Sunday, 19 December 2010

Wikileaks and the Special Court for Sierra Leone

I’ve found three Wikileaks documents that discuss the Special Court for Sierra Leone. The first, dated 10 March 2009, is from the US embassy in Liberia, and responds to remarks by Steve Rapp, who was then Prosecutor of the Special Court for Sierra Leone, that suggested Charles Taylor might go free because of budgetary reasons.

Tuesday, 10 March 2009, 12:51
EO 12958 DECL: 03/10/2019 
Classified By: Ambassador Linda Thomas-Greenfield for Reasons 1.4 (b) a nd (d).

1. (C) Summary: The recent remarks by Special Court for Sierra Leone prosecutor Stephen Rapp suggestingCharles Taylor may go free because of budgetary reasons caused alarm within the GOL and has emboldened Taylor supporters. Communication inside the Taylor camp remains intact, and those in leadership roles continue to be active and unrepentant. Should Taylor be acquitted in The Hague or given a light sentence, his return to Liberiacould tip the balance in a fragile peace. The international community must consider steps should Taylor not be sent to prison for a long time. We should look at the possibility of trying Taylor in the United States. End Summary.
2. (C) Chief Prosecutor Stephen Rapp's ill considered announcement in the press February 24 that Charles Taylor may walk free because of a supposed budget shortfall for the Special Court for Sierra Leone, where Taylor is presently on trial, made headlines in the local press, and raised anxiety here about Taylor's imminent return. The GOL was alarmed enough that President Sirleaf called Ambassador on February 28 to raise her concerns. Sirleaf pointed out that Liberia's stability remains fragile, and such remarks reverberated throughout the country, as people are still traumatized by Taylor and the war.
3. (C) The press accounts out of The Hague have also emboldened the pro-Taylor factions here, including his extended family members, financiers and National Patriotic Party (NPP) loyalists, raising their hopes that Taylor might be acquitted soon. Despite their rhetoric about "moving on," they have thus far refused to appear before the Truth and Reconciliation Commission (TRC) to account for their activities, and those on the UN Sanctions lists continue to request delisting on the basis they have done nothing wrong rather than demonstrating what they have done to provide restitution for their activities.
4. (C) The government itself is caught in the middle. There is quite little the GOL can do legally to arrest, prosecute or freeze assets of those who were close to Taylor, even if the political will were there, which remains an open question. The TRC has recommended a domestic war crimes court be set up, but under statute an Independent National Commission on Human Rights (INHCR) would implement the recommendation, and the Legislature (some of whom had close ties to Taylor) has thus far failed to establish the INCHR. The Legislature has also refused to pass any law that would allow the GOL to freeze assets of those on the UN sanctions list, and the Supreme Court has ruled that any confiscation of property can be done only after a trial.
5. (C) The Accra Comprehensive Peace Agreement (CPA) of August 2003 that ended the 14-year civil war, did not require the NPP to disband and in fact permitted the NPP to participate in the transitional government and in the 2005 elections. The NPP now holds seven seats in the Legislature (which may be one reason the legislation is being blocked). As well, none of Taylor's properties have been seized by the government and they remain in good shape and remarkably free of squatters, as no one dares to take the risk of retribution.
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6. (C)  The pro-Taylor forces still have the ability to organize themselves. An NPP rally in December 2008 gathered a sizeable crowd, and Taylor supporters in June 2008 succeeded in preventing FBI investigators from entering Taylor's residence "White Flower" to obtain evidence for the Chucky Taylor trial in Florida. The most recent example was their effort on March 7 to disrupt the International Women's Colloquium. Taylor remains popular within many rural communities, especially in Bong, Lofa and Nimba counties, and is seen as someone who was able to unite Liberia's different ethnic groups. We also suspect there is some sympathy within the Americo-Liberian population who saw him as their deliverance from their losses following the 1979 coup. While we do not suggest they would want Taylor to return, we are sure that they do no want too many rocks to be turned over.
7. (C) Although we do not have any direct evidence to support the belief that pro-Taylor factions are behind much of the armed robbery on the premise that crime will keep the government weak and the country unstable, the GOL is certainly convinced of this, and has taken steps to counteract the threat. The most recent act was to put Taylor-era head of police Paul Mulbah into the LNP as an "advisor" that some accuse (and the government denies) was in order to placate the Taylor people in advance of the March 7-8 International Women's Colloquium. That the Taylor crowd can still motivate such a reaction in the government is a testament to their influence.
8. (C) Lines of communications within Taylor's faction, the National Patriotic Front of Liberia (NPFL) remain intact. To be sure, the disarmament of the factions following the CPA has been extremely successful, and we have thus far been unable to confirm the existence of any large weapons caches, despite the persistent rumors. But the reintegration of the ex-combatants is far from complete. Former NPFL commanders Roland Duo (the only senior Taylor supporter to have testified before the TRC), Christopher "General Mosquito" Vambo and Melvin Sogbandi (none of whom are on the sanctions lists) remain in contact with the ex-combatants, and would have the capability to organize an uprising or even criminal activity.
9. (C) Certainly, the same is true for the other factions, the Liberians United for Reconciliation and Democracy (LURD) and the Movement for Democracy in Liberia (MODEL). While apparently unarmed and not active in Liberia, we continue to receive reports that LURD is recruiting ex-combatants for militias in Guinea and MODEL is doing the same for Cote d'Ivoire.
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11. (C) The threat of a return of Taylor strengthens their hand and for now they see no need to give in at all. However, if Taylor is put away for a long time, the government may feel a bit bolder in recovering assets and bringing Taylor backers who committed war crimes to justice.
12. (C) The international community has just a few tools to pressure the Taylor people into accepting the new reality. The UN sanctions appear to have the intended effect of keeping them somewhat marginalized and fearful of further attempts to strip them of their ill-gotten gains. However, we have regularly heard of travel outside Liberia of those on the travel ban list without prior approval.
13. (C) However, the best we can do for Liberia is to see to it that Taylor is put away for a long time and we cannot delay for the results of the present trial to consider next steps. All legal options should be studied to ensure that Taylor cannot return to destabilize Liberia. Building a case in the United States against Taylor for financial crimes such as wire fraud would probably be the best route. There may be other options, such as applying the new law criminalizing the use of child soldiers or terrorism statutes.
14. (C) The peace in Liberia remains fragile, and its only guarantee is the robust and adaptable UNMIL presence. The GOL does not have the ability to quell violence, monitor its borders or operate independently to fight crime. A free Taylor could tip the balance in the wrong direction. THOMAS-GREENFIELD

A 15 April 2009 dispatch from ‘Gallagher’ of the US Embassy in The Hague reports on the Charles Taylor trial. It relays rumours that the judges of the trial were delaying the proceedings.

Wednesday, 15 April 2009, 15:00
C O N F I D E N T I A L THE HAGUE 000247 
EO 12958 DECL: 04/15/2019 
REF: A. REF: A) 2008 THE HAGUE 00021 B. B) 2008 THE HAGUE 00226
Classified By: Legal Counselor Denise G. Manning per reasons 1.5(b, d).

1. (SBU) On February 27, 2009, the Special Court for Sierra Leone (SCSL or Court) took another step toward completing its work when the Prosecution rested its case against former Liberian President Charles Taylor -- the last SCSL case at the trial stage. The Court could potentially complete its work before the end of 2010. A number of open issues, however, may affect timing, including the start date and length of the Taylor Defense case. Timing may be particularly important given expected funding shortfalls and the possible loss of courtroom space this coming September. Additionally, the current Registrar, Herman von Hebel (Netherlands), has resigned effective June 1, and his successor will inherit a host of difficult issues and a complex transition during the final days of the Court’s operations.
2. (U) A Trailblazing Court. The hybrid SCSL, created in 2002 through an agreement between the United Nations and the Government of Sierra Leone (GOSL) and funded entirely by voluntary contributions, has jurisdiction over those who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in Sierra Leone after November 30, 1996. Although established almost ten years after the creation of the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR), the SCSL is poised to complete its work before these tribunals. The SCSL has also been the first internationalized criminal tribunal to: 1) issue an indictment for an African head of state (Liberian President Charles Taylor); 2) enter convictions for the crime of recruiting and using child soldiers; and 3) successfully prosecute forced marriage as a crime against humanity and intentional attacks on U.N. peacekeepers as a serious violation of international humanitarian law.
3. (U) Last Trial Standing. In 2003, the SCSL indicted Charles Taylor, the leader of the National Patriotic Front of Liberia from 1989 to 1997 and the President of Liberia from 1997 until the 2003 indictment. The indictment alleges Taylor’s deep involvement in the Sierra Leone conflict including his role in arming, training and acting in concert with the RUF and in trafficking the Sierra Leonean &blood diamonds8 that fueled and financed the fighting. The SCSL charged Taylor with eleven counts, including, inter alia, terrorizing the civilian population, unlawful killings, sexual violence, abductions and forced labor, and conscripting child soldiers.
4. (SBU) Status of Trial. As the only ongoing SCSL trial, the Taylor trial is the linchpin to the SCSL completing its work. From April 6-9, 2009, the Court held the &judgment of acquittal8 hearing, with Defense arguing for acquittal on all of the charges. (Comment: In the &judgment of acquittal8 hearing, the Court considers whether Prosecution Qacquittal8 hearing, the Court considers whether Prosecution has presented any evidence that could sustain conviction on the charges, acquitting only if Prosecution has presented &no evidence8 to sustain the charge. End Comment.) In this hearing, Defense acknowledged that crimes had occurred in Sierra Leone but argued that the Prosecution had failed to 1) present evidence linking Taylor to those crimes and 2)establish that Taylor had been part of a joint criminal enterprise (JCE) because, if a JCE existed, it existed before November 30, 1996, the date at which the temporal jurisdiction of the SCSL begins. The Prosecution responded to these arguments by summarizing Taylor,s responsibility for the crimes and pointing to Taylor,s liability for JCE crimes committed after November 30, 1996, even if the planning of the JCE took place before that date. (Comment: The Court will most likely not issue its Rule 98 decision in April, especially since the Judges may recess through May. An acquittal does not seem likely. End Comment.)
5. (SBU) Next Up: Defense Case. A contact in the Registry has indicated that Defense will likely request three months to prepare for trial and four months to present its case. If the Court grants this request, the Defense case may start at the end of August. However, the same Registry source predicts that the Trial Chamber may order Defense to begin its case as early as June, working through July and August with a possible recess in September. One wild-card factor, however, is the Defense,s pending interlocutory appeal arguing that the Prosecution failed to properly plead the JCE theory of liability. The Trial Chamber may not schedule the Defense case before the appeals decision so the Defense knows which mode(s) of liability it must defend against. (Comment: Currently, the Registry’s budget milestone document projects an October 31 trial termination date, a March 2010 judgment, sentencing in April 2010, and the conclusion of appeals in October 2010. If, however, the Defense case starts in August, the timeline could be pushed back by approximately two months. End Comment.)
6. (U) Spill-Over Timing Effects. A delay in the timing for the Taylor trial may create additional challenges. First, the International Criminal Court (ICC), the location of the Taylor trial, has informed the SCSL that it will need its second courtroom as of September 2009. (The ICC scheduled its second trial to start September 24th, and will likely need the courtroom prior to September 24th for pre-trial work). Back-up options explored by the Registry include finding other space or working during gaps in the ICC schedule. Second, according to Registry sources, each additional month of trial time costs approximately one million dollars.
7. (C) Judges Slowing Things down? Further muddying timing predictions, Court employees have intimated that the Trial Chamber could work more expeditiously. The Taylor Chamber consists of three judges who take turns presiding: Justice Richard Lussick (Samoa), Justice Teresa Doherty (Northern Ireland) and Justice Julia Sebutinde (Uganda), along with an alternate judge, Justice El Hadji Malick Sow (Senegal). A couple of Court employees have grumbled that when the last Prosecution witness testified on January 30, 2009, the Court still had 11 outstanding motions, some over a year old. Additionally, one Chamber contact believes that the Trial Chamber could have accelerated the Court’s work by excluding extraneous material and arguments. Moreover contacts in the Prosecution and the Registry suggest that Justice Sebutinde may have a timing agenda. They think she, as the only African judge, wants to hold the gavel as presiding judges when the Trial Chamber announces the Taylor judgment. Reportedly her next stint as presiding judge begins in January.
8. (SBU) Expedited Appeals? The Appeals Chamber, with one empty seat, consists of President Renate Winter (Austria); Vice President Jon Kamanda (Sierra Leone); Justice George Gelaga King (Sierra Leone); and Justice Emmanuel Ayoola (Nigeria). President Winter reportedly has indicated that the Appeals Chamber intends to expedite any Taylor trial Qthe Appeals Chamber intends to expedite any Taylor trial appeals. Up for election in May, Winter may not, however, preside over the Appeals Chamber for any Taylor trial appeals, reportedly she will step down after the RUF appeal if she is not re-elected President.
9. (SBU) Drama-Bound Defense Case. A British Queen’s Counsel, Courtenay Griffiths, heads Charles Taylor,s top-notch and quick-tongued defense team, which reportedly finds itself in the midst of identifying and proofing witnesses. All signs indicate that Taylor himself will take the stand as their first witness possibly staying in the box for 6 to 8 weeks, and based on Defense’s actions to date, the Defense team will likely argue that although the crimes may have occurred, Taylor has no link to the crimes.
10. (C) Funding Shortfall. The Registry fears that the Court will run out of money as early as next month, although an expected Canadian USD 6 million contribution would keep the Court financed until early July 2009. In a marathon campaign, Registrar Von Hebel attended 250 meetings in 15 months to drum up funds from potential donor countries, but with, according Von Hebel, little traction, due to donor fatigue, the difficult economic situation, and contributions going to other tribunals (e.g., the Special Tribunal for Lebanon (STL) or the Extraordinary Chambers in the Courts of Cambodia). Von Hebel wants to make another run at the Arab countries of Saudi Arabia, Qatar, Kuwait, and the United Arab Emirates. He also believes that a letter from U.N. Secretary General Ban Ki-Moon asking countries to contribute might help open wallets. According to Von Hebel, when Ban sent out a similar letter in 2007, a number of countries made first-time donations. In addition, a couple of traditional donor countries have advised him they may need a similar letter in order to donate this year.
11. (U) Cost-cutting Measures: Concerned about the looming financial crisis, the Registry has undertaken cost-saving measures, reducing staffing costs by downsizing, incorporating liquidation clauses in contracts, and encouraging The Hague staff to use leave during the break between prosecution and defense cases. The Registry also plans to hand over the Freetown facilities to the GOSL in July 2010, reserving some space for its own continued use. Finally, Registry may look to consolidate the Appeals Chamber and the Taylor trial operations in The Hague, after the Appeals Chamber finalizes the RUF appeal.
12. (SBU) Help from Washington. The Registry may also seek USG’s assistance on financial issues. First, it may press the USG not to reduce its FY2009 contribution by 2 million, but to stay at last year’s level of 9 million USD. (Comment: The extra sum would not solve the Court’s immediate financial problem, since the USG generally contributes in the fall. End Comment.) Second, the Registry may ask for USG political support in the form of demarches to Arab countries, impressing upon the targeted Arab countries the critical nature of the SCSL’s financial situation.
13. (SBU) Registrar Musical Chairs. On April 8, 2009, the Court announced Registrar von Hebel’s resignation, effective as of June 1, 2009. Von Hebel will assume the Deputy Registrar position at the newly established Hague-based STL. (According to Embassy contacts, STL offered Von Hebel the position at the insistence of and to placate the Dutch, who believe the Dutch ICTY Registrar had been treated unfairly when the ICTY President unexpectedly declined to renew his contract). Given that the STL Registrar Robin Vincent (U.K.) recently resigned, Von Hebel may eventually step into Vincent’s shoes. Von Hebel is also tying up as many SCSL loose ends as possible, including signing a sentence-enforcement agreement with the Government of Rwanda. In terms of a successor Registrar, a Registry contact believes that the current Deputy Registrar Binta Mansaray (Sierra Leone) will surface as a strong candidate.
14. (SBU) A Larger Role for The Hague? Although currently headquartered in Freetown, Sierra Leone, the Registry has toyed with the possibility of locating any Residual Mechanism Qtoyed with the possibility of locating any Residual Mechanism ) or parts thereof ) in The Hague. For instance, Von Hebel believes that the Court may need to move its archives out of Sierra Leone in order to properly maintain and secure them. The City of The Hague has indicated its willingness to provide archiving facilities in connection with the ICTY’s closure. Some have also suggested combining some or part of the SCSL’s residual functions with those of The Hague-based ICTY and the Arusha-based ICTR. A combined residual mechanism might prevent duplication, but it would also face significant hurdles, given SCSL’s structural differences, e.g. funding, oversight mechanism and applicable legal framework. Furthermore, GOSL desires will be key, since a joint GOSL-UN agreement created the Court.

The third is the most recent, dating from 8 January 2010. By then, Prosecutor Rapp had become Ambassador Rapp. The cable reports on a briefing he delivered in Brussels.

Friday, 08 January 2010, 15:40
EO 12958 DECL: 12/22/2019 

BRUSSELS 00000023 001.2 OF 002
Classiires Richard M. Eason for' (D).
1. (C) Summary Ambassador Stephen J. Rapp Belgium would continue to push for the ICC's independent authority to initiate trials of crimes of aggression between states.
End Summary.
MFA Optimistic on Court for S)erra Leone Donation
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2. (C) The Africa team of Director General Renier Nijskens, C/ngo Desk Officer Hugues Chantry, and Foreign MiQister Vanackere's Africa Advisor Karl D'haene met with S/WCI Ambassador Rapp, S/WCI Specia, Assistant Todd Anderson and Poloff Aaron Jensen on December 18. Representatives of the MFA Legal and Peace Building departments were also present. D'haene said he was optimistic that Belgium would make an additional EUR 150,000 contribution to the Special Court for Sierra Leone. He noted Belgium's history of supporting international justice processes and posited that Belgium's new FM Vanackere would continue that policy; the expected closure of the Special Court in 2011 after Charles Taylor's trial made a contribution more likely in his view.
Belgium Interested in DRC Judicial Reform
3. (C) The MFA Africa team was interested in the concept of chambers of mixed composition to deal with war crimes in the DRC raised by Ambassador Rapp. They mentioned Belgium's participation in REJUSCO, the EU justice mission in Congo, and Belgian Technical Cooperation's work on REJUSCO Phase I. They were uncertain who would implement Phase II. They focused on the importance of improving the national justice system, rather than simply building up capacity in the eastern DRC. D'haene was noncommittal on Belgian support for new judicial court structures in the DRC, but said that the GOB would support UNR 1888 (Resolution on Women, Peace, and Security, which includes judicial aspects) and provide expertise to the extent that Belgium had it. He added that sending judges to the DRC would not be too difficult, but questioned whether a larger approach to judicial reform that included two court formats would work in the DRC.
Belgium and the ICC
4. (C) Ambassador Rapp told Legal Department DG Rietjens that the US was proud to regain its observer status at the ICC and said that the U.S. was currently producing a view of its ICC policy. He noted, however, that U.S. ratification of the ICC treaty was no likely. Ambassador Rapp underscored that the U.S. believed only the UNSC should be able to refer cases of crimes of aggression to the ICC and was confident that other UNSC members, including the European members of the P5, France and the UK, would agree. He said the U.S. hoped for consensus in this discussion, and he expressed understanding for Belgian, German, and Greek efforts to push for a broader ICC mandate on crimes of aggression. Rientjens acknowledged U.S. concerns on crimes of aggression, but said that Belgium would continue to push for the ICC to have an independent authority to initiate trials on crimes of aggression. Rietjens praised the U.S. return to observer status at the ICC. He said Belgium and other European nations were excited to be able to have diplomatic discussions with the U.S. about the ICC once again.
5. (U) Ambassador Rapp cleared this message.

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