Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (43 page)
Authors: Unknown
UNMIL, the USA, and international consultants are also active in reforming Liberia’s judicial system. Through the Legal and Judicial System Support Division established in 2003, UNMIL’s mandate “is to develop and implement pragmatic solutions for the myriad problems and challenges facing Liberia’s justice system with the ultimate aim of re-establishing the supremacy of the rule of law in post-conflict Liberia.”
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This is a tall order for an institution that was shattered by the war—even prior to the civil conflict, it lacked credibility. For the most part, judicial reform was overlooked in favor of immediate security and DDR, and it took a full five years after the CPA for Liberia to develop a strategy for the rule of law.
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Many Liberians believe that the peaceful future of their nation depends on a functional legal system. “We will never be able to have peace and justice if we don’t fully overhaul the justice system. This is vital,” says a leading Monrovian cleric.
Much has been done, but we still have a long way to go. Even for investors, without judicial reform, they’re reluctant to come. All people need to feel that there is a system they can appeal to for redress. Until this happens Liberia will not be at peace.
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The lack of an effective judicial system fuels impunity, and contributes to the insecurity that Liberians continue to feel despite officially being at peace for eight years.
Additionally, Liberia’s dual legal system of formal and customary laws creates complications as well as opportunities for those seeking reform and redress. This dual system was first outlined in the 1943 Rules and Regulations Governing the Hinterland of Liberia (“Rules of the Hinterland”); formal laws governed settlers and missionaries (mostly located in more urban areas), while the majority indigenous African population (nearly all rural dwellers) were governed by customary laws.
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Locally elected chiefs have their own courts which preside over matters of customary law, including civil matters pertaining to marital status and debt, while criminal matters are supposed to be overseen by formal courts, although petty theft is often addressed by the customary system. Customary disputes are typically resolved in non-punitive, reconciliatory ways, although there are exceptions.
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There is no clear formula that determines when a case is pursued by the customary or formal systems. Individuals can avail themselves of both systems, which means that some people become judicial opportunists; the loser in one can take her case to the other. However, where there is a conflict between formal and customary law, the formal system prevails.
The oversight of the customary and formal legal systems is disjointed. The Hinterland Regulations (and customary courts) are under the jurisdiction of the Ministry of Internal Affairs and thus are not part of the national court system under the justice ministry.
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Liberia may have a dual judicial system, but that does not mean two separate ministries should oversee it.
Although customary law is widely practiced in Liberia, it is not well understood by most international legal experts, and to date nearly all of Liberia’s judicial reform has focused on the formal system. Despite a shared international and domestic commitment to reform and reconstruction, Liberia’s formal justice system remains greatly constrained by limited capacities. What little infrastructure there is resides in Monrovia; some counties have not had functioning courts since before the wars. Only ten of approximately 300 magistrates have a law degree although this is a requirement for the position and between 50 and 75 percent of Justices of the Peace are illiterate.
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While prosecution staff is mostly in place, in most courts there are no defense lawyers. Prisons are overcrowded, and more than 90 percent of inmates have yet to be tried. Juveniles are particularly vulnerable to extended pre-trial detention since there is only one juvenile court in the country.
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These limitations are the backdrop to the Liberian Truth and Reconciliation Commission, its call for legal prosecution and censure, and some of the arguments favoring a reconsideration of traditional justice mechanisms.
Origins of the Much-Hyped and Much-Maligned Trc
A common transitional justice mechanism is the truth commission. The Liberian Truth and Reconciliation Commission does not have the cachet of previous commissions undertaken in South Africa or Chile, but since its inception it has maintained a high profile domestically, and most Liberians can expound at length on its work.
According to Ntsebeza, truth commissions are only credible and socially significant “when their mandates and composition were determined on the basis of a broad consultative process.”
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Many members of civil society groups were present at the peace negotiations leading up to the 2003 CPA, and while few held sway among the belligerents, all sought some form of accountability mechanism in the peace settlement. The mediators, on the other hand, were most concerned with persuading warring factions to lay down their weapons. In the words of a senior advisor to UNMIL:
The signatories, even as they participated, were somnambulating. They were there, but there was no criticism of what was going on; the mightiest minds were there, including the then Minister of Justice, the ex-Chief Justice. But really, who were they to stand up to the three warring parties?
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During the talks, belligerents gave no consideration to criminal prosecutions or trials, with parties claiming that they would rather fight than agree to a criminal tribunal; instead they pressed for a truth commission.
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“In the parlance that developed between negotiators, ‘truth commission’ was considered shorthand for ‘amnesty,’ or, at any rate, for ‘
not
a tribunal.’”
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Even so, guarantees for amnesty were not included in the agreement to establish a truth commission. Some observers noted that the warlords seemed impervious to the
threat of prosecution, and that they assumed that amnesty was part of the peace agreement.
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After the CPA was ratified, initial attempts by the interim government to establish a truth commission failed. Subsequently, several civil society groups, along with UNMIL, the United Nations Development Programme (UNDP), and the Economic Community of West African States (ECOWAS) carried out public consultations, which led to the 2005 Act to Establish the Truth and Reconciliation Commission of Liberia (TRC Act). When the TRC Act was finally passed, not only was the TRC forbidden from granting amnesty, it was granted the authority to recommend prosecutions and censure.
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Nonetheless, while Charles Taylor was indicted for war crimes that he allegedly committed in Sierra Leone, many of his former associates continued to hold influential positions in business and government, as did many other perpetrators of the conflict.
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The goal of the Commission was to “deal with the root causes of the crises in Liberia, including human rights violations” and to “recommend measures to be taken for the rehabilitation of victims” (TRC Act). The Commission’s inquiry ran from 1979 to October 2003, when the transitional government was inaugurated.
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Under Liberian law, officials of national organizations are required to be Liberian citizens, which meant that none of the nine commissioners had any experience with truth commissions or similar organizations.
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As the TRC began work, whatever fears perpetrators may have had likely faded. The TRC lacked stature and resources. Few of its nine commissioners were publicly known, and in a society that venerates its elders, many were surprised at the choice of 35-year-old human rights lawyer, Jerome Verdier, as chairman. Although several commissioners were lawyers, Amnesty International claimed that the TRC “did not have the necessary expertise to make sophisticated legal evaluations,” citing the lack of an in-house legal team.
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The problems of the Liberian TRC were not unique: truth commissions often promise to achieve more than the allocated time and resources allow. Liberian law gave the TRC “a full smorgasbord of goals: ‘national peace, unity, and reconciliation’, ‘genuine healing,’”
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as well as a broad mandate to investigate decades of events, but it did not provide the means, time, or expertise for the Commission to achieve its aims. Over time, the Commission did not improve its weak reputation. “The Liberian way of doing things took over,” says one observer. “Infighting, mistrust across the board, among committee members, between they and the government, they and the UN, they and members of the international community. It was a multi-headed weapon shooting in all directions including onto itself.”
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To this day, several members remain at odds, and are not on speaking terms.
Initially, the TRC sought to collect statements from 1 percent of the country’s population, or approximately 35,000 people. By the end of 2007, despite serious capacity constraints, the Commission had collected and processed over 17,000 statements. This is a significant achievement in its own right; in South Africa, a country with 14 times the population of Liberia, approximately 21,000 statements were taken for its TRC.
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With the assistance of a team of volunteers, the
Liberian TRC also gathered statements from more than 1,600 members of the Liberian diaspora, residing in Ghana, the UK, and the USA.
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This was the first time that a TRC had systematically considered and included a diaspora population in its work.
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A number of these individuals had valuable information about the political situation prior to the civil wars. For instance, many former members of the Tolbert government (the last Americo-Liberian regime) now reside in the USA. They were able to testify about events that led to the 1980 coup by Samuel Doe, as well as the rise of Charles Taylor as a former Tolbert government minister.
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The diaspora’s role in the conflict was also revealed through these testimonies.
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In spite of its innovations, the Liberian TRC remained fraught with challenges and infighting, so much so that two of the nine commissioners refused to endorse the final report. While no one denies that the Liberian TRC was a worthwhile undertaking, few have unilaterally positive assessments of its final report. A more generous appraisal notes how the TRC has shaped the political landscape:
The issues and recommendations coming out of the TRC will continue to dominate the national agenda. Still, there are real problems around the report and its findings. We hold dearly to the issues of due process and transparency and these were sorely lacking.
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While ostensibly upholding the Constitution, the Commission essentially worked as a law unto itself, offering no explanations as to how it came to its conclusions and recommendations. During the process, many victims were disappointed that they were not able to interact as much as they wanted with alleged perpetrators. “One concern that we had was that perpetrators were supposed to be given the chance to interact with their victims, and there was only one county where that took place,” says Rev. Benjamin Lartey. “The hearings were more of an environment where people made scholarly presentations. Victims didn’t have a chance to meet perpetrators. And all the accused came and said, ‘they’re lying, who said I did that.’”
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The fact that many accused appeared to be less than forthcoming and remorseful undermined the integrity of the proceedings to victims.
In all, many observers provide cautious endorsement of the TRC, contending it was a worthwhile, albeit flawed, body.
In the history of Liberia, this is as much as has ever been said about Liberia and Liberians. Despite my misgivings, and the fact that it wasn’t written by Confucius, it is still better than anything stated before. I don’t like it when people expect a South African-like report; the capacities just were not there. When the best were not available, we settled with the best available. Therefore, we need to be careful about saying what is the success and failure of the TRC; it is analogous to the capacity of the nation.
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Not all reviews are as forgiving or as diplomatic. Steinberg writes, “The substance of the Final Report is something of a mess. Its recommendations stand little
chance of surviving judicial review for they do not stand up to the flimsiest definition of the rule of law.”
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It is to the TRC’s recommendations for prosecution that we now turn.
Formal Accountability: Prosecution and Lustration
While the exact numbers remain contested, up to 200,000 people were killed (one in every 17 civilians) and nearly a million displaced during the Liberian civil wars.
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Up to 21,000 child soldiers were forcibly conscripted to torture, sexually assault, and kill; between 60 and 70 percent of women experienced sexual violence; and at least 25 massacres in which a minimum of 100 people were killed are known of.
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Nearly a decade later, fully 78 percent of the population consider themselves to be victims of the war.
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For these reasons, many argue that the truth-telling mechanism of the TRC alone is insufficient and that perpetrators need to be held legally accountable for their actions.
The most controversial parts of the Liberian TRC report are its call for the establishment of an Extraordinary Criminal Tribunal and naming of individuals, corporations, and institutions recommended for prosecution or for further investigation. More than 100 people are named for prosecution of gross human rights violations.
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An additional 49 individuals are recommended for public sanctions in the form of lustration, preventing them from holding public office for 30 years, for having aided, abetted, and otherwise supported perpetuators of the conflict.
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Number 11 on the list is current President Ellen Johnson Sirleaf.