Walleyn is an experienced international human rights lawyer

On 19^th September 2014, it was reported that Martina Johnson had been arrested in Belgium on suspicion of having committed war crimes and crimes against humanity during the armed conflict in Liberia in the 1990s. Johnson was the head of the heavy artillery unit for the rebel group, the National Patriotic Front of Liberia (NPFL).

Lead by Charles Talyor, the NPFL launched its attack on Liberia in 1989. The crimes Johnson is accused of were allegedly committed during Operation Octopus which began in October 1992 and consisted of a heavy assault on Liberia’s capital city, Monrovia.

The case against her is remarkable because it is only the second instance in which there has been a criminal prosecution of crimes committed during the Liberian civil war. Despite the Liberian Truth and Reconciliation Commission recommending in 2009 that crimes relating to the armed conflict be prosecuted, to date there have been no domestic investigations or prosecutions of crimes.

The case against Johnson is also remarkable because the prosecution was initiated by victims of the armed conflict. Under the Belgian criminal procedure, the victims are now ‘civil parties’ to the prosecution and have far-ranging rights in the trial process.

I recently spoke to the victims’ legal representative, Luc Walleyn to find out more about the case and ask him about the victims’ role in the case going forward. Luc Walleyn is a Belgian lawyer who has represented victims in some of the most well known cases relating to international crimes in Belgium. For example, M. Walleyn has represented victims in cases relating to the Sabra and Shatila massacre, the murder of Belgium priests in Guatemala, the Rwandan genocide and the withdrawal of Belgian peace keepers from the Don Bosco school in Kigali.

He has also acted in many human rights and police abuse cases, including those leading to the conviction for racism of two Belgian extremist right wing parties. M. Walleyn also represented 22 of the 103 victims participating in the Thomas Lubanga Dyilo case in front of the International Criminal Court. My thanks go to M. Walleyn for the interview.

Below is a record of our conversation.

KF: The landmark case against Martina Johnson has at least three unusual features in that it relates to the non-international armed conflict in Liberia in the early 1990s, the individual alleged to have committed war crimes and crimes against humanity is a woman and it is a prosecution instigated by victims. Would you like to comment on these features?

LW: Yes, the case against Martina Johnson relates to an armed conflict in Liberia in the 1990s. The fact that it is a prosecution initiated by victims is typical in the Belgian system. The procedure is more limited in international cases because the previous universal jurisdiction law that Belgium had in the 1990s has been seriously scaled back. But nowadays victims can still initiate criminal investigations into international crimes in Belgium if the alleged perpetrator is a Belgian national or Belgian resident or if the alleged perpetrator is living on Belgium territory, even if the crimes were committed before he or she entered the country. Although the specific articles on international humanitarian law were not introduced into the Belgian penal code at the time the crimes were alleged to have been committed,  case law has confirmed that it is possible to prosecute war crimes committed before the entry into force of this legal provision because the acts in question were already considered to be crimes under international law at that time and extraterritorial jurisdiction over them had already been established by the Geneva Conventions. I do not anticipate that there will be a problem of jurisdiction in this case.  The fact that Martina Johnson is a woman is interesting from a sociological perspective but legally speaking does not make any difference to the procedure. That being said, it was certainly not common for a woman to hold such a position in the Liberian armed conflict. Martina Johnson was a commander of an important military unit and at a certain point, even had the rank of General within the NPFL.

Please can you provide some details of the crimes which Martina Johnson has been accused of and provide details of her alleged involvement in those crimes?

In the future, a distinction will have to be made between the crimes that my clients originally complained of and the charges that will be finally brought against Martina Johnson. The prosecutor has now joined this complaint and asked for a full investigation into crimes committed during this period, in addition to the complaint the victims originally brought.  So it is possible that other crimes will be prosecuted, in addition to those which were allegedly committed directly against my clients. When commenting on these crimes, I can only give information on things I know from my clients’ complaint. I cannot comment on information I have obtained through access to the case file which is confidential.  So I cannot say anything about the pending investigation.  The crimes my clients have complained of relate to 1992, during Operation Octopus in Monrovia. One of my clients was injured and another was seriously threatened with mutilation and only just managed to escape. The third is claiming compensation for the death of her sister who was allegedly killed by Martina Johnson.  All these crimes were committed in same area in same period, but it is possible that other crimes relating to different periods or locations could be prosecuted in the future. 

On what basis does Belgium have jurisdiction over the alleged crimes in the current case against Martina Johnson? On the basis of which criminal code are the alleged crimes charged? 

Jurisdiction in the case has been established on the basis that Martina Johnson is living in Belgium. In that sense, the case against Martina Johnson is not really a universal jurisdiction case because it is based on the location of perpetrator rather than the nature of the crimes per se. In that sense, it is more a demonstration of the active personality principle. The alleged perpetrator of an international crime is a Belgiam resident. The Rwandan cases have already established a precedent of these kind of cases being prosecuted in Belgium in this way. The cases are being taken under the ordinary Belgian criminal code. The provisions relating to war crimes are no longer contained in a separate law, but are integrated in the main body of the penal code.

One of the interesting elements of this case, is that it demonstrates a role for victims in the domestic prosecution of crimes committed during the course of an armed conflict. Please can you explain the role of the three original victims who filed a criminal complaint against Martina Johnson in 2012?

Victims are very important in these kinds of cases. The role of victims has proved to be of paramount importance in the different investigations and jury trials which have taken place in Belgium against Rwandan perpetrators. In this instance, the investigation against Martina Johnson was started on the initiative of the victims, as civil parties. The process can be compared to a private prosecution. A plaintiff contacts an investigating judge and pays a guarantee. This starts the criminal investigation.

So that is what happened at the end of December 2011 and beginning of January 2012 when your clients filed a criminal complaint against Martina Johnson?

Yes. Over the last three years, an investigating judge has been looking into these initial complaints. The simple fact that a civil party has made a complaint does not mean that a suspect can be arrested. So in the intervening period, an investigating judge has taken steps to verify the victims’ initial statements, has heard some witness evidence and has studied the documentation relevant to the case.  A lot of documents relevant to the case are in the public domain like, for example, the report of the Liberian Truth and Reconciliation Commission which is a public document. Having made these initial checks, the investigating judge decided that there was strong enough evidence to issue a warrant of arrest for Martina Johnson.

What is the victims’ current status in the case and what will their role be in the case going forward?

The three initial victims who made the complaint in 2012 are still civil parties to the case and they will remain civil parties during the trial when it starts. A civil party is essentially a victim who lodged a formal complaint and who has thereby become a party of the case. It is akin to an act of private prosecution. The civil parties have certain rights during the investigation. They can ask to have access to the case file and to read the documents in the file under more or less the same conditions as the Defence. During the trial, the civil party has legal representation and can produce additional evidence, examine witnesses and make statements. 

What can the victims who filed the original criminal complaint hope to achieve from a case like this?

Well one thing has already been achieved: there is an investigation and there has been an arrest. This is already an achievement and a form of reparation for the victims. But of course this is only a first step. Establishing the truth is an important element of reparation for victims, as has been recognised in international jurisprudence. In Belgium, victims can not only contribute in the establishment of the truth but they can also claim compensation. Any compensation that is awarded will not come from a public fund but from the person convicted, if that is possible. The person convicted can have their assets seized and may be forced to pay certain sums to the victims in the future. Of course in this particular case, the financial compensation is not the most important element for the victims. The most important fact is that the individuals are recognised as victims of the crimes and that the perpetrator is punished.

Would it be possible for other victims in Liberia who have heard of this case to seek to join it?

Yes, if they are also victims of the facts which end up being the subject of the prosecution. The final charges against Martina Johnson will be determined at a later stage. At the moment, the accusations which have justified an arrest warrant are only preliminary. At a later stage, there will be a formal set of charges which will be confirmed by the preliminary chamber of the court of appeal. A trial will take place on that basis of those charges.  If the final charges are quite general, which is likely in cases of crimes against humanity – because crimes against humanity are by definition crimes which have been committed in a widespread or systematic manner  – it is likely that other victims will be able to join the case. 

You have played a key role in representing victims in front of the International Criminal Court, in particular you were a Legal Representative of the victims in the case against Thomas Lubanga Dyilo, the first person ever to be convicted by the court.  What are the major differences between access to justice for victims in domestic proceedings versus the International Criminal Court?

The procedure before the ICC and in Belgium is quite different. The role of the civil party in Belgium is much more important than the role of the participating victim in the ICC procedure. In the ICC procedure, victims do not have the same procedural rights as the prosecutor and defence. They need to obtain permission for each question that they want to ask. They have some rights (e.g. they can make certain  requests or make certain observations or provide responses to the observations of the other parties) but they are not really considered to be ‘parties’ in the case. Instead they are considered to be ‘participants’. As participants, the victims’ ability to take part in the procedure is limited. Before the ICC, victims are not prosecuting the case and so they are not supposed to bring evidence relating to the guilt of the accused. That being said, in the Lubanga case, the judge decided that victims could be authorised to produce evidence even on the guilt and evidence of the accused. Generally, in the cases at the ICC, the case is between the Prosecution and Defence. Within that model, victims can only bring up issues which are directly relevant to them. In the continental civil party procedure, and especially under Belgian law, victims have a more central role and important rights. As I said already, a criminal investigation can be initiated by victims, even against views of the prosecutor. For example, there may be circumstances where the victims are successful in initiating a trial, in circumstances when the prosecutor does not want to proceed. In these circumstances, a court can still pronounce a conviction at the request of the civil party. During the investigation stage, victims in Belgium can have access to the documents in the file. The file is not deemed to be the case of the Prosecution as such, but the result of the investigation organised by the judge. The victims can have access to those documents, in the same way as the Defence has access to them. The victims can propose qualifications or contest qualifications made by other parties. One interesting difference is that in Belgium, victims are not involved at all in the procedures regarding detention. If there is a hearing on detention, victims are not represented. In contrast, before the ICC, victims can also make limited observations on issues of detention. Another difference is that in Belgium, victims cannot appeal on the sentencing but can appeal the decision on guilt or innocence. At the ICC, there are no appeal rights for victims at all although victims can make representations relevant to the sentencing of the accused. In the Lubanga case, the victims had the opportunity to make representations at sentencing but not on the sentence as such. They could make observations linked to their own situation. For example, the Rome Statute says that the sentence should take into account the circumstances of the crime and in particular the suffering of the victims and the attitudes of the accused on attempts to repair etc. So the victims could make representations on these kinds of issues but could not make concrete suggestions regarding the length of the sentence e.g.  10 years or 20 years. In Belgium, the final stage of a case is divided into three distinct steps. The first step involves a decision on the guilt or innocence of the accused. This decision is taken by a jury and the judges are not present in the jury’s deliberation. After the ‘yes/no’  deliberation by jury, there is a sentencing hearing during which the prosecutor will ask for a certain punishment. The judges and jury will determine the sentencing and the civil parties are not involved. In the third stage, the issue of reparations is considered. Here, the jury is not involved and it is an issue which is considered by professional judges, the convicted person together with his/her defence counsel and the civil parties. The prosecutor is not involved at the reparations stage.

Is victim and witness safety an issue in cases like this? And if so, how can it be secured?

I can only answer questions about safety issues in the general of course. In these types of cases, the safety of witnesses and victims is certainly an issue. There is a legal framework in Belgium which is designed to protect witnesses if this is necessary but issues of witness protection are not always easy in an international context. If protection is required outside Belgium, it will be up to the authorities of the other country to organise it. The Belgian judiciary may take measures to assist but its powers will necessarily be limited.  The Belgian judiciary cannot, for example, organise a witness protection programme in another country. In instances where a witness comes to Belgium to give evidence, he or she will be protected and it may be possible to make certain requests to the judge to secure extra protective measures. For example, a request may be made for a particular witness to give their testimony anonymously. In short, witness protection not always easy in these types of cases but there is a legal framework in place to try and secure it as best as possible.

Belgium is known for having diasporas that exist of both perpetrators and victims, for example of the Rwandan genocide. How does this impact on criminal proceedings?

There may be other Liberian victims in Belgium who could decide to participate in the trial if they want to do so. It was certainly the case in the Rwandan genocide cases that Rwandan people living in Belgium intervened in the procedures as civil parties or as witnesses in the trial.

Do you have to be resident in Belgium to be a civil party in Belgian proceedings?

No. You don’t have to be resident in Belgium to be a civil party. My clients in this case are living in Liberia.

It is often commented that ‘not only must justice be done; it must also be seen to be done’. Is this a problem in cases which are prosecuted so far from where the crimes were committed? If so, what can be done to mitigate this problem?

What we saw in the Rwandan cases which were prosecuted in Belgium is that they were closely followed in Rwanda through the media, radio etc. It is worth noting that the general public does not necessarily receive more or better information if a case is prosecuted in an African country 1000km from where the crimes were committed, than if it is prosecuted in Europe. Certainly, I think the Liberian public will have the opportunity to follow this case in the media. My clients have suggested that there has been interest in the case in Liberia but I do not have a good idea of how much media coverage there has been of the case. We are working with a local NGO on issues of impunity in Liberia, and they issued a press statement on the case in Liberia.

Is there any possibility in Belgium for the hearings to be recorded or broadcast?

The criminal procedure in Belgium is public. That being said,  criminal trials will normally not be broadcast as such. In the very first Rwandan case relating to the prosecution of genocide, the President of the court gave permission for the proceedings to be recorded. So ultimately, it will depend on the opinion of the presiding Judge of the trial. If the judge authorises the proceedings to be recorded, it can be done. In the first Rwandan case, everything was recorded and transmitted over the radio in Rwanda and it was also available on the internet. In the last Rwandan case, a film maker was authorised to film some of the hearings.

Would that be a request that the victims would make? Who would make such a request?

Such a request could come from difference sources. For example, journalists could make this kind of request. And yes, the victims could also make such a request.

So it is something that may foreseeably happen in this case?

Yes. But if the Defence strongly opposed such a request it would probably be refused.

In 2009, Liberia’s Truth and Reconciliation Commission recommended a hybrid tribunal for atrocities committed during Liberia’s armed conflicts, which are alleged to have claimed over 150 000 lives, most of them civilians. So far the Liberian authorities have made no effort to investigate and prosecute crimes committed over a decade of civil war. Do you hope that the prosecution of Martina Johnson in Belgium will prompt more criminal prosecutions on behalf of the victims of the conflicts in Liberia, either in Liberia or other third countries?

Of course my priority here is my own case but it has been seen that investigations started in foreign countries have sometimes encouraged local procedures as well. For example, this happened in particular in Latin America where complaints in Spain and Belgium encouraged local proceedings, even though amnesties had been given.  So it is possible that this could be a first step to a process of accountability in Liberia but it is probably a bit early to comment on that. There are also real possibilities for more cases related to the armed conflicts in Liberia in other third countries.  For example, there were some American nuns who were killed. So there is potential for more cases in the future, especially considering that war crimes are not subject to statutory limitations.

It has been suggested in the media that Martina Johnson had claimed asylum in Belgium. What effect may the criminal case against her have on her asylum application?

I will not comment extensively on this but I can say that Martina Johnson has legal status in Belgium. This can be granted in instances, for example,  where an asylum procedure is taking too much time. In such circumstances, the residence status of the applicant may be regularised.

Is there anything you think should be covered? Or anything else that you would like to say?