Justice for Persons with Disabilities at the Liberia War Crimes Court: Learning from Missed Opportunities at the Special Court for Sierra Leone

On May 2, 2024, Liberian President Joseph Boakai signed an executive order establishing a United Nations-backed war crimes court. This historic achievement is the culmination of years of advocacy, both within Liberia and internationally, to create a forum to investigate and prosecute gross violations of human rights law and humanitarian law that occurred during Liberia’s two civil wars, which ended over two decades ago.

President Boakai’s goal of “bringing a just, healed, and reconciled finality to the issues of that ugly period of our past” is a lofty one. Thankfully, Liberia and its international allies will not be reinventing the wheel. If the Liberian court is established using the draft statute produced by the country’s Truth and Reconciliation Commission, it will be largely imitative of other hybrid tribunals that have been established in post-conflict regions across the globe — most notably in Sierra Leone, Liberia’s sister state. The hope for the Liberian court, as it is with all other hybrid courts, is that delivering justice in close geographic, political, and social proximity to victims and society at large will foster a sustainable culture of accountability, democracy, and respect for human rights.

The Special Court for Sierra Leone (SCSL) sets a solid institutional precedent for the work of the Liberian court, and the legacy the tribunal has left behind in Sierra Leone — particularly with respect to “raising expectations” on a societal level about human rights standards — inspires high hopes. The Liberian tribunal, however, must learn from the SCSL’s errors and shortcomings, as well as from its successes. In particular, there must be a recognition of the SCSL’s institutional failure to accord legal or moral significance to crimes committed against persons with disabilities during that country’s conflict, and the subsequent inability of Sierra Leoneans with disabilities to enjoy the full expressive value of the law. To do so necessarily means constructing a court in Liberia that is, from the outset, developed in a disability-sensitive fashion — something which the lawyers and politicians in Monrovia, and their advisors and partners in Washington and at the United Nations, must be attentive to.

Liberia’s Civil Wars and the Experience of Persons with Disabilities Today

The 14 years between December 1989, when Charles Taylor’s National Patriotic Front of Liberia launched an assault on Samuel Doe’s totalitarian state, and August 2003, when Taylor resigned from the presidency and fled to Nigeria, saw almost continuous conflict that routinely resulted in egregious and flagrant violations against unarmed civilians. While intentional amputation was not as common a tactic in the Liberian war as in Sierra Leone, the physical and psychosocial injuries sustained by civilians has resulted in a disproportionately high post-war population of persons with disabilities. In addition to persons with disabilities that pre-dated the war, the violence experienced between 1989 and 2003 created a host of what the Truth and Reconciliation Commission termed “war-induced disabilities”, including trauma-related drug dependency. Today, it is estimated that approximately 20% of Liberia’s population has a disability.

In a striking shift from most transitional justice initiatives — which, as Janine Natalya Clark has recently argued, tend to ignore the unique historic and ongoing challenges suffered by persons with disabilities — Liberia’s Truth and Reconciliation Commission (TRC) made a clear and concerted effort to address the particular plight of persons with disabilities during the conflict. Appendix VIII of the final report, issued in 2009, was in fact devoted to “accounting for the ‘less fortunate’ and their psychosocial needs” within Liberia’s post-war sociopolitical landscape.

Unfortunately, this push for an inclusive Liberia has not translated into public acceptance of or rights realisation for persons with disabilities. Although all Liberians continue to face numerous challenges, including poverty, high rates of illiteracy, and extremely limited access to safe drinking water and healthcare, these problems are disproportionately borne by persons with disabilities. The Liberian Disabled People’s Organizations, for example, estimate that 99% of persons with disabilities live in extreme poverty (i.e., on less than $1.90 USD a day). In the words of Austine Moan Baryo, himself a Liberian with a disability, “the country is trailing behind, with no consideration for people living with disabilities while reconstructing the country streets, public and private buildings, [and] recreation centers” — let alone social and economic policy.

Disability Invisibility at the Special Court for Sierra Leone

The Liberian War Crimes Court has the potential to build on the good work done by the TRC, which could elevate disability issues within the country’s political agenda and destigmatise disability among the population at large. The establishment of this court therefore offers the promise of an improved Liberia for persons with disabilities, which would diverge significantly from the post-war experience of its northwestern neighbour.

Conflating the wars in Liberia and Sierra Leone would be reductionist, but the ordeals each country endured are clearly interwoven, particularly because both conflicts shared many of the same actors (most notably former Liberian president Charles Taylor, who was convicted by the SCSL in 2009 and is currently serving a 50-year sentence). Despite their similarities, however, Liberia and Sierra Leone had vastly different post-war experiences: while the former has not prosecuted a single person for the grave crimes committed during its armed conflicts, the government of Sierra Leone pushed for the creation of a hybrid court well before the war officially ended in January 2002.

Critiques of the SCSL are replete. Among the court’s successes, however, has been the propagation of a narrative of the war which contributed to the development of a culture of human rights in Sierra Leone, particularly with respect to promoting women’s issues and the rights of children. This is emblematic of the expressive value of law as pertains to transitional justice. Valerie Oosterveld, for instance, has written of the powerful effects the court’s jurisprudence had on the status of women in Sierra Leone:

“by labeling the gender-based violence suffered by women and girls as forced marriage/conjugal slavery and sexual slavery, and by naming the rape that was carried out against women, girls, men, and boys as criminal, these violations were publicly and internationally acknowledged as wrongs.”

The result has been a formal (though perhaps not widely enjoyed) attitudinal change: as First Lady Fatima Maada Bio recently explained, “in Sierra Leone, our mindset has shifted from accepting the status quo to saying, ‘No, we forbid this from continuing in our country.’”

This trend towards greater respect for human rights, however, was never extended to persons with disabilities. I have written previously of the failure of prosecutors, judges, and advisors of the SCSL to address violence against persons with disabilities during this conflict. Take, for example, the attack on the Kissy Mental Home, known to most of the witnesses before the SCSL as “Crazy Yard,” which, in January 1999, was home to approximately 400 residents. At this time, Freetown was under the control of ECOMOG, a Nigerian-led peacekeeping force. Sometime around January 6, rebels from the Revolutionary United Front (RUF) had established themselves within Kissy Mental Home. From there, they launched Operation No Living Thing (also termed Operation Cut Hand), a particularly brutal assault on the city’s civilian population, which resulted in what Human Rights Watch described as “the most intensive and concentrated period of human rights violations in Sierra Leone’s eight-year civil war.”

Operation No Living Thing featured centrally in the Brima case, as the three accused — Alex Tamba Brima, Ibrahim Bazzy Kamara, and Santigie Borbor Kamu — had served as commanders of the AFRC/RUF coalition operating out of Kissy Mental Home during this time. According to George Johnson Jr., a prosecution witness:

“on arrival at Kissy Mental Home, there was an order given. Because of our pull-out, the order was given by Santigie Kanu for soldiers to go down to … the eastern part of Freetown to amputate up to 200 civilians and send them to Ferry Junction.”

The trial court found all three accused liable, according to the law of superior responsibility, for various atrocities that occurred during the attack on Freetown, including this brazen attack on civilians and the killing of eight nuns at Kissy Mental Home.

The court’s focus with respect to the attacks at Kissy Mental Home was solely on the wider community around Kissy and these (presumably non-disabled) nuns. It is illogical, however, that these soldiers, especially when given the obscene quota described by Johnson, would not have also harmed the residents themselves. Indeed, as George Packer of the New Yorker noted, the institute itself became “a central mutilating zone” during this period. There is no easier target than someone who is, as was the practice in this institution until 2018, chained to their bed and unable to defend themselves. Unfortunately, we will never know how many persons with disabilities who resided at Kissy were killed or maimed during this attack, simply because it was not a priority for the SCSL’s investigators, prosecutors, and judges.

Learning from the Special Court’s Mistakes

It is not a stretch to say that disability invisibility at the SCSL had a cascading effect on the post-war experience for persons with disabilities in Sierra Leone. The court’s failure to accord any significance to the lives of persons with disabilities meant that the expressive value of the law has never been enjoyed by this group, as it has by other subsects of Sierra Leonean society. As a result, despite significant strides towards inclusion on a policy level, persons with disabilities in Sierra Leone continue to face obstacles and barriers in every aspect of life, in large part because of stigmatization and discrimination.

The Liberian War Crimes Court must ensure that it learns from the SCSL’s successes, as well as its failures. Fortunately, the Liberian court is in a far better position to promote the rights and dignity of persons with disabilities that any previous hybrid tribunal — and, arguably, the International Criminal Court itself — thanks to the TRC’s disability-sensitive approach and the rich body of recent scholarship that harmonises international criminal law and international humanitarian law with the Convention on the Rights of Persons with Disabilities, which Liberia ratified in 2012.

There remains much work to be done for persons with disabilities in Liberia, and within the fields of international criminal law and transitional justice more broadly. The Liberian War Crimes Court has the potential to become a world leader in justice for violence against this group of people, just as the ad hoc tribunals for Rwanda and the former Yugoslavia were for sexual and gender-based violence, and the Special Court for Sierra Leone was for forced marriage and the use of child soldiers. Doing so would buck the law’s unacceptable trend of ascribing little value to the rights and dignity of persons with disabilities.