Lutheran Church massacre: ECOWAS Court disillusions Liberian victims

Lutheran Church massacre: ECOWAS Court disillusions Liberian victims

On 17 October 2024, the ECOWAS Court rendered its decision on Liberia’s failure to investigate the Lutheran Church massacre. The massacre, that occurred on 29 July 1990 in Monrovia in which 600 people were killed, was never investigated by the Liberian State. Through their complaint to the ECOWAS Court, the victims of the massacre aimed to urge Liberia to investigate the atrocities committed and to obtain remedies. The Court dismissed the claims, adopting a particularly narrow approach with regard to its jurisdiction and to States’ duty to investigate long-past violations.

The Lutheran Church in Monrovia, serving as a refugee camp during the first Liberian civil war, was brutally attacked by the Armed Forces of Liberia (‘AFL’) on 29 July 1990, killing up to 600 civilians. While the Liberian State denied its responsibility, the Liberian Truth and Reconciliation Commission (TRC) after having heard hundreds of testimonies of victims and witnesses of crimes committed during the Liberan civil wars, confimed in its 2009 report the AFL’s responsibility for the Lutheran Church massacre, which it described as a ‘retaliatory killing’ of civilians¹.

Liberia’s persistent inertia

Despite the TRC’s findings and its urgent call to investigate the atrocities committed and prosecute those responsible, the Liberian State has since failed to initiate an investigation. Even the fact that survivors of the massacre sought justice in the US in 2018² and obtained an order for damages against AFL commander Moses W. Thomas in 2022³, did not lead to any investigation of the massacre in Liberia. Thomas returned to Liberia in 2019, where no investigations have been initiated against him or others involved in the atrocity.

Against this background, on 4th October 2022, a group of victims, together with the Global Justice and Research Project (‘GJRP’) and represented by the Institute for Human Rights and Development in Africa, the Centre for Justice and Accountability, and Debevoise & Plimpton LLP, submitted a complaint to the ECOWAS Court⁴. The applicants accused Liberia of violating its obligations under various international human rights instruments, including the African Charter on Human and Peoples’ Rights (ACHPR), the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture (CAT), the Geneva Conventions, and customary international humanitarian law. According to the applicants, ‘Liberia is failing its obligations to (a) effectively investigate and prosecute violations of the rights to life, freedom from torture, and freedom from war crimes that occurred during the Lutheran Church Massacre and (b) provide an effective judicial remedy to the Massacre’s victims.‘⁵

The narrow stance of the ECOWAS Court on its jurisdiction

Now, almost two years later, on 17 October 2024, the Court dismissed the complaint, arguing that it lacked jurisdiction to adjudicate the case. The Court held that the massacre predated the creation of the court and its human rights mandate. Three key aspects warrant closer scrutiny: first, the Court’s requirement that a primary violation needs to be ‘established’ before a failure to investigate can be adjudicated; second, the Court’s restrictive stance on its jurisdiction ratione temporis in cases involving violations that occurred before the Court’s establishment, and third, the Court’s surprising reasoning on the question whether Liberia’s failure to investigate the massacre is a violation that – independently from the original violation that occurred 34 years ago – still persists today and could therefore be qualified as a ‘continuing’ violation.

The requirement of an ‘established’ violation

The Court considered that ‘(…), an order to investigate and prosecute violators of human rights may only be made upon the condition that the right in question is established to have been violated.’ ⁶ However, the ruling did not clarify what constitutes an ‘established violation’ or who would be responsible for establishing it. The Court appeared to suggest that the violation must be established by the Court itself ⁷, as it did not consider any external elements to verify whether the massacre, and the inherent primary violations, such as the right to life, were ‘established’ by another Court or institution. It fully ignored the findings of the TRC, which had already documented the massacre, as well as the decision against AFL commander Moses W. Thomas in the US, which had also clearly established not only the violations committed during the massacre but also the responsibility of its authors.⁸

Jurisdiction ratio temporis

As to the question of jurisdiction, Liberia argued that the Court could not hear the case as it lacks jurisdiction over the matter.⁹ In its ruling, the Court  agreed with that, recalling its establishment in 1991¹⁰ and fixing the 19th January 2005, the moment of the signature of the Supplementary Protocol A/SP.1/01/05¹¹, granting the Court jurisdiction over human rights violations, as the ‘critical date’ for adjudicating human rights cases.¹² As the Lutheran Church massacre occurred in 1990 and taking account of the non-retroactivity of Conventions enshrined in Article 28 of the Vienna Convention, the Court concluded that the Lutheran Church massacre falls outside the scope of its temporal jurisdiction.

However, this is where the Court’s reasoning falls short: the applicants did not seek relief for the acts committed during the massacre itself; instead, they sought justice for Liberia’s ongoing failure to investigate and prosecute the perpetrators. The Court itself acknowledged this distinction by stating that ‘the Applicants are vehement in affirming that they are not seeking redress for any acts or omissions attributable to the State arising out of the massacre itself but an order to investigate’¹³. The Court nonetheless firmly refused to consider the obligation to investigate as a standalone duty but qualified it as a mere ancillary right derivable from the violation of the substantive right¹⁴, the latter having occurred before the Court acquired jurisdiction to deal with the matter.

The surprising assessment of whether the failure to investigate continues

The Court firmly rejected the applicants’ argument that the failure to investigate is a continuous violation, recalling that an act does not have a continuous character merely because its effects or consequences extend in time.¹⁵ Instead of assessing the failure to investigate as an independent violation, which would have allowed the Court to pronounce itself on Liberia’s (lacking) efforts to investigate the massacre until today, it linked the assessment of the continuing character of the failure to investigate to the date of occurrence of the initial violation. From there, the Court drew the conclusion that as the violation of the substantive right occurred back in 1990, a time for which the Court lacks jurisdiction, ‘the applicant’s claim that the (Liberian State’s) failure to investigate is continuous finds no credence.’¹⁶ By focusing on the original violation to determine the continuous character of the ancilliary violation, the Court failed to recognise that Liberia’s failure to investigate is a selfstanding violation, which is ongoing still today.

The Court’s restrictive approach contrasts with more nuanced rulings of other human rights courts, such as the European Court of Human Rights, which has held that ‘the positive obligation to carry out an effective investigation (…) constitutes a detachable obligation capable of binding the State even when the (original violation) took place before the critical date.’¹⁷ Similarly, the Inter-American Court in Moiwana Community v. Suriname found that the denial of an effective remedy is a continuing violation that could be adjudicated even when the underlying violation occurred before the State’s recognition of the Court’s jurisdiction. The African Court on Human and Peoples’ Rights also distinguishes between instantaneous violations (e.g., killings) and ongoing violations (e.g., failure to provide effective remedies), allowing it to hear cases where the substantive violation falls out of its temporal scope but the violation of the right to a remedy continues after the critical date.¹⁸

A Missed Opportunity for Justice

The ECOWAS Court’s narrow interpretation of its jurisdiction ratione temporis and its refusal to treat the failure to investigate as a selfstanding, continuing violation risks to have widespread consequences for victims of violations that occurred before 2005 in ECOWAS States. The ruling closes the possibilty for those victims to put pressure on inactive Governments and undermines their efforts to hold states accountable for their failure to investigate and provide justice for past atrocities.

For the victims of the Lutheran Church massacre, the narrow interpretation of the Court’s jurisdiction is particularly deplorable as there were at least two striking arguments for the Court to not dismiss the case or to at least adopt a more nuanced approach: First, the Liberian State had ratified the African Charter on Human and People’s Rights already back in 1988, hence before the Lutheran Church massacre occurred. Libera was therefore already bound by the obligations resulting from that Charter, and notably by the obligation ‘to adopt legislative or other measures to give effect to the rights’ provided by the Charter.¹⁹ Second, the TRC had urged the Liberian State in 2009, so well after the ‘critical date’ fixed by the Court, to initiate investigations and prosecutions on atrocities committed during the Liberian civil wars, including the Lutheran Church massacre.²⁰

As both Liberian civil wars took place before 2005, when the ECOWAS Court acquired jurisdiction over individual human rights complaints, the Court’s ruling not only deprives the victims of the Lutheran Church massacre of any remedy for the failure to investigate but also precludes victims of other war crimes committed during the Liberian civil wars from seeking justice for the state’s inaction. Without the possibility for the victims to appeal this unfortunate ruling and as Liberia has until today not ratified the African Court Protocol²¹, which would have allowed them to bring a case before the African Court on Human and People’s Rights, there is at that stage no legal recourse available at the regional level.

Increased hope in Liberia’s upcoming war crimes court

Against this background it is even more important to follow the recent developments on the establishment of a War Crimes Court in Libera. In fact, there is hope that Liberia will take steps toward accountability and set up a special court to deal with violations, which occurred throughout the Liberian civil wars. On 1 November 2024, the appointment of Counsellor Barbu as Executive Director of the War Crimes Court²² marks an important milestone in the effort to establish that court. Although it still might take time until the court will be operational, there is again hope that victims of Liberia’s past atrocities may eventually obtain justice at home.

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Photo: © DR

1. Republic of Liberia, Truth and Reconciliation Commission, Volume II: Consolidated final report, 30 June 2009, p. 156. ↩︎
2. US District Court for the Eastern District of Pennsylvania, Jane W. at al. v Moses W. Thomas, 12 February 2018 ↩︎
3. US District Court for the Eastern District of Pennsylvania, Jane W. et al. v Moses W. Thomas, Order, 16 August 2022 ↩︎
4. The Global Justice & Research Project & 3 Ors V. Republic of Liberia, Complaint, ECW/CCJ/APP/48/22 ↩︎
5. Ibid, para. 29 ↩︎
6. The Global Justice & Research Project & 3 Ors V. Rep. of Liberia, Ruling, ECW/CCJ/RUL/04/24, para. 46 ↩︎
7. Ibid, para. 49, reading as follows: ‘The Court notes that the case of the Applicant is specifically on an alleged ongoing failure of the Respondent to investigate the Lutheran Church massacre and prosecute the perpetrators to provide access to justice to the victims of the massacre. They are emphatic that it is not hinged on any violation of rights attributable to the State arising out of the Massacre itself. The implication of this is that the Applicants have not placed before the Court for its consideration the act or omission of the Respondent in respect of the massacre. Yet they are seeking the Court to make a pronouncement on the failure to investigate the massacre, an ancillary right which is not rooted in any substantive rights to life provided by the Charter.’ ↩︎
8. US District Court for the Eastern District of Pennsylvania, Jane W. et al. v Moses W. Thomas, Memorandum, 15 September 2021, p. 28 ff. ↩︎
9. The Global Justice & Research Project & 3 Ors V. Rep. of Liberia, Ruling, ECW/CCJ/RUL/04/24, para. 16. ↩︎
10. Ibid, para. 32 ↩︎
11. Ibid, para. 34 ↩︎
12. The Global Justice & Research Project & 3 Ors V. Rep. of Liberia, Ruling, ECW/CCJ/RUL/04/24, para. 38 ↩︎
13. Ibid, para. 61 ↩︎
14. In the present case the substantive rights invoked by the applicants are the right to life, the right to be free from torture and other cruel, inhuman, or degrading treatment or punishment and the right to be protected from war crimes; The Global Justice & Research Project & 3 Ors V. Rep. of Liberia, Ruling, ECW/CCJ/RUL/04/24, para. 46. ↩︎
15. The Global Justice & Research Project & 3 Ors V. Rep. of Liberia, Ruling, ECW/CCJ/RUL/04/24, para. 57. ↩︎
16. Ibid, para. 58 ↩︎
17. European Court of Human Rights, Grand Chamber, ŠILIH v. SLOVENIA, Judgement, 9 April 2009, para. 159. ↩︎
18. Inter-American Court of Human Rights, Moiwana Community v. Suriname, Judgment, 15 June 2005, paras. 37-44. ↩︎
19. See Article 1 of the African Charter on Human and People’s Rights, 1981. ↩︎
20. Republic of Liberia, Truth and Reconciliation Commission, Volume II: Consolidated final report, 30 June 2009, p. 349. ↩︎
21. African Court on Human and People’s Rights, The African Court in brief. ↩︎
22. The Executive Mansion, President Boakai Appoints Executive Director of the Office of the War and Economic Crimes Court (WECC), 1 November 2024. ↩︎