Last week, Liberian President George Weah asked the country's legislature to establish the Extraordinary Criminal Court to try the perpetrators of war crimes and crimes against humanity of two civil wars (1989-96 and 1999-2003). This was widely welcomed.
A consortium of 10 Liberian and international civil society groups advocating for justice hailed Weah's move as a 'major step to bring justice for atrocities' committed during the wars. Adama Dempster at Civil Society Human Rights Advocacy Platform of Liberia and the Secretariat for the Establishment of a War Crimes Court in Liberia said, 'This decision benefits the victims, the country, and the rule of law in Liberia.'
Weah's endorsement of the long campaign for such a court is powerful and symbolic, but is it enough? It's been 30 years since the first civil war erupted and 16 years since the second one ended.
Even Weah's predecessor, Ellen Johnson Sirleaf, otherwise considered an exemplary leader, did nothing to set up the court. That may well have been because she herself was cited by the Truth and Reconciliation Commission which recommended the court, because of her early support for former president Charles Taylor, himself convicted of war crimes during the conflict.
In the absence of a special court, all sorts of indirect manoeuvres have been tried by non-Liberian jurists and activists, with varying success, to fill the justice deficit in the country.
The few trials for Liberia's civil war crimes all happened outside the country in US and European courts
As the 10 non-governmental organisations pointed out, the few trials against perpetrators of crimes during Liberia's civil wars all happened outside the country in United States (US) and European courts. Authorities there have pursued cases under the principle of universal jurisdiction, which allows national courts to try international crimes committed abroad, as well as for crimes related to immigration.
The latter is the approach the US has used, notably in the case of Mohammed 'Jungle Jabbah' Jabbateh. One of the most notorious warlords of Liberia's civil wars, Jabbateh was sentenced to 30 years in prison by a court in Philadelphia in 2018. He was convicted of immigration fraud and perjury because he failed to disclose his war crimes - including murder, rape, torture and cannibalism - when applying for asylum in 1998 and then permanent residence in 2011.
The US was unable to charge Jabbateh directly for his atrocities in Liberia because the relevant US war crimes laws didn't apply. Instead, they brought charges under US immigration law. International jurists have dubbed this the 'Al Capone' manoeuvre. It echoes the strategy of US prosecutors in the 1920s who convicted the notorious Chicago gangster for tax evasion because they couldn't get him for his far more atrocious offences.
Hassan Bility at the Global Justice and Research Project and the Secretariat for the Establishment of a War Crimes Court in Liberia said although much justice had been achieved abroad, 'our people should have the chance to see justice at home.'
Prince Johnson, a notorious rebel leader and war criminal, is now a senator in Liberia
The problem with achieving this is that many war criminals still enjoy considerable influence in Liberia. The most notorious of these is Prince Johnson, a rebel leader in the first civil war who allegedly captured, tortured, mutilated and executed former president Samuel Doe, among other crimes. Johnson is now a senator in Liberia, with considerable power to thwart the legislative approval needed to set up the special criminal court that would surely put him in the dock.
Fonteh Akum, Senior Researcher at the Institute for Security Studies (ISS) in Dakar, says that although his party has only two seats in the Senate, Johnson has popular support in Nimba, Liberia's second most populous county. 'He also enjoys close ties with former mid-level commanders of several factions who today wield informal social control in Nimba.'
Ranged against these malevolent forces, though, are equally powerful benevolent ones. Not least of these is House of Representatives legislator Rustonlyn Dennis, who is dedicated to bringing the proposed court into being.
Akum remains a little sceptical, saying some in Liberia see Weah's move as more political than legal, citing the recent impeachment of Associate Justice Kabineh Ja'neh 'in a very political trial in the legislature.'
Those fighting for justice in Liberia deserve the support of the rest of Africa
'The use of justice in the pursuit of political agendas imperils the political alliances which brought Weah to power and could play out woefully in places like Lofa, Nimba and Grand Gedeh where crimes were certainly committed,' says Akum. 'Yet some perpetrators seem to have been absolved by local reconciliation practices during the years when the state played politics with victims' rights to justice.'
Mark Kersten of the Wayamo Foundation was also cautious, noting that Weah had so far been ambivalent about the court. For the president, the desire for accountability had to be balanced against other goals, including development and peace. Weah could merely be trying to show his government's support for justice, without actually intending to achieve it.
ISS Senior Researcher Allan Ngari is cautiously optimistic but warns that special courts alone don't fill justice gaps, as they are expensive and can only try a few criminals. Weah should instead have directed the legislature to set up a national dialogue on how to address the past, says Ngari. This might well have recommended a special court - but would have been an inclusive decision in a holistic approach better suited to healing the country's violent past.
Despite the scepticism, Dennis told ISS Today that she was confident both houses of Parliament would soon pass resolutions and then bills to establish the court, even though a two-thirds majority would be needed. 'It was the political will which was lacking up to now,' she said, and Weah's letter had shown that will. 'So we want to exploit that opportunity.'
Dennis and others like her deserve the support of the rest of Africa. This is certainly the time for those who insist that justice for war crimes and crimes against humanity be meted out by African courts - rather than courts in faraway places like Philadelphia and The Hague - to stand up and be counted.
Peter Fabricius, ISS Consultant