Standing up Liberia's War Crimes Court
Introduction
On February 8, 2006, David Crane, chief prosecutor for the Special Court for Sierra Leone, appeared before the Subcommittee on Africa Global Human Rights and International Operations, a committee of the International Relations, United States House of Representatives. Crane asked Congress to push Nigeria to surrender former Liberian exiled President Charles Taylor to the Special Court to answer to war crimes charges. But Crane had much to advise the United States Government about moving forward in Liberia: "First, hand Charles Taylor over to the Special Court for Sierra Leone for a fair trial. This takes him out of the local and regional dynamic that is West Africa. This has to happen first and now, or the rest of my suggestions and recommendations and the one you are considering for Liberia's future will be a waste of time, money, and effort. "Second, tie any financial and political support to good governance in Liberia."
"Third, encourage the new administration in Liberia to establish the Truth and Reconciliation Commission called for in the earlier peace accords." And "fourth, within the next few years or so, another hybrid war crimes tribunal needs to be established to account for the war crimes and crimes against humanity committed by Charles Taylor and his henchmen from 1990 to 2003 in Liberia."
With 68 members of Liberia's 103-member 55th Legislature signing the resolution for the establishment of the war crimes court for Liberia, we are at the last point of Crane's roadmap for Liberia.
Taylor's Appearance
At Taylor's trial in The Hague, his lawyer, Courtney Griffiths put to the former NPFL leader, "So, Mr. Taylor, you have the prospect of another trial in Liberia, yes?" Taylor : "Yes, that's the, yes, that's the regime change. So, we will throw out, you get your pick. If we miss him in the Sierra Leonean court, I will try to get him in Liberia. The whole point. They may as well just shoot me."
Liberia cannot have an effective and successful war crimes trial without Taylor, the leader of the biggest and original warring faction and unarguably, the most atrocious. Taylor's appearance before the Liberia war crimes court presents complications and we have to bear that in mind from the onset. Will the British authorities agree to release him to answer to extra charges relating to his role in the war in Liberia? That would mean releasing him to come back home! Or will his trial take place in his detention facility in the UK? That would mean having judges, court staff, lawyers and witnesses in the detention facility. Aside just the security implications of these people moving in and out of the detention facility, how will ordinary people have access to the trial?
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Value of War Crimes Court
Like Taylor, other key players in the Liberian civil war believe, "they may as well just shoot" us. The war crimes court is not just about arrest, trial and conviction. It will help Liberians understand why and how things happened and the roles of individuals. This goes to the very heart of reasserting the foundation for stability and peace. And that war crimes accountability is also "bread and butter issue." Liberians have the attitude of "let bygone be bygone." The growing lawlessness in the country draws its strength from war time impunity. And both undermine any viable investment that will provide jobs that put food on the table of families. The Government of Liberia, activists and international partners need to explain this link between justice and "bread and butter." Not many of the Liberian people know this. Seventy four percent of respondents in the University of California and Berkley School of Law survey in Liberia in 2011 stated that to build peace, it was necessary to unite the tribes, educate the youths, reduce poverty, provide social services and address land ownership issues. They did not believe that prosecution for war crimes would build peace. Authorities have to make the link that justice is inextricably linked to poverty reduction. If people are made to believe that a war crimes court cannot bring peace, the court may not attract support from local communities. This may affect the work of the court, including lack of community support for witnesses. This is true, because if 78 percent of the respondents in the same Berkley survey considered themselves victims, and still don't believe prosecution is the solutions for peace, we have work to do.
"More than 80 percent of respondents in the 2016 Catholic Relief Services survey felt that people who suffered grave injury during the war did not receive justice through the national Truth and Reconciliation Commission. Half of respondents 49.7 percent believed that post-war reconciliation failed to achieve its objectives." We must not be misled by the silence in the enduring tension. There is a difference between silence and peace. People can be silent and not have peace. "Respondents were evenly split on whether Liberia is at risk of once again descending into large-scale violent conflict with 50.6 percent believing "high to very high risk" and 43.7 percent for "no to low risk", according to the CRS survey.
Statutory and Constitutional Review
As activists woo people to prosecution, the work has to begin, identifying and reviewing all statutes and potential constitutional provisions that run counter to the establishment of the war crimes court. Amend and repeal them. And then seek judicial interpretations for constitutional provisions. If Liberia truly wants to institute a process for justice, the foundation upon which the court would rest must be just.
There is one argument that Article 66 of the 1986 constitution of Liberia vests in the Supreme Court the "final arbiter of constitutional issues and shall exercise final appellate jurisdiction in all cases whether emanating from courts of record, courts not of record, administrative agencies, autonomous agencies or any other authority, both as to law and fact except cases involving ambassadors, ministers, or cases in which a county is a party . In all such cases, the Supreme Court shall exercise original jurisdiction. The Legislature shall make no law nor create any exceptions as would deprive the Supreme Court of any of the powers granted herein."
By establishing the war crimes court, the Legislature, by that very act, may not have acted unconstitutional, because Articles 34(e) provides that the Legislature shall constitute courts inferior to the Supreme Court, including circuit courts, claims courts and such other courts with such prescribed jurisdictional powers as may be deemed necessary for the proper administration of justice throughout the Republic."
Article 65 of the Constitution also provides that "the Legislature may from time to time establish such subordinate courts" which "shall apply both statutory and customary laws in accordance with the standards enacted by the Legislature."
Where the argument gets delicate is whether by creating an appeals chamber of the war crimes court, in which case the Supreme Court of Liberia, will not exercise final appellate jurisdiction, the Legislature would not have created "any exceptions as would deprive the Supreme Court of any of the powers granted herein"? And whether the war crimes court would be deemed an "inferior" or "subordinate court" to the Supreme Court of Liberia, howbeit with its own exclusive appeals chamber as the "final arbiter"? And still, whether as a hybrid court applying both domestic and international laws, it would be legal to consider the court a subordinate court, in the face of the established principle that international law holds primacy over domestic law?
The Legislature would also need to review and amend the Judiciary Law-Title 17-Liberian Code of Laws Revised. This statute was published June 20, 1972. Section 17.1 "Qualifications for admission to Bar" requires that "a person applying for admission to the Bar as an attorney must be a citizen of this Republic, have attained the age of twenty-one years, and be examined and licensed to practice as prescribed in this chapter." What this provision means is that no one can practice law in Liberia who is not a Liberian. There is no gain in asserting that foreign lawyers will play a larger role in Liberia's war crimes court, either as judges, prosecutors, defence lawyers and investigators.
The Legislature will need to repeal statutes like "An Act to Grant Immunity from Both Civil and Criminal Proceeding against All Persons within the Jurisdiction of the Republic of Liberia From Acts or Crimes Committed During the Civil War From December 1989 to August 2003." This Act was published on August 8, 2003. The statue passed by the Taylor administration, giving warring faction amnesty from prosecution is clearly a perpetrator's law deeply rooted in protecting themselves. That statute must go down, because it cannot stand in the face of Liberia's domestication of the Geneva Convention and other international humanitarian laws.
Court Statute
Once lawyers have completed a desk review of statutes and constitutional provisions, drafters may now be informed of the range of legal implications to begin drafting the statute. As a hybrid court, Liberia's leaders should have a fair representation of international actors in the drafting of the statute. The statue will need to establish the competence of the court, define the crimes, jurisdictional issues--personal, territorial and temporal and concurrent. Define the structure of the court--composition and number of chambers.
The number of chambers will help speed up cases. So, Liberia may want a chamber deal with cases relating to violations by a faction. This allows for cases to roll simultaneously. The Special Court for Sierra Leone had two trial chambers with one appeals chamber.
Drafters may need to decide the issue of reparation. The Special court for Sierra Leone did not provide for victims fund, because there was nothing to recover from perpetrators to pay victims. In the Taylor trial, for example, Chief Prosecutor Stephen Rapp had said "analysis of bank records led investigators to identify $375 million in offshore accounts traceable to Taylor. Rapp : "Well, I mean, it's a hard thing to put a complete finger on, but we've got accounts where during the course of his presidency at least $375 million flowed out of those accounts that were directly in his name; he was using that according to our evidence to continue the war of atrocities in Sierra Leone and we believe there is evidence that that money has not disappeared." Taylor's wealth, according to Rapp, could serve this purpose.
Implications for home soil trial
Liberia should now begin assessing the implications of hosting the court in country. In many instances, local prejudice against a criminal court may inform its relocation. The Taylor trial had to be moved to The Hague. The Security Council passed a resolution under Chapter VII of its charter, determining that the presence of former President Taylor in the sub-region was an impediment to stability and a threat to the peace of Liberia and of Sierra Leone. If 78 percent of respondents in the Berkley survey consider themselves victims and yet 74 percent do not see prosecution as a panacea for peace, we cannot be sure they will support a war crimes court. In Rwanda, the Criminal Tribunal for Rwanda had to be moved to Arusha, Tanzania. However, having the court on the home soil gives it greater access to ordinary people and deepen their awareness of the issues and the message.
Security
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The other questions are about the security. Whether Liberia would exclusively depend on the Armed Forces of Liberia (AFL) to provide security in case supporters of indictees get rowdy. And whether it would be the Liberia National Police (LNP) that will carry out arrests? Does Liberia need a dedicated and more neutral and capacitated force to guarantee stability for the time of the court's operations? Does that force need a status of forces agreement to define in clear terms its role?
Establishing a war crimes court is a meticulous process and takes considerable time. The Government of Sierra Leone together with the United Nations set up the Special Court in 2000. The Court began operations in 2002. In Rwanda, the court was set up in 1994 and heard its first case of Jean-Paul Akeyesu after 3 years.
Witness Protection
Testifying in war crimes courts carries severe implications for protection, especially in trials involving suspects of tremendous political and military support. To build a good case against suspects, prosecutors need credible witnesses. In many cases, fear of reprisal attacks impacts evidence gathering, mainly attracting witnesses. And there can be a good number of them. Ninety-four witnesses testified against Taylor alone in the war crimes trial in The Hague. Long before the court's establishment, preparation of indictment, the Government of Liberia needs to begin asking other countries that could be willing to host potential witnesses who may have fears of reprisal for resettlement. The number of people to be resettled may grow depending on the number of indictees and the witnesses to testify against them. Added to the witnesses, are their families. Host nations will have to consider support for the resettled and a host of other issues, including whether witnesses and family members with skills can be permitted to work.
Detention Facility
The last point is detention. Liberian authorities will have to make the decision whether those who may be found guilty will serve sentences in country or in other countries. A full review of the prison facilities in Liberia will need be done to inform that decision. With the already poor prison conditions and the overcrowded facilities, Liberia may need to build additional detention facilities well equipped enough to avoid jail breaks or make arrangements with countries that have had similar trials and built prison facilities to move convicts.
About the Author
Poliyon Alphonsus Zeon is a member of Liberia's Supreme Court Bar. He holds an LLB from the Louis Arthur Grimes School of Law, University of Liberia, Monrovia. He holds two relevant certificates, one in International Criminal Law from the International Law Institute, Kampala, Uganda and the other in Implementing Public Policy from the John F. Kennedy School of Government, Harvard University, Boston, USA. As a journalist of more than 15 years, he covered the war crimes trial of former Liberian President Charles Taylor in The Hague from 2008-2010.
