EXPERT TESTIMONY AND PROFESSIONAL ADVICE TO THE HONORABLE MEMBERS OF THE LIBERIAN SENATE BY Frederick A.B. Jayweh

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H.E Jewel Howard Taylor
Vice-President of the Republic of Liberia,
President of the Senate of Liberia
Executive Mansion
P.O. Box 9001
Capitol Hill
Republic of Liberia

EXPERT TESTIMONY AND PROFESSIONAL ADVICE
TO
THE HONORABLE MEMBERS OF THE LIBERIAN SENATE
BY
Frederick A.B. Jayweh, B.A, LL.B, LL.M, Counsellor-At-Law & International Affairs Director
Africa Center for Law and Human Rights, Inc.

July 10, 2021

 

Madam Jewel Howard Taylor, Vice President and President of the Liberian Senate,

We write to bring you and members of the Honorable Liberian Senate greetings and to seize this opportunity to give our expert and professional advice to the Honorable Liberian Senate and to further make clarification as to whether the Government of Liberia should or should not implement the long-standing and overdue Final Report and Recommendations of the True and Reconciliation Commission (TRC) rendered and submitted to the Government of Liberia and its people nearly 13 years ago.

 

Madam Vice President and Honorable members of the Liberian Senate, after sitting and deliberating for over 3years, the Truth and Reconciliation Commission of Liberia (TRC), concluded, released, and submitted its Final Report and Recommendations, according to and consistent with its mandate and power to the Government of Liberia. The Final Report and Recommendations of the TRC were written according to and consistent with Articles IV, Section 4, letters (a)-(f) and Article VII, Section 26, letters (a)-(h) of the Act that created the Truth and Reconciliation Commission (TRC), Approved June10, 2005, and published by authority of the Ministry of Foreign Affairs on June 22, 2005. Key elements and components

of the Final Report of the TRC are herein stated and submitted for your attention are:

1) THAT the National Legislature (Senate and House of Representatives) of Liberia enact into law and accordingly proceed to establish in Liberia a specialized UN-backed war and economic criminal court to investigate, indict and swiftly prosecute all human rights and international humanitarian laws offenders,

and violators of the human rights in Liberia from December 24, 1989, to August 22, 2003;

2) THAT all leaders of the warring factions in Liberia be forthwith and accordingly indicted, arrested, and prosecuted for allegedly and intentionally committing War crimes, and crimes against humanity, and

economic crimes in Liberia and against the people of Liberia with impunity;

3) THAT all most notorious perpetrators of war crimes and crimes against humanity, and economic crimes be also swiftly indicted, arrested, and prosecuted for violating international human rights law, international humanitarian law, international criminal law, the laws of war, and Liberia’s domestic laws;

4) THAT all individuals and persons charged with committing economic and other financially associated crimes in Liberia from December 24, 1989, to August 22, 2003, be indicted, arrested, and prosecuted;

5) THAT all political leaders and financiers of Liberia’s warring factions and their activities in Liberia be recommended and banned from holding public office in Liberia for a period of 30 years.

Madam Vice President and Honorable members of the Liberian Senate, we need not remind you and the Senate that the Truth and Reconciliation Commission, the (TRC), reached the above and foregoing determinations and recommendations by firmly and lawfully relying on the following principles and sources of Liberia’s domestic law, international human rights law, and particularly, the Rome Statute:

The Mandate of the TRC

Article IV, section 4 of the TRC Act of June 10, 2005, unequivocally states and provides that the objective and purpose of the TRC shall be to promote national peace, security, unity, and reconciliation by:

1) Investigating gross human rights violations and violations of international humanitarian law and abuses that occurred, including torture, massacres, sexual violations, murder, extra-judicial killings, and economic and other financially motivated crimes in Liberia from December 24,1989, to August 22, 2003.

2)  Providing a forum that will address all issues of impunity, as well as an opportunity for both the victims and perpetrators of human rights violations to share their experiences to create a clear picture and structure of the past to facilitate genuine healing and reconciliation in Liberia.

3)  Investigating the antecedents of the crises which give rise to and impacted the violent conflict in Liberia that lasted from December 24, 1989, to August 22, 2003.

4)  Conducting a critical review of Liberia’s historical past to address falsehoods and misconceptions about our nation’s past socio-economic and socio-political development.

5)  Adopting specific mechanisms and procedures to address the experiences of women, children, and vulnerable groups, with particular attention to gender-based violations as well as child soldier issues and recommend measures that will bring about national reconciliation and healing. And,

6) Compiling a report that will include comprehensive and conclusive account of the activities of the True and Reconciliation Commission (TRC) and its findings. The Act Creating the Truth and Reconciliation Commission of Liberia (TRC), Article IV, Section 4 (a)-(f), Pages 4 and 5.

Madam Vice President, apart from the mandate of the TRC stated above, Section 26 (b) of the Act of the TRC, empowered the TRC where possible, to identify persons, authorities, institutions, and organizations involved in human rights violation in Liberia.  And the TRC was also mandated to make recommendations to the Head of State of Liberia to hold prosecution with reference to cases that the TRC may deem fit and appropriate for the development and the growth of the rule of law, justice, and national healing in Liberia.

Article IV, Section 4, (a)(b) to letter (f) of the Act creating the TRC, published June 22, 2005.

In accordance with, and consistent with its statutory mandate and power, after collecting evidence, conduction investigations and hearings for over three (3) years, the TRC determined and recommended that all heads of warring factions, most notorious perpetrators, and all persons charged with committing economic and other crimes in Liberia, be indicted, and prosecuted by a specialized UN-backed war and economic crimes court to be established in Liberia. The TRC, also recommended that all political leaders and sponsors of the warring factions in Liberia, be sanctioned from holding public office for 30 years. 

The foregoing determinations and findings of the TRC have caused great upset and uncertainty amongst some Liberians residing in foreign parts and in Liberia to support or denounce the recommendations and findings of the TRC. Today, there are those, who think that the TRC had no legal power or authority to find or recommend the prosecution and sanctioning of any Liberian from holding public office for 30 years in Liberia for financing and supporting warring factions and the war in Liberia, arguing due process of law. To the contrary, Liberians that support the final report and recommendations of the TRC, have for nearly 13 years, encouraged the Government of Liberia to proceed and swiftly implement the final report of the TRC as mandated by the June 22, 2005, Act that created the TRC; contending that the Report is backed by both Liberia’s domestic law and international law; a body of law that Liberia acceded to and ratified.

Come what may, every Liberian knows, and we can all bear witness that from 1989 to 2003, Liberia and its people were engulfed and deeply overwhelmed by a bitter and bloody armed conflict. The outcome of this conflict destroyed the lives of about 250,000 Liberians and residents, and the fabric of the Liberian society. We all do know that the war in Liberia was started and prosecuted by the National Patriotic Front of Liberia, (NPFL), and later embraced by the Independent National Patriotic Front of Liberia (INPFL); ULIMO & ULIMO-J; ULIMO & ULIMO-K; Liberia Peace Council (LPC); the Lofa Defense Force (LDF); MODEL and LURD warring factions. For nearly 14 years, the following warring factions and their leaders are believed and known to have allegedly committed gross violations of international human rights law, serious violations of international humanitarian law, the laws of war, economic crimes, and crimes against humanity in Liberia and against the people of Liberia with impunity and with reference to:


Crime Against Humanity

Madam Vice President and Honorable members of the Liberian Senate, under international law, international human rights law, international humanitarian law, the laws of war, and under the Rome Statute, an accused is guilty of crimes against humanity and war crimes, if he/she systematically directs attacks against a civilian population with the knowledge and appreciation that said attacks will cause the following crimes to be committed in violation of international law and international human rights law:

I. Murder

ii.    Extermination

iii.   Enslavement

iv.   Deportation or forcible transfer of a population

v.    Imprisonment or other severe deprivation of physical liberty in violation of
fundamental rule of international law and international human rights law.

II. Torture

vi.  Rape, sexual slavery, enforced prostitution, forced pregnancy, etc., and by,

vii. Committing persecution against any identifiable group or collectivity on political, racial,
national, ethnic, cultural, religious, gender-based violence, as defined in paragraph 3 or other
grounds that are universally recognized and considered impermissible under international law,
international human rights law, international humanitarian law, the laws of war, and the
enforced disappearance of persons or members of a civilian population, as was systematically the case and allegedly carried out in Liberia by Liberia’s accused warlords and documented economic criminals.

III. Gross Violations of Human Rights

1)Murder:

An accused is guilty of committing gross human rights violation such as murder if he/she knowingly, intentionally, and purposely causes the death of another human being or causes the death of another human being under circumstances that manifest extreme indifference to the value of human life, and the perpetrator kills one of more people willfully and with impunity. Penal Law, Liberian Codes
Revised, Vol IV, Title 26, Section 14.1 (a) and (b), and Rome Statute, War Crimes (1) and (2) (a)(i) -(vi), Done 17 July 1998, in force 1 July 2002.

2)  Extermination:

The perpetrator kills one of more people, including by the intentional infliction of condition of life, such as deprivation of access to food, and medicine, calculated to bringing about the destruction of a civilian population. Such conduct constituted or took place as part of a mass killing of members of a civilian

population or certain group of people. Starting 24 December 1989, to 22 August 2003, Liberia’s accused

warlord and economic criminals purposefully and allegedly committed these crimes with impunity.

3)  Torture:

The perpetrator intentionally inflicts severe physical and mental pain or suffering upon one or more group of people. Such person or persons were in the custody or under the control of the perpetrator (s). Such pain and suffering did not arise from, and was not inherent in, or incidental to a lawful sanction. In the context of international human rights law and the laws of war, it is understood that no specific purpose or direct cause needs to be established for the following crimes to rise war crimes.

4)  Taking of Hostages:

The perpetrator seizes, detains, or otherwise holds hostage one of more people. The perpetrator threatened to kill, injure, or continues to detain such person or persons for personal or financial gain and material benefit, as were accordingly and systematically carried out by all of Liberia’s accused warlords

and economic criminals from December 24, 1989, to August 22, 2003.

5)  Outrages upon Personal Dignity:

The perpetrator humiliates, degrades, or otherwise violates the dignity of one or more people.

The severity of the humiliation, degradation or other violation was of such degree that it could be,

considered and recognized under international law and the laws of war as an outrage upon the personal

dignity of unarmed people.

6)  Kidnapping:

An accused is guilty of kidnapping, if he/she unlawfully removes another from his/her place of residence or business, or substantial distance from the vicinity where he/he is found, or if he/she unlawfully confines another for a substantial period in a place of isolation, bearing any of the following thoughts and/or purposes of his/her crimes in mind:

i. To hold his/her victims for ransom or reward
ii.  To use him/her as a shield or hostage
iii. To hold him/her in condition of involuntary servitude
iv. To facilitate commission of any felony or flight thereafter; and
v.  To inflict bodily injury on or to terrorized, the victim or another.

Economic Crime:

A)  Economic Crime: – A person is guilty of a first degree felony, if he/she, engages in any activity by a public or private person of any nationality, or domestic or international corporate entity conducting or facilitating business in or related to Liberia, or on behalf of the Liberian government, a Liberian business, or Liberian resident, or citizen, that generates illicit incomes either individually or collectively or in any organized manner by engaging in, fraud, narcotic drug trafficking, money laundering, capital flight, embezzlement, bribery, looting, and any form of corruption and malpractices, etc. against a nation state and/or its people, as it was done by all accused Liberia’s warlords and economic criminals.

B) Fraud on the Internal Revenue of Liberia:

A person is guilty of a first-degree felony if he/she:

Knowingly conspires or colludes to defraud the Government of Liberia or
Knowingly makes an opportunity for any person to defraud the Government of
Liberia or another.

Does or omits to do any act with intent to enable another to defraud the Government and people of Liberia; and, if he/she,

vi.  Makes or signs any fraudulent entry in any book or record of any Ministry or
agency of the Government or signs any fraudulent certificate, return or statement. The list could go on when it comes to economic and financial crimes allegedly committed in Libera by all Liberia’s accused warlords and economic criminals, from December 24, 1989, to August 22, 2003.

Madam Vice President and President of the Honorable Liberian Senate, we are all fully aware and are witnesses to the fact that during the nearly 14 years of armed conflict in Liberia, all the warring factions and their leaders allegedly violated all the provisions and principles of Liberia’s domestic and international laws cited above during the armed conflict in Liberia. The Final Report and Recommendations of the TRC being firmly backed by Liberia’s domestic law and international law, Liberia, and its people, can no longer afford to sidestep and discount Liberia’s international role and obligation to swiftly and timely implement the Final Report and Recommendations of the TRC.

C) Individual Criminal Responsibility

Consistent with the Rome Statute, any person that plans, instigates, commits, aids, and abets in the planning, preparation, or execution of a crime, is responsible for that crime. Further, any person, or persons, groups or entities involved in a joint criminal enterprise or conspiracy including those that planned, instigated, ordered, committed, aided or abetted the planning, preparation or execution of any crime referred to under international human rights law, international humanitarian law, the laws of war, irrespective of the perpetrator’s official position, whether a President or Head of State, government official, or elected representative, irrespective of the accused citizenship or status in the  society, such person shall not be absolved from criminal responsibility nor mitigate the punishment for committing war crimes, economic crimes, and crimes against humanity; as was convincingly done by all Liberia’s accused warlords and economic criminals from December 24, 1989, to August 22, 2003.

All the warring factions and their leaders are clearly and unequivocally responsible individually and collectively for the crimes that they committed in Liberia from 1989 to 2003. We, also collectively know, and are strongly encouraging the Government of Liberia to swiftly implement the final report of the TRC, because all Liberia’s accused warring factions and their leaders, notoriously and openly, committed violations of international human rights law, international humanitarian law, and the laws of war, from December 24, 1989, to August 22, 2003, with impunity. Since all the crimes listed and named in this testimony are of international character, Liberia’s obligation to swiftly proceed and implement the Final

Report of the TRC, overrides and trumps Liberia’s domestic laws where a conflict might be evident.

Madam Vice President and members of the Honorable Senate, whether it be in the time of war or peace time, state and non-state actors’ obligation under international human rights law, international humanitarian law, or the laws of war, are never suspended when it comes to promoting, respecting, and upholding human rights compliance in Liberia. We also strongly support the Final Report and recommendations of the TRC and recommend that all warring faction leaders, supporters, and their financiers be indicted, arrested, tried, and sentenced by a war and economic crimes court consistent with the crimes that they committed from 1989 to 2003 in Liberia. And, because no amount of domestic statute of limitation or the Constitution of Liberia can be used to prevent and shield Liberia’s accused warlords and economic criminals from facing trial, we are strongly encouraging and advising the Government of Liberia to uphold its international obligation by implementing the Final Report of the TRC.

As an international obligation, the burden to implement the Final Report of the TRC by the Government not only trumps Liberia’s domestic laws, this burden, firmly exist and rests on Liberia’s shoulders.

D) Liberia’s Accused Notorious Warlords

  • Mr. Charles G. Taylor, former Leader, and key Associates of NPFL
  • General Prince Y. Johnson, former Leader of the INPFL, and key Associates of INPFL
  • Prof Alhaji G. Kromah, former Leader of ULIMO-K, and key Associates of ULIMO-K
  • Dr. George S. Boley, former Leader of LPC, and key Associates of LPC
  • Mr. Sekou D. Konneh, former Leaders of LURD, and key Associates of LURD
  • Mr. Thomas Yaya Nimley, former Leader of MODEL, and key Associates of MODEL

Madam Vice President and members of the Honorable Liberian Senate, the following accused Liberia’s warlords, and perceived economic criminals, deserve their day in court by the swift and timely implementation of the Final Report and Recommendations of the TRC, by the Government of Liberia. This would do justice to victims and survivors of Liberia’s bitter and bloody civil war. Liberia’s international integrity and credibility is on the line by Liberia’s prolonged failure to respect and uphold its international obligation. The Final Report and Recommendations of the TRC, remain a defined international obligation and an inescapable burden placed on the shoulders of the government of Liberia.

E) The Amnesty Act of August 2003

Purporting to grant general amnesty to Liberia’s accused warlords and fellow combatants from possible indictment, arrest and prosecution, the National Legislature of Liberia in August 2003, enacted into law an Act in which, Section 1 of the Act reads:

  • That from and immediately after the passage of this Act, immunity is hereby granted from both civil and criminal proceedings against persons, officials of government, representatives of warring factions and combatants within the jurisdiction of the Republic of Liberia from all acts and/or crimes committed by them during the 13 years and 8 months of civil wars covering from December 1989 to August 2003.

 

Holding firmly to the letter and spirit of the August 2003 Act, Liberia’s accused warlords and economic criminals and their fellow combatants, argue that the August 2003 Act, grants immunity and general amnesty to them and every Liberian accused of war crimes, crimes against humanity, and bars them from facing prosecution for war, economic and other crimes, committed by them during Liberia’s civil war.

Under the impression that they were granted general amnesty and immunity from past and future indictment, arrest, and prosecution by the August 2003 Act, Liberia’s accused warlords, and fellow combatants, believe and argue that any thought of the establishment of war and economic crimes court in Liberia, runs contrary to Section 1 of the August 2003 Act, and thus is repugnant to our law.

Come what may, the argument that the Act of August 2003, grants immunity and general amnesty to those accused of committing war crimes, crimes against humanity, and economic crimes, from all indications and notwithstanding, is faulty from its foundation to its end; because where war crimes, crimes against humanity, and economic crimes are charged and presumed committed, due to the international character and nature of the following crimes, the Act of August 2003, is absolutely trumped by all aspects of international law and Liberia’s international obligation to uphold and enforce international law.

F) Chapter XIII, Article 97 (a) and (b) (i)-(iii) of the Liberian Constitution

  • a) No executive, legislative, judicial, or administrative action taken by the People’s Redemption Council or by any persons, whether military or civilian, in the name of that Council pursuant to any of its decrees shall be questioned in any proceedings whatsoever; and, accordingly, it shall not be lawful for any court or other tribunal to make any order or grant any remedy or relief in respect or any such act.
  • b) No court or other tribunal shall entertain any action whatsoever instituted against the Government of Liberia, whether before or after the coming into force of this Constitution or against any person or persons who assisted in any manner whatsoever in bringing about the change of Government of Liberia on the 12th day of April 1980, in respect of any act or commission relating to or consequent upon:

i. The overthrow of the government in power in Liberia before the establishment of the government of the People’s Redemption Council; ii. The suspension of the Constitution of Liberia of July 26, 1847; iii. The establishment, functioning and other organs established by the People’s Redemption Council.

Arguing further for the grant of immunity and general amnesty, some of our colleagues have argued and claimed that the establishment of war and economic crimes court in Liberia, contravenes Liberia’s Constitution, particularly Chapter XIII, Article 97 (a) and (b). This argument, like the August 2003 Act, is defective notwithstanding; because Article 97 (a) and (b) of the Liberian Constitution, simply refers to acts and actions taken by members of the People Redemption Council, the PRC Government of 1980. Thus, Liberia’s accused warlords and economic criminals enjoy no protection under Article 97 (a) and (b).

G) §20.1. Right to trial by Jury: Criminal Procedure Law, Title 2

  • A defendant is entitled to trial by jury in a criminal action in which he is charged with any crime other than petty larceny or a petty offense.

As clear, forceful, and definitive as Liberia’s Criminal Procedure Law puts it and although in Liberia a defendant charged with the commission of a crime is entitled to trial by jury, notwithstanding, a Liberian charged with war crimes, crimes against humanity, and economic crimes, due to the international character and nature of war crimes, crimes against humanity, and economic crimes that he/she allegedly committed in Liberia, he/she, is only entitled to bench trial or trial by a judge (s) and not a right to trial by jury. Moreover, international law and the laws of war that govern the prosecution of war crimes, crimes against humanity, and economic crimes, trump the right of a Liberian to be tried by a jury.

Madam Vice President and members of the Honorable Senate, the integrity and credibility of Liberia to swiftly and timely implement the Final Report of the TRC, is more than ever before on the line. The crimes reportedly committed in Liberia from December 24, 1989, to August 22, 2003, are grave and constitute the wanton violation of international law and the laws of war. Due to the international character and nature of all the crimes we have listed, Liberia is not relieved by the creation of a transition justice commission (TJC), as has been advised by the leadership of Honorable Liberian Senate.

Madam Vice President and Honorable members of the Liberian Senate, Liberia’s international partners and friends, will lend no credibility and support to a transitional justice commission (TJC), advised by the leadership of the Liberian Senate, acceded to, signed, and advised by a key warring faction leader accused of committing war crimes, crimes against humanity, and economic in Liberia, from 1989, to 2003.

Liberia’s international burden to implement the Final Report and Recommendations of the TRC, shall never be obliterated by the creation of a Transitional Justice Commission (TJC).

Frederick A.B. Jayweh, Esq.
Counsellor-At-Law & International Affairs Director
Africa Center for Law and Human Rights Inc.
77 Borad St, 3rd Floor, Presbyterian Building
Monrovia, Liberia
Lib-Ph: (231) 775-204-677
US-Ph: (720) 731-7994

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