Considering the many social, economic and political issues bearing down on the heels of Liberia’s President George Weah’s newly formed administration, establishing an international criminal court in Liberia is not only a bad idea at this time but one that will create political instability. Based on lessons learned from Sierra Leone, President Weah should tread with extreme caution before submitting to pressures from Western countries to establish an international criminal court in Liberia since the same court may be used to ensnare him and members of his administration on crimes of aggression. Liberia needs to strengthen its judicial system rather than succumb to the monetary bait from the United Nations.

While no one will argue against prosecuting perpetrators of Liberia’s civil conflict, proponents for an international criminal court need to fully explain how the court will provide even-handed justice and not be used as a political weapon.

Considering the prosecution of war crimes dates back to the Nuremberg trials (1945 – 1946), it is quite evident that international criminal courts haven’t deterred war crimes and crimes against humanity from occurring.  Today, events in Syria, the Middle East, Burma and parts of sub-Saharan Africa show the international community lacks courage when it comes to proactively stopping human rights abuse and atrocities from taking shape.  Where’s the empirical evidence that shows establishing an international criminal court is far better than strengthening the overall judicial system in a country? Moreover, is the United States not somewhat liable for allowing a fugitive (Charles Taylor) to become president of Liberia?

After all, lessons from the Special Court for Sierra Leone shows President Weah and Liberia’s Supreme Court will immediately lose all powers of managing the international criminal court (ICC) and first-right jurisdiction over Liberians. Once the ICC is established in Liberia, additional powers will be given to the United States, United Kingdom, and the United Nations to move for the arrests of Liberians in Liberia – something these governments cannot do without going through international extraditions laws. Additionally, the opinions and verdicts rendered by the ICC are unreviewable – that is, no one or country has the authority to reverse their decisions.

Today, the ICC is able to arrest and prosecute anyone in Liberia, including the President, for what it deems crime against humanity or crimes of aggression.  Allowing such a court to exist in Liberia will make it even easier to entrap former presidents or his political rivals. Allowing the ICC to exist in Liberia will be an extreme and inexcusable divergence from the key ideology of Liberia’s sovereignty – that the supreme right to judge the legality of the policies practiced by Liberian government officials and citizens of Liberia rests in the independence and autonomous right of the Liberian people and its court system.  While most Liberians will agree that the legal system in Liberia is weak and lacking, no one can competently argue how transferring the rights to prosecute Liberians over to foreign entities will strengthen Liberia’s weak judicial system.

Permitting such a court to be built and exist in Liberia will render the Supreme Court of Liberia impotent and will be a clear violation of Liberia’s Constitution. Hence, many African leaders are asking why the United States refuses to fall under the mandates of an international criminal court, yet they are pushing African leaders to establish the same in Africa?

Background

The International Criminal Court was officially started in 2002 after 60 countries ratified the Rome Statute. The idea of an international court followed other similar courts used at the end of World War II to prosecute and punish war crimes. The court is designed to prosecute persons that commit war crimes, crimes against humanity and genocide.  Although the ICC was created by the Rome Statute, today, it operates as an independent entity. 

Around 123 countries are States Parties to the Rome Statute of the ICC. Out of this group, 33 are African States (including Liberia), 19 are the Asia-Pacific States, 18 are from Eastern Europe, 28 are from Latin American and Caribbean States, and 25 are from Western European and other States.

Noticeably absent from the list of countries that are parties to the ICC, but still hold vetoing powers, are the United States of America, China, and Russia.  The absence of the U.S. and its ability to appoint special prosecutors in Sierra Leone reeks of hypocrisy and double-standards.

Over the years, Burundi, South Africa, and the Gambia have threatened to withdraw from the court citing most Africans have been charged in many of the international court cases held before the court while atrocities in Palestine, Iraq, and Afghanistan are going unpunished.

The ICC has jurisdiction to prosecute for crimes committed in member countries and by citizens of member nations who commit crimes elsewhere. That was the underlying reason why, in 2012, the court was able to arrest, prosecute, and sentence former Liberian president Charles Taylor to 50 years in prison for his role in war crimes committed during the civil war in Sierra Leone in the 1990s.

The ICC is organized in a manner that prevents external checks on the court’s authority, something that should be a serious concern to President Weah and all African nations. Due to the overarching powers of the ICC, the United States has refused to ratify the Rome Statute and grant the ICC authority over its citizens. Yet, they are asking other countries to do the same.

Lessons from the Special Court for Sierra Leone

The Special Court for Sierra Leone was founded in 2002 through a joint agreement between the Sierra Leonean government and the United Nations (UN). According to the agreement signed by both parties, the court was given an initial budget of $75 million and mandated to close its operations by 2005. Instead, the court remained open for over a decade and spent nearly $300 million with nearly all of the money relocating back to the United States and Europe. 

The late Alhaji Ahmad Kabbah, the third President of Sierra Leone, wrote in his autobiography that he was “stunned and upset” by some of the court’s actions. One notable action was the appointment of David Crane, an American defense department lawyer, who immediately sent signals to President Kabbah that the Sierra Leonean government was no longer in charge of the court. Moreover, the Court’s staff of over 400 personnel were made up of foreign nationals.

Soon after its establishment, the Court began prosecuting individuals whom many Sierra Leoneans saw as civil groups created to defend civilians during the civil war. While the initial concept for establishing the Court was heroic, its overreaching powers left a bittersweet taste in the mouth of many Sierra Leoneans.

The ICC Lacks Credibility

“The International Criminal Court is useless, incompetent, inefficient and ineffectual…”

The idea of establishing a war crimes court in Liberia to indict and prosecute serious human rights atrocities – including crimes against humanity and genocide – has long served as a core belief amongst human rights activist and those hoping to hold perpetrators accountable for Liberia’s civil wars. While most Liberians would welcome having such a court to serve as a deterrent against gross human rights violations, it appears the ICC is not the right organization to play that role. At least, not until it makes some significant changes in how it operates and prosecute citizens from other countries accused of gross human rights violations around the world.

The ICC lacks prudent and practical safeguards against political manipulation. What this means is, in Liberia, many political actors could end up using the ICC to selectively prosecute former presidents or their political rivals; particularly, since the ICC’s authority gives it wide-ranging permission, including the ability to prosecute for crimes of aggression, without any accountability to the United Nations Security Council.  Moreover, the ICC violates sovereignty by claiming jurisdiction over the nationals and military personnel of non-party states in some circumstances. Also, some have argued that “crimes of aggression” is vague and open to interpretations and could lead to the arbitrary arrests of many political actors in Liberia.

In 2013, the case against Francis Muthaura, the former head of Kenya’s civil service agency collapsed when, according to the ICC’s Chief Prosecutor Fatou  Bensouda, a key witness had recanted, and other witnesses were either killed or became too afraid to testify. Muthaura was charged, along with Kenya’s president Uhuru Kenyatta, of crimes against humanity for allegedly planning violence after Kenya’s 2007 election that led to the death of 1,200 civilians.

In 2012, Congolese fighter Mathieu Ngudjolo Chui was found innocent of war crimes and crimes against humanity at the end of a trial that began in 2009 during which the testimony of many witnesses was found to be unreliable. Issues of unreliable witnesses were also mentioned in the cases of Callixte Mbarushimana, whom prosecutors accused of leading a rebel group that carried out rapes and killings in the Congo back in 2009. The court dismissed all charges against Mbarushimana in 2011 saying there was insufficient evidence to proceed. In 2010, judges at the ICC refused to confirm charges against Abu Garda, a leader of an anti-Sudanese force in Darfur, who was accused of leading attacks on U.N. peacekeepers.

Critics of the ICC have precisely recognized that, over the years, the International Criminal Court has rendered itself to be an incompetent, useless, inefficient, and an ineffectual organization that only goes after small countries, especially African countries. Hence, President Weah will have the full-fledged backing of all Liberians in rejecting the establishment of an International Criminal Court in Liberia and address the pressing social and economic issues in Liberia. As a matter-of-fact, President Weah should withdraw Liberia from the ICC and focus on his many social and economic challenges or pro-poor growth strategies. 

Many Liberians are correct in rejecting calls for a war crimes court until concerns of fairness and jurisdictions within the ICC are addressed. Punishing dictators is necessary only if democracy is positioned at the forefront of any prosecution. Perhaps the United Nations and the ICC should be more proactive in stopping atrocities as they are forming rather than be reactive by allowing it to run its course.

The United States and the ICC

The U.S. signed the treaty to join the ICC during the Clinton years. As a matter of fact, President Bill Clinton signed the 1998 Rome Statute of the ICC knowing well in advance that the U.S. Senate would reject ratification of the treaty, and many Senators from both parties had communicated severe doubts about the prudence of involving the U.S. with the ICC.

In 1998, former Vice President Joseph Biden (who was a Senator from Delaware ) stated that the ICC needs to make major changes and asked why the U.S.  Senate was wasting its time even discussing joining the ICC.  President George W. Bush opposed joining the ICC, saying it could bring politically motivated investigations and prosecutions of Americans, such as military officials. An argument equally shared by the President of Rwanda, Paul Kagame, who stated the court was never about serving justice to aggrieved citizens. He noted the ICC is all about politics disguised as international justice. With the United States of America-sponsored wars in Iraq, Afghanistan and other notable theaters, one can easily understand how the ICC could be used for political reasons.

How is it justice if the U.S. and Israel can’t be equally prosecuted at the ICC? Over the years, many Muslims have remained helpless as Palestine and Iraq have been decimated by Israel and the United States. How is the ICC a fair and impartial institution when the people pushing for a war crimes court cannot be prosecuted in the same court?

Again, while no one will argue against prosecuting perpetrators of Liberia’s civil conflict, proponents for an international criminal court need to fully explain how the court will provide even-handed justice and not be used as a political weapon. International criminal courts are only necessary when the international community decides not to intervene during the onset of human rights abuses. Liberia will be better served if crimes against humanity are stopped before they take shape and turn into civil conflict rather than wait to prosecute perpetrators after hundreds or thousands of people have lost their lives.