"Adebayor" and the long arm of international justice

By Mohamed Kunowah Kiellow, The Netherlands

For a long time now an APC stooge calling himself ‘Adebayor’ has been sending audio messages to gullible Sierra Leonean youths inciting them to rise and commit crimes, purporting that he is talking for Sierra Leoneans. Is he really? No.

If he loves Sierra Leone he should be sending messages to unite us, especially after going through a devastating civil war that lasted for years.

One thing this ‘Adebayor’ fails to realise or does not know is that those days when prospective rebel leaders would incite people in their home country to start a war by using the western media are over. Now all western media are taking note of your incitement and instigating audios.

‘Adebayor’, let me advise you that you and your brothers in crime who are trying to bring war to Sierra Leone are in a big mess. In this article I will explain the consequences of ‘Adebayo’s action or inaction under international criminal law and the laws of the Kingdom of the Netherlands.

If it is true that ‘Adebayor’ lives in the Netherlands, then I find it necessary to let you know the legal possibilities that are available to Dutch courts to try you when you are found wanting for the commission of core crimes in Sierra Leone.

In 2003 I was a second-year law student at the Utrecht University school of law when a law came into effect that gave the Dutch courts jurisdiction over persons who commit core crimes: genocide, war crimes and torture, and crimes against humanity. The law is called The International Crimes Act (Wet Internationale Misdrijven-ICA). One of the main reasons behind the adoption of this law was the creation of the International Criminal Court (ICC) and the related Rome Statute, which came into effect on 1st July 2002. This law ‘’provides for universal jurisdiction over specific offences allowing national authorities to investigate and prosecute such offences under certain conditions when they were committed abroad by foreign nationals’’.

Article 2(1) ICA gives Dutch authorities jurisdiction over the following three situations:
(a) anyone who commits any of the crimes defined in this Act outside the Netherlands, if the suspect is present in the Netherlands;
(b) anyone who commits any of the crimes defined in this Act outside the Netherlands, if the crime is committed against a Dutch national; and
(c) a Dutch national who commits any of the crimes defined in this Act outside the Netherlands.

If a war breaks out in Sierra Leone as a result of instigation by ‘Adebayor’ and core crimes are committed, Dutch courts will have personal jurisdiction (ratione personae jurisdiction) over him. If he is not a Dutch national the courts will have jurisdiction over him because he is present in The Netherlands. If he is a Dutch national, the courts will have jurisdiction over him based on his being Dutch.

Dutch courts will have material jurisdiction (ratione materiae jurisdiction) to try ‘Adebayor’ if the above-mentioned crimes are committed in Sierra Leone in war or peace time.

How will ‘Adebayor’ be liable? There are various modes of liability in International Criminal Law. The ICA applies the modes of liability provided for under the general rules of Dutch criminal law: direct perpetrator(pleger), indirect perpetrator (doen pleger), Co-pepetrator(mede-pleger), instigator(uitlokker), accessory (Mede-plichtig).
To what extent will ‘Adebayor’ be criminally liable under these modes of liability?

Direct perpetrator
The direct perpetrator (pleger) is the person committing the crime or attempting to commit the crime. ‘Adebayor’ will not be termed as a direct perpetrator because he may not be directly committing the crime. However, if he comes back to Sierra Leone and takes up arms to cause mayhem, he will be found liable under this mode.

Indirect perpetrator
The indirect perpetrator (doen pleger) is the person inducing or attempting to induce another person to commit a crime. ‘Adebayor’ has over two months now sending audios and video inducing or attempting to induce youths to cause mayhem and kill or murder a group of people.

Co-perpetrator
The co-perpetrator (mede-pleger) is the person committing the crime or attempting to commit the crime in a conscious and close collaboration (bewuste en nauwe samenwerking) with one or more co-perpetrators. This may be a difficult to prove given that ‘Adebayor ’is not present in Sierra Leone. However, there is a great possibility that if any large war breaks out in our country, ‘Adebayor’ will want to come down to Sierra Leone to participate in a systematic murder and killing of a specific group of people.

Instigator
The instigator (uitlokker) is the person who intentionally induces or attempts to induce another person or persons to commit a crime by providing gifts or promises, abusing authority, using violence, threats or deception or providing the opportunity, means or information necessary to commit the crime. Enough evidence has been gathered concerning ‘Adebayor’ intentionally inducing or attempting to induce people to commit crimes in Sierra Leone. On various occasions he has been accused of sending money to youths in Sierra Leone to induce or attempt to induce them to commit crimes in his country.

Accessory
The accessory (medeplichtige) is the person who intentionally assists in the commission of a crime or intentionally provides the opportunity, means or information necessary to commit the crime. This mode of liability can take place before the crime has been committed, while the crime is being committed and, under certain circumstances, shortly after the crime is completed. There is a very narrow division between qualifying someone as a co-perpetrator and an accessory.

In the past, there has been many cases in which defendants were accused of being accessories to war crimes. The Court of Appeal of Hertogenbosch, for example, sentenced Guus Van Kouwenhoven, Dutch citizen, to 19 years in prison for being an accessory to war crimes and for supplying arms and ammunition to the regime of Charles Taylor in Liberia in violation of weapons embargoes.

Liabilities under International criminal law do not know boundaries when it comes to trying people who commit core crimes. ‘Adebayor’ should now know that the long arm of international justice is slowly but surely extending to him.

About the author:
Mohamed Kunowa Kiellow (photo) studied Dutch Law, specialising in Criminal Law and International Law at the Utrecht University School of Law. He also holds a post-graduate certificate in Law from University of East London. He wrote his Master’s thesis on Immunities in International Criminal law.