Charles Taylor during his trial in The Hague. Photograph: Michael Kooren/EPA

In a special series, Front Page Africa and New Narratives will look in depth at the issues that the designers of Liberia’s courts will have to consider. Where will the court be held? How much will it cost and who will pay? What security issues need to be considered? Who and how many people will be tried? In Part 1 we look at the models court planners will draw on.

The team designing Liberia’s courts have a range of former courts to learn from. The most obvious one is Sierra Leone’s Special Court – held in our neighboring country to try crimes that resulted as a spillover from our own conflict. The Special Court, established in an agreement between the United Nations and the Sierra Leonean government, convicted twelve perpetrators, including former Liberian president Charles Taylor, in a process that ran three times longer than planned, at cost, of more than $US300 million.

The court made several groundbreaking achievements. Mr. Taylor was the first head of state since World War Two to be convicted by an international court for war crimes and crimes against humanity. It secured the first-ever convictions for attacks against UN peacekeepers, for forced marriage as a crime against humanity and for the recruitment of child soldiers.

But the almost complete isolation of the court from Sierra Leone’s justice system and the heavy hand of the courts’ major funders quickly drew criticism. A massive permanent staff of 422, large international salaries (Landana Gberie complained that a judge on the court made several times the salary of the Sierra Leonean president) and the exorbitant annual budget of $35m-$40m, while victims received just $80 each, stoked resentment.

Stephen Rapp, a former chief prosecutor for the Special Court and later, US Ambassador-At-Large for Global Criminal Justice in the Obama administration, criticized the set up in 2009 saying the court was “conducting justice in a comfortable courtroom with long trials and well-paid attorneys. Prisoners had single cells, and they had committed the worst crimes. A mile away in the local prison there were simply no resources.”

The court’s ruling in April 2012 found Mr. Taylor guilty of five counts of crimes against humanity, five counts of war crimes and one count of other serious violations of international humanitarian law perpetrated by Sierra Leone’s Revolutionary United Front (RUF) rebels, of which he was the major backer. Because of fears for security in Sierra Leone, Mr. Taylor was tried in The Hague in the Netherlands – a move that added tens of millions in costs and was unnecessary according to Amb. Rapp.

Since the Special Court for Sierra Leone ended its operations, there has been a sea change on transitional justice in Africa. Numerous accused perpetrators have been tried for serious human rights violations and international crimes in a range of smaller, cheaper courts that experts say are better models for Liberia. International donors have repeatedly urged Liberian officials and advocates to lower expectations for funding.

Off the record donors say there is no way Liberia – with an annual government budget of less than $800m and massive needs in areas like health, water and sanitation and education – is going to get the hundreds of millions of dollars that some officials are expecting for the courts.

In her recent appearance at a UN meeting in August, Beth Van Schaack, the current US Ambassador-at-Large for Global Criminal Justice, pointed to ongoing the Special Criminal Court for the Central African Republic and the Extraordinary African Chambers in Senegal, which tried and convicted Chadian dictator, Hissene Habre, in 2016.

“Both made significant achievements with smaller budgets,” said Ambassador Van Schaack. “The future Liberian court could be embedded within the Liberian national system, but still benefit from international support in the form of judges, prosecutors, defense counsels and other staff, as well as technical assistance and consistent financial support, while otherwise remaining right-sized for the Liberian context.”

U.S. Ambassador-at-Large for Global Criminal Justice, Beth Van Schaack at a U.N. gathering on Liberia’s transitional justice process in August.

The Central African Special Criminal Court began operations in 2018 to try those accused of international crimes in conflicts starting in 2003. The first trial did not get underway until 2022. The court has a mandate of five years, which can be renewed only once, for a maximum of 10 years. The court is integrated into the Central African Republic’s domestic judicial system. It is a so-called “hybrid” court, meaning it is staffed by a mix of international and Central African judges, prosecutors and administrators.  

So far the Court has convicted three perpetrators. Twenty-two have been indicted with more investigations underway. The court operates on an annual budget of approximately $US14-15 million – mostly provided by international donors including France, the Netherlands, the European Union, the United States and UN agencies.

The SCC’s investigation process – consistent with the Central African Republic’s civil law legal system adopted from French colonizers – provides for two possible phases of investigation. The first is conducted by the prosecutor’s office, to be completed within a six-month period, unless the judges approve an extension. The second is by a two-judge panel consisting of one national judge and one international judge, whose investigation can last up to two years. The investigating judges seek additional evidence and undertake their own investigation, and then decide whether the case should be brought to trial or dismissed. The investigating judges can also initiate their own investigations based on a complaint from an individual (a victim or family member) rather than wait for cases to be referred by the prosecutor.

A team of 20 domestic police officers conducts investigations, directed by the prosecutors and investigating judges. These officers do not necessarily have experience investigating the types of complex cases under the SCC’s mandate, so the UN has given them training and access to expert advice.

A screenshot of a video link as a victim testifies at the trial of Hissène Habré. The former dictator is in white robes.

Habre’s 2016 trial was made possible through an agreement between the Senegalese government and the African Union. It was also a hybrid mix of local and international judges and lawyers. It was established in the courts of Senegal on the principle of universal jurisdiction, which says that crimes against humanity know no borders and can be tried anywhere. This is the same principle under which Alieu Kosiah, Kunti Kamara and Gibril Massaquoi were tried in European courts for crimes committed in Liberia’s civil conflicts. (Mr. Massaquoi was acquitted while the other two were convicted.) Habre’s trial was the first time universal jurisdiction had been used on the African continent and marked an important precedent that showed other African countries can try accused perpetrators who seek to escape justice by hiding out in their territory.

The Habre trial heard from 69 victims and found the former dictator guilty of crimes against humanity, war crimes and torture committed in Chad between 1982 and 1990 when human rights activists estimate as many as 40,000 people may have died at the hands of Chad’s security forces under Habre’s command. Habre was found to have personally committed rapes. He was sentenced to life imprisonment and later died of Covid complications in 2021. His trial cost  $US11 million.

The Women in Peace Building Network call for justice at the celebration of the 21st anniversary of peace commemoration. Credit: Anthony Stephens/New Narratives.

Reed Brody, a leading international human rights lawyer who represented victims in that landmark trial, said it had some important lessons for Liberia.      

“The African Union was able to draft a charter for the court that included all the international crimes,” said Brody by video call. “It included the idea of command responsibility (that Habre was responsible for crimes committed by those under his command). That allowed people to come into the jurisdiction who had participated in the perpetration of the crimes – former henchmen of Habre – who were able to come to Senegal and testify without worrying, if they would have been under French Senegalese law, that they would just be arrested once they admitted that they had participated.”

A Right-Sized Court for Liberia

In an interview last month Rapp urged Liberia’s court designers to develop a smaller, cheaper model embedded into the Liberian system.

“A key part of any of these transitional justice processes is they must strengthen the national system,” said Rapp by video call. But he cautioned that there needed to be some role for international law to plug gaps in the Liberian legal system. Mass crimes such as genocide, rape as a weapon of war, recruitment of child soldiers and torture do not exist in Liberian law. The constitution prohibits the government from passing laws the could try people for crimes committed before they were passed. Many of the worst crimes – particularly those committed by leaders who may have been far from the frontline – fall under international law.

“Ideally, we wouldn’t have any international division,” said Rapp. “It would all be done by Liberians in a court with international assistance. I fear, having dealt with these legal challenges of applying international law retroactively, you can’t really do that in the national system.”

Liberia’s notoriously problematic and untrustworthy justice system is a concern for most experts who say international expertise will be needed to ensure victims and the public have trust in the courts.

“The national courts we are talking about, no one believes in the same national courts. No one, no one,” said Liberian transitional justice expert Tennen Tehoungue by video from Dublin, Ireland where she is undertaking a PhD in the subject. “There are always doubts. There have been many reports around interferences, political interferences around the entire judicial process.”

Madam Tehoungue also wants to see an international division and then a localized domestic court to try those accused of crimes that fall under Liberian law. But she challenged the government not to rely on international governments for donations. She said international donors should help fund the courts by clawing back stolen funds from people such as Benoni Urey and Charles Taylor and others listed as profiting from the war in the Truth and Reconciliation Commission Report.

“That goes to the question of ownership of the process,” said Madam Tehoungue. “The Liberian government showing that it is owning this process, taking these kinds of steps, instead of relying on donors or friendly nations to provide it. It must be asking instead to know whether banks have monies, allegedly, token from Liberia, that are stored in those accounts in those countries.”

Experts Say Numerous Challenges Will Likely Be Faced By Liberian Courts

The Central African Republic court has had to overcome numerous challenges, many of which will likely arise in Liberia too. Many of the suspects escaped into hiding in the country or abroad. At least one government official used his political clout to win release from detention. 

There was no separate detention facility for court detainees, so they were put into the general prison system which, like Liberia’s, is severely overcrowded and has been criticized by human rights advocates for deplorable conditions.

Hiring and retention of international staff was particularly difficult, including because they were nominated and paid for by their own governments, according to Human Rights Watch. Many parts of the court were not properly staffed for years.

While training in international law was provided for local lawyers, a system of legal representation was not formally established until three years after operations began, meaning defendants, witnesses and victims did not have trained representatives.

The Covid-19 pandemic saw investigations grind to a halt. Public health emergencies requiring lockdowns – Liberia has experienced two in the last decade – will seriously impact the Liberian courts’ operations.

Madam Tehoungue and Ambassador Rapp are some of the many experts who hope that a major legacy of the courts in Liberia will be a dramatic improvement in the capacity of judges, lawyers, investigators and administrators in the system. They said that if Liberia misses this chance to strengthen its rule of law, the country may never escape the cycle of corruption and poverty.

“I do think it’s important, even though a court like this can end up costing money, if you don’t have the rule of law whatever you build can be burned down,” said Ambassador Rapp. “If your family can be kidnapped and taken away from you nothing else can can be built. Now you really need to have a justice for this period, and I think it also strengthens one’s ability to hold people to account.”

The next stories in this series will look at issues including security, staffing, location and funding for the courts. [email protected]

This story is a collaboration with FrontPage Africa as part of the West Africa Justice Reporting Project. Funding was provided by the Swedish Embassy in Liberia. The funder had no say in the story’s content.