LEGAL MATTERS: To Create A War Crimes Court, Or Not? (The Liberian Senate’s Dilemma)

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By: G. Yanquoi Lavela, Esq.
Juris Doctor

USA-The Liberian Senate recently held hearings to determine whether Liberia should establish a war crimes court to hold accountable those who committed war crimes and crimes against humanity during the Liberian civil war. At that hearing two well known Liberian lawyers were invited to advise the senate about the legality of creating such a court. One of them, Counselor James Laveli Supuwu, argued that too much time has passed and that the nation would be better off to “let sleeping dogs lie”, as he put it.

He argued that a 30-year ban imposed on those found responsible for war crimes by the Truth and Reconciliation Commission (TRC) has already been challenged and declared unconstitutional by the Liberian Supreme Court in the case of Williams v. Tah, et al, ([2011] LRSC 12 (21 January 2011)). He alleged that the TRC gave immunity and amnesty to everyone who testified before it and that, in detrimental reliance on the Commission’s grant of immunity, witnesses appeared before the Commission and “confessed judgments” to crimes they had committed. Therefore, Supuwu argued, any subsequent criminal charges precipitated by a war crimes tribunal against those who testified would be challenged in the Liberian Supreme Court. He shocked the audience by saying that he would volunteer to defend anyone charged with war crimes “for free”, including the notorious warlord nicknamed “General Butte Naked”, who gained notoriety by eating the flesh of his victims and has admitted to personally killing more than twenty thousand people during the war, according to The New York Times.

The second lawyer, Counselor Varney Sherman, reiterated the same arguments of the first lawyer. He argued about statute of limitations on war crimes, ex post facto and due process issues. He alleged that an amnesty statute passed in 2003 exonerated all potential war crimes defendants and he invoked the ominous prospects of a writ of prohibition from the Liberian Supreme Court, if a war crimes court is created and anyone is charged under it. Based on these arguments by the lawyers, a Senator asked Counselor Supuwu the following 3 questions: Question #1: “Since you are a man who is well versed in the law and experienced in politics, can you tell us how we can enact a war crimes statute without violating any statute, or the constitution? Question #2: “There are those who believe that you, Counselor Supuwu, actively participated in the civil war, even if you were not carrying a gun. Do you see a conflict of interest when you advocate against the war crimes court?

Question #3. “There are persons in the neighboring countries of Ivory Coast, Guinea and Sierra Leone who are alleged to have participated in Liberia’s civil war. Will the war crimes statute and the special court we want to create and establish have extra-territorial applicability to those persons residing in other countries? As to the first question, Counselor Supuwu told the senator that the statute will be struck down by the Liberian Supreme Court because the court has already settled most of the issues related to the TRC’s recommendations for sanctions. He offered no answers to the second question. And to the third question, he alluded to the death of former Guinean President, Lansaneh Conteth, as the end of the whole matter. Both lawyers warned the Senate about the alleged $40 million dollars price tag it cost Sierra Leone to prosecute Charles Taylor alone, and how expensive the war crimes trials will be to Liberia. They urged that Liberian tax dollars could better be spent on the current pandemic than on war crimes.

From this colloquy between the senators and the two lawyers, I have developed several legal questions the answers to which I hope will assist the Senate’s deliberations on this soul searching national question of whether to establish a war crimes court or not. To the best of my estimation, those questions are: (1) Whether the TRC had the power under enabling statute to grant immunity from prosecution those who testified and confessed to crimes before it; (2) Whether the Republic of Liberia has any legal authority to grant amnesty to persons who commit war crimes and crimes against humanity under international law; (3) Whether the Liberian Supreme Court has subject matter appellate jurisdiction to review rulings or judgments of a special criminal court established pursuant to the Rome Convention; (4) Whether war crimes and crimes committed against humanity are subject to statutory limitations under international law; (5) Whether a war crimes statute has extra-territorial applicability to persons in another country; (6) Whether a country may exercise universal jurisdiction over war crimes to prosecute defendants within its territory; And (7) Whether the expenses of the special war crimes court are to be paid by the referring country alone. It will be made apparent from my legal analysis and conclusions of law below, whether any of these arguments by two of Liberia’s best lawyers have any legal merits at all.

LEGAL ANALYSIS OF QUESTIONS PRESENTED:

1. Whether the TRC had the power under enabling statute to grant immunity from prosecution those who testified and confessed to crimes before it.
The answer is NO. The TRC statute limited its power to “recommending” amnesty, provided certain specified conditions in the statute were met, as set forth in the statute. And no evidence was presented to the Senate by the lawyers who testified that those conditions had ever been met and amnesty granted.

That renders the issue of amnesty moot. Witnesses before the TRC were entitled to legal representation of their choice. If applications for amnesty were made and granted by the Commission, no evidence has been produced to establish that fact. A witness cannot expect to receive amnesty from the TRC if they never affirmatively applied for amnesty as stipulated in the statute. The burden of proof is on those who claimed that amnesty was granted to any witness by the TRC. The two lawyers failed to show that evidence or proof to the Senate.

Furthermore, immunity from prosecution can only be granted to a witness in a criminal case by a prosecuting authority or agency. That could be a state’s attorney-general or a local prosecutor. It is usually given to a witness in exchange for the cooperation of the witness in solving a more serious crime committed by others, or crimes the witness participated in committing. There are two kinds of immunity in a criminal case. One is called “transactional immunity”.

This is the most complete immunity a prosecuting authority can grant any witness. It means the witness is immunized from prosecution for the underlying crime and will never be prosecuted if he or she agrees to testify about the case being investigated.

The second and most frequently utilized immunity a prosecutor can grant a witness is called “use immunity.” It simply means the prosecutor has promised not to “use the testimony” given by the witness in the investigation of any crime in exchange for the witness’s testimony. This is called “qualified immunity”, or “derivative use immunity”, which means that the witness can still be prosecuted for the underlying crime being investigated, if the prosecutor can “derive” evidence from other separate and independent sources unconnected to testimony of the witness.

It is difficult to imagine a scenario in which the Truth and Reconciliation Commission (TRC) could have given such immunity without first consulting a prosecuting authority. The TRC was set up as a “fact-finding” agency with no prosecutorial or adjudicative powers to determine guilt or innocence. To expect amnesty from a fact-finding agency is analogous to expecting an arresting police officer or crime investigator to promise a suspected criminal defendant blanket immunity from prosecution. While such police officers may recommend leniency to a prosecutor in favor of a cooperating witness, they have no inherent legal powers to grant immunity from prosecution to any witness.

In fact, the TRC statute that created the Commission confers no such authority or power on the TRC. The statute only authorizes the TRC to “recommend” amnesty in exchange for the testimony of cooperating witnesses coming before the Commission. And before such recommendation can be made, a witness must first (a) submit application for recommendation, (b) make full disclosure of crimes committed by the witness, and (c) express remorse for their involvement in the crimes being investigated. Above all, the TRC statute itself, under Chapter VII, Section 26, paragraph (g), makes an explicit exception abundantly clear that such “amnesty or exoneration shall not apply to violations of international humanitarian law and crimes against humanity in conformity with international laws and standards.”

The enumerated war crimes and crimes against humanity under Article 5 of the Rome Convention are governed by international law pursuant to Article 7 of the Rome Convention. No state can grant blanket amnesty against prosecution to anyone who commits those crimes and neither the TRC, nor the Liberian government had the legal authority to grant such amnesty to witnesses. And the drafters of the TRC statute knew that fact and put that special exception in the statute for a reason. The full text of that section reads as follows:

“The TRC shall enjoy and exercise such functions and powers as are relevant for the realization of its mandates. Its functions and powers shall include, but not be limited to:
Recommending amnesty, under terms and conditions establish at by the TRC upon application of individual persons making full disclosures of their wrongs and thereby expressing remorse for their acts and/or omissions, whether as an accomplice or a perpetrator provided that amnesty or exoneration shall not apply to violations of international humanitarian law and crimes against humanity in conformity with international laws and standards;”

Both lawyers alluded to an “amnesty statute” but my research found no such statute. And even if it existed, that statute could only grant amnesty for crimes committed under Liberian Laws, not international crimes such as war crimes or crimes against humanity. Therefore, the amnesty claims made by Counselors Supuwu and Sherman have no legal merit and must be set aside and disregarded by the Senate as simply unfounded in law or fact.

2. Whether the Republic of Liberia has any legal authority to grant amnesty to persons who commit war crimes and crimes against humanity under international law.
Absolutely NOT. Proponents of general amnesty in Liberia are advocating for “blanket amnesty” for everybody, including those involving extreme cruelty to victims, like the non-surgical disembowelment and evisceration of pregnant women, or the eating of flesh of their victims, as in the case of “General Butte Naked”. They are not merely interested in the prudent “selective amnesty” for those who committed lesser crimes, which the Liberian government could forgive by general amnesty proclamation under Liberian laws. These proponents of a general amnesty want all or nothing.

While amnesty and pacific settlement of disputes are useful negotiating tools to achieve durable peace, especially in post-conflict transitional societies like Liberia, war crimes and crimes against humanity, are crimes under international law within the jurisdiction of the ICC pursuant to the Rome Convention, to which Liberia is a signatory party. Selective amnesty for less serious crimes may be tolerated by any society, including Liberia, and by the comity of nations. But no state can grant blanket amnesty against prosecution to anyone or a group who commits heinous war crimes and crimes against humanity under international law. If an amnesty does not violate a state’s international legal obligations under a treaty or convention, it may have a better chance of acceptance by the international community. However, human rights groups and international organizations, including the United Nations itself, do not look with favor on blanket immunity because of concerns that it may foster impunity and ultimately undermine the rule of law that may result in anarchy and failed states. In any case, states may not grant amnesties for war crimes under the Geneva Convention, which include murder, torture, sexual violence, and gratuitous attacks on unarmed civilians during armed conflicts. States Parties to the Geneva Conventions can under no circumstances grant amnesty to those who perpetrate particularly heinous war crimes, like what we had in Liberia. The Rome Convention to which Liberia is signatory has no provision that authorizes amnesty by member states. However, Article 20 of the ICC or Rome Convention observes the general principle of “non-bis in idem/ne bis in idem,” which is the common law doctrine of double jeopardy, that “no one should be tried twice for the same offence” under Article 5 of the ICC. That means, if Liberia were to try war crimes defendants under its own laws, the ICC could not twice try anyone who had been found guilty, or innocent, in another court. But so far, Liberia has defaulted in setting up its own war crimes tribunals to try anyone. That places the case squarely under the firm jurisdiction of the International Criminal Court (ICC).

3. Whether the Liberian Supreme Court has subject matter appellate jurisdiction to review rulings or judgments of a special criminal court established pursuant to the Rome Convention.
Emphatically NOT. The special criminal court created under the Rome Convention is a creature of international law. It has international personality as a separate and distinct court under Article 4 of the Rome Convention. Its “special” purpose is to hear and decide cases involving war crimes, crimes against humanity, crimes of genocide, crimes of aggression, gender based crimes, and all crimes of the species described by the Rome Convention. And, as such, no domestic or municipal court has jurisdiction over it. It’s decisions, rulings and judgments cannot be reviewed or questioned by any local courts of the host country where it sits, not even the “omnipotent Liberian Supreme Court” that knows no boundaries to its jurisdiction. The Rome Convention was signed by Liberia on 17 July 1998, ratified on 22 September 2004, and entered into force on 1 December 2004.

As an organ of international law formed under the auspices of the United Nations, the International Criminal Court (ICC), and all ancillary juridical persons created by it, enjoy the absolute privileges, amenities and immunity of a diplomatic mission in the host country, whether that be the referring country, or the host country in which it sits. All of its staff and personnel and their assets are absolutely immune from arrests, searches, seizures, or service of process of any kind, including writs of prohibition from any court in the country in which it sits, such as the Liberian Supreme Court. It is not bound by the laws of the referring country nor the supreme court opinions of any country.
For example, in the case of the Special Criminal Court Of Sierra Leone, formed under the ICC, Rule 12 of that Court specifically states that, “Subject to Article 9(2) of the Statute, determinations of courts of any State are not binding on the Special Court.” For a further example, under Article 8 of the Special Court of Sierra Leone, even when they exercise concurrent jurisdictions, the statute provides that “The Special Court shall have primacy over the national courts of Sierra Leone.” The word “primacy” has legal significance and means that the special criminal court is “above, preeminent, more important, and superior” to national courts, including the supreme court of any nation. And at any stage of the proceedings, the “Special Court may formally request a national court to defer to its competence in accordance with the present Statute and the Rules of Procedure and Evidence.” The Special Court is a self containing entity and the architecture of the court consists of (a) Trial Chamber and (b) Appeals Chamber. It is complete with its own substantive laws, rules of evidence and procedure and all lawyers appearing before it must abide by the set of ethical standards prescribed by it. It may even direct a local court of the country in which it sits, including the supreme court of the host country, to provide information it may need to perform its task under international law. As a signatory to the Rome Convention, Liberia, once again, has no legal standing to dispute the independent international juridical personality of a “Special War Crimes Court” formed under the auspices of International Criminal Court (ICC), and its inherent jurisdictional powers conferred upon it by the ICC and the United Nations. Therefore, any arguments by the two Liberian lawyers to the contrary was ill informed and was an unfortunate misstatement of the law extant.

4. Whether war crimes and crimes committed against humanity are subject to statutory limitations under international law.
The doctrine of non-applicability of statutory limitations on war crimes was one of the offshoots of the Nuremberg Trials of 1945. It is a sister doctrine of the so-called “Nuremberg Defense”, both of which are, in the first instance, that a war crimes defendant may not assert the defense of statutory limitations on the crimes with which he was charged; and, secondly, neither can defendants assert the defense of acting under orders of superior officers when being tried for war crimes. Both of these doctrines have now been codified in many statutes by many states and are now enshrined as cornerstones of the Geneva Convention and the International Criminal Court (ICC) statute or the Rome Convention. These two doctrines, especially the “Nuremberg Defense”, are now the bedrock of the jurisprudence of all war crimes trials around the world, even if Liberia, “The Rip Van Winkle of Nations”, went to sleep. Liberia is a signatory party to both conventions and is bound to uphold them as a treaty obligation.

Liberia is also signatory and a State Party to the international “Convention On The Non-Applicability of Statutory Limitations To War Crimes And Crimes Against Humanity” of November 26, 1968, in New York, that came into force on November 11, 1970. It was ratified by Liberia on September 16, 2005. As such, Liberia has no legal standing to argue that war crimes committed on its territory or against its people are subject to a statute of limitations, as Counselors Sherman and Supuwu have erroneously argued before the Senate. Article I of that convention prohibitively declares that: “No statutory limitation shall apply to the following crimes, irrespective of the date of their commission: (a ) War crimes as they are defined in the Charter of the International Military Tribunal of 8 August 1945… and ( b ) Crimes against humanity whether committed in time of war or in time of peace…” In addition, the convention further imposes on member states, including Liberia, under Article II, the affirmative duty to enact appropriate laws to further the aims and objectives of the Convention. So, instead of obstructing justice and frustrating the purpose of the Convention to which it is a signatory party, Liberia should be abolishing or repealing any national statutes of limitations applicable to war crimes and crimes against humanity committed against its people on Liberian soil.

5. Whether a war crimes statute has extra-territorial applicability to persons in another country.
The answer is: YES. Nations as sovereign powers may enact “long arm statutes” or criminal laws with extra-territorial applicability to foreign actors or nationals. The dispositive question is how do you exercise personal jurisdiction over persons who are not actually present in Liberia? Personal jurisdiction over a person, or “in personam jurisdiction”, can be had only if the person charged under Liberian criminal laws can be extradited from the country in which they physically reside. That would require an extradition treaty between Liberia and that country. Where no such treaty exists, most countries who are parties to the Rome and Geneva Conventions may exercise “universal jurisdiction” under the ICC statute to try those accused of war crimes who reside within their national borders, regardless of the “situs” of the crime or where the crime was committed. The unfriendly nation act of another country allowing its territories to be used as a launching pad for rebels to wage war against another nation, as in the cases of Ivory Coast, Guinea or Sierra Leone, against Liberia, is a matter that can properly be referred to the United Nations as an act of aggression, if those countries knew about those activities and did nothing to prevent them. But individual persons living in those countries who engaged in cross border acts of hostilities against Liberia can be charged and prosecuted under the war crimes act and be subject to extradition, if there is an existing extradition treaty between the requesting country and the sending nation. Otherwise, such persons can still be tried, in absentia, and, if convicted, to be placed on the international police alert and all-points bulletins of the International Criminal Police Organization (ICPO), commonly known as Interpol.
6. Whether a country may exercise universal jurisdiction over war crimes to prosecute defendants within its territory.
The answer is a resounding: YES. So far, while Liberia has been unwilling or unable to prosecute war crimes on it territories and against its citizens, other countries have used the doctrine of universal jurisdiction to prosecute persons found within their sovereign territories. The United States, Switzerland, France, Denmark, etc., etc., have all used this international legal mechanism to bring to justice those who committed atrocities or war crimes and crimes against humanity on Liberian soil against Liberians and the people of Sierra Leone.

7. Whether the expenses of the special war crimes court are to be paid by the referring country alone.
The answer is: NO. All States Parties to the Rome Convention contribute to the fund and private donors can also contribute. Counselors Supuwu and Sherman spent a lot of energy trying to impress upon the Senate the prohibitive costs of litigating war crimes. Once, again, that was a scare tactic. In truth, many of these trials are fully funded by member states and by voluntary contributions of NGOs and philanthropic organizations around the world, commonly referred to in international parlance as “major stakeholders”, for the advancement of social justice and the promotion of world peace.

CONCLUSIONS OF LAW
The purpose of a war crimes court is not revenge or retribution, as most people might think, but accountability that enables victims to have dignified closures to unspeakable crimes committed against them, or their loved ones. Above all, it is part of the global effort to end impunity and to hold accountable those responsible for war crimes and crimes against humanity in order to prevent such crimes from being repeated again. To ask victims to forgive and move on in the name of peace, when no one has been held accountable for their injuries, pain and suffering, is to re-victimize the victims all over again. That is offensive to the jurisprudential notion of equal justice under the law.
Rwanda, Sierra Leone and the C.A.R. (Central African Republic) have now set the benchmark for Africa when it comes to fighting impunity and holding those accountable who commit war crimes. Similar to the Jewish Holocaust Museum in the US, Sierra Leone now has a war crimes museum depicting the atrocities of their civil war as a teachable tool for future generations to study war no more.

Today in Rwanda survivors of their bitter civil war are now living side by side and cultivating the garden of peace, love and universal brother/sisterhood and social harmony between Tutsis and Hutus. The lessons of war have taught them well. But Liberia, the self-proclaimed oldest independent Negro Republic in Africa, has nothing to show for her seniority among African nations, when she should have been the guiding light and a beacon of hope for emerging democracies in Africa to follow, in terms of the advancement of social justice. The state of our public institutions and the administration of justice are appalling examples of abysmal failures, when compared to other African nations. The fact that we are here debating the establishment of a war crimes tribunal to hear and decides cases of gross violations of human rights, condemned by all civilized nations, says a lot about Liberia and where it needs to be among the family of nations.

It is particularly in this regard that I was deeply saddened and profoundly disappointed by the poor performance of two of Liberia’s best lawyers, when called upon by the Senate to guide the nation in navigating the legal quagmires of how to set up a war crimes tribunal to help put behind us the barbaric image of our country foisted upon the nation by the extreme cruelty of just a few citizens against other Liberians.

As we quibble over this national tragedy, 250,000 of our fellow Liberian citizens are now dead. Another 350,000 were internally displaced or fled into exile in refugee camps at home and abroad. A countless number of them never made it back to Liberia for resettlement. And the ones that returned had lost all of their life’s possessions and were never able to recover from the devastations of the war. A good number of them are still traumatized by the cruelty they experienced or witnessed being committed against their loved ones, and will never recover from the psychological damage they suffered relieving daily those haunting images as eyewitnesses to war crimes. A former president of Liberia is sitting in a British prison serving a 50-year war crimes prison sentence, not for what he did to Liberians, but what he did to citizens of another country. Whom are we trying to protect? Victims or the victimizers? Who is speaking for those dead and maimed fellow citizens of Liberia? Who is seeking justice for them? Why are we so concerned about justice for the perpetrators of war crimes, and not for the victims? Well, if nobody will, I will advocate for the voiceless living and the dead.

My well considered legal advice to the Liberian Senate is to completely disregard the views of these two lawyers and proceed with the task of organizing the war crimes court. This is about restoring the soul of our nation, not revenge. Once a draft of the statute is produced, it is then submitted to the ICC by a process known as “referral of a situation”; and if, after reviewing the TRC’s Final Reports and other requested documentation, a probable cause of initiating investigations is determined, the ICC will then assign the case for formal investigations on the merits. The drafting of the statute is usually coordinated with the appropriate office at the United Nations that can offer some insight on the provisions of the statute.

Take a look at the Sierra Leone Special Criminal Court Statute as a model. Finally, when the court is established, the referring state can either opt to host the court, or choose The Hague, where other special criminal courts conduct business. This will free the court from local bias, especially when the country is sharply divided along heightened ethnic lines. The view by the two lawyers that the TRC Report specifically stated that “most Liberians don’t want a war crimes court” clearly underestimates the gravity of the national trauma over the war. It is like asking a rape victim to face their rapist in a trial in open court immediately after the rape.

The fact that rape victims don’t want the rapist tried in court, or be a part of such proceedings, is NOT that they do not want accountability. It is, instead, precisely because they fear retribution if the accused is found not guilty; or because they do not want to re-visit the memory of their past traumas as victims of brutal crimes. For example, the war wearied Liberians still voted in elections following the war, with slogans like: “Even though you killed my Ma and my Pa, I will still vote for you.” Was that evidence of forgiveness or exoneration of anyone for war crimes? Clinical psychologists will tell us that such action is a symptom of “suggested behavior” of a nation beaten into submission. That argument is unpersuasive, insensitive to victims, and a deflection by the two Liberian lawyers.

As such, it is to be ignored for the greater good of our country in putting this national scandal behind us. A court by whatever name offers the nation the best and most civilized means to seek redress of our grievances against one another. That is better than WAR.
LET JUSTICE BE DONE THOUGH THE HEAVENS FALL.
For all of the reasons stated above, I DISSENT.

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