Global Policy Forum

By Kingsley Chiedu Moghalu*

Power remains a real factor in international law. The weak are the usual suspects in the dockets of international war crimes courts - the strong rarely are.

When the United Nations and the government of Sierra Leone established a war crimes tribunal last year to prosecute the perpetrators of atrocities in the war-torn country's long-running conflict, the real question for informed observers was: Would he, or would he not?

He, of course, is Charles Taylor, the president of neighbouring Liberia, and the question was whether he would be indicted on war crimes charges. Taylor is widely believed to have fuelled the war in support of one of the fighting parties, to which he committed rag-tag militias — many of them including child soldiers — that perpetrated unspeakable atrocities.

Now that the Special Court for Sierra Leone has filed a 17-count indictment against Taylor, a sitting head of state, the resulting ripple across Africa has generated uncomfortable tensions. It also exposes the contradictions of the continent's political and social evolution in a developing world that is increasingly on notice about international judicial intervention as a new dimension of international relations.

Taylor is a classic warlord. In the late 1980s he launched a civil war to take power in his native Liberia after escaping from a jail in the United States where he was held on extradition charges for embezzling almost a million dollars when the equally brutal dictator Samuel Doe ruled the country. His attempt to take power by force was forestalled by a West African peacekeeping force financed largely by Nigeria. He later won the presidential elections — though Liberians voted for him mostly out of intimidation and fear of the cruelty of his armed forces — and has since presided over a failed state and a blighted country.

In a demonstration of the inexorable logic of warlordism, Taylor's government, increasingly weakened by UN sanctions, has been under siege from rebels seeking to forcibly remove him from power.

Taylor is a head of state. So was former Yugoslav leader Slobodan Milosevic. Like the UN war crimes tribunals for Rwanda and the former Yugoslavia, the Special Court for Sierra Leone is not barred from following the evidence wherever it leads simply because it might result in charges against a national leader. This is how Rwanda's former prime minister, Jean Kambanda, convicted of genocide by the Arusha tribunal in 1998, ended up in jail in Mali, and how Milosevic found himself in a tribunal in The Hague on similar charges.

Taylor's indictment is a necessary step in the struggle against impunity in Africa, perpetuated mostly by warlords who have shattered the social cohesion of the continent and entrenched poverty. Their tyrannies have left their countries in a Hobbesian state of nature where life is nasty, brutish, and short.

But the situation calls for a more nuanced appraisal. The warrant for Taylor's arrest was issued when he was in Accra for talks with other African leaders seeking a peaceful solution to the Liberian war. This was tactically unwise, and the fact that the order was not enforced should surprise no one. African leaders are scarcely enthusiastic about enforcing judicial accountability for war crimes and other human rights violations, preferring mediation in all circumstances.

But the Accra negotiations could not in any event have provided Taylor with any immunity for violations of international humanitarian law. Milosevic was indicted and arrested after he had negotiated the Dayton Peace Accords during the Balkan wars. The Taylor indictment was reportedly drawn up in March and should, perhaps, have been made public either earlier, or later.

Taylor's indictment drew a negative response from many Liberians because it threatened to further destabilise the county by creating a leadership vacuum, were Taylor to have been successfully arrested. Seen from this perspective, while Taylor doubtless deserves to answer charges for crimes allegedly committed under his "command responsibility", his arrest might simply have deepened the chaos into which the West African country has already descended.

On the whole, indicting the Liberian leader was the right thing to do. Ultimately, Taylor now has no place to hide. Africa needs to confront the bald fact that the absence of accountability has for too long stood between the continent and real progress. Political trade-offs between peace and justice should be the rare exception and not the rule. Because there can rarely be any real peace without justice.

It was this logic that, many years after the Cambodian genocide, brought the UN and that country to establish a mixed national and international court to try the leaders of the Khmer Rouge. The irony is that the absence of truly independent domestic judicial systems has left Africa, in recent years, in a situation where the only real bulwark against the culture of impunity that existed for so long is the rise of international tribunals with extraterritorial jurisdiction.

This phenomenon became necessary because in many countries there is a profound absence either of institutional capacity or of political will to bring powerful people to justice. But it has given rise to claims of "judicial imperialism". Power remains a real factor in international law. The weak are the usual suspects in the dockets of international war crimes courts — the strong rarely are. If Africa cannot enforce accountability within its territory, someone else will. Or, as in Sierra Leone, a mixture of national and foreign judges can be entrusted with the task. But for the sake of the millions that have died in its senseless wars, the thousands that have lost their arms and limbs in Sierra Leone, Liberia, the Democratic Republic of Congo, and other theatres of horror, we must not turn our backs on the need for justice.

About the author: Kingsley Chiedu Moghalu is an international lawyer and public policy commentator who has been involved in several war crimes cases. This is a personal comment

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