Liberia: Establishment of the War Crimes Court Establishment - Managing Fears and Expectations

President Weah, after nearly two years into his presidency, on September 14, 2019 finally submitted to the Liberian Legislature a proposal seeking the honorable legislature to advise his government on the processes and mechanisms to implement one of the key Truth and Reconciliation recommendations.

The decision is a dramatic twist from his initial indecisive and non-committal posture on the agitations that had mounted for the establishment of the court. Many are of the view that the political decision could not have come without behind the scene arm-twisting. For President Weah is believed to have a soft spot for Senator Prince Johnson, the former warlord who killed former President Samuel Kanyon Doe, and many others who names are tagged for criminal accountability in the records of the Truth and Reconciliation Commission. The reality is sinking in and the country is somewhat divided on the mechanisms to address war crimes accountability, reconciliation and nationally healing.

In retrospect, the story is reflecting the Comprehensive Peace Agreement signed in August 2003 in Accra made provision for the setting up of a Truth and Reconciliation Commission as a hybrid restorative justice pathway.

Perpetrators of the war and financiers of the gross human rights abuses and violations that attended the war of attrition were recommended for prosecution. The period for the criminal accountability was set between 1979 to October 2003. Others were to be blacklisted from holding public office(s) for a period spanning thirty years. Liberia's former President Ellen Johnson Sirleaf was supposed to be among this category after her confession at the TRC was in admittance of having doled out US$10,000 to the National Patriotic Front of Liberia (NPFL) of erstwhile President Charles Taylor. She had suggested that the offer was not in support of the arms struggle but humanitarian gesture, even though the NPFL was an arms group.

It is then possible to understand why the process to implement this aspect of the TRC recommendation has been contentious. It has been a sheer display of political lip-service much to the frustration of many victims of the brutal civil conflict, international human rights bodies and TRC former commissioner Jerome Verdier, etc. He would later flee the country claiming that his life was under threat for pushing the case of implementation. Other commissioners were divided on the issue of implementing the recommendation so as not to ruffle feathers of political heavyweights. And the issue of implementing the TRC is kept in abeyance with some people citing flaws in the document in attempt to discredit its authenticity.

One dicey issue has been the constitutionality or legitimacy of the war crimes court establishment outside of the Liberian judicial system. But this is supposed to be an international court based on international humanitarian law, which supersedes national laws. Liberia is also signatory to many international treaties like the Universal Declaration of Human Rights (UDHR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), amongst many others, hence Liberia's legitimate basis for establishing the War Crimes Court.

Meanwhile, Senator Prince Johnson and many of those who bear the greatest burden of the 14 years conflict remain unrepentant and are on record justifying their participation in the crisis.

In the face of the fragility and poverty situation attributed to the war, the voices clamoring for retributive justice say it is about addressing impunity and sending the strong message that never again will armed struggle that violates international and national laws be employed by warlords. How to reconcile that legitimate argument with the equally important imperative of preserving the peace by not creating conditions where the vulnerability of unemployed youths, cannot be manipulated to make the country ungovernable, combined with a neo-patrimonial semi-democratic state where state resources are still available to persons named in the TRC report -- this is the thrust of the article.

In trying to play the balancing act, key questions comes to mind, namely: have the pre-war conditions that stirred the conflict been addressed? This major object of the TRC is enunciated in the need to investigate, "the antecedents of the crises which gave rise to and impacted the violent conflict in Liberia... " What are the goals of retributive justice and restorative justice? What purpose does each of them serve?

There is, therefore, sufficient reason to embrace transitional justice as it is further seeking to heal historic identity cracks between so-called settlers and indigenes, as well as the lingering effects of authoritarian and politicization of the military all of which is bundled in the narratives of inordinate human rights abuses and Liberia's political history.

But there are those who hold contrarian positions on the matter and are referring to socioeconomic woes that are prevailing as the priority need of ordinary Liberians, women and youths especially who were exploited and abused in the war. The TRC is not silent on the matter and even suggested reparations. The delivery in this area has been very negligible to note, with sprinkling of actions from the Peace-building Fund in league with the Independent Human Rights commission, working on series of palava hut mediations and some youth empowerment projects that have not been very transformative.

All Liberians' eyes are on the unequal distribution of national wealth which has also opened an increased advocacy window for the economic crimes court as a supplement of the war crimes court advocacy. The hordes of ex-combatants that are now increasing in narcotics substance abuse and are tagged 'zogos' represent threats to national stability, but not much has been done to retrieve, reintegrate and purposely engage them in the needed productive sector.

Dr. Walt Kilroy, who studied Liberia's attempt at reintegrating ex-combatants, argues that the DDRR process was far from participatory, neither did it consider the inputs of ex-combatants into programs development and decision making.

Additionally, the prevailing state of Liberia's security sector cannot be ignored in making a case for war crimes court. There is a theoretical affirmation on point that democracy flourishes when ordinary citizens can have access to the law and break the culture of impunity. This was a strong basis for development partners' support towards Liberia's attempt to reform its justice system. Like several countries coming from civil conflict, the challenges are still herculean -- courts still marred with corruption, unnecessary bureaucracy, untrained staff members, centralized judicial system etc. The process of access to justice is still far-fetched with citizens having little or no trust in the justice system.

Communities continue to take self-help steps, such as community watch teams to serve in the place of inaccessible Police personnel and community palava huts to "settle civil matters" outside of the bureaucratic judicial system. The lack of trust in the justice system remains a substantial 'piece of the pie' that has to be dealt with as Liberia moves toward a sustainable peace and development as there is a correlation between justice and development.

However, many are asking: Is the establishment of the court capable of curtailing the uneven distribution of wealth and improvement in service delivery? This is an area for open debates to better educate the public on the pros and cons of the proposition to have the court. The heightening poverty levels beyond Household Income and Expenditure statistics 54%, according to the Institute of Statistics and Geo Information Services, are widening and making it more challenging for national stability, as evidenced by rising crime rates and mass actions calling attention to political corruption and hardship. These are conditions that create a restless society and, as Paul Collier argues in his Greed vs. Grievance theory, the motivations for conflict are manifested in the germane concerns of citizens.

The figures in the education sector also paint a grim picture, explaining the depth of the socioeconomic strait-laced conditions that drive proponents of the benefits of the war crimes court.

By 2008, after the conduct of Liberia's census, with a growing population of about 4 million, UNESCO states that Liberia's adult literacy rate was at 42.94% while the male literacy rate was 60.77% with females at 27.03%, a huge gap between the sexes. Post-conflict status, the quality of education in Liberia ranks the lowest in the Mano River Region, with the country's young population having little access. As one of the major causes for the conflict, it still remains prevalent.

It is therefore imaginable how challenging it is for the majority of the citizenry to appreciate the political questions that need answers in taking position on a critical issue such as establishment of war and economic crimes court.

In the same vein, there are questions on: how can rising gender based violence reminiscent of the war days be sacrificed implicitly by not accommodating war crimes in dealing with the notoriety?

Liberia is still caught in the web of neo-patrimonialism as defined by Diana Cammack -- a form of governance where real power and real decision making lie outside the formal institutions; decisions about resources are made by big men and their cronies, who are linked by informal private and patronage clientelism before and beyond the state structures. Within this framework, it is understandable while accountability for war crimes remains highly contested, 15 years after the CPA. Also, addressing corruption and promoting transparency remains far-fetched. The retributive justice opportunity against the option of restorative justice becomes a hard choice to make.

The establishment of the war crimes court could be a 'potential source of conflict' and scrimmage, if not analyzed through the neo-patrimonialism lens, within which context Liberia fits.

Those culpable under the law currently wield high influence in the underworld that controls the 'upper world', the public space. They have amassed ill-gotten resources. They have the guts to throw spanners in the work of the war crimes court. The scope of the would-be war crimes court, given the legislative submission for its establishment, remains murky in terms of the number of persons under the blanket of notorious persons to be tried. So the fears that loom large cannot be elevated.

For example, Former President Sirleaf (2011 Nobel Peace Laureate) is named and placed on 30 years ban from public service. Former Supreme Court Justice Kabineh Ja'neh was LURD's head of delegation at the Accra Peace talks. Toga Gayawea McIntosh, Liberia's 'Statesman' who recently led Liberia's National Economic Dialogue (NED) and Isaac Nyenabo, Liberia's Ambassador to the European Union and Belgium, are named 'financiers'. Furthermore, at the Legislature, are Sen. Prince Y. Johnson, Sen. Morris Saytumah, Sen. Sando Johnson, and Senator Peter Coleman and Representative George Boley. Benoni Urey, Liberian businessman and politician plus Emmanuel Shaw of Lonestar Cell, one of Liberia's communication giants, both named in the TRC report, are or were 'advisors' to President George Weah. The complexities of the relational interlinks must not be taken for granted nor ignored.

Madam Sileaf told Al Jazeera journalist, Mehdi Razzan Hassan in a television interview that the findings and recommendations of the TRC were taken to Liberia's Supreme Court, and the opinion of the Court reduced the War Crimes Court establishment to 'palaver hut' discussion items. Palava hut has not provided the needed healing of a cracked nation in want of reconciliation that cannot blur justice. So a recourse to the Statute of the ICC -- known as the Rome Statute, establishes a permanent, independent Court to investigate and bring to justice individuals who commit war crimes, crimes against humanity, and genocide becomes the option to go for.

The lessons of the past in this experimentation and how it has worked in other context must be considered. Even as the court option becomes the fair recourse in dealing with grave human rights issues of the past, the issue of reparation of approximately US$500 million to be paid over 30 years to deserving women as victims of the carnage cannot be buried in the frenzy to punish notorious warlords, still having the upper hand to unleash more havoc.

The United Nations Basic Principles and Guidelines on the Rights to a Remedy and Reparation for Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law [8] provide five formal categories of reparations: restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition. These phases must be crossed for justice to come full circle.

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