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Should Africa consider the Al Capone option?
By Peter Fabricius
The Alcapone and Jungle Jabbah precedents show how
minor crimes can be used to bring down major criminals
Al Capone, we all know, was a notorious Chicago mafia
gangster when Chicago was the capital of American
crime in the violent 1920s. But the legal authorities
couldn’t pin any of his most serious violent crimes on
him. So eventually they persuaded his bookkeeper to
testify against him and he was found guilty in 1931 of
tax evasion and sentenced to 11 years in jail.
In April 2018 Mohammed ‘Jungle Jabbah’ Jabbateh, a
notorious Liberian warlord, was convicted in a Philadelphia
court for lying about his nefarious past on application forms
for asylum and permanent residence in the United States.
The US authorities charged him on these lesser crimes
of perjury and immigration fraud because they didn’t
have crimes against humanity or war crimes on their
statutes or couldn’t apply them retrospectively to
Jabbateh’s atrocities during the Liberian civil war. They
nevertheless sentenced him to a solid 30 years for six
violations of immigration law. He will probably serve at
least 25 years, with five years off for good behaviour.
Do the Al Capone/Jungle Jabbah precedents suggest
how African countries could litigate terrible atrocities
when they can’t manage to get over the higher bar of
nailing them for International Criminal Court (ICC)-type
crimes? This was one of the proposals at a seminar run
by the Berlin-based Wayamo Foundation last month in
Arusha on justice and accountability in East Africa.
The seminar explored the possible synergies between
fighting international crime – the kinds of offences
prosecuted by the ICC – and transnational organised
crimes such as terrorism, trafficking of people, arms,
drugs and wildlife, and money-laundering.
It was Stephen Rapp who most strongly argued that
Africa should sometimes consider the Al Capone
option. Rapp was most recently ambassador for war
crimes issues in the Office of Global Criminal Justice of
the US Department of State. Before that he prosecuted
the media case in the International Criminal Tribunal
for Rwanda and prosecuted former Liberian President
Charles Taylor in the Special Court for Sierra Leone.
Rapp said he believed in the ICC as a court of last resort,
but it was generally better to try cases at a national level
closer to the people. That could become difficult when
prosecuting atrocities such as mass rapes, torture and
murder of civilians, especially when there was an ethnic
dimension involved and witnesses often felt reluctant to
testify lest they be accused of betraying their own group.
That was when it could be useful to achieve the same
results by bringing other charges against the same
perpetrators. ‘Some of the other tools in the legal
toolbox can get at the same actors without necessarily
picking at these divisions within society,’ Rapp said.
He offered several examples of using other legal
tools such as the case against Otto Pérez Molina,
who was immediately arrested after standing down
as Guatemala’s president in 2015 and charged with
customs fraud – even though he had headed a notorious
genocide squad murdering Maya people in the 1980s.
The seminar heard from several investigators of
international crimes and transnational organised crimes
that the perpetrators of these different types of crime
were almost always very hard to distinguish anyway.
William Rosato, a senior investigator for the Office of
the Prosecutor at the ICC, said the United Nations
defined transnational organised crime as ‘organised
crime coordinated across national borders, involving
groups or networks of individuals working in more
than one country to plan and execute illegal business
ventures. In order to achieve their goals, these criminal
groups use systematic violence and corruption’.
‘Does this differ from ICC crimes?’ he asked, somewhat
rhetorically. In Libya, he said, the lines between militia
leaders, traffickers in human beings and Islamic State
insurgents were blurred. As were their motives. ‘Do
they control territory to generate money? Or do they
generate money to control territory? And does it
matter?’
Philipp Ambach, chief of the ICC victims participation
and reparations section, said what often distinguished
international crimes from transnational organised
crimes was the larger scale of the former. Convicting
international crimes usually demanded a higher
burden of proof, a demonstration that the crimes had
hurt large groups of people. He also suggested that
it could often be easier to prosecute these people for
transnational rather than international crimes.
Nonetheless Ambach suggested to Rapp that there
could be a real problem in going after perpetrators of
terrible atrocities on much lesser charges, as this might
deny the victims a sense that justice had been done for
them. Angela Mudukuti, international criminal justice
lawyer at the Wayamo Foundation, agreed.
Mark Kersten, deputy director of the Wayamo
Foundation, feared that countries like the US and
Canada pursuing the scores of perpetrators of