By Ahmed Sirleaf
Until today (May 2, 2024) when President Joseph Nyuma Boakai, Sr., signed Executive Order #131 establishing the Office of War and Economic Crimes Court for Liberia, renewed calls had grown louder for the establishment of a war and economic crimes court for Liberia to seek justice for war-time crimes. The refreshed debate arose because both houses of Liberia’s legislature passed resolutions to address the country’s violent past and hold accountable those responsible for war crimes and other gross violations of human rights. Seemingly, the Presidency has answered the Legislature’s recent joint resolution on this matter as EO #131 calls for the appointment of an executive director who will serve as an envoy working locally an internationally toward the goal of the establishment of a Special War Crimes Court for Liberia (SWCCL).
According to the EO 131, the Executive Director will “… conduct research and studies, and growing therefrom, and in consultation with international partners, select a model of an international tribunal for war crimes, including the jurisdiction and situs for the Special War Crimes Court for Liberia . . .”
As this new office takes shape and Liberians ponder their options for a way forward, let’s revisit the recommendations of the final report of the Liberia Truth and Reconciliation Commission (TRC) to put matters in perspective. The report recommended that “An 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. Liberians have been embroiled in a debate about how this court could get established and what crimes it would cover.
If we situate Liberia’s case in a broader global history of war crimes and crimes against humanity, it will help us to understand how accountability efforts have worked in different contexts and what precedents they have set. There are a number of logistics, procedural, personnel, and cost questions up for debate in any transitional justice effort. To be sure, I agree with the idea of a hybrid internationalized court for Liberia because 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. This longer-term deterrent effect outweighs any short-term risks.
So, let’s look at what types of tribunals have existed historically and how they were started.
Brief history of international tribunals for atrocities
The modern idea of post-conflict retributive justice started with two important tribunals established after World War II: the International Military Tribunal (IMT), held at Nuremberg, Germany, and the International Military Tribunal for the Far East in Tokyo, Japan. In Germany, on October 18, 1945, the victorious Allies indicted 24 Nazi leaders on four counts: conspiracy, crimes against peace, war crimes, and crimes against humanity. The Nuremberg Trials after World War II set major historical precedents, establishing state accountability, individual culpability, and international responsibility for protecting and respecting human rights. It also established the principle of the nullification of State sovereignty when crimes against humanity are committed, challenging the long-held notion of a state’s supreme and exclusive jurisdiction over what happens inside its borders.
Building on the precedents established by Nuremberg and the Far East Tribunals, the international community began constructing a legal framework regulating the conduct of war and establishing fundamental human rights protections across national boundaries. To name some examples: the Genocide Convention (1948), the four Geneva Conventions of 1949 (and the Additional Protocols I and II of 1977), the Torture Convention (1984), the International Covenant on Civil and Political Rights (1966), and other international treaties adopted after World War II. Since Nuremberg, there has been a proliferation of tribunals in post-conflict environments to hold perpetrators of war crimes and human rights violations criminally accountable, what human rights scholars call, “the Justice Cascade.” These extraordinary courts have included domestic trials, international tribunals, and hybrid mechanisms (that is, including domestic and international components).
On May 25, 1993, the UN Security Council established the International Criminal Tribunal for the former Yugoslavia to try perpetrators of atrocities committed during the breakup of Yugoslavia. The ICTY sat at The Hague and consisted of eleven judges from eleven countries: indicted 161 individuals; only sentenced 93. The Court was divided into two trial chambers and an appellate chamber. Twelve years before its mandate expired in December 2017, an offshoot hybrid court was established in Bosnia in 2005. The Bosnian War Crimes Chambers (BWCC), a locally owned tribunal that was meant to facilitate reconciliation in Bosnia-Herzegovina (BiH). The BWCC was created to address war crimes through domestic prosecutions as a residual measure.
In response to the outbreak of mass atrocities in Rwanda in 1994, the UN Security Council passed a resolution establishing the International Criminal Tribunal for Rwanda (ICTR). The ICTR was created “[…] for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law [IHL] Committed in the Territory of Rwanda and for Rwandan citizens responsible for genocide and other such violations committed in the territory of neighboring States, between 1 January 1994 and 31 December 1994.” The ICTR was established as an independent entity with trial judges, a registry system, and administrative staff. The ICTR lasted for 21 years, while the ICTY lasted for 24 years. ICTR indicted 93 individuals; sentenced 62.
To build on the work of these internationalized ad hoc tribunals, the international community created a permanent adjudicative body, the International Criminal Court (ICC). The ICC was established on 1 July 2002 as the first permanent international court with the authority to investigate and prosecute those individuals responsible for the perpetration of the most serious crimes under international law. The principles of individual responsibility and complementary jurisdiction in international law are the bedrocks of the ICC.
Individual responsibility means that individuals are criminally responsible for their alleged role in war crimes and crimes against humanity. The Nuremberg trials established that an individual who committed crimes on the orders of others can be both collectively and individually responsible for their actions or omissions, regardless of their membership or rank in a state’s armed forces or other armed group. Furthermore, the concept of complementarity comes out of respect for state sovereignty where states have the first responsibility to prosecute domestically – that is, ICC jurisdiction only kicks in if states are unable or unwilling to prosecute. At that point, ICC’s universal jurisdiction kicks in, enabling the prosecutor to issue indictments. The ICC has jurisdiction over genocide, crimes against humanity, and war crimes. It can try individuals for crimes committed after 1 July 2002, when the treaty that established the ICC – commonly known as The Rome Statute – entered into force.
As for jurisdiction, the following entities and individual(s) may bring or initiate a case before the Court: any State Party to the Rome Statute; the UN Security Council; and the Office of the Prosecutor. A person, a group of persons, or a Non-governmental Organization (NGO) cannot directly petition the ICC. Such individuals or entities, however, can forward relevant information to the Prosecutor and request an investigation.
Hybrid tribunals.
Since the early 1990s, hybrid courts have been successfully pioneered in several post-conflict environments, combining international and domestic law and legal mechanisms. Post-conflict societies that have utilized hybrid courts include Bosnia, Cambodia, Timor-Leste, Kosovo, and Sierra Leone.
Perhaps the most important example for Liberians of a hybrid tribunal is the Special Court for Sierra Leone (SCSL), established in 2002 to address the brutal atrocities of the Sierra Leonean civil war. In 1999, the government of newly elected President Ahmed Tejan Kabbah negotiated the Lome Peace Agreement (LPA) between the government, the Revolutionary United Front (RUF), and other combatants. This agreement provided sweeping amnesties for the members of the rebel groups for acts committed during the war.
In May of 2000, however, the RUF reneged on their promises and restarted their offenses against government positions in the Capital City of Freetown. In so doing they took several hundred international peacekeepers as hostages and committed other serious crimes against civilians and international relief workers. As a consequence, several human rights groups began to call for the creation of a court to prosecute the human rights violations. Under pressure both locally and internationally, the President Kabbah asked the UN for assistance in setting up such a court.
In his request letter to the UN Secretary-General, President Kabbah asked for UN assistance “to try and bring credible justice to [those members of the RUF] and their accomplices responsible for committing crimes against the people of Sierra Leone and for the taking of UN peacekeepers as hostages.” In addition, the court would also be responsible for trying those “persons who bore greatest responsibility” for crimes committed since November 30, 1996.
The Special Court for Sierra Leone (SCSL) was created in 2002. Rather than being established by a UN Security Council Resolution, the SCSL was created through a bilateral agreement between the United Nations and the Government of Sierra Leone. The Court was hybrid because it had jurisdiction over crimes committed in violation of international humanitarian law in addition to 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, the Capital of Sierra Leone, although 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 spent, the SCSL tried 23 individuals, completing proceedings against all but one of the indictees. Yet the Court left some legal questions unresolved when its mandate ended. To address these residual fissures, the UN 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.
Expensive justice
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, while the Rwanda Tribunal’s budget was between $10-15 million in its tenth year of operation. Taking a hybrid tribunal for example, the costs are not much better. In 2008, the Bosnian War Crimes Chamber (BWCC) – a body that evolved out of the Yugoslavia Tribunal – 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.
The Liberia TRC recommended 120 individuals to be investigated and prosecuted if the evidence supports trials: this enterprise will require substantial financial and technical resources from outside of Liberia.
TRC: structure of the extraordinary criminal court for Liberia.
Annex 2 of the Truth and Reconciliation Commission’s final report contains a proposed draft statute for the ECCL. Under the TRC proposal, eight judges will serve in two chambers: three in the trial chamber and five in the appeals chamber. Three of the judges are to be appointed by the Liberian president with the remaining five to be appointed by international actors: the Secretary-General of the United Nations, 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 UN 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. To start the Court, the president of Liberia will ultimately have to go back to the Legislature to take up the TRC’s draft statute for the ECCL 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. Our UN 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. This is an example of the kinds of questions that our leaders must grapple with to establish an Extraordinary Court that can render justice in a fair and transparent manner.
However an Extraordinary Criminal Court for Liberia ends up looking, the essential truth is that Liberians will have to find a way to confront their violent past, render justice to deter future human rights violations, and heal their country.
About the author
Ahmed Sirleaf holds MA in Public International Law and the Settlement of Dispute from the UN Mandated University for Peace, where he wrote a thesis entitled Tribunals and Truth Commissions in Post-Conflict Environments: Examining Mechanisms for Durable Peace. He helped coordinate the Diaspora Project of the Liberia Truth and Reconciliation Commission’s work where he co-authored the Diaspora Report (A House with Two Rooms: Final Report of the Truth and Reconciliation Commission of Liberia Diaspora Project). A transitional justice practitioner, he has advised governments on post-conflict justice and accountability measures. He is a doctoral researcher in Organizational Leadership, Policy, and Development at the University of Minnesota, Twin Cities. He can be reached at: mamadeesirleaf@gmail.com or +(612) 590-4096.
