In the last analysis, Liberians were able to reach a peace agreement at Accra in 2003. But it was a case of disagreeing to agree, because before they reached the agreement there were many points of disagreement that had to be trashed out. One of the biggest bones of contention was the choice between a war crimes tribunal (WCT) and a truth and reconciliation commission (TRC).

Many delegates from civil society and the political parties, perhaps motivated by the chronic legacy of abuse and impunity, opted for a WCT because they wanted a retributive justice process which would punish the guilty. Others from the same groups felt that a restorative justice process aimed at reconciliation and healing represented the better means of breaking Liberia out of the cycle of violence and revenge, and mitigating the sharp antagonisms within society.

Warring factions opt for TRC
The representatives of the warring parties were in strong solidarity with this last position, for understandable reasons. United in their opposition to a WCT, they bargained strongly for a TRC. And it has to be remembered that they were in a very strong bargaining position. This, after all, was the height of the battles for military supremacy in Monrovia and Buchanan. Although there was a temporary ceasefire in place, this ceasefire was only that – temporary. Fighting could resume any day again with dire consequences for civilians on the ground. This fact was not lost on the facilitators, nor was it lost on the delegates, some of whom had left behind family members in the jaws of war as they made the journey to Accra.

These delegates knew that concessions had to be made with the factions in exchange for an end to the fighting. Justice, in the traditional legal sense, had to become a currency for purchasing peace. This would be nothing new. Earlier Liberian peace agreements had offered blanket amnesty to the belligerent parties and their combatants. At least at Accra, the opportunity for some form of accounting was possible.

And so, for better or for worse, the option of a TRC gained the ascendancy at Accra, and it was inscribed into the Comprehensive Peace Agreement (CPA) under Article XIII.

Support for and opposition to a TRC, vis-à-vis a WCT, was largely informed by stereotypes of what these mechanisms are and what they do. For many delegates, the operative understanding of a TRC was shaped by what they knew about, for instance, the South African TRC, which granted amnesty in exchange for truth. The fact that next-door Sierra Leone had a WCT in addition to a TRC only reinforced the notion that the TRC was mainly about amnesty in exchange for truth from the perpetrators, while the WCT was about punishing guilty perpetrators.

With such a semantical construct as the frame of reference for assessing the TRC idea, it can be understood why certain groups opposed and others supported the option of a TRC. The correlation of forces locked in debate on this issue at Accra is quite predictable. Warring party representatives perhaps hoped that blanket amnesty would be granted to their combatants and operatives under a TRC, while some civil society and political party representatives feared that the TRC would codify the evasion of justice and entrench the impunity regime from which they had suffered for so long in their struggle for a wider democratic space in Liberia.

What does TRC Act says about amnesty?
As at the writing of this piece, different groups and different individuals still harbor conflicting expectations of what a TRC is and what it is not. Now that a TRC is in place, the question arises: what is the gap between people’s expectations of the TRC on the one hand, and the actual possibilities of the TRC on the other? Can the TRC recommend amnesty for proven perpetrators? Can any and every perpetrator be recommended for amnesty? Who is pardonable through the TRC? We will begin our answer to these questions by taking you on a trip to Article VII Section 26g of the TRC Act. It states that the functions and powers of the Commission shall include:

“Recommending amnesty under terms and conditions established by the TRC upon application of individual persons making full disclosures of their wrongs and thereby expressing remorse for their acts and/or omissions, whether as an accomplice or a perpetrator, provided that amnesty or exoneration shall not apply to violations of international humanitarian law and crimes against humanity in conformity with international laws and standards…” (Emphasis added.)

It is clear from this section of the Act that not all violations are pardonable. And since violations do not occur in isolation of violators, it means too that there are certain categories of perpetrators who cannot be recommended for amnesty by the TRC, and therefore cannot be granted amnesty through the TR process. These include persons liable for war crimes or crimes against humanity, as well as violators of international humanitarian law or international human rights law.

But these are all categories of crimes, not specific crimes. Not everybody will be able to associate specific violations with their proper category. It is therefore useful – no, imperative! – that we put these categories of violations in context, using for our reference set the full range of abuses committed in the course of Liberian history, especially the period 1979 – 2003 which is of primary concern to the truth and reconciliation process. We will now identify some of these violations and associate them with their categories later.

From 1979 up to the end of the battle for Monrovia in 2003, Liberians have been subjected to a broad array of criminal and inhumane treatment. These have included: forced labor, eviction by force of arms, torture, forced conscription, conscription of children as soldiers, rape, sexual slavery, sodomy, mutilation, pillage, plunder of public and private property, wanton destruction of villages, imprisonment, unlawful deprivation of physical liberty, murder, massacre, beatings, military attacks against civilians, desecration of religious shrines and places of worship, collective punishment, acts and threats of violence against civilians, genocide, as well as torture and murder of captured or surrendered enemy combatants.

The list of abuses is truly long, though one could still go on. But which of these abuses fall under the prohibitive categories? This depends on what laws are applicable before the TRC. We are yet to find out. But if the Sierra Leonean TRC is something to go by, then one can conclude that all international conventions currently in force are applicable before the Liberian TRC.

What are some of these conventions, and what do they say about the mentioned violations? Let us find out.

Key International Conventions in the Context of the TR Process
The Additional Protocol to the Geneva Convention, Relating to the Protection of Victims of Non-International Conflicts (Protocol II) states in Article 4:
“…All persons who do not take a direct part or who have ceased to take part in hostilities…shall…be treated humanely…[T]he following acts against [these] persons…are and shall remain prohibited at any time and in any place whatsoever:…(a) violence to [their] life, health and physical or mental well-being…in particular murder…torture, mutilation or any form of corporal punishment…”

The same article prohibits “Collective punishments”, “Pillage”, and the recruitment into “armed forces or groups” of children under fifteen years of age.

In Article 13 Paragraph 2, the Protocol enjoins that, “The civilian population as such, as well as individual civilians, shall not be the object of attack.” It prohibits “[a]cts or threats of violence [with] the primary purpose of…spread[ing] terror among the civilian population…”

We mention genocide in the list of crimes. This may come as a shock to many, since this crime has not been mentioned seriously before in relation to Liberia. But let us define what genocide is; this may shed a brighter light on the issue.

According to Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide which was approved by UN General Assembly Resolution 260 A (III) on 9 December 1948 and entered into force on 12 January 1951, “genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, such as…killing members of the group…”

Exactly this same definition is maintained in Article 6 of the Rome Statute of the International Criminal Court.

The targeted killings in the 1990s of Gio and Mano people by Samuel Doe’s loyalists and elements of the Armed Forces of Liberia (AFL) on the one hand, and the reciprocal killings of Krahns and Mandingoes by the NPFL and INPFL on the other, certainly fit the definition of genocide, unless we want to argue that these groups do not qualify as “ethnical” groups, or that their killers did not have “intent” to destroy them “in whole or in part”.

Then why did the United Nations or the United States not raise alarm about genocide in Liberia? Well, in Article 1 of the same convention, the “contracting parties confirm that genocide, whether committed in times of peace or in times of war, is a crime under international law which they undertake to prevent and to punish”. If the UN or the US had called attention to genocide in Liberia, they would have had to act decisively and immediately to intervene in the Liberian crisis, something they did not seem willing to do for a very long time. Hiding behind the cover of semantics, therefore, they refused to define what was obtaining in Liberia as genocide, a performance they would repeat many years later in Rwanda with disastrous consequences. But that is a story for another day. Back to the conventions.

Another applicable and relevant instrument is the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, which entered into force on 11 November 1970 following adoption by UN General Assembly Resolution 2391 (XXIII) on 26 November 1968.

The convention declares in Article 1 that “No statutory limitation shall apply to…[w]ar crimes as defined in the Charter of the International Military Tribunal, Nuremberg, of 8 August 1945 and…[c]rimes against humanity as defined in the [same] charter…”

Well then, how are war crimes and crimes against humanity defined in the above mentioned Charter of the International Military Tribunal (IMT) of Nuremberg? Article 6b of the IMT Charter defines war crimes as follows:

“WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment…of civilian population…murder or ill-treatment of prisoners of war…killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity…”

Article 6c defines the following:

“CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population…”

Article 6 further states: “Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.”

There has been “no specialized international convention since [the IMT] on crimes against humanity. Still, that category of crimes has been included in the statutes of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)…” In fact, the ICTY and the ICTR have expanded the list of “specific crimes contained within the meaning of crimes against humanity…to include…rape and torture…” (M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law, Springer, 1999.).

Finally, the Rome Statute of the International Criminal Court in The Hague is the latest international instrument to define crimes against humanity. Article 7 of the ICC Statutes states:

“For the purpose of this Statute, “crimes against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack…(a) Murder…(b) Extermination…(d)…forcible transfer of population…(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law…(f) Torture…(g) Rape, sexual slavery, enforced prostitution…and any other form of sexual violence of comparable gravity…(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural …grounds…(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”

In the face of all the foregoing citations from international legal instruments, it should be clear as crystal that the crimes in Liberian history previously enumerated all constitute war crimes, crimes against humanity, or both. To the extent that the crimes come under any of these categories, to that same extent are they also violations of international humanitarian law, which is the body of laws (including the Geneva Conventions and their additional protocols) which govern the conduct of armed conflicts, be they inter-state conflicts or civil wars.

Some of the crimes, such as torture and the conscription of children as soldiers, go on to violate key international human rights conventions, including the Convention Against Torture (CAT) and the Convention on the Rights of the Child (CRC). These crimes are therefore grave breaches of international Human Rights Law.

Any and all persons liable for a single one of these violations are categorically exempted from amnesty via the TRC, consistent with Article VII Section 26g of the TRC’s constitutive act.

Having laid this theoretical groundwork, we will now situate our conclusions within the context of the TRC proceedings by doing a pre-emptive analysis of some of the cases that are likely to come before the Truth Commission. We will commence with cases arising out of the last round of fighting between Taylor’s forces and the LURD-MODEL axis, and progress backward in time. Let us begin with Greystone.

Mortar Attacks On Greystone
During the so-called world war III in 2003, a sustained mortar attack was mounted against the Greystone Compound, a civilian facility providing refuge to displaced people in Monrovia. As a result of these attacks, many dozens of men, women and babies were maimed and slaughtered. The attacks amount to a brazen violation of the laws of armed conflict. They are war crimes and crimes against humanity. The court of public opinion has already passed a guilty verdict against the LURD organization for these abuses. Assuming that the TRC reaches a similar decision, then individuals like Sekou Diamate Conneh, Aisha Conneh, General Sheriff, General Prince Sio and others could be found culpable for the Greystone slaughter. They would not be eligible for amnesty for these violations.

Punitive Attacks Against New Kru Town
As LURD made her advance from Po River to Monrovia, New Kru Town (and surrounding areas) exchanged hands at least twice between the opposing forces. On the two occasions that Taylor’s forces re-captured New Kru Town, they went on a spree of violence. They subjected civilians in the area to beatings, torture and murder on the grounds that the civilians were sympathetic to the insurgents. This even prompted the civilians on one occasion to appeal to LURD not to withdraw from the area, as they were planning to do, for fear that Taylor’s forces would subject them to further reprisals. These actions by Taylor’s forces are crimes of war and crimes against humanity. Former Defense Minister Daniel Chea, Mr. Benjamin Yeaten, General Roland Duo, among others, who were leading Taylor’s forces might have to answer for these violations. Anyone found liable is not entitled to amnesty.

Violence Against Civilians in Bassa, Lofa, Southeast by MODEL, LURD, GOL
In Buchanan, Lofa and parts of Southeastern Liberia, MODEL forces, LURD troops and Taylor’s militia are on record for brutalizing civilians and subjecting them to inhumane treatment without justification, and without punishment from their leaders. When these acts of violence against civilians in Buchanan are brought before the TRC, people like Thomas Yaya Nimely, Joe Wylie and others might have to answer. These violations would render these men ineligible for amnesty unless they are found to be blameless.

Torture, Sexual Violence and Murder at Gbatala, Watanga, and Other Places
In its various metamorphoses, the ATU of Charles Taylor, under the commands of Chucky Taylor, and Momo Geeba is alleged to have carried out some of the worst acts of systematic violence against people. Men were sodomized, and women were gang raped as acts of torture, and as acts of terrorism to frighten the general population. Others were wrapped in mattresses and subjected to brutal beatings until they suffered internal bleeding. These acts are alleged to have taken place at the ATU base in Gbatala, in the Taylor militia enclave called Watanga, and in the basement of the Executive Mansion. Unless the evidence is inadequate, people like Momo Geebah, Chucky Taylor, Charles Taylor and others could be found guilty of these violations of international humanitarian law which are also violations against humanity. They cannot receive amnesty under those circumstances.

September 18 Massacres
On 18 September 1998, government forces launched a massive assault on the residence of the late General Roosevelt Johnson of ULIMO forces, with the aim of “restoring law and order to Camp Johnson Road”. In the course of this offensive, civilians seeking shelter in the St. Thomas Episcopal Church were massacred, allegedly for government troops. Another group of civilians taking refuge in the Ministry of Public Works Compound (the current offices of the TRC) were massacred by the same troops. Former president Charles Taylor, Daniel Chea, Benjamin Yeaten, Charles “Chucky” Taylor Jr., General Ami, Sahr Gbollie, and others could be held accountable for these massacres which are grave violations of international humanitarian law, war violations, and violations against humanity. If they are, they would be disqualified from receiving amnesty.

ULIMO in Lofa
The people of Lofa were subjected to systematic violence - including torture, murder and rape – by ULIMO forces during their campaign to dislodge Charles Taylor. Despite several cries of outrage in the press, these violations are alleged to have continued with impunity. General Alhaji Kromah and others could be held liable for these violations during the TR process. If they are, they will not be entitled to amnesty.

LPC in Sinoe
Gruesome horrors are still recorded on the memories of many who witnessed or experienced LPC’s reign of terror in Sinoe County in the 1990s. It is alleged that people were impaled, mutilated and murdered on a casual basis. These are heinous abuses, all of which are violative of international human rights laws. They are also war crimes and crimes against humanity. If people like Dr. George Boley, Teh Quiah and others are found guilty of these abuses, no amnesty can apply to them.

Operation Octopus
In execution of the infamous “Operation Octopus” in 1992, the NPFL conscripted, drugged, armed and pushed to their deaths, hundreds of children under the age of fifteen. These acts are violations of international law. Mr. John T. Richardson, the alleged architect of this campaign, could be found liable as a war criminal along with others, including Isaac Musa and Charles Taylor. If he is, he would not be entitled to amnesty.

Capture, Torture, Mutilation and Murder of Samuel Doe
When General Prince Johnson captured Samuel Doe, the ex-President was now entitled to his protection according to the laws of war. By torturing, mutilating and murdering Doe, an enemy combatant, Prince Johnson came into flagrant violation of international humanitarian law. He and his collaborators in this affair could be held liable as war criminals. This would deny them access to amnesty from the TRC.

NPFL/AFL Violence in 1990
Probably the highest level of violence in Liberia was perpetrated in 1990. AFL death squads went on a killing spree, murdering civilians on a systematic basis. In a macabre game to guess the sex of unborn children, NPFL fighters eviscerated pregnant women on a wide scale. Other women and under-aged girls were raped, and held as sex slaves. People were killed for their looks, for their tribes, and for their possessions. Villages were razed to the ground, people were subjected to forced labor, and children were conscripted as child soldiers. General Isaac Musa, Mr. Tom Woeweiyu, General Charles Julu, among others, could be found responsible for these violations and abuses. Once they are, they will not be qualified for amnesty.

Systematic and Widespread killing of Gio, Mano, Krahn and Mandingo People
It can be argued that four separate cases of genocide occurred in Liberia in 1990. Samuel Doe’s loyalists went on a blood lust, hunting, pursuing and murdering members of the Gio and Mano ethnic group on widespread and systematic basis. Some of the names associated with these violations include General Charles Julu, Mr. George Dweh, Mr. Edward Slanger, among others.

On the flip side, forces of the NPFL and the INPFL systematically targeted Krahn and Mandingo tribesmen, murdering them on a wide scale. General Prince Johnson, General Adolphus Dolo, and others could be linked to these killings. These acts amount to genocide, although they have not generally been described as such. Genocide is a major crime against humanity. These men and their collaborators and accomplices would not be entitled to amnesty if they are determined to be liable for these acts.

Lutheran Church Massacre
The Lutheran Church Massacre and the massacre at the UNDP Compound in Congo Town was a massacre against civilians. These violations are generally attributed to General Charles Julu, Mr. George Dweh and others. These are war crimes, crimes against humanity, violations of international humanitarian law and of international human rights law. Unless these suspected persons are found to be innocent, they are exempt from amnesty.

University of Liberia Massacre
On 22 August 1984, soldiers of the Armed Forces of Liberia attacked the Monrovia campus of the University of Liberia. The raped female students, shot at and killed dozens of unarmed students. The order to attack the UL campus came from the late President Samuel Doe to deceased Defense Minister Gray D. Allison, who passed it on to AFL Chief of Staff General Henry Dubar. General Henry Dubar may have to answer to the TRC for his role in this wicked act which amount to crimes against humanity. Unless he is found blameless, he will not be qualified for amnesty.

Conclusion
At this point it is easy to draw the conclusion that there are quite a number of likely perpetrators who may be ineligible for inclusion on the list of persons recommended by the TRC for amnesty. Is this a good thing or what? Liberians will have to be the best judge of that.

But it is important to project these issues onto the public consciousness now, so as to protect the credibility of the TR process. People must understand clearly what to expect from the process. When people are not enlightened in advance, they may approach this process with misconceptions and misplaced assumptions. In such cases, they are bound to be disappointed and might react with feelings or even with claims that the TRC has misled them, deceived them, or betrayed them. We want to avoid this.

We realize that the points raised in this paper could discourage certain categories of perpetrators from coming forth with full disclosures. Let that be their choice. This society, for its part, cannot afford for the TR process to be less than fully transparent. As people engage the TRC, let them know what they are going in for. This is simply the right thing to do.

In summary, the TRC can recommend amnesty in exchange for full disclosures, but it can only do that for some violations and abuses. Those guilty of certain other abuses cannot be recommended for pardon by the TRC. As far as the TR process is concerned, these individuals are beyond forgiveness.