By: Alexandrah Bakker, Junior Research Associate, PILPG-NL
On December 3, 2020, after a five-year investigation and five different start dates, criminal proceedings against Alieu Kosiah opened before the Federal Criminal Court (FCC) in Bellinzona, Switzerland. Kosiah faces charges relating to his responsibility as a commander of the United Liberation Movement of Liberia for Democracy (ULIMO) for mass killings committed in Lofa County between 1993 and 1995, during Liberia’s first civil war. More specifically, he is charged with having ordered, committed, or participated in murder, desecration of a corpse, rape, cruel treatment, recruitment of a child soldier, pillage, and the forced transport of goods and ammunition.
Kosiah’s trial is remarkable in several ways. Not only is it the first war crimes case to ever be tried by the FCC, but it is also the first trial before any jurisdiction of a direct perpetrator for war crimes committed during Liberia’s civil wars. In 2018, the Supreme Court of the Netherlands upheld the conviction of Dutch businessman Guus Kouwenhoven for complicity in war crimes by providing weapons, transportation, facilities, and armed personnel to the Liberian armed forces. Another ULIMO commander, Kunti Kamara, is due to stand trial in France soon.
However, due to a combination of unique challenges, Alieu Kosiah spent six years in detention before his trial could get underway. At trial, Kosiah lamented the duration of his detention, saying, “I’ve been locked up for six years. I have emotions, I’m not an animal… I am the real victim.” Meanwhile, Balkees Jarrah, Associate International Justice Director at Human Rights Watch, commented that this trial “is a powerful message to would-be perpetrators that justice may be slow but it never forgets.”
This post explores the reasons for the delay in Kosiah’s trial, and the implications of delays for the various stakeholders in international criminal trials.
Justice Delayed
The case against Kosiah faced early delays during the investigative phase. It has been reported that Michael Lauber, Switzerland’s former Attorney General, did not prioritize this case or cases like it due to their complexity and supposed unattractiveness to the Swiss public. Alain Werner, founder and director of NGO Civitas Maxima and counsel for some of the plaintiffs, pointed out that there is little material evidence available in this case, meaning that it rests largely on witness testimony. However, with the Swiss authorities unable to travel to Liberia, it took five years for the prosecution to hear only 25 witnesses and to prepare the indictment.
Once the indictment was issued, the trial had to grapple with the delays accompanying the Covid-19 pandemic. The pandemic made it impossible for plaintiffs and witnesses to travel from Liberia to Switzerland in order to participate in the trial, and efforts to arrange for virtual attendance have also failed. As a result, while the trial was initially scheduled to begin on April 14, 2020, it was ultimately postponed five times before finally beginning in December 2020. Even then, the trial was split into two parts. In December, the FCC dealt with preliminary questions and the defendant’s testimony. The remainder of the trial is set to take place in February 2021.
Justice Denied?
A substantial amount of time has undoubtedly passed between Kosiah’s arrest in 2014 and the opening of his trial in 2020. However, this is not unusual when compared to other trials involving international crimes. At the International Criminal Court (ICC) and the International Criminal Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR), suspects frequently remain in detention for many years, sometimes even for a decade or more – and unlike the FCC, these jurisdictions are meant to be specially designed and equipped to handle such cases. Yet, in the case against Vojislav Šešelj, an ICTY Trial Chamber found that the accused’s eight-year detention, during which time no decision had been rendered, was not excessive given the complexity of the case. The Trial Chamber notably emphasized the serious nature of the charges, the number of witnesses heard, and the number of exhibits tendered before the Chamber.
For trials taking place in Switzerland, a defendant’s right to be tried within a reasonable period of time is enshrined in Article 29(1) of the Swiss Constitution, Article 6§1 of the European Convention of Human Rights, and Article 14 of the International Covenant on Civil and Political Rights. As in the case law of the ICTY, these provisions have been found to allow for longer trials when this is justified by the complexity of the case. This was held, for instance, in Neumeister v. Austria by the European Court of Human Rights and in Rifaat Al-Assad by Switzerland’s FCC. Unlike Alieu Kosiah’s case, however, the Rifaat Al-Assad case involved a complaint filed by victims regarding the duration of an investigation in which the suspect had not yet been arrested, and therefore the length of his detention was not at issue.
The Rifaat Al-Assad case does allude to the fact that an expeditious trial is not only in the best interests of the defendant. Victims also have an interest in seeing justice done without undue delay, and lengthy trials for international crimes may cause victims to lose faith in the proceedings. This is especially true in a trial such as Kosiah’s, which is taking place decades after the commission of the crimes and in a court many miles away from where the crimes were committed.
Conclusion
Civitas Maxima has announced that the second part of the Kosiah trial will take place between February 15 and March 5, 2021. However, it is unclear whether solutions have been found to allow victims and witnesses to participate, be it from Bellinzona or from Monrovia. As the first war crimes trial to come to fruition in Switzerland, this case may prompt reconsideration of the prosecutorial design. It certainly points to a need to reinvigorate the all but abandoned war crimes unit. Swiss authorities may also draw lessons from other states, such as Bosnia and Herzegovina and the Democratic Republic of the Congo, who are looking for innovative ways to address the challenges of war crimes prosecution. Alternatively, this case may indicate that a specialized tribunal for Liberia, as recommended by the Liberian Truth and Reconciliation Commission in 2009, may be more appropriate than a series of sporadic trials based on universal jurisdiction. In any case, this trial is one to follow, for its contribution to justice for war crimes in both Switzerland and Liberia, and for the lessons it may teach us on how to conduct international criminal justice during a pandemic.