Saturday, 28 April 2012

Charles Taylor Judgment Suggests a More Modest Level of Participation in the Sierra Leone Conflict


To much general rejoicing, Charles Taylor was convicted by the Special Court for Sierra Leone in a long-awaited judgment delivered on 26 April 2012. The delays in issuing the judgment are inexcusable. And we are in fact still waiting for the real judgment. Instead, the judges have given us a 44-page summary.
The Court’s press release on the judgment makes the simplistic assertion that ‘Charles Taylor was convicted on all 11 counts‘. This somewhat distorts the reality, because much of the Prosecutor’s case was not in fact upheld in the decision.
The press release also boasts that ‘Charles Taylor is the first head of state to be indicted, tried and convicted by an international tribunal.’ This is not accurate. Admiral Doenitz, who succeeded Hitler as head of state of the Third Reich in April 1945, was indicted, tried and convicted by the International Military Tribunal.

Many Prosecution Charges were Unproven

The summary of the judgment begins by reviewing various atrocities perpetrated in Sierra Leone during 1998 and 1999 associated with the civil war. As a general rule, it concludes that they were indeed committed. This is hardly surprising. It is consistent with the earlier decisions of the Court as well as the findings of the Truth and Reconciliation Commission. The issue was not of course whether the atrocities were committed but the role played in them by Taylor.
It has long been part of the lore about the Sierra Leone conflict that Charles Taylor was its mastermind behind. But this is not what the judgment finds:
62. … Contrary to the Prosecution’s submissions, the evidence did not establish that prior to 1996, Taylor, Sankoh [leader of the Revolutionary United Front]  and Dr. Manneh [of The Gambia] participated in any common plan involving the crimes alleged in the Indictment, nor in fact, that the three men even met together. Furthermore, the evidence was that during the pre-indictment period Sankoh operated independently of the Accused, and that while he relied at times on Taylor’s guidance and support, Sankoh did not take orders from the Accused.
63. During the pre-Indictment period the Accused provided the RUF with a training camp in Liberia, instructors, recruits and material support, including food and other supplies. However, again contrary to the Prosecution’s submissions, the evidence did not establish that the RUF were under the superior authority of the Accused or the NPFL chain of command, or that they were instructed in NPFL terror tactics.
64. The Accused supported the invasion of Sierra Leone in March 1991. NPFL troops actively participated in the invasion, but the Prosecution failed to prove that the Accused participated in the planning of the invasion. The Prosecution also failed to prove that the support of the Accused for the invasion of Sierra Leone was undertaken pursuant to a common purpose to terrorize the civilian population of Sierra Leone. Rather, the evidence shows that the Accused and Sankoh had a common interest in fighting common enemies, namely ULIMO, a Liberian insurgency group in Sierra Leone, and the Sierra Leonean Government forces, which supported ULIMO.
By the time of the attacks on Freetown and elsewhere in Sierra Leone during 1998 and early 1999, Charles Taylor’s alliance with the RUF and the AFRC seems to be beyond dispute. The judgment reviews how he provided assistance in various forms, including small numbers of soldiers as well as sometimes substantial quantities of weapons and ammunition. Some of this was paid for in diamonds. Again, nothing really surprising here. The big question – and the Trial Chamber only really begins to consider this at page 31 - is ‘Knowledge of the Accused of Crimes Committed in Sierra Leone’. The issue, for the Trial Chamber, is not whether Taylor ordered, directed or commanded the atrocities perpetrated in Sierra Leone - this is not established by the judgment - but rather whether he knew that they were taking place.
As the Chamber notes, public reports indicated that the rebel forces with which Taylor was aligned were committing various atrocities, including unlawful killings, sexual violence, physical violence, looting, conscription and use of child soldiers, abduction, terrorism, and other atrocities. It was ‘public knowledge’, says the Trial Chamber, so it is not a difficult leap to concluded that Charles Taylor also knew.
The Prosecutor failed to prove that Charles Taylor was the guiding spirit behind the rebel groups in Sierra Leone. It even failed to prove that the troops from Liberia that joined the insurgents in Sierra Leone were under his control: ‘the Trial Chamber finds that even if they were sent to Sierra Leone by the Accused, there is insufficient evidence to find beyond a reasonable doubt that they remained under the effective command and control of the Accused once in Sierra Leone’ (para. 140).
The Prosecutor had also alleged that Taylor was part of a ‘joint criminal enterprise’ whose purpose was ‘to take any actions necessary to gain and exercise political power and control over the territory of Sierra Leone, in particular the diamond mining areas. The natural resources of Sierra Leone, in particular the diamonds, were to be provided to persons outside Sierra Leone in return for assistance in carrying out the joint criminal enterprise.’ (para. 23 of the indictment of 7 March 2003).
The summary of the judgment says the Prosecutor failed to prove this. (para. 144).
Taylor stands convicted because he provided significant assistance to the various rebel groups within Sierra Leone, knowing that they were perpetrating atrocities in the course of their campaigns. Consequently, he is found guilty of ‘aiding and abetting’.

What did Taylor Know?

What emerges from the judgment of 26 April 2010 is a more modest vision of Taylor’s involvement in the Sierra Leone conflict. He was assisting combatant factions in full knowledge that they were perpetrating atrocities. But the claim that he was the evil genius who manipulated the war throughout the 1990s stands unproven.
This assessment by the Trial Chamber is more consistent with the findings of the Truth and Reconciliation Commission. One of the intriguing features of the transitional justice mechanisms in Sierra Leone is that the two main bodies, the Special Court and the Truth Commission, have not necessarily shared the same vision of the conflict. The Court has focused on external factors, blaming Taylor, Ghaddafy and others for the civil war. The Truth Commission, on the other hand, tended to downplay the role of external actors like Taylor and proposed an analysis that found the main cause of the conflict to be the decades of tyranny and corruption within Sierra Leone. With its more modest perspective on the involvement of Taylor, the 26 April 2012 judgment confirms the narrative of the Truth and Reconciliation Commission.
The Trial Chamber rejects the joint criminal enterprise thesis. We shall have to await the full judgment to assess properly the reasoning of the Chamber. From the summary, it seems this was mainly based upon the facts of Taylor’s own personal role rather than the existence of the joint criminal enterprise. Elsewhere, including earlier posts on this blog, I have expressed concern about the breadth of a joint criminal enterprise notion that is ultimately premised on an enterprise that is not in fact criminal. Trying to overthrow a government and take power is not an offence under international criminal law. Facilitating the job of the Prosecutor by convicting individuals for acts that may have been a foreseeable consequence of such an enterprise – where the enterprise is not unlawful in itself – and in the absence of evidence that the accused actually knew of the crimes or intended that they be committed is a bridge too far. It unacceptably stretches first principles about guilt in criminal law.
The conclusion of the Trial Chamber in Charles Taylor seems based on uncontroversial principles. He or she who provides significant assistance to a participant in a conflict knowing that the participant is perpetrating atrocities against civilians is guilty of aiding and abetting such crimes. This is straightforward. And it leads in an interesting direction.
Atrocities were perpetrated on all sides in the Sierra Leone conflict. This emerges from the case law of the Special Court, as well as from the Report of the Truth and Reconciliation Commission. It was notorious at the time, in 1998 and 1999. So what are we to make of those who supported the other side in the conflict? For example, the Blair government and the United Kingdom provided assistance and support to the pro-government forces. The pro-government forces had their own sinister militias, involved in rapes, recruitment of child soldiers, amputations, cannibalism and other atrocities. Two of those involved were convicted by the Court and a third, who was a minister in the government supported by the UK, died before the trial completed. What is the difference between Blair and Taylor in this respect?
Moving beyond Sierra Leone, can we not blame the French government for aiding and abetting genocide, given its support for the racist Rwandan regime in 1993 and 1994? The crimes of the regime were well-publicised, not only by an NGO commission of inquiry but also by Special Rapporteurs of the United Nations. And yet the French continued to provide assistance, in personnel, arms and ammunition, to the Habyarimana regime.
What about those who supported the various sides in the war in Bosnia? Or in Sri Lanka? Are American officials who backed Saddam Hussein when he perpetrated atrocities in Iran during the 1980s also guilty of aiding and abetting in war crimes and crimes against humanity? What of those western states that continued to bolster the apartheid regime in South Africa during the 1970s and 1980s, when they were fully aware of the racist system that has been characterised as a crime against humanity.
It takes little imagination to appreciate the ramifications of the conviction of Charles Taylor for aiding and abetting.

The future of ‘joint criminal enterprise’

It may well be that the Appeals Chamber will restore the joint criminal enterprise charge against Charles Taylor. Only time will tell. When the theory first emerged in 1999, in a ruling of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia, many were concerned that it stretched the net of criminal guilt too far. Under the so-called 'third form' of joint criminal enterprise (or JCE III), individuals would be convicted not only for serious crimes that they knew of or intended but for those that were objectively foreseeable, to the extent that they belonged to a ‘joint criminal enterprise’ with others. In Bosnia, this ‘joint criminal enterprise’ involve ethnic cleansing, an international crime in its own right.
But the indictments of the Special Court for Sierra Leone took this a step further by charging an ‘enterprise’ that was not even criminal. So what had been known in the jargon as JCE III mutated into JE III. Then the disease spread to the International Criminal Court, where it has reemerged as the doctrine of co-perpetration. There is a manifestation of this in the recent judgment of the Trial Chamber of the International Criminal Court in Lubanga.
The majority of the Trial Chamber concluded that Lubanga had been part of a ‘plan’, and that as a result he could be convicted of crimes perpetrated by others even in the absence of evidence that he actually knew of them or intended them. Because he was part of a ‘plan’, he could be convicted of acts perpetrated by others to the extent that there was ‘a sufficient risk that, if events follow the ordinary course’ they would take place. Accordingly,
984. In the view of the Majority of the Chamber, the prosecution is not required to prove that the plan was specifically directed at committing the crime in question (the conscription, enlistment or use of children), nor does the plan need to have been intrinsically criminal as suggested by the defence. However, it is necessary, as a minimum, for the prosecution to establish the common plan included a critical element of criminality, namely that, its implementation embodied a sufficient risk that, if events follow the ordinary course, a crime will be committed.
The reference to a 'critical element of criminality' is important, but the scope of a 'plan' that is not in itself criminal but that has a 'critical element of criminality' is simply too nebulous. Judge Fulford dissented from the Majority. While his views have been presented as being more friendly to the Prosecutor, I do not find this to be the case. In particular, he does not endorse the inquiry about ‘sufficient risk’, which he notes is not in the Statute and has only been added by some of the decisions.

Drama in the Courtroom

Delivery of the decision in Charles Taylor was associated with a most unprecedented development. It seems that when the reading of the judgment concluded, the reserve or stand-by judge, Malick Sow, began to express his dissent, and his view that Taylor should be acquitted. Here is the account provided by Kirsty Sutherland of the International Criminal Law Bureau:
In an unexpected turn of events, as Justice Lussick (Presiding), Justice Doherty and Justice Sebutinde rose to leave the courtroom after delivering the verdict, Justice Sow addressed the Court:
“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 are no serious deliberations, the only place left for me is 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, because for me under any mode of liability, under any accepted 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 all 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 headed for failure.”
Hearing the voice of their counterpart did not deter Justices Lussick, Doherty and Sebutinde from walking out. Justice Sow’s microphone immediately cut out and a curtain was drawn across the public gallery. Nonetheless, he persisted to air his views to those present, unaided by a microphone.
There is obviously more to this story. Perhaps readers of the blog can contribute.

Since writing these words, Diane Amann has referred me to a more thorough description of the events on IntLawGrrls.
Thanks to Jean Allain and Yvonne McDermott.

5 comments:

Kate Lawlor said...

I can't add anything from inside the courtroom but would strongly urge others that can to do so.

Whether one agrees with the sentiment or not, it takes great courage to come forward as Justice Sow did yesterday. I commend him for that.

Timothy McEniry-Roschke said...

Prof. Schabas,

I really enjoy reading your reflections here on current events in international law. I wish more of your students and blog-followers would comment, because being found guilty of aiding and abetting war crimes seems like the most unwelcomed verdict for world leaders.

Today, The Washington Post printed a letter to the Editor that I wrote suggesting that the US attorney general make a case against Charles Taylor for the murder of 5 US nuns who were murdered in 1992. Liberia seems to be a long ways from finding justice for war criminals within its own borders, but perhaps a trial in the US against Taylor would be a better approach should Taylor outlive his sentence. Any thoughts?

Elijah Okebukola said...

Why does the alternate judge have a microphone if he is not entitled to speak?

What did the judge mean by there were no deliberations?

I suspect that the other judges would not have walked out on him if he was going to commend them for a job well done.

The whole scenario smacks of poor leadership, lack of mutual respect and absence of collegiality. Would it have been too much if the presiding judge said something like: the alternate judge has no right to vote, however he has been a part of the proceedings and he has personal views/opinion/statement (or similar word other judgment) which he will now express. These views do not form part of the judgment of this court.

In all while the alternate judge’s action might not have been the most decorous, in the circumstances, switching off his microphone and drawing the curtains on him did more harm than good.

In situations of this nature, international tribunals should err on the side of transparency. There is no greater fodder for conspiracy speculators and doubters than a judge muzzled in open court.

William A. Schabas OC MRIA said...

Judge Sow, as I understand it, is not only a judge of high integrity (with 29 years of experience), but also a person of great integrity. That he was not permitted to speak at the reading of the Court's summary of its judgement certainly casts a shadow over the proceedings of the Court. Years ago, I clerked in a U.S. Federal Bankruptcy Court for the Hon. Edward J. Ryan, who was often heard to say "In bankruptcy court, things must not only be right, they must SEEM right." I've never forgotten those words, and, sadly for all concerned, the recent developments at the SCSL (including the delays in the judgement and the failure to present it in writing) are certainly at odds with the appearance of propriety. That Judge Sow was, in essence, silenced, only adds to the sense of impropriety. We all know that "justice is blind", but we don't expect her to also be deaf to those who wish to speak on her behalf.

Comment from Don Ferencz

William A. Schabas OC MRIA said...
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