody.
In addition, the TRRC proposed a range of options on possible ways to move these prosecutions forward, spanning a purely domestic tribunal in Gambia; an internationalized tribunal in Gambia; a prosecution abroad in a neighboring country through an internationalized tribunal; and prosecution at the International Criminal Court in the Hague.
In its response to the TRRC report, the Gambian government acknowledged the need for justice and accountability, and accepted recommendations for prosecutions. It committed to establishing a Special Prosecutor's Office within the Attorney General's Office tasked with investigating and prosecuting those bearing the gravest responsibility for human rights violations; as well as creating a special judicial framework within the Gambian judicial system. However, since Jammeh's fall, Gambia has moved forward with only two prosecutions for Jammeh-era crimes.
The Gambian government also stated that it would work with other countries seeking to bring those responsible for international crimes to justice, either through extradition requests, or by providing support for them to be prosecuted in the countries where they were living.
- How is a US court able to try Correa if the allegations against him took place in Gambia?
The US is acting under what is known as the principle of "universal jurisdiction." Universal jurisdiction is a principle codified in international law that allows for the investigation and prosecution of certain international crimes, regardless of where the crimes were committed, or the nationality of the suspects or victims. Across the globe, universal jurisdiction laws typically allow for the prosecutions of war crimes, crimes against humanity, genocide, torture, piracy, hijacking, acts of terrorism, and attacks on United Nations personnel.
In line with its international treaty obligations, the US has adopted federal criminal statutes on genocide, war crimes, torture, and the use or recruitment of child soldiers, as well as on female genital mutilation, that allow for the US to exercise criminal jurisdiction under certain circumstances over crimes that occur outside of the country, regardless of the nationality of the suspect or victims. In the US, these laws are known collectively as "substantive human rights statutes." The application of these statutes, as well as use of related immigration and criminal authorities, is supported by an extensive network of government, immigration and law enforcement agencies, including the inter-agency Human Rights Violators and War Crimes Center, within the US Department of Homeland Security.
Correa is charged under one of the substantive human rights statutes; the federal torture statute, which gives US federal courts jurisdiction over torture that is committed outside of the US and by either a US national or an individual present in the US, regardless of their nationality or the nationality of the victims.
- Are courts in other countries using universal jurisdiction?
Over the past two decades, national courts of an increasing number of countries have pursued cases involving the commission of international crimes abroad, through universal jurisdiction laws.
In its 2024 Annual Report on Universal Jurisdiction, TRIAL International - a nongovernmental organization fighting impunity for international crimes and supporting victims in their quest for justice -records 233 cases of universal jurisdiction globally, with 36 new investigations opened in 2023, a 32 percent increase from the year before.
Universal jurisdiction has advanced the search for justice for years of abuses committed in Gambia. Courts in Switzerland and Germany have convicted two individuals of crimes against humanity committed during the Jammeh government. Gambia's former interior minister, Ousman Sonko, was convicted in May 2024 for torture, illegal detentions, and unlawful killings. Sonko was the highest ranking official ever to be tried under the principle of universal jurisdiction in Europe. He was arrested in 2017 after TRIAL International filed a criminal complaint against him before the Swiss courts. This followed a German court's conviction of Bai L., a former member of the Junglers, for crimes against humanity in 2023, following advocacy by organizations like TRIAL and the European Center for Constitutional and Human Rights (ECCHR).
Recent advances in universal jurisdiction cases have been made possible by the advocacy of victims' groups and nongovernmental organizations, as well as participation of victims in litigation efforts. As reported by TRIAL International, in 2023 civil society organizations were involved in 56 percent of the ongoing cases on universal jurisdiction, "by filing complaints, collaborating with or providing information to prosecuting authorities, providing support to the plaintiffs and participating as civil parties."
Universal jurisdiction cases have been possible when states develop robust legal frameworks, establish special investigation and prosecution units, and cooperation networks between national authorities. To date, only 13 countries are applying their jurisdiction extraterritorially through universal jurisdiction. The US and other countries should address obstacles that prevent greater use of universal jurisdiction in their courts.
- Have US courts prosecuted other people under the Torture Statute?
US courts have conducted only two trials under the US Torture Statute. They have yet to conduct any trials under the war crimes, genocide, or child soldier use or recruitment laws.
In the first case, Charles "Chuckie" Taylor Jr., son of former Liberian President Charles Taylor and a US citizen, was convicted by a federal jury in October 2008 for torture committed while heading a paramilitary unit in Liberia from 1997 to 2003 during his father's presidency. He is serving a sentence of 97 years in prison.
The second conviction was handed down in May 2023 against Ross Roggio, a private US citizen, who was charged in 2022 with torture and conspiracy to commit torture in Iraq. He was convicted on 39 counts of torture, among other crimes, which included the torture committed overseas of an Estonian citizen over the course of a 39-day period. Roggio is currently serving a sentence of 70 years in prison.
In February 2012 a federal grand jury in New York charged Sulejman Mujagic, a Bosnian living in the United States, with one count of physical and mental torture for the treatment of a prisoner of war during the armed conflict in the former Yugoslavia. In 2013, the United States extradited Mujagic to Bosnia and Herzegovina, where a domestic court found Mujagic guilty of war crimes, and sentenced him to eight and a half years in prison.
In December 2023 a US grand jury indicted four Russian nationals on three counts of war crimes: torture, inhumane treatment, and unlawful confinement; and one count of conspiracy to commit war crimes against a US citizen in Ukraine. These charges are the first use of the US war crimes statute following amendments to the law that expanded it to allow for the prosecution of foreign nationals who commit war crimes abroad.
In addition to these cases, the US has used its immigration laws and criminal statutes based on immigration fraud and perjury to provide a form of accountability for other people allegedly responsible for international crimes (see below).
- What steps are being taken in Gambia now toward accountability for those responsible for international crimes?
Since 2019 the Gambia Bar Association has been independently spearheading a series of multi-stakeholder consultations on the conduct of trials recommended by the TRRC. These discussions resulted in a consensus in favor of a hybrid or special court, to be established in partnership with the Economic Community of West African States (ECOWAS), and to be staffed by both Gambian and international experts.
At an international stakeholders conference on May 12, 2023, the government presented a long-awaited detailed implementation plan for the TRRC recommendations, calling for the creation of a Special Prosecutors' Office to complete the investigations initiated by the TRRC and to prepare case-ready dossiers, followed by a Gambia-ECOWAS hybrid tribunal.
In February 2024 Gambia and ECOWAS created a joint technical committee to develop the statute for the special hybrid court. In July 2024, however, the ECOWAS Parliament blocked its involvement in the establishment of a special criminal court for Gambia, delivering an unfavorable opinion on the establishment of a court. ECOWAS ministers decided to defer consideration of the establishment of the court to its next session.
- What are Correa's fair trial rights?
The right to a fair trial is protected under both international human rights law and US constitutional law (including the Fourth, Fifth, Sixth, and Fourteenth amendments). Under this framework, Correa has the right to due process throughout all the stages of proceedings. He has the right to an impartial jury, the right to a defense and the appointment of a lawyer as needed, the right to access evidence and witnesses, the right to expediency in his trial, the right not to incriminate himself, the right to presumption of innocence, and the right to appeal were he to be convicted.
As a non-citizen, Correa also has the right to equal protection under the law. He also has the right to Gambian consular access under the Vienna Convention on Consular Relations.
In February 2024 a federal court in Colorado denied Correa's motions to dismiss his indictment based on due process. In his motions before the court, Correa argued that the extraterritorial application of the law under the Torture Act was a violation of the Due Process Clause because there was not a sufficient nexus between him and the United States, a requirement if the crimes were committed outside the United States.
The court rejected that argument. The court explained that the "fair warning" requirement that one could be prosecuted in the United States for one's crimes alone was enough to satisfy the Due Process Clause, and that proof of nexus was not needed. The court held that the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment granted Correa "with all the notice due process requires that he could be prosecuted in this country."
To Correa's argument that Gambia hadn't ratified the Convention against Torture until 12 years after the crimes that Correa was accused of, the court concluded "that the existence of the [Convention against Torture], combined with the blatantly criminal nature of the acts ... of which Mr. Correa is accused, provided all the fair warning necessary for Mr. Correa's prosecution in the United States under the Torture Act to comport with due process."
- Why have there been so few criminal prosecutions in the US of crimes committed abroad? What can be done in the future?
The US has made extensive use of immigration and related criminal laws with a view toward ensuring that those suspected of human rights violations do not find "safe haven" within its borders by preventing entry of suspects, deporting them, and even prosecuting them and obtaining criminal convictions for immigration fraud with lengthy sentences. It has also cooperated with other national authorities to ensure prosecutions in the countries where crimes were committed, including following extradition or deportation processes.
But prosecution of individuals for the underlying crimes, like torture, in the US have been rare. The limited number of US prosecutions misses an opportunity to conduct criminal cases with charges that reflect both the nature and the gravity of the crimes, and provide victims of atrocity crimes with redress for the genuine harm they have suffered.
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Historical reservations and skepticism by the US government about the use of foreign national courts to prosecute crimes committed in other countries, particularly against US nationals, may have been a factor in the limited support for the use of universal jurisdiction by US courts. So too were past fears that foreign prosecutions based on universal jurisdiction may have been applied to US nationals for political reasons. This attitude is also reflected in the unwillingness of the US to ratify the Rome Statute of the International Criminal Court.
The US could be shifting toward a more positive approach, however, regarding the role of US courts in international justice, particularly following Russia's full-scale invasion of Ukraine in 2022. This was signaled for example by the 2023 amendment to the War Crimes Act, which extends jurisdiction over foreign nationals present in the US suspected of having committed war crimes abroad, and its swift use to address war crimes in Ukraine.
A number of other factors affect US prosecution of atrocity crimes. Chief among these are gaps in the legal framework and limitations in US criminal legislation. This includes the lack of a crimes against humanity statute. Crimes against humanity are committed as part of a widespread or systematic attack against a civilian population, in accordance with a government or organizational policy. The adoption of such a statute would bring US law in line with international standards, allow US courts to prosecute crimes against humanity effectively, and help victims of crimes against humanity across the globe find redress in US courts.
Moreover, in the US, statutes of limitations for the commission of international crimes are short, within a range of five to eight years, which makes prosecution for such crimes difficult, particularly with the complexity of transborder investigations. Extending the statutes of limitations for atrocity crimes would ensure that no one responsible for such crimes can hide behind the passage of time.
In relation to modes of liability, US laws do not explicitly recognize command responsibility. Command responsibility is the liability of military or civilian commanders or superiors whose subordinates have committed a crime punishable under international law, and when the commanders knew or should have known of the commission of that crime (or that the crime will be committed) and failed to take all necessary and reasonable measures to prevent or punish such crimes. It has been included in the US military code and has been explicitly upheld by the US Supreme Court. Its lack of wider implementation for atrocity crimes, however, has limited the possibility of prosecutions in the United States under that mode of liability. Adopting provisions on command responsibility for atrocity crimes would allow US courts to prosecute superiors who fail to prevent or punish the commission of crimes by their subordinates.
Addressing these and other roadblocks to the full exercise of universal jurisdiction requires carrying out the necessary amendments to US laws. Beyond affording some measure of redress to victims and their families, the Correa trial, as an all-too-rare example of the use of US laws allowing for the prosecution of human rights abuses abroad, can provide an important window into other opportunities and challenges to ensure that even existing laws can be applied as effectively as possible.
For further information on the duration of the trial and what the trial will look like, the role of victims, and the possibility of appeals, among other issues, make sure to check the Question and Answer documents from the Center for Justice and Accountability (CJA), TRIAL International, Women in Liberation and Leadership (WILL), the African Network Against Extrajudicial Killings and Enforced Disappearances (ANEKED), the Solo Sandeng Foundation, and the Women's Association for Victims' Empowerment (WAVE): https://cja.org/what-we-do/litigation/u-s-criminal-prosecution-of-michael-sang-correa/faq-michael-sang-correa/
