The future of international criminal law.

Author:Sterio, Milena
Position:Annual Ben Ferencz Panel
 
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ANNUAL BEN FERENCZ PANEL

This panel was convened at 10:45 am, Thursday, April 10, by its moderator, David Kaye of the University of California-Irvine, who introduced the panelists: Hans-Peter Kaul of the International Criminal Court; Milena Sterio of Cleveland State University; Jane Stromseth of the Office of Global Criminal Justice, U.S. State Department; and Dire Tladi of the University of Pretoria and Institute for Security Studies. *

INTERNATIONAL CRIMINAL LAW IN 2013: THE MOST SIGNIFICANT DEVELOPMENTS

By Milena Sterio ([dagger])

INTRODUCTION

While many events have shaped the development of international criminal law over the past year, the most significant ones, in my view, included the Special Court for Sierra Leone's appellate confirmation of the Charles Taylor verdict, as well as the United Nations Security Council's failure to refer the Syrian situation to the International Criminal Court (ICC).

THE CHARLES TAYLOR VERDICT

On September 26, 2013, the Special Court for Sierra Leone's (SCSL) Appellate Chamber upheld the same tribunal's Trial Chamber's judgment and sentence of Charles Taylor to 50 years of imprisonment for aiding and abetting murders, rapes, and other acts of violence during the Sierra Leonean civil war. (1) Charles Taylor served as President of Liberia during the 1990s, and in this capacity he actively supported Sierra Leonean rebel groups, responsible for some of the worst atrocities committed against this country's civilian population. (2)

The Appellate Chamber's confirmation of the verdict against Taylor was tremendously significant in international criminal law. First, the guilty verdict coupled with the lengthy sentence (Charles Taylor is 65 years old, so the 50-year sentence effectively amounts to life imprisonment) represents an enormous achievement of international criminal law. Taylor is the first former head of state to be criminally prosecuted and sentenced since Nuremberg, and his prosecution and eventual judgment send a strong message of deterrence to other heads of state. Additionally, the Taylor judgment stands for the proposition that impunity will not be tolerated in international criminal law, and that traditional notions of sovereignty will not stand in the way of an international criminal prosecution.

Second, the Taylor case underscores the importance of secondary liability in international criminal law. Taylor, like many other defendants in the Yugoslavia and Rwanda tribunals, was prosecuted on the theory of accomplice liability--for having aided and abetted in the accomplishment of heinous crimes during the Sierra Leonean civil war. (3) Since Taylor had no personal involvement or participation in the war, imposing secondary or accomplice liability on him was the only manner in which prosecution could proceed. The Appellate Chamber noted that "individual criminal responsibility for aiding and abetting the planning, preparation or execution of a crime, as expressly provided for in Article 6(1), is unquestionably well-established and fundamental in customary international law." (4) The Appellate Chamber thus confirmed that accomplice liability is a well-accepted mode of criminal liability in international criminal law, both under the SCSL Statute and in international custom. Moreover, the Appellate Chamber rejected the recent "trend" espoused by the International Criminal Tribunal for the Former Yugoslavia (ICTY or Yugoslavia Tribunal), which demands that the aid and assistance must be geared towards the specific offense--the so-called "specific direction" requirement. (5) In fact, also in (2013), the Yugoslavia Tribunal acquitted two defendants, Perisic and Stanisic, holding that the assistance which these defendants had provided was not specifically directed towards the commission of specific crimes, but was merely geared to the general war effort. (6) This vision of complicity embraced by the Yugoslavia Tribunal narrowed down the scope of accomplice liability; the Taylor case rejected this approach and chose not to follow the Yugoslavia Tribunal's case law. While this seeming disagreement between the judges of the Yugoslavia Tribunal and the SCSL may have the negative consequence of preventing the development of a uniform norm of customary law on the issue of accomplice liability, the positive effects of the Taylor judgment are that it rejects any limitation on accomplice liability and that it may serve as an important precedent in any future prosecutions of former heads of state.

Third, the Taylor...

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