The Value of the Charles Taylor Judgment, by Fiona O’Regan

On Thursday 26 April 2012, Charles Taylor, former President of Liberia was convicted of aiding and abetting eleven counts of war crimes and crimes against humanity by the Special Court for Sierra Leone (SCSL).  Among the crimes Taylor was convicted of were murder, rape, recruitment and use of child soldiers, pillage, enslavement and acts of terrorism (judgment summary available here).The Taylor judgment is historic because it marks the first occasion since Nuremberg that a sitting or former head of state was convicted by an international criminal court. 

The Taylor conviction is the latest in a series of significant achievements for the SCSL.  The Court has in the past drawn praise for being the first international court to convict individuals of recruitment and use of child soldiers as well as, in the same case (the AFRC case), recognise the crime of forced marriage.  In addition, the SCSL has been relatively efficient and managed admirably with its far more limited resources in contrast to the heavily financially supported ad-hoc tribunals who have attracted consistent criticism for their perceived wastefulness.  The Court has also developed a comprehensive outreach programme and engaged in effective capacity building, through employing a significant number of native Sierra Leoneans in its activities.  Furthermore, the conclusion of the Taylor case will mark the final chapter in the work of the SCSL, so that it shall become the first of the major international criminal tribunals of the modern era to complete its mandate.

However, the Taylor judgment is problematic in certain respects.  Firstly, Taylor has only been convicted of crimes committed in connection to the Sierra Leone conflict and thus, the myriad of crimes he is linked to in his native Liberia look likely to remain unpunished.  In addition, Taylor has been convicted of aiding and abetting the crimes by the SCSL, a less serious mode of liability than the Prosecutor would have hoped of securing the convictions under.  Finally, many of those directly responsible for the crimes Taylor was convicted of are unlikely to be brought to justice, which for many of the victims of these crimes is unacceptable and mars the significance of the Taylor judgment. Each of these factors contributes to an image of what J. Peter Pham, in a New York Times Op-ed, calls “incomplete justice” in the Taylor case and “demonstrates the severe limitations of an international criminal justice system that is insufficient to deter future atrocities”.  Thus, whilst Charles Taylor has been found guilty by an international criminal court, the limited scope of this accountability and the impunity gaps it exposes, detracts from the impact such a judgment could have had had the case been more all-encompassing.

Nevertheless, the value of the Taylor verdict should not be dismissed.  International criminal justice by its nature will always be limited and imperfect, considering the amount of potential defendants, the restricted resources and the complex political difficulties that surround the task of bringing individuals to justice.   However, these challenges do not mean that constructive results cannot emerge from this flawed system.  In particular, international criminal trials possess a considerable expressivist potential, whereby the message sending ability of the system can help increase respect for the rule of law as well as facilitate the creation of a historical record of the relevant atrocities.  As Drumbl posits, “International trials have a better chance of becoming the kinds of “popular trials” that define a debate, remind us of the content and value of law, or serve as intergenerational “signposts” in history”.  The classic example of this powerful function is of course the Nuremberg trials, which for all their flaws, still serve as a source of inspiration to those engaged in international justice today.

The Taylor judgment may also carry some of this expressivist potential.  Although the case may not have been ideal, it still represents an exceptional occurrence: a once very powerful figure being held to account by the international community for very serious crimes. According to the Prosecutor in the case, Brenda J. Hollis, the judgment “reinforces the new reality, that Heads of State will be held to account for war crimes and other international crimes,” and “affirms that with leadership comes not just power and authority, but also responsibility and accountability. No person, no matter how powerful, is above the law.” Thus, this conviction ought to send a powerful message to other errant heads of state engaged in similar crimes that impunity is no longer guaranteed.  The limitations of the case may reduce the potency of this message, but they are unlikely to diminish it completely and thus, the Taylor judgment could yet become a beacon of hope to victims of similar leaders that one day these individuals (such as Laurent Gbagbo and Omar Hassan Ahmad Al Bashir) may yet be brought to justice.

Charles Taylor Found Guilty before the Special Court for Sierra Leone by Anna Marie Brennan

The Special Court for Sierra Leone delivered its verdict in the trial of Charles Taylor last Thursday. Charles Taylor had been charged with providing material support to the Revolutionary United Front which killed thousands of civilians in Sierra Leone during the civil war from 1991 until 2002.

 

This is a very significant decision for a number of reasons. First of all, Charles Taylor is the first former head of state to have been convicted before an international criminal tribunal since the Nuremberg Trials in the aftermath of World War II. Even though Charles Taylor was found not guilty of ordering war crimes or crimes against humanity the Special Court for Sierra Leone concluded that he had supplied weapons and soldiers to the Revolutionary United Front. The Court therefore found Charles Taylor guilty of aiding and abetting war crimes during the civil war in Sierra Leone. Moreover, the Special Court for Sierra Leone concluded that Taylor had express knowledge that the Revolutionary United Front were carrying out atrocities against the general civilian population. Even though Taylor claimed that he had attempted to facilitate peace talks with the Revolutionary United Front the Court nevertheless concluded that Taylor had in fact encouraged the rebel group not to disarm and to carry on their armed attacks against civilians.

Human rights groups have welcomed last week’s verdict. In particular, Elise Keppler from Human Rights Watch told the BBC that “[t]his is a significant decision” and that “Charles Taylor has been called to account for the crimes in Sierra Leone. It is an incredible day for international justice but most of all for victims in Sierra Leona and everywhere.” Nevertheless, the Court’s judgement last Thursday was not without controversy. Following the reading of the verdict by Presiding Judge Lussick, Judge El Hadji Malik Sow made an attempt to speak. According to both Jennifer Easterday and Sara Kendall who were seated in the public gallery, “a few words from an unidentified speaker [were heard] before the microphones were cut off.” A metal grate was also lowered to hide the courtroom from the public gallery. Moreover, while people waited for press statements from the prosecution and the defense teams, a document was apparently circulated containing the statement made by Judge Sow. It would appear that the court stenographer had carried on typing into the transcription program even though the other judges were filing out of the courtroom. This text appeared on the screens of those seated in the courtroom. A legal assistant on the defense team of Charles Taylor wrote down the brief statement out of concern that the Special Court for Sierra Leone would not include the judge’s statement in the official record. Judge Sow’s statement was as follows:

The only moment where a Judge can express his opinion is during the deliberations or in the courtroom, and pursuant to the rules, when there is no deliberations, the only place for me in the courtroom. I won’t get – because I think we have been sitting for too long but for me I have my dissenting opinion and I disagree with the findings and conclusions of the other Judges, standard of proof the guilt of the accused from the evidence provided in this trial is not proved beyond reasonable doubt by the Prosecution. And my only worry is that the whole system is not consistent with all the principles we know and love, and the system is not consistent with the values of international criminal justice, and I’m afraid the whole system is under grave danger of just losing all credibility, and I’m afraid this whole thing is heading for failure.

 

Despite the fact that Judge Sow, as an alternate judge, was not entitled to speak during the delivery of the verdict, his brief statement raises a number of interesting questions. First of all, his statement indicates that there were “no deliberations” indicating that there were significant communication problems among the judges in Trial Chamber II. Judge Sow also criticised the length of the trial which lasted for nearly four years. He also questioned the Trial Chamber’s judgment that the Prosecution had satisfactorily proven their case against Charles Taylor beyond reasonable doubt. Nevertheless it is important to note that the full judgment has yet to be released. Therefore, it is not yet clear what evidence was found satisfactory to meet the burden of proof required. In any event, it remains to be seen whether the Judge Sow’s statement will have a lasting impact on the legacy of the Special Court for Sierra Leone.

The Shadow of Taylor Hangs Over Mugabe

This blog post was submitted by PhD candidate and Government of Ireland Scholar Pádraig McAuliffe, who is reading for a PhD entitled The Serious Crimes Process of East Timor in the Field of Human Rights Law under the supervision of CCJHR Co-Director, Dr. Siobhán Mullally.

In the wake of the recent elections, the question on many lips is when or if Zimbabwean President Robert Mugabe will ever voluntarily give up power in the erstwhile breadbasket of Africa. The close nature of the campaign and the failure of a significant portion of the state apparatus to acquiesce in the transparent tampering with the election suggest Mugabe’s control is more tenuous than was previously the case and may be, in nautical parlance, holed beneath the water-line. He is far from sunk, however and remains very much the captain of this listing vessel. Mutiny remains unlikely to be successful. If a maritime lexicon is to be indulged one more time, it is clear the tide has turned. The most relevant question Zimbabwe-watchers might ask is not whether the octogenarian Mugabe is willing to give up power, but whether he is afraid to.

In the past, things were different. The average dictator could commit sundry tyrannies safe in the knowledge that if local disaffection reached a critical mass, a luxury mansion in a neighbouring country awaited where he could spend the incalculable millions siphoned off from systematic kleptomania. So it might have been for Mugabe, who might have relinquished control to a liberal/less repressive Shona Brian Cowan (though it is unfortunate to compare a sophisticated, repression-savvy tribe with Offaly people) or to the MDC and crossed the border to South Africa. There he would no doubt have been welcomed by Thabo Mbeki, whose craven acquiescence to every excess by his neighbour has shamed an ANC who should really know better than to support a militarized, anti-democratic brute. Mugabe may not even have to leave. His predecessor, the odious Ian Smith, could still drive around Harare in an open-topped Range Rover with impunity for years after his ouster from power. Impunity is they key word, however. In the past, impunity was the price victims and the international order for a peaceful exit. The transitional calculus in Africa may still tilt in favour of this, but in the aftermath of Charles Taylor’s transfer to The Hague from exile in Nigeria to the Special Court for Sierra Leone in The Hague, what tyrant will ever want to give up power? What credibility have impunity agreements to end conflict when Lomé Peace Accord’s amnesty can be torn up at will by the UN?

Many people, the author included, were heartened when international pressure led to the extradition of Charles Taylor, the Liberian dictator who subjected his own people and those of Sierra Leone to a decade of brutal internecine conflict to the Netherlands. It represented an all-too-rare service by the Bush administration (who pressured the Nigerian Govt to give him up) to the international community and international justice (though cynics, the author once more included, suspect they would do anything to boost these ad hoc, localized organs at the expense of the ICC, but that’s a rant for another day). What we may now be experiencing is the flip-side of this decision – that the Mugabes and Kabilas of this world will only leave their posts in a coffin for fear of arrest and extradition to trial by the very imperialists they have railed against for decades. Former ZANU-PF strongman Edgar Tekere was reported to have told a meeting in January that President Robert Mugabe was afraid of stepping down because he would be tried for his crimes, especially the massacres in Matabeleland in the 1980s. “Mugabe is afraid of his crimes. If he leaves office we will have another Charles Taylor incident. So when Mugabe sits down and thinks of Gukurahundi, he won’t step down.”

The option exists for Mugabe to enter into an agreement with South Africa or Zambia for sanctuary, but it can be worth little more than the paper it is written on if addendums can be added outlawing safety from prosecution for war crimes or crimes against humanity, as was the case in the Lomé accord, signed by rebels and the Government in the Sierra Leone Civil war nine years ago. Providing sanctuary for dictators and mass criminals can cost host countries hundred’s of millions of dollars in punitive sanctions and even more in credibility.

International criminal justice is often justified on the basis of its deterrent effect criminals will refrain from committing criminal acts, even where they desire to commit them and retain the capacity to do so, out of fear of judicial punishment. Even leaving aside the obvious flaws in the theory (most mass criminals initially presume their cause will win out and that they will never be held to account, or reason that in defeat, they will not be apprehended),the opposite may now be happening – leaders who might otherwise retire due to old age or unpopularity are now deterred from quitting their bloody reigns by the spectre of the ICC. Once more, the world must ask how willing it is to prioritise the vindication of human rights through retrospective prosecutions over the prospective realisation under a successor regime