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Wednesday, June 12, 2024

How the War Crimes Tribunal Would Look Like

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Liberian President Joseph Nyuma Boakai signed an executive order, establishing the Office of the War and Economic Crimes Court for Liberia. This move came amidst renewed calls, including in the legislature, for the establishment of a tribunal for Liberia to seek justice for war crimes and other gross violations of human rights committed during the country’s civil wars, which formally ended in 2003 but for which impunity still persists.

The final report of the Liberia Truth and Reconciliation Commission (TRC) took a similar view. The report recommended that “[a]n Extraordinary Criminal Court” of a hybrid nature –that is, composed of Liberian and international judges, prosecutors, and other staff – should prosecute those allegedly responsible for committing “war crimes, crimes against humanity, and other serious violations of international humanitarian law” during the period covered by the TRC’s temporal mandate: January 1979 to October 2003.

Executive Order #131 calls for the appointment of an executive director to serve as a local and international envoy working toward establishing a Special War Crimes Court for Liberia (SWCCL). The executive director will “… conduct research and studies, and… select a model of an international tribunal for war crimes, including the jurisdiction and situs for the Special War Crimes Court for Liberia . . .”

The President’s critics (among them, ex-warlords, members of the Legislature with history of wartime involvement, ex-rebel generals, and former President Ellen Johnson Sirleaf, etc.) say that this move will open old wounds and that Liberians should let bygones be bygones. Boakai, however, said the wounds are still open and the court would bring about real healing instead of allowing hurt to continue.

The critics’ comments must also be read with the understanding that some of them or their allies who were involved in the civil wars – on either side – could be among those to face charges.

And human rights experts suggest that countries that have held criminal trials for atrocities are better off in deterring future violations than those that have not, creating a longer-term deterrent effect that in many cases – including, I submit, here – outweighs the short-term risks.

As this new office takes shape and Liberians ponder their options for a way forward, there remain a number of logistics, procedural, personnel, and cost questions up for debate in any transitional justice effort. A broader history of war crimes and crimes against humanity, as well as tribunals, can help us to understand how accountability efforts have worked in different contexts and what precedents they have set.

Brief History of International Tribunals for Atrocities

On May 25, 1993, the United Nations Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY). The ICTY is a good point of departure for hybrid tribunals; twelve years before its mandate expired in 2017, an offshoot hybrid court was established in Bosnia. The Bosnian War Crimes Chambers (BWCC) was a locally-owned tribunal meant to facilitate reconciliation in Bosnia-Herzegovina through domestic prosecutions with international assistance.

In response to the mass atrocities in Rwanda in 1994, the Security Council established the International Criminal Tribunal for Rwanda (ICTR), which was the first internationalized tribunal in Sub-Saharan Africa. Like the ICTY, the ICTR was established as an independent entity with trial judges, a registry system, and administrative staff.

Unlike the ICTY, the Rwandan court did not establish a hybrid tribunal inside Rwanda to address residual legal questions. Instead, Rwanda created a parallel reconciliation process, called “Gacaca.” Gacaca was an attempt to blend a local historical model of community justice with modern transitional justice procedures. Its legacy, however, is complicated and mixed; while the process was celebrated for grassroots engagement, criticisms include allegations of political manipulation and inadequate due process. Gacaca proceedings took place in villages and communities across Rwanda at the same time the ICTR was operating.

Hybrid Tribunals

Since the early 1990s, hybrid courts have been pioneered in several post-conflict environments, combining international and domestic law. Examples of post-conflict societies that have utilized hybrid courts include Bosnia, Cambodia, Timor-Leste, Kosovo, Central African Republic, and Sierra Leone.

Perhaps the most important examples for Liberians are the Special Court for Sierra Leone (SCSL), established in 2002 to address the brutal atrocities of the Sierra Leonean civil war and Special Criminal Court (SCC) for the Central African Republic. Taking the SCSL example, rather than being established by a Security Council Resolution, the SCSL was created through a bilateral agreement between the U.N. and the government of Sierra Leone.

The Court had jurisdiction over crimes committed in violation of international humanitarian law and specific crimes under Sierra Leonean law. It had 11 judges of different nationalities including Sierra Leonean, other Africans, Europeans, and an American. It was seated at Freetown, Sierra Leone’s capital, though some of its politically sensitive defendants were tried outside of Sierra Leone, most notably Liberia’s Charles Taylor, who was tried by the Special Court at The Hague, using the International Criminal Court’s facilities.

After 11 years of operation and tens of millions of dollars spentthe SCSL tried 23 individuals, completing proceedings against all but one of the defendants. The International Center for Transitional Justice noted that the SCSL broke new ground in many ways, stating, “It was the first court to be established in the country where the crimes took place; the first hybrid court where international and national judges and personnel worked together; the first international court to be funded solely on voluntary contributions from interested states; the first to indict a sitting African head of state, Charles Taylor; and the first to convict individuals for the recruitment and use of child soldiers and for the crime of forced marriage.”

Yet the Court left some legal questions unresolved when its mandate ended. To address these residual fissures, the U.N. and the government of Sierra Leone created a new judicial mechanism called the Residual Special Court for Sierra Leone to enforce sentences, protect witnesses and victims, and provide other judicial functions to conclude the transitional justice process.

The Sierra Leonean example is instructive for Liberia. For one thing, as countries that share a border, the Sierra Leonean conflict was intertwined with Liberia’s civil war. Charles Taylor, Liberia’s ex-president, was convicted for his role in that conflict; he has not been tried for atrocities committed in Liberia.

Like the Special Court for Sierra Leone, a Special War Crimes Court for Liberia will undoubtedly encounter problems of funding, perceived political interference, and security. In Sierra Leone, for example, the arrests of high profile indictees like Chief Samuel Hinga Norman, Issa Sesay Allieu Kondewa, and Moinina Fofanah, presented a security challenge to judges, personnel in the Office of the Chief Prosecutor, and the Registrar. Conversely, in the case of the Extraordinary Chambers of the Courts in Cambodia (ECCC), they encountered no physical security threats due to the fact the trials were held decades after the crimes. Liberia’s trials will be held after two decades since these atrocities were committed.

To avoid an appearance of political manipulation by a Liberian hybrid tribunal, the public should see that there is an objective prosecution strategy so that no one is being targeted without proper due process. Similar considerations were made during the design process of the Special Criminal Court (SCC) in the Central African Republic and a conversation for a special hybrid criminal tribunal for Sri Lanka.

While the SCSL often receives mixed reviews by Sierra Leoneans and international actors, the Special Court appears to have succeeded on some level in deterring major political violence; despite death threats and some security scares, there was no significant outbreak of violence related to the operations of the SCSL. While Liberia’s court will have to reflect Liberia’s unique experience and conflict history, the Sierra Leonean experience offers useful lessons.

Expensive Justice

Visions for a Liberian Special Court must be tempered by practicality and realism. War crimes trials are not cheap. According to Rupert Skilbeck, by the tenth year of operation, the Yugoslavia Tribunal’s annual budget was $1 billion; the Rwanda Tribunal’s budget was between $10-15 million by its tenth year of operation.

These high costs are not much better for hybrid tribunals. In 2008, the Bosnian War Crimes Chamber presented a budget of $115 million to top up its initial three-year budgeted amount of $56 million.

On average, the BWCC required approximately $709,000 per accused, according to a BWCC expenditure analysis. These amounts exclude the costs of post-conviction detention. To put the cost in context, the Bosnian War Crimes Chamber had handed down 188 final judgements by 2016. It still had 58 cases ongoing, while 128 cases remained uninvestigated.

Post-conflict countries have, the past, appealed for voluntary contributions for these tribunals, often with some U.N. funding, private funding, and funding from other member states of the U.N.

Liberia’s Truth and Reconciliation Commission recommended 120 individuals to be investigated and prosecuted if the evidence supports trials; to succeed, this enterprise would require substantial financial and technical resources from outside of Liberia.

Opposition and Political Considerations

Just as there is renewed enthusiasm to establish the SWCCL, there is also intense opposition against it. For example, key individuals who were named in the TRC’s final report for possible prosecution (or lustration) have since gained considerable political power in Liberia. Former Liberian President and Nobel laureate Ellen Johnson Sirleaf, in a recent radio interview, strongly voiced her opposition to the establishment of the war crimes court.

She instead called for a Liberian version of Rwanda’s Gacaca-style traditional healing model. The TRC’s final report named Sirleaf and recommended a 30-year ban from participating in politics.  Sirleaf did not respect that particular recommendation and ran successfully for a second term as president.

Another prominent war-time figure, Prince Y. Johnson – who was infamously seen torturing ex-President Samuel Doe on a live broadcast – is now a prominent senator in the politically influential Nimba county in northeastern Liberia. Johnson, who also works as a pastor, is often heard preaching at his Paynesville church, claiming that bringing a war crimes court to Liberia would be tantamount to bringing “trouble” back to the country.

There are other high-profile individuals who had a role in the war and who have since transformed into national politicians. One such prominent politician, George Saigbe Boley, was tried in the United States on grounds of immigration violations.

He was deported to Liberia in 2012 after the U.S. government accused him of committing atrocities during the civil war, including commanding a warring faction. He contested and denied the allegations.

Aside from those implicated by the TRC’s final report, in the Liberian media (including talk radio, Facebook, and podcasts) it appears a significant swath of Liberians argues against the establishment of war crimes court, claiming that prosecutions of accused individuals could potentially undermine Liberia’s relative peace over the past two decades. To succeed, President Boakai will need to disabuse people of the notion that the war crimes court is coming for all those who participated in the war without due process.

After all, it is possible that the Court could clear some people’s names. Even when there is due process, people might be worried about being convicted themselves or the potential for instability resulting from valid convictions.

In all, it will take building political will both among the leaders who will need to make tough decisions to address impunity as well as among those who generally support the process.

This political juggernaut against the establishment of the SWCCL is an obstacle that Boakai and international partners will have to overcome; many of these powerful politicians opposing the Court sit in the Liberian legislature, the cooperation of which is required by the TRC’s recommendations to sanction the Court’s charter. Without it, any attempt to proceed with the process will experience an immediate crisis of legitimacy.

Structure of the Extraordinary Criminal Court for Liberia

Assuming the creation of a court moves forward, what would it look like in practice? The Truth and Reconciliation Commission’s final report contains a proposed draft statute for the SWCCL. Under the TRC proposal, eight judges would serve in two chambers: three in the trial chamber and five in the appeals chamber.

Three of the judges would be appointed by the Liberian president with the remaining five appointed by international actors: the U.N. Secretary-General, the president of the European Union, and the chairperson of the Commission of the African Union. The TRC proposed that the chief prosecutor be appointed by the Liberian president in consultation with the U.N. Secretary General.

The prosecutor’s office would include Liberian and international staff. The proposal also specifies that the registrar is to be a foreign national appointed by a majority vote of the judges once they are seated. But to establish the Court with this or any other structure, the President of Liberia would ultimately have to put a draft statute to the legislature for debate and approval.

International experts have raised concerns about some of the elements recommended under this structure. For example, having a single politician – in this case, the President – appoint the chief prosecutor may raise issues of fairness, due process for the accused, and domestic political considerations.

It may be, then, that the president’s appointment should require legislative approval. U.N. partners may also have concerns about particular candidates nominated by the president. Some mechanism or procedure would then need to be added to address such contingencies.

However an Extraordinary Criminal Court for Liberia ends up looking, Liberians will have to find a way to confront their violent past, render justice to deter future human rights violations, and heal their country.

by Ahmed Sirleaf

 

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