Proposal to End Impunity in Liberia

UNMIL HRPS March 2005
ONLY FOR INTERNAL DISCUSSION

Background

1. Between 1979 and 2003, Liberia endured a brutal civil war marked by repeated violations of international humanitarian law. Judicial institutions, never strongly independent, became decayed by corruption and intimidation, while the police and military were used as instruments of oppression. The consequences of the reversal of the rule of law are clearly visible in Monrovia today- corruption, official negligence and incompetence, economic vandalism, desperate poverty and unwillingness on the part of national authorities to prosecute crimes.

2. The cessation of the civil war is a significant achievement; however, the current peace cannot last without international support to end impunity and establish respect for the democratic rule of law. Now is the ideal time to begin discussion on the appropriate strategy, and the letter of Reverend William Barnes to the Secretary General provides an excellent opportunity to begin examining the issues in depth. The continuing stability of Liberia is central to peace-building in West Africa, and a reasonable UN troop commitment may be presumed for some time. If proper decisions are taken today, they will bear fruit in the years to come, establishing Liberia an example of international cooperation for lasting peace and democracy.

Impunity in Liberia

3. The institutional support efforts of UNMIL and donors are based on an assumption that the rule of law can be re-established on the foundation of existing institutions. However, the complete disregard for accountability and the rule of law by those people trained to protect it entails that retraining will not produce lasting results. Furthermore, it is the experience in many post-conflict societies that individuals who were part of former regimes are almost uniformly incapable of rejecting the culture of impunity without massive institutional reform.

4. The integrity of the Liberian judiciary has been so debased by decades of paternalism, conflict and corruption that it is incapable of meeting its duties to uphold the Constitution. Lasting reform of the judiciary must be based on strict observance of fundamental standards of judicial performance and integrity . The National Bar Association (NBA) has also proven itself unwilling to criticise misconduct. Article XXVII of the Comprehensive Peace Agreement (CPA) provides that the NBA shall undertake vetting of candidates for judicial posts and prepare a shortlist of nominees for judicial positions; this has not been done to date.

5. Courts of all levels in Liberia do not operate in accordance with the law, particularly outside Monrovia. Many courts are not operational at all or are staffed by unqualified and unregulated personnel with the consequence that suspects and victims alike are open to extortion and human rights abuses. Juveniles and women are particularly vulnerable to judicial abuse. Montserrado is the only county with a judge dedicated to hear juvenile cases.

6. Only 18 of the 52 serving judges hold law degrees; five of these are on the Supreme Court. All other judges have only been trained “on the job”, while no magistrates are law graduates. Six judges are already nearing retirement age. The pool of qualified lawyers in Liberia is quite small. The Law School at the University of Liberia is under-resourced and will not be capable of graduating a suitably large number of qualified lawyers within the coming few years.

7. Lengthy pre-trial detention is a serious concern in Liberia, with the vast majority of cases never being finally resolved in accordance with the law. The nation’s largest prison, the Monrovia Central Prison, consistently holds between 250 and 320 detainees, only several of whom have been convicted of any charge.

8. While CIVPOL is establishing a new police service, with new recruits and vetted members of the previous force, the old LNP members are still serving and are responsible for innumerable human rights violations. The primary concern is the lack of accountability, leading to impunity for human rights violations, including failure to investigate crimes against members of vulnerable groups such as women and children, and corruption. Public confidence in the police is very low.

9. In the absence of an adequate formal justice system, many criminal and civil cases are never reported or are resolved between the parties, without legal basis or regulation. The reliance on private dispute resolution also encourages vigilantism and mob justice, which continue to plague Liberia.

10. Civil society is not sufficiently developed to provide a counterweight to official abuse. Most Liberians have only a vague awareness, if at all, of their rights as citizens and the responsibilities owed to them by national authorities.

11. Gross human rights abuses were committed against different tribal groups during the war; residual mistrust and anger from that time was a factor in the escalation of the Monrovia riots in October last year.

12. The plunder of the nation’s natural resources financed the conflict here and in Sierra Leone. Natural resources continue to be stolen to this day, with no serious challenge by law enforcement authorities and sometimes under conditions of slave-like forced labour. Illegitimate control of rubber plantations in particular remains a potential flash-point for violence. The profits from this illegal trade are enjoyed by some political leaders and might be used to finance any future outbreak of conflict here or in neighbouring countries. Although potentially one of the continent’s richest countries, the population of Liberia lives in abject poverty.

13. In 2003 and 2004, Liberia ratified all the major United Nations human rights instruments , thereby creating the legal human rights framework for national reform. The Independent National Commission on Human Rights (INCHR), whose establishment is provided in the CPA, should begin legitimate operations shortly, as the enabling legislation was adopted by the NTLA on 1 March. It is expected that a large number of complaints to the body will relate to past violations committed during the conflict.

Ending Impunity- a Comprehensive Approach

14. In light of these fundamental flaws in the Liberian legal and political culture, a decisive break with the nation’s history of violence, corruption and impunity can only be made with actions that are equally far-reaching and comprehensive. The international community must unequivocally demand that Liberia meets its responsibilities. Only by ending impunity and facilitating the transformation of the country based on respect for human rights and the rule of law can a lasting peace be assured.

To that end, the following recommendations are made.

Judicial Reform

15. It is proposed that experienced judges and magistrates from ECOWAS or AU Common Law countries be seconded to sit in the courts of Liberia and adjudicate cases at the Appeal, County Circuit and Magistrates Court levels with full authority for a period of three years while national capacity is strengthened. These Judges should have suitable experience in the relevant areas of common law and have personal integrity and human rights credentials. Employment and salaries could be arranged through UNDP, with funding from international donors. Special efforts should be made to recruit well-credentialed Liberian lawyers in the Diaspora. Similar measures should be taken to staff the public prosecution service and to establish and staff a public legal aid office.

16. All current Judges and magistrates should be considered to have tendered their resignation. Dependent on their successful passage through a rigorous vetting process , they should be invited to apply to sit as associate judges, prosecutors and public defenders alongside international staff and receive intensive retraining.

17. A permanent judicial review mechanism should be created, with powers to conduct investigations on complaints and on its own motion, conduct a general review of judicial performance, make recommendations for further training and/or disciplinary action, and refer cases to the NTLA for impeachment . The body should also review the judicial code of conduct to ensure that it conforms to international standards and includes adequate procedures.

18. A review of the number of courts at the County Circuit and Magistrates level should be made, with a view to eliminating those that are superfluous, so as to permit the efficient allocation of funds to courts that can most usefully serve the population. Specialist juvenile courts should be established in each sector headquarters.

19. HRPS supports the scholarship scheme already proposed by LJSSD, to increase the number of law students at the University of Liberia with a contractual commitment to work for the State after graduation. In order to strengthen the capacity of the law faculty, it is proposed that professors from Common Law countries and the United States in particular (as the Liberian legal system is based on the US model) be hired through the United nations to teach courses at the school.

Institutional Reform
20. A strong external oversight mechanism is essential for police accountability and the rejuvenation of the service “consistent with democratic policing” . This should be established in addition to any internal oversight system. The body should be empowered to review police performance and to make public recommendations to the Minister of Justice to improve accountability and professional standards.

21. A national office must be established, with the assistance of UNMIL , to protect and regulate the exploitation of Liberia’s natural resources for the long-term benefit of the country. Similarly, efforts must continue to establish a transparent and accountable property dispute resolution system to ensure that land conflicts do not become a fresh source of violence and human rights violations, particularly in light of the large numbers of returning IDPs and refugees.

Legal Reform

22. A systematic review of Liberian legislation should be undertaken to check compliance with international human rights instruments , identify critical gaps and recommend necessary amendments. Key legislation for review would include the Penal Code, the Criminal Procedure Code, the Juvenile Procedure Code, and legislation relating to the corrections system, family law, adoption of children, and the exploitation and protection of natural resources.

Public Education on Human Rights and Oversight by Civil Society

23. A strong civil society will be critical to ensuring that there is a permanent human rights presence in Liberia advocating for respect for the rule of law. Intensive human rights advocacy training and encouragement to develop contacts with international NGOs is required. The recent negotiations over the draft Truth and Reconciliation Commission Act were an excellent example of NGO-government cooperation and should be consolidated .

24. The public needs comprehensive education programmes on human rights and good governance, focussing on the responsibilities of government officials to serve the people. The aim should be to create expectations amongst the Liberian population that the government must protect basic human rights and reject corruption.

Role of the International Community
25. The extradition of Charles Taylor to stand trial in the Special Court in Sierra Leone would constitute one of the greatest blows that could be made against impunity in Liberia and the region. Increased international pressure should be placed on the Government of Nigeria to comply with the Red Alert Notice issued by Interpol. Although arguments have been made that Taylor’s extradition would reignite conflict, that scenario is far from likely during the mandate of such a large peacekeeping force. Indeed, Taylor is far more dangerous in Nigeria, as he continues to undermine stability through his proxies and the fear caused by his final words upon exile: “God willing, I will be back”. To prevent his return to power, and to destroy his continued following (particularly among the youth), he must be arrested and brought to hear the charges against him in Court.

26. The Secretary General should apply diplomatic pressure on the Government of Nigeria to force the extradition of Charles Taylor to the Special Court . His continued freedom in a State that is so deeply influential in Liberian politics undermines the strong language of the Resolution calling for an end to impunity and establishing the Court.

27. A report must be publicly disseminated detailing the findings of investigations into those Liberians who are currently on the UN travel ban or assets freeze lists. Ultimately, police investigations and prosecutions must take place to hold those people accountable for their corruption, or the names should be removed from the list in accordance with due process standards.

28. Much of the capital stolen from Liberia is invested in the United States, where a large part of the elite of the Liberian population has family and homes. The United States Government must enforce asset-freezing, in accordance with the United Nations lists and tighten visa restrictions to make it far more difficult for people suspected of involvement in corrupt activities and members of their families from moving back and forth between the United States and Liberia.

The International Tribunal Model

29. Without justice for the crimes of the past, democracy and rule of law cannot take hold, as those responsible for grave international crimes have too much to lose to allow that to happen. The current untouchable status of criminals perpetuates corruption and violence and undermines all efforts to reverse Liberia’s dire economic and security situation.

30. The United Nations speaks frequently of the need for justice for war crimes and crimes against humanity. The Security Council acknowledges this in the preamble to Resolution 1509 (2003): “Mindful of the need for accountability for violations of international humanitarian law…” Action must be taken by the United Nations to ensure that these words do not become meaningless and that perpetrators of human rights violations do not believe they will escape justice.

31. Much attention has been paid to the terms of the CPA, particularly Article XXXIV, which is often erroneously interpreted as calling for an amnesty. However, the provision calls only for consideration of an amnesty. Any purported amnesty for violations of international humanitarian law granted by this or a past or future government would be invalid under international law and thus not a legal obstacle to the creation of a criminal justice mechanism. Other Articles refer explicitly to the need to protect human rights and uphold humanitarian law, such as Article XV:

“The Parties undertake to respect as well as encourage the Liberian populace to also respect the principles and rule of International Humanitarian law in post-conflict Liberia.”

32. Public debate in Liberia has focussed on the demand for some form of accountability for the perpetrators of past human rights abuses. In May 2004, approximately 80 organisations commenced a campaign to end impunity in Liberia, to push for a criminal tribunal and to demand the arrest and extradition of Charles Taylor to the Special Court. As HRPS continues its public information exercises concerning the establishment of the Truth and Reconciliation Commission, it increasingly hears citizens expressing their desire for justice.

33. The NTGL has shown commitment to ending impunity for gross human rights abuses by ratifying the Rome Statute of the International Criminal Court (ICC). Although the exact procedures of the ICC do not bind Liberia in relation to crimes committed during the war , ratification creates an expectation that Liberia intends to respect international humanitarian law. The best way to do this would be to undertake an honest investigation and prosecution of the most serious human rights violations that occurred during the war.

34. There seems to be no political will to establish an international tribunal for Liberia. Liberia’s key ally on the Security Council, the United States, is a vehement critic of international tribunals, including the ICC, and other post-conflict countries have also failed to attract adequate political support for an international tribunal. In any event, although international tribunals enjoy a high profile, as tools to end impunity in the post-conflict state they are less successful than other models.

The Hybrid Tribunal Model

35. Hybrid tribunals operate within the relevant State, apply international and domestic laws and are staffed with both national and international personnel. They serve a dual purpose- to ensure accountability in individual cases and to strengthen the rule of law and judicial capacity in the post-conflict nation. The collaboration of national and international personnel increases national legal capacity, while presence within the State permits visibility of and access to justice by victims and witnesses and much reduced costs. In considering this option, the two examples below may be instructive.

The Sierra Leone Model

36. The Special Court of Sierra Leone was established by a treaty with the United Nations pursuant to a Security Council Resolution. It applies international provisions that are included in a domestic statute and is funded through bilateral agreements with donors. The Special Court’s greatest strength lies in the independence of its Prosecutor. The Prosecutor is appointed directly by the Secretary-General of the United Nations and acts “independently as a separate organ of the Special Court ”. This degree of independence would be critical to the investigation of offences in Liberia, as many perpetrators and their colleagues are now members of the NTGL/NTLA. Appointment of the Prosecutor and judges for three year renewable terms is also important to ensure efficiency.

The Timor-Leste Model

37. The Special Panel for Serious Crimes was established in 2000 as a panel of the Dili District Court, applying provisions of international law and with access to international financial and human resources. The law creating this panel allows the creation of others and presently, there are two such panels operating in Dili. Each Panel is composed of two international judges and one Timorese judge sitting together with equal authority. Investigations and prosecutions are overseen by a Deputy Prosecutor-General (PG) for Serious Crimes, reporting to the Prosecutor-General, a Timorese government official. The defence team includes national and international staff.

38. The advantage of this model is that nationals working as Judges, prosecutors, defence counsel and other professional staff were able to receive extensive training in legal research, drafting, advocacy and other skills. This has a direct impact on the quality of the national legal profession and associated staff.

39. The disadvantage of the Timorese court was the lack of direct responsibility by the United Nations, particularly in relation to supporting prosecutions against leading Indonesian military figures and funding, as well as the lack of prosecutorial independence.

The Options for Liberia

A successful Liberian tribunal could follow one of the three models below:

A Court for Liberia

40. Following the Sierra Leonean model, the Security Council could pass a resolution as a preventative action under Article 39 of the UN Charter , establishing a Serious Crimes Court for Liberia. This would be a national court or a hybrid court, but its jurisdiction would include the provisions of the Rome statute, to be agreed by the UN and the Government and incorporated into the enabling legislation.

41. The Security Council could pass a Resolution to extend the mandate of the Special Court of Sierra Leone to cover the crimes that occurred in Liberia. The particularly close nexus between the conflicts in the two countries supports this proposal. Former Liberian president Charles Taylor was indicted in that court for his crimes against the Sierra Leonean people. The extension of mandate could take one of two forms. The Court could act with the authority of the Special Court for Sierra Leone, but with a mandate of its own based on a separate Security Council Resolution. This would be effectively a new court, but its establishment would not require such strong political will, as it could be presented as the logical progression of Sierra Leone’s Special Court.

Extension of the mandate of the Special Court of Sierra Leone

42. The Special Court’s jurisdiction could be extended to cover crimes occurring within Liberia during a determined period of time. An investigation office would be established in Monrovia, with branches in the counties, but prosecutions would take place in Freetown.

Extension of the mandate of the Special Court of Sierra Leone, with a Liberian chamber

43. Alternatively, a separate chamber of the Special Court could be established in Monrovia, with accompanying offices of the prosecutor and legal aid service and court administration. National personnel, vetted by a panel composed of the National Bar Association and human rights groups could be appointed as assistant prosecutors, investigators and defence counsel.

44. Whatever choice is made, any criminal justice mechanism for Liberia must include the following elements to ensure its successful operation:

1. Establishment pursuant to a Security Council Resolution and an agreement between the United Nations and Liberia;

2. Appointment of an independent Prosecutor by the Secretary General for a renewable fixed term;

3. International personnel, identified by Bar Associations within the ECOWAS and AU states, as well as other nations;

4. Guaranteed funding from the UN assessed contributions; and

5. A temporal jurisdiction that covers the period 1979 to 2003, in parallel to the jurisdiction of the Truth and Reconciliation Commission.