A little over ten years ago, the Chairman of the erstwhile Truth and Reconciliation Commission (TRC), Cllr. Jerome Verdier submitted to the Administration of former president Ellen Johnson Sirleaf the TRC Final Report which according to him contained, not only a chronological account of the country’s conflict history but also recommendations for consolidating the peace through a hybrid form of retributive and restorative justice. The report among other things traces the root causes of the Liberian civil war to entrenched socio-economic injustices and recommends lustration, forgiveness and other punitive measures for people deemed to bear greatest responsibility for the war.
But there was a hitch though! The then administration whose responsibility it was to implement the TRC report had vested interest in the report not been implemented. First and foremost, the report recommended that president Sirleaf be barred from holding public office for a period not less than 30 years for her role in financing the National Patriotic Front of Liberia (NPFL), the rebel group which launched the Liberian civil war. Surly, save divine intervention, president Sirleaf could not have implemented the report against herself, could she? Time and circumstances have proved critics and cynics of Madam Sirleaf right when they presumed that her second term presidential ambition (2011) would have killed the works of the TRC.
Aside from Sirleaf, the TRC had caught the hands of other high-ranking officials of government in the proverbial cookie jar. They too were accused of atrocities and economic plunder of the Republic. Some were included on the list for lustration while others were recommended for the war crimes court. This mixture of high-ranking officials in both the Sirleaf executive and the Legislature ensured the TRC report was “dead on arrival.” Callous you would say but this writer is sure that were he on the list, he would probably have done as they did. The first law of nature is self-preservation, isn’t it?
George Weah, the once critical opposition leader to Madam Sirfleaf, whose Congress for Democratic Change (CDC) political party condemned her government for not enforcing the TRC Report and vehemently advocated for the establishment of a War and Economic Crimes Court to prosecute alleged perpetrators of the civil war is now president. Unlike Madam Sirleaf, Mr. Weah is a former UNICEF Goodwill Ambassador and a man who would scream in every ear willing to listen that he is THEE “Peace Ambassador.” He is not referenced in the TRC Report for any wrongdoing. It is in this light that his campaign for the presidency unwittingly served a healthy dose of expectations to victims of the civil war and campaigners for justice that once he became president, their cries for justice would be over. This is why, his continuous flip-flop on the establishment of War Crimes Court for Liberia comes across as a betrayal of the confidence of many who saw him as an icon of peace. This flip-flop perhaps lends credence to allegations from a Liberian Lawmaker, Yekeh Kolubah, that he (President Weah) financed the Movement for Democracy in Liberia (MODEL), one of the warring factions to the Liberian Civil War.
As calls for War Crimes Court for Liberia intensify on the Weah Administration, there have been different propositions about the subject matter. Some have gone as far as suggesting that the establishment of a War Crimes Court for Liberia becomes a derivative of a referendum. Generally, these different ideas are unnecessarily bureaucratic, largely proffered by politicians and seemingly geared towards delaying or denying justice for people who suffered the worst forms of atrocities. President Weah seemingly buys into these political maneuverings when he recently sought Legislative advice to inform his judgment on the establishment of War Crimes Court for Liberia, but in a few days returned from the UNGA and trivialized the issue when Lawmakers had reportedly secured a majority support for the establishment of the court. That the president who took oath to uphold the Rule of Law, and whose party once campaigned for a War Crimes Court for Liberia will be in the vanguard of politicizing the cry for justice, is disgusting to say the least.
Mr. Weah and all those politicizing justice for victims of the civil war must be reminded about Liberia’s obligation under International Humanitarian and Human Rights Laws, consistent with the many international rights instruments our country has ratified. In 1998 Liberia signed the Rome Statue establishing the International Criminal Court, and ratified the instrument in September 2004. The ICC is a permanent international tribunal with jurisdiction over four broad categories of criminal cases- genocide, war crimes, crimes against humanity and aggression. By ratifying the treaty, Liberia agreed to submit to the jurisdiction and mandate of the court.
The ICC and other International Criminal Tribunals operate on the principles of complementarity. It is a court of last resort which does not ordinarily take seize of cases emanating from a state party except where there is clear reluctance to prosecute alleged perpetrators of crimes within the mandate of the court or that prosecution by a state party is merely a smokescreen. In the case of Liberia, the latter is true. It is been at least 15 years since the end of the Liberian Civil War and about a decade since the submission of the TRC Report. Victims of the Civil War continue to cry aloud without any substantial effort towards justice. Hence, this presents a classic case of reluctance on the part of Liberia as a State Party to the Rome Statue and provides plausible reason for the ICC or a Special Criminal Tribunal to take jurisdiction over the investigation of the atrocities that characterized the Liberian Civil War.
It is understandable that our country lacks the capacity to prosecute war crimes locally; but this is no excuse for the laisssez faire approach being demonstrated on the subject matter. There are alternatives in the ICC or an ad hoc tribunal as was the case with the International Criminal Tribunal for Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR). Under these International Frameworks, War Crimes Court will come at no significant expense to the Liberian Government. For instance, the ICC is heavily funded by the EU and doesn’t set financial contributions as a precondition to prosecuting perpetrators of War Crimes in a state party. These international right instruments support reparation and rehabilitation for victims. In fact, the ICC has a Trust Fund to compensate or rehabilitate victims of human rights violation. The Banjul Charter emphasizes reparation for victims of Civil War. More than delaying or seemingly denying them of justice, the continuous delays in setting up War Crimes Court for Liberia deprives victims of these immunities.
As already documented in the TRC Report, there is evidence to prove that the Liberian Civil War was characterized by widespread Human Rights Violation; including ethnic cleansing, rape, torture, murder, massacre, conscription of child soldiers, etcetera. There are three ways by which an International Tribunal can exercise jurisdiction over these International Crimes: by a resolution of the UN Security Council, by a Complaint or request from a State Party or the office of a Special Prosecutor may begin investigation under the principles of ex proprio motu. These avenues leave Liberia with no excuse as to why War Crimes Court for Liberia is not possible. What the Liberian Government should do, if it truly believes in the Rule of Law, is to take advantage of the option of soliciting international intervention consistent with its obligation to the many rights treaties the country has signed.
Legal scholars may argue that under the principle of ex post facto, the ICC can’t exercise jurisdiction over crimes committed during the Liberian Civil War. That is, since Liberia ratified the treaty in 2004, a period after the end of the Liberian Civil War. However, we are not short of options at the International Level. A special Criminal Tribunal is possible. Considering the nature of rights violations that occasioned the Liberian Civil War, both International Humanitarian Law (the Law of War) and Human Rights Law control the Liberian situation. Liberia is a signatory to the Geneva Convention and its Optional Protocols which set standards for the rules of engagements during armed conflicts and marked the evolution of International Humanitarian Law. Article 3 of the Geneva Convention provides protection for civilians and soldiers no longer engaged in combat during armed conflict. There are records to show that the Convention was never respected by all parties to the Liberian Civil War.
As a member state to the United Nations, Liberia is obligated under Article 1(3) of the UN Charter to promote and support respect for human rights. On upholding and enforcing Human Rights, Articles 55 and 56 of the UN Charter states in relevant parts as follows: “Member states shall ensure universal respect for, and observance of, human rights and fundamental freedoms for all without distinctions as to race, sex, language, or religion’’. It goes without saying that Liberia’s obligation to protecting human rights under international frameworks dates as far back as 1945 or probably prior to that period. The Universal Declaration of Human Rights which came after the UN Charter in 1948 also obligates Liberia to the protection of Human Rights. The commitment of Liberia under these instruments defeats the ex post facto argument if it were ever tenable as to the ICC.
On the regional front, one of the objectives underlying the transition from OAU to AU is the need to prioritize and elevate Human Rights above the sole domain of State Parties; in conformity to the UN and other International Systems. Under the OAU arrangement, so much emphasis was placed on respect for sovereignty and State Parties had sole discretion over Human Rights issues. The coming into force of the AU Charter in 2002 meant that African States must now treat Human Rights issues on the principle of ergo omnes; meaning on the issues of human rights, all states have a duty to the International Community irrespective of any treaty. Under this new system, except Morocco, all 55 African States signed the African Charter on Human and People’s Rights in July 2017. Its unique and distinctive feature is its consideration of African Traditions and Cultures. As good as the instrument is, it may not stand the ex post facto test under the Liberian scenario but puts the country in a check as to its continuous commitment to the protection of human rights.
Continentally, the Banjul Charter of 21, October 1986 is more appealing on the case for prosecuting alleged human rights violators during the Liberian Civil War. Several Provisions of the Banjul Charter obligate Liberia to prosecuting perpetrators of human right abuses. Article 1 of the Charter emphasizes the duty of State parties to take Legislative or other actions to protect human rights as enshrined in the Charter. Article 4 obligates state parties to respect the life and integrity of every human being and prevents the arbitrary deprivation of same; a provision that was clearly violated during the Liberian armed conflict. Article 3 of the treaty guarantees equal protection before the law. Both the preamble and Article 60 of the Banjul Charter highlight the fact that the treaty follows and takes cue from the UN Charter and the UDHR.
Calls for a referendum to inform the decision for a War Crimes Court for Liberia is even more outrageous. This would be the worst form of derogation of Liberia’s commitment to the UN Charter, the UDHR, the Geneva Convention, the Banjul Charter, the African Charter on Human and Peoples’ Rights, and all other rights instruments the country has committed itself to. A referendum would equate to us asking ourselves whether we should respect our obligations to these frameworks as a nation and may finally bury the cries for justice. It is common knowledge that many of those people accused of bearing the greatest responsibility for the mayhems that marked the Liberian Civil War have the political influence and affluence to shift the outcome of any referendum for a war crimes court for Liberia. In effect, a referendum would mean victims asking alleged perpetrators whether they (perpetrators) want to be prosecuted. Lawmakers, Businessmen and other powerful people in and out of government who are already listed in the TRC report would endeavor to influence the outcome of any referendum. Accordingly, Justice for victims of the Liberian Civil War is not a fit subject for a referendum.
About fifteen years down the road of peace and stability in Liberia, when victims are still living in agony while most of their victimizers live in luxury at their expense, there can be no better time for a War Crimes Court than now. The government of Liberia must take judicial and political cognizance of its duty to protect and uphold the Laws of Liberia, and all the aforementioned regional and international rights instruments our country has committed herself to. Under International Laws, a country’s knowing and willful consent to a treaty has the effect of estoppel. Hence, war crimes court for Liberia is a duty and not a choice or subject for political maneuverings. To end impunity in Liberia, the International Community must intervene to have Liberia live up to its commitments.