This article seeks to
address the war crimes
controversy in Post-War
Liberia. It is dedicated to
those who are searching credible answers to the
controversial war crimes' agenda
at home.
The term “war
crimes” broadly refers to
prohibited acts committed in
time of war against a person
or property protected under
the 1949 Geneva Conventions.
Under international
law, war crimes are grave
breaches of the 1949 Geneva
Conventions known today as
“International Humanitarian
Law.”
The 1949 Geneva
Conventions consist of
Protocol I and Protocol
II. The minimum rules of
conduct adopted under Protocol
I apply to international
armed conflict between states,
whereas, the minimum rules of
conduct adopted under Protocol
II apply to internal armed
conflict or civil war between
local citizen groups.
In olden- day armed
conflicts, states were
accountable for war crimes,
not individuals. In today’s
armed conflicts, military and
civilians are individually
accountable for war crimes,
not states.
War crimes has been an
international crime for over a
century. Yet, in the years
before the 21st
century, there were no
permanent international
criminal courts to prosecute
cases of war crimes.
The way of dealing with
war crime was to set up Ad Hoc
War Crime Tribunals under the
UN System. For example, 1945
Nuremberg War Crime Tribunal,
1946 Tokyo War Crime Tribunal,
1994 Rwanda War Crime
tribunal, etc. The
international Court of Justice
was created in October 1945,
but its role is to settle
disputes between UN member
states.
However, on July 1,
2002, a Permanent
International Criminal Court (ICC),
established July 17, 1998, and
based in The Hague,
Netherlands, came into force.
The ICC
prosecutes military and
civilians, age 18 or older
without regard of status in
government or society. It
exercises jurisdiction over
the most serious crimes of
concern to the whole
international community,
committed after July 1, 2002.
The most serious crimes in
question are defined under
Articles 5, 6, 7, & 8 of
Rome Statute. Under
international law, the term
“most serious crimes”
refer to gross abuses of
fundamental human rights in
wartime as well as in
peacetime.
The legal term used for
such crimes is international
crimes or crimes which
threaten world peace and
security.
These
crimes include genocide
(willful killing of one or
more members with intent to
eliminate a group); crimes
against humanity (willful
killing of unarmed civilians,
individually and
collectively); and war crimes
(crimes against humanity;
genocide, etc). Under ICC statute, if a
crime of genocide or crime
against humanity is committed
in peacetime, it is a gross
violation of International
Human Rights Law, and the ICC
will be there to ensure
justice. For example, the 2009
anti-junta demonstration in
Guinea where soldiers killed
over 100 civilians was a crime
against humanity committed in
peacetime. However, if a crime
of genocide or crime against
humanity is committed in an
armed conflict, it is a grave
violation of International
Humanitarian Law, and the ICC
will also be there to ensure
justice. The primary goal is
to end the culture of impunity
in peacetime as well as in
wartime.
The ICC operates under
the “principle of
complementarity.”
Under this principle,
the role of the ICC is to
complement or serve as a
back-up jurisdiction for ICC
state courts in dealing with
international crimes. The role
of ICC states is to serve as
first responders to
international crimes committed
on their territories.
The ICC will step in
only if the ICC or local court
is unable or unwilling to play
its role. The term
“unable’ applies only if
the ICC state has collapsed
into anarchy; whereas the term
“unwilling” is determined
if the ICC state is shielding
the perpetrator.
In either case, the ICC
state is required under
Article 14 to refer the case
to ICC for adjudication, or
surrender the accused upon the
prosecutor’s request.
If the ICC state fails
to do either one, the Rome
Statute confers proprio
motu (discretionary)
powers on ICC
prosecutor to take initiative
and bring the accused to
justice.
Family members of
victims of international
crimes can also ask the ICC to
intervene if an ICC state
tries to shield a perpetrator.
ICC states are those that
signed the ICC Treaty.
The
War Crime Controversy in
Post-War Liberia
Liberia signed the ICC
treaty on July 17, 1998. On
September 22, 2004, the
Liberian Legislature ratified
the ICC treaty without
enacting an exclusive war
crime legislation.
However, Article 24 of
the Rome Statute expressly
provides that no crime
committed before July 1, 2002
will be prosecuted under ICC
jurisdiction. Based on this
statute of limitation, only
former war actors under the
2003 Akosombo Agreement are
duly eligible to face trial
under ICC jurisdiction. The
other former war actors who
were on stage way back before
July 1, 2002, are not
eligible to face
trial under ICC jurisdiction.
However, there are two
available options that can be
used to deal with alleged war
crimes committed between
December 1989 and June 2002.
The first option is to
invoke the principle of
territorial jurisdiction.
Under this principle, every
sovereign state is
duty-bound under international
law to exercise jurisdiction
over international crime
committed on its territory. Under international law, Liberia is duty-bound to probe the
alleged war crimes committed
on its territory during the
civil war.
The second option is to
ask the United Nations for a
Special Court similar to one
in Sierra Leone.
Charles Taylor War
Crimes Trial
Charles Taylor’s
trial in The Hague absolutely
has nothing to do with any
situation Liberia. He is being
tried under the auspices of
the Special Court for Sierra
Leone established January 26,
2002, based on the Agreement
reached between the United
Nations and the Government of
Sierra Leone. Taylor is facing
11 counts of war crime
indictment for supporting the
RUF insurgency in Sierra
Leone.
President Ellen-Sirleaf
handed Taylor over for trial
because Liberia is an ICC
state and owes a duty under
Article 89 of Rome Statute to
surrender any of its citizen
accused of war crime.
Chucky
Taylor Trial
Chucky Taylor is a U.
S. born citizen. He was
indicted and tried under U. S.
Criminal Code 18USC Section
2340A, which prohibits U. S.
national from engaging in
torture against any person
inside and outside of the
United States. We understand
some Liberians in the U. S.
filed a complaint in Florida
Court against his war record
in Liberia. He was tried and
found guilty, serving 97-year
jail sentence.
Dr.
George Boley’s Detention
It is rumored that Dr.
George S. Boley is being
detained for war crimes.
If Dr. Boley is a U. S.
citizen, then the rumor could
be true. Because the 1996 U. S
War Crimes Act applies to U.
S. nationals, and Dr. Boley
was the leader of LPC whose
faction was recently accused
by a U. S Journalist of
recruiting underage children
in the Liberian civil war.
Underage children
recruitment is also a crime
under the U. S. Child Soldier
Accountability Act of 2008.
However, this Act has 10-year
statute of limitation. Boley
could be free.
A
War Crimes Court for Liberia
If the ICC sets up a
War Crime Court for Liberia,
only war crimes committed
after July 1, 2002 will be
probed.
And the following
groups may be indicted to face
their accusers. The first group to
appear will consist of faction
leaders. They will be indicted
under the law of command
responsibility as stipulated
under Article 28 of Rome
Statute. The term command
responsibility refers to the
failure of leaders and
commanders to supervise the
activities of their fighters,
resulting in gross human
rights abuses in the war.
Those who will appear under
command responsibility include
the faction leaders; military
war cabinet; field commanders;
and civilian cabinet,
including civilians appointed
in government by warring
factions. They will be
indicted under the law of
complicity, associating to
facilitate the war efforts as
stipulated under Article 25
(d).
The second group to
appear will consist of accused
fighters. They will be
indicted under the law of
individual responsibility
under Article 25 of ICC
Statute. The law of individual
responsibility is designed to
individually punish those who
pulled the triggers as well as
those who ordered the triggers
pulled, and those who financed
the triggers to be pulled.
Under Article 26,
accused fighters who were
under age 18 at the time of
the alleged crimes will be
exonerated and treated like
victims of child soldier
rather than perpetrators. The
third group to appear will
consist of war financiers and
logistic suppliers. They will
be indicted under the law of
complicity, aiding and
abetting as provided under
Article 25(c).
However, because people
to be indicted will include
former faction leaders and a
large number of trained former
fighters, some security
incidents may develop in the
indictment process. That is,
some people may put up
resistance against their
indictment and could be
supported by certain former
fighters in order to create an
incident exactly like the Camp
Johnson Road incident in
September 1998 when the
government ordered the arrest
of General Roosevelt Johnson.
There are four major
roadblocks standing in the
way of war crimes indictment in
Post-War Liberia. First,
as we noted, only former war
actors under the Akosombo
Accords are eligible to face
trial under ICC jurisdiction,
not former war actors who were
on stage before July 1, 2002.
In this case, it would
be grossly unfair to prosecute
one group of war actors, and
allow one group of war actors
to go free.
Second, Liberia
is a founding member of ICC.
Therefore, it needs exclusive
war crimes legislation exactly
like the U. S. 1996 War Crimes
Act to prosecute war crimes.
Without this
legislation, war crimes trial
in Liberia will be a mockery
of justice.
Third, from the
day the ICC came into force on
July 1, 2002, marked the end
of the
age-old tradition of
setting up an Ad Hoc Tribunal
under the UN System to
prosecute war crimes.
Therefore, the United Nations
may not consider Liberia’s
request for a Special Court to
probe former war actors, who
were on stage between December
1989 and June 30 2002,
largely, because the UN
policymakers may not want to
be viewed as delegating or
sharing the jurisdiction of
the ICC with an Ad Hoc
Tribunal.
Fourth,
there are absolutely no
indications that Liberia will
(anytime soon) probe war
crimes committed on its
territory as required under
the principle of territorial
jurisdiction. It appears that
government policymakers who
have the powers to initiate
this process fear that “If
they Haul Ropes, Ropes will
Haul Bush.” It appears
government policymakers also
seem to fear the possible
security fallouts that will
follow in case certain veteran
warlords, who are still
enjoying the support of their
fighters, are indicted. The
only available option is to
treat the war crimes noise
with conspiracy of silence.
However, my next article will
advance proposals to end this
controversy.
Arthur B. Dennis
can be reached at korso2006@msn.com.
