The TRC Recommendations, War Crimes and Justice

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By Abdoulaye W Dukulé

It’s been almost a decade since the Truth and Reconciliation Commission, (TRC), an instrument of the 2003 Accra Comprehensive Peace Accord (CPA) that ended the civil war completed its task. The mandate of the TRC was to look back at the civil conflict, listen to both perpetrators and victims and make recommendations for national reconciliation.

At the peace negotiations in Accra, which brought together the Government of President Charles Taylor, the warring factions (LURD and MODEL) who were fighting to unseat President Taylor and some 17 political parties, the Diaspora and civil society. At the end of the talks in Accra, the parties reverted to previous peace accords signed since 1990 and which called for disarmament, a transitional government not to be headed by none of the warring factions, free and fair elections under international supervision.

This was the baseline crafted by the Interfaith Mediation Committee at the height of the war in 1991 and remained the pillars of all 16 peace or so peace agreements. The difference in Accra centered on how to deal with atrocities of the war. War crimes and human rights abuses had been everywhere during the war.

The issue of justice and reparation for victims was on the agenda. The choice was either a war crimes tribunal or a truth and reconciliation process, where victims and perpetrators would face each other and tell their side of the story. The end of the war depended on the willingness of the warring factions to lay down the guns.

The truth and reconciliation process prevailed without much surprise. The Truth and Reconciliation Commission (TRC)was set-up during the administration of Transitional Chairman Gyude Bryant in 2005 but became operational and sworn into office early after the elections of Madam Ellen Johnson-Sirleaf in 2006.

The TRC accomplished a tremendous task, going around the country, listening to perpetrators and victims and came up with a comprehensive document that not only provided detailed accounts of the conflict, but also looked at its root causes and made recommendations for national atonement and reconciliation.

The Report was submitted to the Government. And then started the problems. Politics entered the debate, as many of those occupying high level positions in every branch of the government were indicted by the report.

The discourse over the TRC Report got lost in the process and rarely went beyond the issue of punishing the perpetrators or not. As required in the CPA, the President set up a Human Rights Commission that reports to the Legislature and was charged with implementing the TRC Report.

For the past 10 years, many groups have been incessantly calling for the implementation of the TRC Report, and other groups insisting on a war [and economic] crimes tribunal. The CPA was drafted by a group of political leaders and warring factions in the heat of a deadly war. None of the warring factions could claim victory but each controlled large swathes of territory.

There was intense international pressure to end the war. ECOWAS appointed a former Nigerian head of state to steer the negotiations, with the UN, EU and the AU all in the process. These factors impacted the nature of the agreement. Warring factions were ready to lay down their guns in exchange for power but most importantly, for amnesty.

Therefore, coming out of Accra, Liberian political leaders agreed to pursue a path to reconciliation and forgiveness rather than the punitive road of the war crimes tribunal. LURD and MODEL were warring factions fighting against an NPP (National Patriotic Party) government which itself was born out of a warring faction just a few years earlier.

In the absence of a national consultative process, the people of Liberia had no say in the formulation of the CPA. It was the result of a compromise between warlords and politicians, who had not been elected nor vetted by anyone, except – ironically – the NPP government. A war crimes tribunal requires the creation of a legal framework.

The International Criminal Court at the Hague does not have jurisdiction over war crimes committed prior to its coming into existence on July 1, 2002. But Liberia can create an ad hoc court to address war crimes.

The advocates for a war crimes tribunal must also consider that “the Court can generally exercise jurisdiction only in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the Court by the United Nations Security Council.”

The Court is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes. Primary responsibility to investigate and punish crimes is therefore left to individual states.” (‘The Jurisdiction Of The International Criminal Court International Law Essay‘, Lawteacher.net, August 2018).

How high is this issue on the list of priorities of the Weah-led administration? The implementation of the TRC Report does not need the creation of any new legal framework. It is already part of the laws. The Independent Human Rights Commission (IHRC), if infused with more political and legal power as well as viable logistical support, can implement the TRC Report.

That’s its mandate. Economic crimes do not need a special court, there are many institutions to tackle corruption, theft, misappropriation and so on. But again these institutions have very little capacity and support. Sometimes their efforts lead to nowhere. Results of investigation and audits are thrown on shelves or buried, encouraging impunity.

Why have someone to declare their assets upon assuming office but not going back to check how rich or poor they have become at the end of their tenure? The CPA was written in the heat of the war. The TRC Report was written when the wounds of the war were still fresh.

Now maybe it’s time for Liberians to sit in a truly national forum and reach consensus on many issues still hanging, from land matters to the importation of bottled water and how to deal with the TRC Report or the meaning of cultural identity and dual citizenship.

Constitutions can be amended; therefore recommendations of a panel report can also be adjusted. Costly, but priceless compared to instability and chaos.

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