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Download full statement House Foreign Affairs Committee Tom Lantos Human Rights Commission Hearing on Liberia: Next Steps Towards Accountability for War & Economic Crimes June 13, 2024 – 10:30 a.m.  2360 Rayburn House Office Building STATEMENT Submitted by The Advocates for Human RightsCenter for Justice and AccountabilityCivil Society Human Rights Advocacy Platform of Liberia (CSO Platform)CIVITAS MAXIMACoalition for the Establishment of a War and Economic Crimes Court in LiberiaGlobal Justice and Research ProjectGlobal Justice CenterHuman Rights WatchSecretariat for the Establishment of War Crimes Court in Liberia Delivered by Liz EvensonInternational Justice DirectorHuman Rights Watch Many thanks for the opportunity to brief the commission. I am Liz Evenson, and I direct the International Justice Program at Human Rights Watch. Human Rights Watch investigates and reports on abuses in some 100 countries around the world. We direct our advocacy towards governments, armed groups and businesses, pushing them to change or enforce their laws, policies and practices. And we work globally to champion meaningful and fair justice for victims and survivors of atrocity crimes, before national and international courts. My statement today is presented on behalf of Human Rights Watch, together with The Advocates for Human Rights; Center for Justice and Accountability; Civil Society Human Rights Advocacy Platform of Liberia (CSO Platform); CIVITAS MAXIMA; Coalition for the Establishment of a War and Economic Crimes Court in Liberia; Global Justice and Research Project; Global Justice Center; and the Secretariat for the Establishment of War Crimes Court in Liberia. This group represents American, Liberian, and international organizations all working together to bring justice to Liberian citizens. Together our groups have been advocating for the establishment of a Liberian-led war crimes court in Liberia to address the legacy of impunity for the widespread and systematic violations of international human rights and humanitarian law[1] that characterized the country’s two brutal armed conflicts, which took place between 1989 and 2003. Liberian men, women, and children were gunned down in their homes, marketplaces, and places of worship. In a few cases hundreds of civilians[2] were massacred in a matter of hours. Girls and women were subjected to horrific sexual violence[3] including gang-rape, sexual slavery, and torture. Children were abducted from their homes and schools and pressed into service, often after witnessing the murder of their parents. The violence blighted the lives of tens of thousands of civilians and displaced almost half the population. While there have been a number of important criminal and civil cases outside of Liberia—and these cases have contributed to momentum within the country for justice[4]—to date not a single person has faced criminal investigation or prosecution in Liberia for serious crimes committed during the civil wars.In its 2009 final report, the Liberian Truth and Reconciliation Commission recommended the creation of an extraordinary criminal court[5] which would be a hybrid court composed of Liberian and international judges, prosecutors and other staff with a mandate to try those allegedly responsible for committing serious crimes. A legislative conference to talk about accountability was organized in Monrovia in 2019 with the legislature of Liberia, a Liberian coalition of NGOs, and international partners.[6] There is now renewed momentum after nearly two decades for the establishment of a court. Most recently, in March and April of 2024, the Liberian Senate and House of Representatives passed a resolution supporting the creation of a war and economic crimes court. On May 2, 2024, President Joseph Boakai signed an executive order[7] establishing an Office of the War and Economic Crimes Court for Liberia. The US government has played a critical role in advancing progress. US Ambassador-at-Large for Global Criminal Justice Beth Van Schaack has repeatedly voiced the US government’s partnership with Liberia in its journey to justice. Her commitments on behalf of the US government to support this process have been widely welcomed within Liberia. Members of Congress have also expressed their support for this court and justice for the Liberian people.[8] These developments are promising, and yet there is much work ahead that will need the support of the United States and others in the international community. Making Liberian-led justice a reality in Liberia requires sustained attention from justice champions in and outside of Liberia. What is needed now is for President Boakai’s administration to translate its stated commitment to a war crimes court into concrete steps for the court’s creation. We have made the following recommendations to the government of Liberia: Establish the Office proposed by President Boakai to be responsible for developing and implementing a concrete plan to establish a war and economic crimes court to hold perpetrators of grave crimes committed during Liberia’s armed conflicts to account, consistent with international standards and practice and ensure this plan is consistent with a victim-centered approach, including consultation with affected communities on the design of the court; Establish an independent committee comprised of government officials, a member of the Independent National Commission of Human Rights, international legal experts, and Liberian and international civil society actors from various sectors that is mandated to advise the government on the court’s creation. The committee should help establish a roadmap on the way forward for ensuring justice for war crimes and for strengthening the rule of law; Request assistance from the United Nations, African Union, Economic Community of West African States, and other international and regional partners as needed; Ensure a war crimes court for Liberia includes key elements in order to achieve trials that would be fair, meaningful, and credible:Composition of judicial benches that will have sufficient independence and expertise by including a majority of international judges on each trial and appeals bench;No bars on prosecution of individuals on the basis of their cooperation with the Truth and Reconciliation Commission;Inclusion of crimes and modes of liability in line with international standards;Fair trial protections;Witness protection and support;Involvement of victims of abuses in proceedings; and Outreach and communications that inform the victims and public. Work with the legislature to ensure the war crimes court established to hold perpetrators of grave crimes committed during Liberia’s armed conflicts to account is consistent with international standards and practice; Request from international partners adequate support and funding, for programs designed to improve Liberia’s judiciary and criminal justice system, to ensure an effective war crimes court and victims’ access to justice and the right of the accused to a fair trial; Continue to support efforts by third countries to bring universal jurisdiction cases for civil war-era crimes, including by continuing to fully cooperate with foreign authorities who request authorization to come to Liberia to investigate international crimes; Develop and implement a comprehensive reparations scheme for all victims of gross human rights violations and war crimes; Ensure protection for human rights defenders inside Liberia against attacks and intimidation, and bring to justice those who intimidate or attack human rights defenders. The process and the work of the court itself must be Liberian-led. This means primarily that Liberians who were impacted by the civil wars and have long advocated for accountability have a leading voice in determining the court’s trajectory. Liberian experts should also fill key positions in the judiciary, prosecution, defense, and registry. Liberian ownership of the court is crucial to build and maintain local support for accountability processes. Ensuring the court benefits from Liberian experts will also ensure that investing in the court strengthens the domestic justice system, leading to long-term benefits across Liberian institutions. The first step towards ensuring that the court is Liberian-led is making sure that Liberians and regional experts play critical roles in the creation of the court. Liberian civil society has been advocating for accountability in Liberia at great personal risk. Powerful actors opposed to accountability for wartime atrocities and former warlords hold positions of power in Liberia, and international actors have also at times worked to undermine their efforts. As a result, members of civil society have received threats to their security and their work over the years. These threats continue to this day. It is imperative that international partners, including the United States government, continue to support Liberian civil society organizations and the crucial work they are doing to see accountability in Liberia for civil war-era atrocities. High-level messages from Liberia’s international and regional partners in support of a court are also needed to maintain positive momentum. Liberia should request international and regional support to help it to determine the best legal and structural modalities for the court’s creation in a manner that will enable fair, credible functioning and partners should pledge international support and expertise based on accumulated experience. We recommend that the US Congress: Make clear its support to a Liberian-led process to achieve justice in the country through the creation of a credible war crimes court, and support to Liberian civil society organizations engaged in this effort; Provide the requested support to the Liberian government and civil society organizations working on behalf of justice, including assistance in developing the necessary legislation and systems for the protection of victims and witnesses, support in the legal representation of victims, and processes to engage meaningfully with the public and victims and survivors to create awareness of the objectives of a war crimes court and to allow Liberian voices to inform the design of the court; Offer financial support for the court, as the US has done in several other contexts, including, for example, the annual contributions to the Special Criminal Court in the Central African Republic. [1] Human Rights Watch, Q&A: Justice for Civil Wars-Era Crimes in Liberia (April 1, 2019), https://www.hrw.org/news/2019/04/01/qa-justice-civil-wars-era-crimes-liberia. [2] Jane W, John X, John Y, John Z v. Moses Thomas, U.S. District Court for the Eastern District of Pennsylvania, Case number 2:18-cv-00569-PBT, https://cja.org/wp-content/uploads/2018/02/Jane-W-v.-Moses-Thomas-18-cv-00569.pdf. [3] Truth and Reconciliation Commission of Liberia, Final Report of the Truth and Reconciliation Commission of Liberia, https://www.trcofliberia.org/resources/reports/final/trc-final-report-volume-1-full.pdf. [4] Civitas Maxima press release, US Court finds Liberian Rebel Commander “Jungle Jabbah” Guilty of Crimes Linked to Atrocities in Liberia’s First Civil War (October 18, 2017), https://civitas-maxima.org/us-court-finds-liberian-rebel-commander-jungle-jabbah-guilty-of-crimes-linked-to-atrocities-in-liberias-first-civil-war/; Civitas Maxima press release, Liberian Plaintiffs Make Swiss and Liberian Legal History (June 18, 2021), https://civitas-maxima.org/liberian-plaintiffs-make-swiss-and-liberian-legal-history/; Center for Justice and Accountability press release, U.S. Court Finds Former Liberian Military Commander Liable for War Crimes and Crimes Against Humanity (September 16, 2021), https://cja.org/u-s-court-finds-former-liberian-military-commander-liable-for-war-crimes-and-crimes-against-humanity/. [5] Human Rights Watch news release, Justice for Liberia, (December 10, 2009), https://www.hrw.org/news/2009/12/10/justice-liberia. [6] University of Nottingham, SEWACCOL, Legislature of Liberia, Civitas Maxima and the GJRP press release, Legislative Conference Brings Liberia Closer to the Establishment of a War Crimes Court (July 20, 2019), https://civitas-maxima.org/legislative-conference-brings-liberia-closer-to-the-establishment-of-a-war-crimes-court/. [7] Dounard Bondo and Ruth Maclean, The New York Times, Liberia Moves to Create War Crimes Court, Decades After Civil Wars Ended (May 3, 2024), https://www.nytimes.com/2024/05/03/world/africa/liberia-court-war-crimes.html. [8] United States Senate Committee on Foreign Relations press release, Risch Applauds Establishment of War and Economic Crimes Court in Liberia (April 10, 2024), https://www.foreign.senate.gov/press/rep/release/risch-applauds-establishment-of-war-and-economic-crimes-court-in-liberia.

Queer people’s experience of genocide, crimes against humanity and war crimes is not new. From the British Indian Penal Code of 1860, the Holocaust, the ongoing anti-gay purges in Chechnya, and legal shifts which persecute members of the LGBTQI+ community and allies, LGBTQI+ communities have been, and still are, deliberately targeted by systematic violence and discrimination. Some of these campaigns can be described as mass atrocity crimes, while others sound the alarm and significantly increase risk for the incidence of mass atrocity crimes against LGBTQI+ communities across the world. And yet understanding of this experience is not well-developed nor widely-discussed. In fact, queer people’s experiences can often be deliberately silenced in policy and research on identity-based violence and mass atrocities – a problem which is further compounded by threats to safety faced by queer populations that can make it dangerous for them to make their experiences and expertise heard and accounted for. As members of the atrocity prevention field, we know that widespread or systematic violent targeting of LGBTQI+ people can often look different from the widespread or systematic violent targeting of ethnic, indigenous, national, religious and racial groups that traditionally dominate the atrocity prevention and response agenda. However, crimes against LGBTQI+ individuals and communities may still meet the conceptual and legal thresholds of mass atrocity crimes, including genocide, war crimes and crimes against humanity. We know, too, that the absence of LGBTQI+ professionals and queer analysis from atrocity prevention work normalises and institutionalises pre-existing heteronormative and patriarchal structures. This perpetuates the exclusion of LGBTQI+ communities in – and from – atrocity prevention work. Read the Full Letter

Gender permeates the planning, commission, and resolution of criminal acts within the International Criminal Court’s jurisdiction. It is woven into perpetrators’ planning and commission of crimes, as well as victims’ (individual and collective) experience and recovery of acts committed against them. Accordingly, gender must be a central criterion in the group of independent experts’ review of the International Criminal Court (“ICC” or “the Court”) and the Rome Statute system. Laudably, the Rome Statute was among the first international treaties to extensively address sexual and gender-based violence. Moreover, from the beginning of her term ICC Prosecutor Fatou Bensouda has made it a priority to close the gender justice gap, as evidenced by her Policy Paper on Sexual and GenderBased Crimes, the first ever such policy for an international court or tribunal. Despite these foundational pillars and priorities, in the 18 years of the Court’s operation there has only been one standing conviction on sexual violence. This submission highlights avenues for improving gender justice at varying stages of a case. It identifies opportunities for progress regarding staffing and prosecutorial strategies on case selection, prioritization, and investigation that hinder access to justice in these cases. Until gender is mainstreamed throughout all stages of ICC cases, the Court will be limited in its capacity to deliver justice.

On January 20, 2020, Myanmar’s Independent Commission of Enquiry (“ICOE”) submitted its final report to Myanmar’s government. The report, which was initially due on July 30, 2019, was instead submitted three days before the International Court of Justice handed down its unanimous decision on provisional measures in The Gambia v. Myanmar. With the mandate to “investigate the allegations of human rights violations and related issues, following the terrorist attacks by ARSA,” Myanmar has relied on the work of the ICOE since its creation to object to international efforts, including those of the UN Security Council, to ensure accountability for the crimes against the Rohingya.

Unlike any other constitution in the world, the Burmese Constitution creates a bifurcated sovereignty. It ensures that the military is constitutionally autonomous from and supreme over the civilian government. Even if he is willing, the President, Thein Sein, cannot enforce any laws against the military. Furthermore; the constitution guarantees the military amnesty for all crimes – including the most heinous such as genocide, war crimes and crimes against humanity. It also ensures the perpetual dominance of the military by guaranteeing that 25% of the seats in Parliament are reserved solely for the military, while parading itself as a multi-party “democracy”.

The conversation about the importance of providing abortion services to victims of rape in armed conflicts would be incomplete without looking at the impact on children born to rape victims. The international community has already recognized forced pregnancy as a crime under the Rome Statute of the International Criminal Court (ICC) but it has a limited application since it requires all three elements of the crime to be satisfied. Article 7, paragraph 2 (f) requires–(1) unlawful confinement of a woman (2) forcibly made pregnant (3) with the intent of carrying out other grave violations of the international law. It is unclear what exactly falls under other grave violations of international law and means that women who were forcibly made pregnant but escaped or forcibly made pregnant without the requisite intent are not protected under the Statute.

July 1, 2012 marked the International Criminal Court’s 10th anniversary. The ICC was established by the Rome Statute which came into effect in 2002, creating the first permanent international court in history. Ten years later, critics and supporters alike are assessing the progress of the Court in achieving its goals of bringing to justice those responsible for the most atrocious human rights violations.

IHL applies to all the signatory States of the Geneva Conventions of 1949 and their Additional Protocols of 1977 but it also binds non-state actors: private citizens, armed groups, national liberation movements, and international organizations. It has been established that since IHL provides rights and special protections to private citizens in conflict, it also confers obligations, as demonstrated by the Nuremberg trials, international tribunals, or recent ICC decision to sentence Congolese warlord Thomas Lubanga to 14 years for using child soldiers and forcing them to commit atrocities. Several instruments also create IHL obligations on part of non-government armed or rebel groups – Common Article 3 of the Geneva Conventions, the Second Additional Protocol of 1977, and Article 8 paragraph 2 of the Statue of the International Criminal Court (“ICC”), whereas the First Additional Protocol applies to national liberation movements. And while there is no specific legal provision that binds international organizations under international humanitarian law, the ICC specifically stated that “an international organization is a subject of international law and, as such, is bound by all the obligations deriving from the general rules of international law.”

On July 10, just 10 days after its 10th anniversary, the International Criminal Court (ICC) delivered its first sentence. The ICC sentenced Thomas Lubanga, a Congolese militia leader, to 14 years in prison for the recruitment and use of child soldiers as a part of his rebel army, the Union of Congolese Patriots, from 2002-2003. Throughout that time, Lubanga and his army abducted, trained and used children to terrorize and kill villagers in the Ituri region of the DRC. While the justices clearly agreed that Lubanga deserved to be sentenced, one of the three judges, Elizabeth Odio Benito of Costa Rica, wrote a dissenting opinion saying that the sentence had been too lenient. Judge Benito suggested that the sentence should have been longer so as to properly reflect the extent of damage done to the child soldiers and their families.