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.