On September 26th, 2013, the Appeals Chamber rendered its final judgment in the case against Charles Taylor at the Special Court for Sierra Leone (SCSL). The final judgment in the Taylor case is a major landmark for modern international criminal law. Not only is Taylor the first head of state to be convicted by a modern international criminal tribunal, but the conclusion of the Taylor case also marks the end of the SCSL’s judicial activities. As such, the SCSL has become the first international criminal court to finish its prosecutions since Nuremberg.
Taylor was the head of Liberia during the Sierra Leonean civil war, but was charged with crimes committed in Sierra Leone because of his close ties with the Rebel United Front (RUF) and Armed Forces Revolutionary Council (AFRC) rebel groups; groups considered responsible for most atrocities committed during the Sierra Leonean civil war. The Prosecution argued that Taylor participated in a joint criminal enterprise (JCE) with the RUF/AFRC to commit crimes in Sierra Leone, and charged Taylor with 11 counts of war crimes, crimes against humanity, and other serious violations of international humanitarian law.
On April 26th, 2012, the SCSL convicted Taylor on all 11 counts. However, the Trial Chamber concluded that the Prosecution failed to establish Taylor’s participation in a JCE with the RUF/AFRC. Instead, the judges found Taylor individually criminally responsible for aiding and abetting the rebel groups, and for participating in the planning of rebel attacks in Kono, Makeni, and Freetown. The Trial Chamber sentenced Taylor to 50 years in prison. The defence filed 45 grounds of appeal and called for Taylor’s full acquittal, arguing that the Trial Chamber made systematic errors when evaluating the evidence against Taylor, and also erred in its legal interpretation of aiding and abetting liability. The prosecution on the other hand produced four grounds of appeal, arguing that the Trial Chamber erred by failing to find Taylor individually criminally responsible for ordering and instigating the commission of crimes, and by only sentencing Taylor to 50 years. In the end, and after a year of deliberations, the Appeals Chamber more or less affirmed the Trial Judgment, with few exceptions.
Nevertheless, there were three interrelated issues:
(i) The difficulty of proving crimes under international criminal law
Half the grounds of appeal made by the defence in the Taylor appeal were related to evidentiary issues. The defence appealed on the basis that the Trial Chamber based its evidentiary findings on uncorroborated hearsay evidence; an argument the Appeals Chamber rejected. To the public, it is often difficult to understand that it could be problematic to collect evidence against a man like Charles Taylor. But, as the Taylor case illustrates, finding evidence tying senior political perpetrators to atrocity crimes is difficult. Few war criminals are compelled to record their criminal activities in writing. As the Chief Prosecutor in the Taylor case has stated, “[t]he Accused never set foot in Sierra Leone when these crimes were being committed… He never directly, physically committed these crimes”. The physical distance between the person on trial and the crimes alleged is typical in a war crimes trial; hence the need to rely on hearsay witness testimony that documents meetings and communications between the defendant and the physical perpetrators of the crime. But, as illustrated by the Taylor case, striking a balance between the use of such hearsay evidence and the defendants fair trial rights, continues to be controversial.
(ii) Disagreements on the elements of aiding and abetting liability
Between the release of the two Taylor judgments, the International Criminal Tribunal for the Former Yugoslavia (ICTY) issued its Appeals Judgment in the Perišić case. The Perišić Trial Judgment had been an important authority in the Taylor Trial Judgment, as the Taylor Trial Chamber had cited it as one of its main authorities for the elements of aiding and abetting liability. The Perišić Appeals Judgment added ‘specific direction’ as a third element of the actus reus (physical element) of aiding and abetting. Hence, the new Perišić standard establishes a higher threshold or degree of involvement for aiding and abetting, as the accused’s assistance now has to be shown to have been directed specifically at the commission of a crime (and not simply be a more general form of contribution).
While none of the parties disputed the fact that Taylor had provided general assistance to the RUF/AFRC, it was much harder to find concrete proof that Taylor had provided assistance towards the commission of specific crimes.
In the end, the Taylor Appeals Chamber rejected the new Perišić standard, and concluded that its own independent review of post-WWII jurisprudence showed that specific direction is not an element of aiding and abetting under customary international law (Appeals Judgment para. 474). So we now find ourselves in a position where Appeals Chambers at the SCSL and ICTY have, within a 7 month time frame, issued very different opinions on the elements of aiding and abetting under customary international law. This perhaps being an indication of how subjective the exercise of determining customary international law can be in practice. The ICC is not bound by case law from the ad hoc or hybrid tribunals, and it will be interesting to see how the ICC consolidates conflicting jurisprudence from the various temporary courts.
(iii) The Charles Taylor judgment, political selectivity or a brave new doctrine in international criminal justice?
As we have seen, Taylor (as a head of state) has not been convicted of crimes committed within his own territory. Rather he now stands convicted of having planned and aided the commission of crimes in a neighboring country, by virtue of having provided substantial assistance to a rebel group. This is certainly a novel conviction, and a precedence that is seen by many as highly problematic.
When the first Taylor Judgment was issued, Taylor’s defence council, Courtenay Griffiths, argued that Taylor had been convicted of actions that are a common practice amongst many other heads of state:
‘So Taylor was convicted of aiding and abetting combatant forces in a neighboring country knowing that they were committing atrocities’, Griffiths tells the audience. ‘Help me here. What was the US doing with the Contras in Nicaragua? What did Kissinger do with the Indonesians in East Timor? I am not arguing here that because of that Taylor should not have stood trial. But when I went to university to study law I was told that whether you’re a princess or prostitute, whether you’re the president of the United States or the president of Liberia, the law should be above you.’
The Taylor defence further argued that the Trial Chamber’s articulation of aiding and abetting was:
“so broad that it would in fact encompass actions that are today carried out by a great many States in relation to their assistance to rebel groups or to governments that are well known to be engaging in crimes of varying degrees of frequency …”. And that such assistance: “is going on in many other countries that are supported in some cases by the very sponsors of this Court” (p.49896 Appeal Transcripts).
These allegations are certainly thought provoking, and further frustrates the legitimacy crisis in international criminal justice.