Written by Arthur B. Dennis
Wednesday, 02 June 2010
Source: http://www.liberianforum.com/Articles/The-War-Crime-Controversy-in-Post-War-Liberia.html?ac=0
This article seeks to address the war crime controversy in Post-War Liberia. It is dedicated to those who are searching for credible answers to the controversial war crime agenda at home.
Definition of War Crime
The term “war crime” 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.
International Criminal Court (ICC)
War crime has been an international crime for over a century. Yet, in the years before the 21st century, there were no permanent international criminal court to prosecute cases of war crime. 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, came into force. It is based in The Hague, Netherland.
The ICC prosecutes military and civilians, age 18 or older without regard to 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 crime of 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 over 100 civilians were killed by soldiers 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 state 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 requests. 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 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’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. Boley is being detained for war crime. If Dr. Boley is a U. S. citizen, then the rumor could be true. Because the 1996 U. S War Crime 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 Crime 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.
Concluding Comments
There are four major roadblocks, standing in the way of war crime 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 an exclusive war crime legislation exactly like the U. S. 1996 War Crime Act to prosecute war crimes. Without this legislation, war crime 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, the Ropes will Haul Bush.” They 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 crime noise with conspiracy of silence. This is where we are in the war crime controversy. However, my next article will advance proposals to end this controversy.
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Author's Note: In case of comments, Arthur B. Dennis can be contacted at korso2006@msn.com
