Under International law, as enshrined in the Geneva Convention of 1949 and its subsidiary Additional protocols, all contracting States, including Liberia are obligated to respect the Convention and its additional protocols, when it comes to International Humanitarian Law (IHL). That under international law, IHL regulars the conduct of war both international or locally. This has two components, jus in bello (in Latin) seeks to limit the effects of armed conflict and jus ad bellum (in Latin), regulates the conduct of belligerents during armed conflict.
Now, having set the basis; war crime, Crime Against Humanity (CAH), Genocide, etc., are normally committed during International armed conflict (IAC) and non-international armed conflict (NIAC). Under the Geneva convention, jus cogen norms (in Latin) meaning, compelling law, takes precedent over national laws, therefore, war crimes, crimes against humanity, genocide violations are recognized as jus cogen norms. These violations are supreme over national laws. The hierarchical arrangement of laws under IL is known.
This brings me to the succinct point of the debate. The Liberian civil war started in December 1989 and ended intimately in August 2003, if I am correct. It is a well-known fact that the Liberian Civil war is classified as a NIAC, because these wars were fought by the national armies and rebels or resistant groups. During these wars, the belligerents did not establish clear military objects, but targeted civilian populations and committed what we referred to in International criminal law as “atrocities crimes” such as rape, mass killings, attacking civilian populations (the Lutheran Church Compound) and infrastructures. There were killings of hors de combat(in Latin) meaning a combatant who has surrender without being a threat(POWs). These are clearly war crimes and Crimes against humanity, as spelled out in the Geneva Convention that Liberia signed up to in 1949 and ratified.
Let me go deeper. The International Criminal Court or what is shortened in International criminal law as the “Rome Statute” was adopted on July 17, 1998, and made operational on July 1, 2002. Please forgive me that I am still ambivalent as to when our country ratified this instrument. But I think that was ratified during the NTLA in 2004.
Howbeit, considering the period of the Liberian civil war that ended in 2003, and the ratification of the Rome statute possibly in 2004, belligerents that committed these heinous and calamitous war crimes, CAH, cannot be tried under the Rome statute, because the ICC does not have jurisdiction over these violations because its jurisdiction is not retroactively.
Let us go into historical facts:
The Rwandan Civil war started almost the same period as the Liberian Civil war. Also during that same period, we have the Balkan wars in the former Yugoslavia and the Sierra Leonean Civil war.
As a result of these wars, which were mostly NIAC, there were mass killings, rape, attacked on civilians’ population and infrastructure, genocide in Yugoslavia and Rwanda. So there was a compelling need to hold people accountable severally or individually. Therefore, with the aid of the UN and other International Organizations, the International Criminal Tribunal for Yugoslavia(ICTY), the International Criminal Tribunal for Rwanda(ICTR), the Special Court for Sierra Leona(SCSL)(the Charles Taylor trial), among other were established, void of the ICC, because the violation of jus cogen norms(IHL)in these countries were done before the establishment of the ICC.
Let come back home. The setting up of the TRC in Liberia in the realm of restorative justice was faulty and the so-called granting of general amnesty to belligerents who carried greater responsibilities is void ad initio( in Latin), meaning “wrong from the beginning” because, under IHL, no country that is a State party can shield belligerents under an amnesty law. As such the present debate must be enhanced and focus on retributive justice so that those that carried the greater responsibilities will be punished. Let us stop aligning the debate that our constitution will be violated because the crimes committed during the foolish Liberia Civil war such as mass killings, rape, attacks on the civilian population are jus cogen norms and are cognizable under IHL.
The cardinal issue here is that, let the Liberian people decide whether they want a war crime court through a vote in a referendum. If the people vote “Yes”, then the Government can make a request to the United Nations for the establishment of an International Criminal Tribunal for Liberia. Please do not ask me on the issue of legal representation for accused persons in that the argument of non-Liberian practicing law here is untenable and will not hold water because international judges and lawyers will come here and work with Liberian Lawyers on these cases.
So please stop the politics. For me, I support the establishment of a war crime court that follows the best standard recognized by international law and not that which is being pushed by politicians.