We the Victims: Why Liberians Must Demand a War Crimes Tribunal For the Prosecution of Crimes Against Humanity
By: Charles Kwalonue Sunwabe, Jr., Esq.
Senator Johnson, a disreputable war criminal, has vowed to kill any legislation that seeks to establish a war crimes’ court in Liberia. Another terrible Liberian warlord, Alhaji G.V. Kromah, a Liberian trained lawyer who is infamous for the decapitation of innocent civilians has registered his vehement opposition to the establishment of a war crimes court for Liberia as well. In addition to his infamy for overseeing the decapitation of innocent civilians, Kromah is equally notorious for using human intestines as tollbooths. Warlord Kromah, an ally of Liberian president Ellen Johnson-Sirleaf, was recently elevated to a top diplomatic position, where he is using his position to thwart his victims’ plea for justice. It has been warlord Kromah’s position that the Cotonou Accord of 1994 granted him and Liberia’s other evil Warlords amnesty for crimes that they committed individually and collectively against the Liberian masses during our monstrous civil calamity.
Liberia’s anti-war crimes court sentiment is not limited to the warlords alone. Recently, some rogue Liberian-trained attorneys who are mostly naïve and misinformed about the international criminal law practice have joined the opposition calling for inclusive justice in Liberia. These legal charlatans, sycophants, and opportunists have argued, rather ineptly, that President Sirleaf’s Liberia has the authority to pardon crimes against humanity committed in Liberia. Their in-artful legal position amounts to a grubby legal fictionit is devoid of serious legal analysis and amounts to an entirely untenable and unsupported legal position. These hired henchmen of former Liberian warlords have mounted repugnant attacks on the Liberian Truth and Reconciliation Commission’s (TRC) recommendation calling for a war crimes court for Liberia. According to these Liberian warlords’ emissaries, the TRC recommended court would run contrary to a provision of the Liberian Constitution, which posits that all subordinate and parallel courts in Liberia be established pursuant to the Liberian Constitution.
In writing this article, I advocate a position consistent with both the Liberian Constitution and the prevailing norms of international criminal lawa position that stands in stark contrast to the self-serving position of the warlords and their associates. In so doing, this article makes the following central arguments: (1) crimes against humanity have been committed on Liberian territory; (2) Liberia is obligated under international criminal law to bring to justice those individuals who are responsible for such crimes; and (3) crimes against humanity cannot be amnestied or pardoned. This article also argues that a hybrid international court for Liberia would be complementary, and not violative, of the Liberian Constitution.
1) Crimes Against Humanity Have Been Committed On Liberian Territory.
In the debate on the need for a war crimes court for Liberia, little if any time has been devoted to the nature and definition of crimes committed against the Liberian masses. That may be because it cannot seriously be questioned that such crimes occurred. Nevertheless, there is no more essential starting point in the conversation regarding whether an international court is needed than whether international crimes were in fact perpetrated.
The U.S. Military Tribunal at Nuremberg defined international crime as: “such act universally recognized as criminal, which is considered a grave matter of international concern and for some valid reasons cannot be left within the exclusive jurisdiction of the state that would have control over it under ordinary circumstances.” See specifically Ahmed et al. Additionally, according to the UN, crimes that shocked the conscience of humanity and can be easily characterized as a “threat to world peace” or a “breach of peace,” have the effect of making a conflict a concern of the international communitythe resulting crimes such as genocide, ethnic cleansing, rape, forced conscription, piracy, and slavery are the prerogative of the international community. Although such crimes may have occurred within the borders of a particular country, by their very nature, they defy boundaries in a unique way: their pain, sorrow, and dehumanizing effect fall within a global heritage of pain. In this vein, they constitute crimes committed against all of humanity and can only be pardoned if everyone, everywhere in the world, agrees to pardon the perpetratorsan impossible and never before heard of undertaking.
It is an irrefutable fact that crimes classified as crimes against humanity were committed on Liberian territory by the various warlords and their stoogesinnocent men, women, and children were killed on account of their ethnicity. Even the passage of time cannot erase the painful refrain of the warring factions: “cut his throat.” In places like Bakadou, Lofa County; St. Peter Lutheran Church, Montserrado County; Duport Road, Montserrado County; and Po River Bridge, Gbarnga, Bong County; scores of innocent men, women, and children were slaughtered.
Elsewhere in Liberia, the killing spree was the same: Grand Bassa County, 1990-1999; Greenville, Sinoe County, 1990-2003; Nimba County, 1990-2003; Grand Gedeh County, 1990-2003; Margibi County, 1990-2003; Lofa County, 1990 2003 and literally the entire country saw the atrocities of murder and rape, as well as unimaginable cruelty and unceasing brutality, which were committed by warlords and their accessories. In monstrous fashion, warring factions ripped pregnant women while they were alive and extracted their fetuses, so that the sex of the fetuses could be determined. These innocent women died of agonizing and unrelieved pain, while the perpetrators celebrated with songs and laughter. It was routine to see the skulls and intestines of innocent victims displayed as tollbooths by the factions. Two of the warlords, Major Charles Taylor and aforementioned Kromah (a self-anointed “General”), collected the blood of their innocent victims for voodoo purposes. Kromah later boasted that he could turn into a snake and elude his enemies. Taylor, on the other hand, claimed that he could vanish whenever it was necessary. General Prince Johnson, a deranged psychopath, had a live scorpion sitting on his shoulder which he featured as a battle prowess; he maintained that he derived powers from the scorpion when in battle. Combined, these men masterminded, commanded, and slaughtered countless innocent Liberians. Collectively, it is beyond question that their atrocities amounted to crimes against humanity.
2) Crimes Against Humanity Cannot Be Pardoned or Amnestied.
In the domain of international criminal law, it is a foregone conclusion that crimes against humanity cannot be pardoned or amnestied. Granting pardons and amnesty to perpetrators of genocide, war crimes, ethnic cleansing, and other forms of crimes against humanity has been found to be legally objectionable and unconscionable. An international prosecutor charged with prosecuting crimes against humanity and genocide is not bound by any pardons or amnesty arrangements entered into by the UN, regional organizations, or sub-regional organizations. A long lists of rulings in international criminal proceedings have held that there exists a “crystallizing international norm” against impunity, which prohibits the granting of pardon for war crimes and crimes against humanity. See Leila Nadya Sadat, Exile, Amnesty and International Law, 81 Notre Dame L. Rev. 955, 975 (2006).
In the West African context, the hybrid UN-backed SCSL has held that an international prosecutor’s authority to prosecute grave crimes committed against humanity cannot be undermined by a claim of regional amnesty. Additionally, the SCSL’s appeals panel has ruled that a jurisdictional challenge raised by defendants facing serious war crimes charges was “legally wanting and nugatory.” See broadly Kallon v. Kamara, Case Nos. SCSL-15-AR72 (E), SCSL-16-AR72 (E). According to the SCSL’s rulings in the Kallon case, the Lome Accord of March 13, 2004 was simply an inducement offered to warlords, bandits, and other parties to the Sierra Leonean conflict by members of the Economic Community of West African States (ECOWAS). The primary goal of the inducement was to end the existing bloodbath and cement a sense of regional normalcy. Interestingly, the SCSL held that “due to the grave nature of the crimes committed against the innocent peoples of Sierra Leone, the pardons granted for these crimes could not be honored by the international community.” The SCSL further held that crimes against humanity that have attained the international status of jus cogens can never be amnestied. Indeed, a fundamental principle exists in international law that derogation from jus cogens crimes is per se impermissible. Therefore, as previously stated, any arrangements purporting to immunize perpetrators of crimes against humanity from prosecution are non-binding and should not be honored by international criminal courts.
It is worth mentioning that Sierra Leone, like Liberia, is located in the western part of the African continent. Prior to the war, both countries were similarly situatedsome would even argue that today both countries continue to face the same post-African civil war disease of systemic and ruinous acts of corruption that are masterminded by their reigning political elites. If truth be told, the Sierra Leonean civil war itself was an extension of the Liberian civil war. And like the Lome Accord, the Cotonou Accord was signed under the auspices of the West African regional organization, ECOWAS, principally to end the carnage then existing. Interestingly, the SCSL rejected the Lome Accord and its purported amnesty and went on to prosecute some of its noted beneficiaries. In the Liberian context, the SCSL’s ruling in the Kallon case is the most relevant, and likely controlling, precedent. Thus, the Liberian warlords’ self-serving and narcissistic regional amnesty cannot and would not be honored by the international community. Collectively and individually, the warlords and those civilian Liberians who bear the greatest responsibility for the crimes committed against Liberians and all of humanity would be punished under international criminal law.
Additional supporting evidence for the argument that amnesty cannot be granted for crimes committed against humanity can be found outside of Africa. In other conflict-prone regions, perhaps most notably Cambodia, the world has specifically rejected amnesties granted to warlords and regimented military vagabonds. In the Cambodian context, the government enacted an “outlawing law” in July 1994 that criminalized membership in political organizations and military forces associated with the Democratic Kampuchea Group. The law pointedly empowered the King of Cambodia to grant pardons and amnesties. When Ieng Sary, a high ranking member of the Khmer Rouge defected in 1996, he was pardoned and granted amnesty by the king of Cambodia from all current and future prosecutions. Yet, on October 27, 2004, the special prosecutor for the UN-sanctioned Khmer Rouge Tribunal (KRT) revoked Sary’s amnesty. As the KRT stated in 2004, Sary’s crimes “had reached jus cogens status in international law and could not be pardoned.” The KRT further noted that even if the “pardon were deemed valid, the KRT being a specialized international tribunal was not bound” by the King’s national pardon or amnesty. In reaching this decision, the pre-trial chamber of the KRT reviewed Sary’s amnesty challenge, concluding that the application for the amnesty to Sary’s present prosecution was “uncertain and it was not manifest or evident” that the amnesty or pardon would prevent his present conviction on genocide.
Viewing Liberia with the above-stated legal position in mind, it remains to be seen whether an independent international war crimes court for Liberia would uphold and respect the various amnesties granted to the parties involved in the Liberian civil war, including those granted by the Liberian TRC. However, to determine the validity of any such pardons, Liberia must be willing and made to grant to its victims and the international community the right to an impartial international judicial processthis is a matter of right under international law. The victims of this cruel war and the international community are entitled to international justice in this respect and Liberia has a treaty obligation to grant justice in this capacity.
3) Liberia Is Obligated Under International Criminal Law to Prosecute Crimes Against Humanity.
Although the principle that pardons and amnesties cannot be used to insulate individuals who commit crimes against humanity from prosecution is globally established, it should not be viewed as an assault on the cardinal norms of pardons and amnesties. Rather, the international community specifically encourages the use of amnesties and pardons as vital tools intended to end debilitating global conflicts and will generally respect them. They are not, however, a bar to prosecution for the most serious of crimes, crimes committed against humanity. And a nation-state’s ability to grant pardons or amnesty must be viewed in concert with its obligation under international law.
Importantly, it must be acknowledged that Liberia, along with other states that are signatories to international conventions outlawing crimes against humanity, is obligated to prosecute crimes against humanity. Liberia signed the Geneva Convention of August 12, 1949, and the convention was subsequently ratified by the Liberian legislature. Liberia is also a signatory to multiple conventions that regulate and mandate punishments for crimes committed against humanity in times of wars. By signing these conventions, Liberia and the other signatories obligated themselves to enforce the provisions of such conventions. Thus, Liberia is obligated by treaty to promptly arrest, indict, and prosecute all persons found within its territories who are alleged to have committed serious crimes against humanity. Although Taylor, Kromah, and Prince Johnson may not agree with the treaties that Liberia previously signed, it cannot be the case that contemporary Liberia has the authority and power to refuse to exercise its obligation under these conventions. Liberia must be made to honor its obligations: both the victims of this war and the international community must compel President Johnson- Sirleaf to enforce Liberia’s obligation under the law.
As I have discussed above, pardons and amnesty granted for crimes against humanity are internationally unacceptable. While a nation-state may attempt to grant amnesty pursuant to the doctrine of “national sovereignty” - and may, in fact, pass pardon law as it pleases - a state limits its sovereignty and, thus, its ability to fully pardon certain crimes, when it signs an international treaty. That’s because international treaties impose non-derogable obligations. Thus, for a state’s grant of amnesty to be legitimate under international law, it must not contravene a state’s obligation under any human rights treaty to which it is a party. As noted above, Liberia is a party to the Geneva Conventions and the Genocide Convention. Liberia is also a signatory to the Vienna Convention on the Laws of Treaties and several related conventions outlawing crimes against humanity. Liberia’s obligation under these conventions renders it incompetent as a matter of international law to grant pardons and amnesty for crimes committed against humanity in Liberia. See broadly Ahmed, et al.
Equally importantly, Liberia is obligated to prosecute crimes against humanity. Article 4 of the Genocide Convention stipulates that “persons committing genocide . . . shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.” Article 5 mandates that states act affirmatively by enacting legislation “provid[ing] effective penalties for persons guilty of genocide.” And one may argue convincingly that the mentioned provisions are equally applicable to ethnic cleansing and other crimes against humanity. Liberia has arguably complied with its obligations under international law to enact laws prohibiting genocide and other types of crimes against humanity. Where this consistency exists, there can be no argument against Liberia’s duty to prosecute those who are in violation of laws prohibiting crimes against humanity.
But even where Liberia’s internal criminal laws are not consistent with its international obligations, Liberia must comply with its treaty obligations. Article 26 of the Vienna Convention on Treaties states that a party “may not invoke the provisions of its internal law as justification for its failure to perform its obligation under this Convention.” The concept enshrined in Article 26 is applicable to a state’s domestic obligations to prosecute and punish under the Geneva Conventions, the Convention against Torture, and other pertinent conventions to which that given state is a signatory.
Moreover, with regard to Liberia specifically, the Comprehensive Peace Initiative Agreement (CPA) was signed between the Liberian warring factions and the international community. Indeed it was Liberia’s war-time parliament, which was heavily dominated by warlords and other nefarious characters, which signed the CPA into law and subsequently passed its recommended Truth and Reconciliation Commission (TRC) Act. As noted above, when a state signs and ratifies a treaty, obligations arise and the treaty becomes the law of the state unless the treaty is in conflict with the state’s constitution. In our current case, both the CPA and the TRC Act are the laws of Liberia. They both impose a duty to act. Thus, it cannot be the case that President Johnson-Sirleaf’s Liberia can opt not to, or refuse to, implement all aspects of the CPA and the TRC recommendations.
It must be noted that President Johnson-Sirleaf and her disingenuous, rouge, and corrupt team of attorneys have argued that the portion of the TRC’s recommendation that calls for a war crimes court cannot be implemented. No legal reasons have been offered in support of this position; rather, the President and her minions simply seek to promulgate a form of self-amnesty. Self-amnesties are a kind of amnesty promulgated by persons or regimes while in power, purporting to protect themselves from prosecution once they relinquish power. The current position of President Johnson-Sirleaf and her administration is informed and guided by individuals who previously participated in activities that were violative of both domestic and international laws but now seek to govern the affairs of post-conflict Liberia. Even President Johnson-Sirleaf herself fits into this category of persons. Generally, the international community frowns on self-amnesties and considers them an affront to the international principal that no one should benefit from one’s own bad faith. Accordingly, President Johnson-Sirleaf’s resistance to the establishment of a war crimes court for Liberia amounts to an extreme and sordid form of self-amnesty.
At this juncture, it is important to point out to President Johnson-Sirleaf’s legal team that in a bicameral political system such as Liberia’s, an act of the legislature that is signed into law is the law of the state. Moreover, the enacted law must be implemented in its entirety. It cannot be the case a sitting president can pick and choose which portions of constitutionally enacted legislative act will be acted upon. Viewed in this light, it is legally conceivable that President Johnson-Sirleaf does not have the legal authority to refuse to implement all aspects of the TRC’s recommendation. Selective application of TRC recommendation in this respect runs afoul of and violates the fundamental norms of bicameralism and presentation - this legal concept is enshrined in the Liberian Constitution. Please note that the TRC’s recommendation is a natural extension of, or naturally flows from, an act of the Liberian legislature.
4) A Hybrid International Court for Liberia Would Be Consistent With, Not Violate, Liberia’s Constitution.
This article would be meaningless if attention is not paid to the legality of a hybrid international-Liberian tribunal. Generally, hybrid tribunals are established pursuant to an agreement between the international community, the UN, and a country that has recently experienced genocide and other forms of crimes against humanity. The SCSL, the KRT, and the Rwanda Tribunal are prime examples of internationally sanctioned hybrid courts. Their establishments are not violative of any state’s constitution - if anything, they are consistent with both the constitution and treaty obligations of affected states.
Although I am a victim of the Liberian civil war, I am not remotely interested in retribution. But neither am I interested in a reconciliation process that would shield warlords and banditsmen and women who materially prolonged human suffering in Liberia and benefited immensely from our civil catastrophe. Liberia has a treaty obligation to punish those who committed crimes against humanity in Liberia. The international community must act promptly to save Liberia and prevent another tragic West African melee. This will not be the case if we, the victims of the Liberian civil war, sit by idly and allow the culprits of our pain to decide and dictate the pace and process of national reconciliation. Toward this end, I am proposing the following specific and limited steps that, if acted upon, would begin the process of holding accountable those who bear the greatest responsibility for the Liberian Civil War:
1. We, the victims, must compel Liberia to honor her treaty obligations as a matter of both domestic and international law. This should and can be done by filing a writ of mandamus against the current attorney general of Liberia to compel Liberia to enforce the law prohibiting crimes against humanity. The international community must be put on notice; thus, a copy of the lawsuit should be presented to the UN. It is recognized that the Liberian court system is corrupt, but if a lawsuit of this magnitude is backed internationally, the corrupt court is likely to respond positively to international pressure.
2. We, the victims, must petition the UN directly for a war crimes court in Liberia. The international community has exhibited a strong tendency to side with the people of a nation when their own government fails abominably to give them justice. Libya, Tunisia, and Egypt are recent prime examples, in this regard. The international community does not sanction President Johnson-Sirleaf’s self-serving approach to justice in Liberia. Claims by President Johnson-Sirleaf or others to the contrary are not correct and are not grounded in fact.
3. We, the victims, must inform ECOWAS about President Johnson-Sirleaf’s failure to implement the TRC’s report in its entirety. This information should be accompanied by a lawsuit against Liberia before the ECOWAS court. The ECOWAS court has jurisdiction over Liberiaits jurisdiction is extensive and covers international matters. Liberia must be sued before that court, and that lawsuit should be brought by you and me, the victims. ECOWAS should also be asked to revisit and help implement in its totality the Comprehensive Peace Agreement of 2003. Anything short of serious and sustained international pressure will not yield results and will work to the warlords’ and President Johnson-Sirleaf's advantage.