Dear Commissioner:

Human Rights Watch believes that the Truth and Reconciliation Commission (TRC) stands to make an extremely meaningful contribution to helping Liberia recover from more than 12 years of brutal conflict. The level of public participation and myriad issues addressed in your commission's public hearings are encouraging. As you work to implement the part of your mandate related to accountability - to recommend for prosecution the most serious abuses of human rights - we write to offer some insights into how best you may carry this important effort forward.

Last month, you conducted country-wide consultations on what recommendations the TRC should include in its final report to be released later this year. We were heartened by the overwhelming level of popular support for accountability expressed during these consultations. Indeed, on May 22, the TRC spokesman said, "The population believes that to strengthen the rule of law, individuals who bear the greatest responsibilities of atrocities committed during the war should be prosecuted.... They have asked for the establishment of a war crimes court the same way it was done in Sierra Leone and this is just what we will do." This follows preliminary findings from January 24, 2009, which stated that the commissioners have "determine[d] that a criminal court with the competence and jurisdiction to adjudicate criminal responsibility" for serious crimes in violation of domestic and international law "is appropriate."

Human Rights Watch believes that justice and accountability for serious violations of international human rights and humanitarian law, like those committed during Liberia's armed conflicts, is essential for several reasons: to bring justice to the victims, to punish the perpetrators, and to build respect for the rule of law. This is especially true for societies that have been devastated by conflict, such as Liberia. Prosecutions for serious crimes - such as war crimes and crimes against humanity - are moreover required by international law.

Human Rights Watch has assessed efforts to ensure justice for atrocities around the world, including in Cambodia, the Democratic Republic of Congo, Iraq, Rwanda, Sierra Leone, Sudan, Uganda, and the former Yugoslavia. As you consider options for ensuring accountability for the victims of serious crimes in Liberia, we hope to draw from this experience to share lessons learned on ensuring fair and effective trials.

Human Rights Watch has conducted in-depth research on Liberia since 1989, publishing more than a dozen full-length reports and numerous other documents on human rights violations and war crimes committed during Liberia's civil wars. You may remember that in May 2005, a representative of Human Rights Watch traveled to Monrovia to present this material, brief members of the commission, and provide copies of all of our work on Liberia dating back to 1989.

Different Models for Accountability

Over the past 15 years, tribunals of varying international and domestic character have been established to prosecute genocide, crimes against humanity, and war crimes committed in different parts of the world. These efforts followed a 50-year hiatus after the Nuremberg trials for crimes committed during World War II. Different numbers of alleged perpetrators have been prosecuted in these efforts, ranging from fewer than a dozen to more than 100. Nevertheless, in all of these efforts, the focus tends to be on higher-level perpetrators who had a role in organizing and planning the crimes, as opposed to, for example, foot soldiers.

Each of the recent efforts to prosecute serious crimes has been unique, although they tend to fall into three general categories.

1.       International tribunals: These include the International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda (ICTR).

  • These tribunals were created by a multilateral treaty agreed to by states (ICC) or established by UN Security Council resolution (ICTY and ICTR).
  • The judges, officials, and staff are typically international experts who are not from the countries where the crimes were committed.
  • These courts have been based outside the countries where the crimes were committed, although this is not a requirement.
  • International tribunals have particular advantages for preserving independence and impartiality, especially for states that are plagued by highly politicized judicial systems.
  • International tribunals have faced criticism for being too expensive.

2.       Hybrid or mixed national-international tribunals: These include the Special Court for Sierra Leone, the Bosnian War Crimes Chamber, and the Extraordinary Chambers in the Courts of Cambodia (ECCC).

  • These courts include both international and domestic judges, officials, and staff.
  • They have been created through treaties with the United Nations or domestic legislation.
  • These courts have been located in the countries where the crimes were committed.
  • They have different degrees of institutional separation from the domestic justice system. The Special Court for Sierra Leone is wholly independent, while the Bosnian War Crimes Chamber and the ECCC are considered part of the domestic justice systems.
  • The hybrid tribunal model came about in part due to efforts to identify more cost-effective ways of ensuring justice for serious crimes.
  • One major advantage of hybrid tribunals is that by being based in the same place where the crimes were committed, these courts resonate more with the country and its people. Substantively, this provides the opportunity for international experts to share expertise with the local police and judiciary.

3.       Domestic tribunals and trials: These include the Iraqi High Tribunal (IHT) and the trials before Bosnia and Herzegovina's Cantonal and District Courts.

  • They are war crimes trials conducted in the domestic courts of the country where the crimes were committed.
  • Staff is from the country where the crimes were committed, although international assistance in a more limited way, such as in the form of advisers, has been utilized.
  • While national courts are the preferred location for justice to be done, deficiencies in domestic justice systems can create and have created major disadvantages for this approach.

Challenges to Prosecuting Serious Crimes

Cases involving grave crimes such as war crimes and crimes against humanity tend to be extremely complex to investigate, prove, defend against, and adjudicate. Extensive evidence and scores of witnesses are usually involved. Commanders or leaders that did not have a direct role in committing abuses may bear responsibility for crimes, but their legal liability can be challenging to establish. International fair trial rights - such as the right to an adequate defense and to trial without undue delay, as well as proper evidentiary standards, and others - must be scrupulously respected, while upholding these rights can put intense demands on judges to manage the courtroom effectively. Political dynamics can lead to grandstanding during trials, and individuals not involved in the process may seek to undercut it through intimidation, threats, and attacks. The sensitivity of witness testimony can place individuals who testify at substantial physical and emotional risk. Meanwhile, local communities must be properly sensitized about judicial efforts to achieve accountability so as to make them relevant and understood by the local population, rural and urban alike. It is also important to try to address the needs and interests of victims of abuses in the judicial process to the fullest extent possible.

It is vital that accountability efforts overcome these challenges to ensure that trials are fair, effective, and meaningful to the local population and domestic justice system. In situations like Liberia, where there exists willingness to see justice done but the national courts suffer from persistent deficiencies after years of conflict, meeting these standards can be especially challenging. While Liberia's leaders, Liberian civil society, the United Nations, and the donor community are working in concert to try to improve the judicial system, serious challenges remain. Human Rights Watch has found that shortcomings in the Liberian justice system - including insufficient personnel, limited court infrastructure, outdated rules of procedure, corruption, and limited case management - continue to lead to abuses of fair trial rights.

Given the current context, we recommend that any prosecutions for serious crimes committed in Liberia include the following components: the use of panels of judges that include domestic and international judges, and that have a majority of international judges; staff composed of international and domestic investigators and prosecutors; full protection of the rights of the accused, including through full incorporation of these rights into the relevant law and adequate support for defense representation; laws that address the full scope of serious crimes and modes of criminal liability in accordance with international law and standards; comprehensive witness protection and support measures; and strong outreach and communication programs. These components are discussed in more detail below.

A.      Judges

One major way war crimes trials help to maintain the independence, impartiality, and competence of the judges trying cases - "the bench" - is through the use of panels of judges who try cases together, as opposed to having single judges trying cases. This can make an important contribution by helping to insulate judges from possible political pressures. Effective benches in hybrid courts, like the Special Court for Sierra Leone, also include:

  • Both international and domestic judges, as this helps to ensure adequate international criminal law expertise and understanding of domestic law and experience; and
  • A majority of international judges, as this helps to further insulate the bench from local politics.

The Special Court for Sierra Leone and the Bosnian War Crimes Chamber have utilized panels of international and national judges to good effect and are, thus, useful models from which Liberia can draw. Both courts have utilized trial chambers composed of three judges, two of whom are international judges.

We are aware that the Liberian constitution prohibits the involvement of foreign judges in its domestic courts. As such, an amendment to the constitution might be needed to provide for the participation of international judges. This is an issue that requires further analysis from Liberian and international experts.

Where national justice systems suffer shortcomings, the failure to include international judges on panels that try war crimes cases can be serious. The most notable example is the Iraqi High Tribunal. Our research on the IHT's case against Saddam Hussein and others for crimes against humanity revealed a process that was rendered fundamentally unfair due to a number of problems, including: threats to the independence and perceived impartiality of the judges, failures to address insufficient disclosure of key evidence to the defense, and gaps in the evidence upon which the judges convicted the defendants. The IHT as a result squandered the opportunity for credible justice and to help set a more stable foundation for democracy in Iraq.

B.      Prosecutors and Investigators

As with judges, independent investigators and prosecutors with experience in international crimes and complex crimes involving many actors have been crucial to effective war crimes cases. This includes international investigators and prosecutors who have worked at other war crimes courts. Staff with experience with particularly sensitive crimes, such as those involving sexual violence and children, can be especially important. International prosecutors may be better placed to pursue those allegedly responsible at the most senior levels because they can more easily maintain their independence from domestic pressures. At the same time, local investigators and prosecutors share valuable expertise on the local culture and experience, a vital part of successful investigations. Both the Special Court for Sierra Leone and Bosnian War Crimes Chamber have addressed these needs by using a combination of international and domestic investigators and prosecutors, who, by working together, are able to enhance their knowledge and expertise and more productively contribute to a successful outcome.

C.      Defense and Rights of the Accused

A fair trial requires incorporation and implementation of the full range of protections for the accused, as outlined in major international human rights treaties such as the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. One issue that has repeatedly arisen in war crimes trials is that of ensuring that the defense has adequate resources and facilities to vigorously prepare its case. This includes employing defense lawyers with sufficient experience in international criminal law. To help ensure the fairness of proceedings, several tribunals - including the International Criminal Court, the Special Court for Sierra Leone, and the Bosnian War Crimes Chamber - have created special offices to help manage defense representation and to support defense efforts. Such offices have provided an important voice on issues ranging from resources for defense lawyers to ensuring that the rules of procedure and evidence adequately protect the rights of the accused. These interests have been served in part by having senior staff in the office whose role includes advocating on defense-related issues with other sectors of the court.

D.      Adequate Laws

In order for trials to adequately address the gravity of crimes committed and the responsibility of perpetrators involved, laws that conform to international standards on war crimes, crimes against humanity, and other serious violations of international humanitarian law - such as the recruitment of child soldiers - are necessary.

Notably, while some domestic offenses - such as murder or rape - have elements of serious international crimes, they do not rise to the level of, for example, crimes against humanity unless committed in a widespread or systematic manner. To address the types of violations of human rights and humanitarian law often committed during armed conflict, it is also vital to define the responsibility of those who were involved in the planning of serious crimes, but who may not have directly taken part in committing them. Ensuring that there is an option to charge perpetrators with participation in a "joint criminal enterprise" is one way to implement such a "theory of liability," or way to define this responsibility under the law. In addition, international crimes generally require criminal liability to apply - under the doctrine of "command responsibility" - to those in a position of authority who knew or should have known about the crimes, and failed to prevent them or punish those responsible for them.

Liberia has ratified the Geneva Conventions, which make some war crimes punishable offenses. Furthermore, we understand that treaties ratified by Liberia are enforceable in Liberia without separate domestic legislation. Nevertheless, the applicable law does not fully address serious international crimes or contain relevant theories of liability to our knowledge. Most war crimes trials in other parts of the world are governed by specific statutes designed to overcome domestic legal gaps by defining the relevant crimes and forms of liability in accordance with international law. These statutes have been adopted through a variety of means, including domestic legislation, agreement with the United Nations, and Security Council resolutions. Further analysis by Liberian and international experts should be undertaken to determine the best approach for Liberia to ensure that serious international crimes are properly defined.

E.       Witnesses and Victims

A comprehensive program on witness protection that includes support before, during, and after trial, is vital to ensure the safety and well-being of at-risk witnesses, including those who were victims of abuses. Key elements should include measures to protect witness identities while ensuring a fair trial, to remove witnesses from unsafe locations, to provide other protection for witnesses and their families, and to facilitate access to psychosocial support as needed. All international and mixed tribunals have units dedicated to protection and support of witnesses. Drawing on accumulated expertise in this area is especially important for Liberia given that, to our knowledge, the country has little, if any, prior practice with witness protection and support.

F.       Outreach and Communication

Previous experiences of international and hybrid tribunals have shown the vital importance of efforts to reach beyond the courtroom to communicate about trials with the population most affected by the crimes. The International Tribunals for the former Yugoslavia and Rwanda learned this lesson too late and, as a result, suffered from negative and inaccurate perceptions about their work, which limited their impact initially. By contrast, the Special Court for Sierra Leone has conducted strong outreach and communication throughout Sierra Leone - through radio, video, and public discussion - that has helped ensure that people have an understanding of its work. This is an approach that should be consistently followed.

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We hope that this analysis is useful. We also enclose for the commission copies of reports we have prepared on the Special Court for Sierra Leone, Bosnian War Crimes Chamber, Iraqi High Tribunal, and domestic trials in the former Yugoslavia and Uganda as we believe that they may serve as additional useful resources.[1]

We would welcome the opportunity to discuss these issues with you in greater detail. Human Rights Watch stands ready to assist you as you strategize on how to ensure that justice is done for the many victims of serious crimes in Liberia.

Sincerely,

Elise Keppler
Senior Counsel
International Justice Program

Corinne Dufka
Senior Researcher for West Africa
Africa Division


[1] The following Human Rights Watch reports and documents are also available on our website: Still Waiting: Bringing Justice for War Crimes, Crimes against Humanity, and Genocide in Bosnia and Herzegovina's Cantonal and District Courts (2008); Narrowing the Impunity Gap: Trials before Bosnia's War Crimes Chamber (2007); The Poisoned Chalice: A Human Rights Watch Briefing paper on the Decision of the Iraqi High Tribunal in the Dujail Case (2007); Judging Dujail: The First Trial before the Iraqi High Tribunal (2006); Justice in Motion: The Trial Phase of the Special Court for Sierra Leone (2005); Benchmarks for Justice for Serious Crimes in Northern Uganda: Human Rights Watch Memoranda on Justice Standards and the Juba Peace Talks (2007-2008).