For the first time, an individual has been detained on international charges relating to the exploitation of the Sierra Leone war by marketing so called“blood diamonds”. This fascinating case raises interesting issues about the application of universal jurisdiction for alleged war crimes offences in different countries in Europe.
On 28 August 2015 64 year old businessman Michael Desaedeleer, an American-Belgium citizen, was detained at Malaga airport by Spanish Police acting on a European Arrest Warrant request from Belgium. This was the culmination of efforts to secure his arrest over a number of years, emanating from a complaint first filed in Brussels in 2011 and the issuance of the EAW earlier in this year. The complaint was lodged by several Sierra Leoneans, assisted by Swiss NGO Civitas Maxima working in partnership with The Centre for Accountability and Rule of Law.
It is alleged that Desaedeleer led extraction work in diamond mines in the eastern Kono district of Sierra Leone between 1999 and 2001, during which he played a role in enslaving the miners and trafficking the diamonds to the Liberian capital, Monrovia. The significance of his involvement relates to the fact that these diamonds were then used by the former President of Liberia, Charles Taylor. In 2012 Taylor was found guilty at The Hague’s Special Court for Sierra Leone of aiding and abetting war crimes in Sierra Leone and sentenced to 50 years’ imprisonment. It was found that Taylor had sold such diamonds brought into Liberia to help finance weapons for Sierra Leone’s Revolutionary United Front (“RUF”) rebels.
Desaedeleer’s involvement in the diamond industry was apparently known from December 2000. In the Expert Report produced pursuant to UN Security Council Resolution 1306 (2000) “Expert Report” it was claimed that Desaedeleer made contact with the RUF in Togo in the summer of 1999 and in October he agreed to an arrangement whereby he had authority to broker rights to all of Sierra Leone’s diamond and gold resources for a ten year period. His extradition however means that for the first time Desaedeleer’s alleged actions will be considered by a criminal court.
It is understood that he will face charges of enslavement (a crime against humanity) and pillaging (a war crime). It is also understood that Desaedeleer agreed to be handed over to the Belgium authorities seeking his arrest. Desaedeleer will likely face trial in Belgium as it has the jurisdiction to try cases of this kind. Indeed it is the current forum for the prosecution of former Liberian front line Commander of the National Patriotic Front of Liberia, Martina Johnson, who is indicted for war crimes and crimes against humanity allegedly committed during the first Liberian civil war (1989-1996). There are also eight cases relating to the 1994 Rwandan Genocide pending before Belgium’s criminal authorities.
Belgium, historically, provided for some of the widest powers of universal jurisdiction, allowing the authorities to try any of the ‘listed offences’ (including war crimes, crimes against humanity and genocide) that were brought before them, regardless of the location of the offence or the residence/physical presence of the accused within the prosecuting jurisdiction . Whilst this jurisdictional remit was curtailed in 2003 following complaints about its scope, Belgium retains the power to prosecute domestically such crimes if the alleged offences committed abroad were by a Belgium Citizen or resident .
In the UK the International Criminal Court Act 2001 allows for the prosecution of citizens and residents accused of committing such offences. It has no retrospective applicability however. The law prior to this (principally the Geneva Conventions Act 1957) permitted such prosecutions only where the conduct took place in circumstances fulfilling the definition of “an international armed conflict”. Consequently, where the alleged conduct occurred prior to September 2001 and took place within a non-international armed conflict (such as the conflict in Sierra Leone), the UK has no jurisdictional power to prosecute. Consequently, had Desaedeleer been a British citizen, the law here would provide no jurisdictional basis to prosecute him.