Female Report!

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Feature Article: Gender and the prosecution of war crimes in Liberia

By Margaret Nkhoma

Executive Director of UN Women goes to Totota Peace HutAfter 14 years of civil war, Liberia enacted the Truth and Reconciliation (TRC) Act in 2003 which established the Truth and Reconciliation Commission (TRC) to address human rights violations and facilitate healing and reconciliation. In 2009, the TRC submitted a report which contained a long list of recommendations to relevant institutions. This discussion specifically focused on the reparations and prosecution of war crimes against women and children. It also looks at the potential bottlenecks that may characterize reparations and prosecution of such crimes.

Reparations are measures intended to ‘repair’ past harm associated with periods of conflict.  This can include compensation, access to health and psychosocial rehabilitation. However, few reparation programmes have adequately met women’s needs as they have not explicitly included forms of reproductive violence. For instance, Liberia is still grappling with addressing obstetric fistula cases, lacking comprehensive data on cases directly linked to sexual violence during the conflict.  It is also difficult to concretely ascertain the link between HIV/AIDS prevalence and the conflict period. These issues exert an enormous toll on women’s reproductive health and roles in society. While other ‘reparation’ measures such as economic empowerment may compensate for the economic needs of the people, the health and psychosocial needs are largely unmet due to lack of a proper gender audit of the different social dimensions of the war and their impact on women’s health in post-conflict Liberia.

Reparations have also overlooked the need to restore social cohesion, especially family life. During the conflict, communities and families disintegrated and basic vital skills like child rearing were no longer being handed down from older to younger generations. It is very common to see young children roaming the streets of Monrovia and other cities unsupervised, including crossing traffic-congested roads. In addition, this author has observed that not all children being kept in some orphanages are actually orphans. This is testimony that post-conflict Liberia is in need of some kind of intervention that instill a sense of family values. Post-conflict Mozambique for instance, instituted a tracing programme aimed at reuniting family members scattered during the war. However, the task of reviving family values in post-conflict Liberia has been left to chance.

The biggest glitches in the implementation of the TRC recommendations are those pertaining to prosecution of those accused of war crimes. The report recommended the establishment of the Extraordinary Criminal Court (ECC) to try those responsible for the commission of gross human rights violations and crimes against humanity.

The ECC makes an attempt to incorporate gender in the execution of its duties.  Surprisingly, however, it recommends that sexual offences be tried separately from the rest of the crimes in Criminal Court E, which was established in 2008 to prosecute sexual offences in general. This is a departure from the TRC’s own construction of treating sexual violence as a crime. This recommendation may perhaps be attributed to the general wave of social, economic and political changes taking place in Liberia, which has vigorously campaigned for gender-sensitive and rights-based approaches to policy, legislative and institutional reforms.

The ECC provides for use of native languages during proceedings with provision for interpreters. English as a foreign language may not be easily spoken by suppressed groups of people like women and children especially those from rural areas. This recognition therefore, encourages participation of those groups of people who may feel intimidated by the conventional court system.

liberian-women-pewee_flomoku-hrThe ECC Statute unveils a weakness which perhaps can only be appreciated in the aftermath of the work of the Court. The clause grants a blanket immunity from prosecution for all those who committed crimes when they were below the age of 18 years. Some young boys and girls were drafted into fighting forces when they were indeed below the age of consent but the prolonged period of conflict allowed them to graduate into maturity. It is not clear however, from this particular clause as to whether the immunity applies to the 11,000 ex-combatants who qualified as children under the demobilization, disarmament, rehabilitation and reintegration (DDRR) programme, or those who started committing crimes before they were 18 years old and continued after attaining this age of maturity. Perhaps going back to the framers’ intent may help iron out this grey area.

The age of criminal liability has implications on the current trends in gender based sexual violence (GBSV) in Liberia. There are no proper procedures and institutions to try juvenile offenders. Worse still, the age of criminal liability in Liberia is 16 years yet there is evidence that most GBSV crimes are committed by juveniles. Though anecdotal, the juvenile offenders’ behaviour is linked to their violent behaviours acquired during the conflict period. Granting blanket immunity to juveniles is as good as sanctioning or endorsing those violent behaviours acquired during the war which have now spilt over into post-conflict Liberia. One can only hope that this group will be taken care of under the psychosocial counseling   programme as recommended by the TRC.

The TRC Act also grants immunity from prosecution to some people accused of war crimes in the interest of public order. However, what constitutes in the ‘interest of public order’ remains unclear. The absence of the definition will be detrimental to war victims and survivors who were subjected to different forms of abuse. Testimonies from combatants reveal that they were acting on orders from their seniors. Five UN Security Council Resolutions (UNSCR) on women, peace and security have made attempts at addressing this issue by requesting that military commanders make specific reference to the treatment of women and children in their orders.  The resolutions require that military commanders take full responsibility for all GBSV cases that take place in their areas of responsibility. Obviously, this stipulation may have been instigated by claims of acting on orders from commanders. It is not clear however, whether the TRC will adhere to the UNSCRs or stick to its public interest position.

Finally, the TRC hearings boast garnering 40% of its testimonies from women. It remains unclear, however, if this percentage will be maintained during the prosecution of those accused of war crimes. Observations from other post-conflict countries show that the percentages plummet during prosecution. It is therefore, unlikely that Liberia will be any different from other post-conflict countries.


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