The law and politics of the Charles Taylor case.

• Author: Jalloh, Charles Chernor

Abstract

This article discusses a rare successful prosecution of a head of state by a modern international criminal court. The case involved former Liberian president Charles Taylor. Taylor, who was charged and tried by the United Nations-backed Special Court for Sierra Leone ("SCSL "), was convicted in April 2013 for planning and aiding and abetting war crimes, crimes against humanity, and other serious international humanitarian law violations. He was sentenced to 50 years imprisonment. The SCSL Appeals Chamber upheld the historic conviction and sentence in September 2013. Taylor is currently serving his sentence in Great Britain.

This article, from an insider who worked as an interim court-appointed defense attorney during the opening of the trial in The Hague in June 2007, is the first to comprehensively evaluate this significant international case since it concluded. I expose the numerous controversies that dogged the trial of Liberia's former president--from the questions that arose about how best to sequence peace for Liberia and justice for Sierra Leone following the prosecution's initial unveiling of his judicially sealed indictment through to concerns about whether he should be tried in the heart of Europe, as opposed to Africa, to the completion of appeals. I conclude that the trial of former President Taylor is significant for the SCSL because he was the most powerful suspect to be indicted by the court. Although it may be too early to draw definitive conclusions, a key lesson that we can derive for international criminal justice is that the indictment of a sitting president for international crimes may sometimes help loosen his grip on power, thereby enabling his subsequent prosecution.

Table of Contents I. INTRODUCTION. II. THE ORIGINS AND RISE OF CHARLES TAYLOR III. THE FALL OF CHARLES TAYLOR A. Sankoh, Taylor, and the Origins of the Sierra Leone Civil War B. The AFRC Coup and the End of the Sierra Leone War C. The Establishment of the Special Court for Sierra Leone IV. THE CONTROVERSIAL INDICTMENT AND ARREST OF CHARLES TAYLOR A. SCSL Indicts Charles Taylor; Nigeria Offers Safe Haven B. The Question of Peace for Liberia versus Justice in Sierra Leone C. Nigeria Asylum Unravels, the Noose Tightens Around Taylor, and the Dramatic Arrest V. CONTROVERSIAL PRELIMINARY ISSUES BEFORE THE CHARLES TAYLOR TRIAL A. Taylor Claims Immunity from Prosecution B. The Debate about Where to Try Taylor VI. THE CONTROVERSIES AT THE OPENING AND CLOSING OF THE CHARLES TAYLOR TRIAL A. The Dramatic Courtroom Walkout and the Ensuing Delay B. Of Flirtatious Warlords, Super Models, and "Dirty Looking" Stones C. Dissension on the Bench: A Regular (Not) Alternate Judge? VII. CONCLUSION I. INTRODUCTION

The trial of the former president of Liberia, Charles Ghankay Taylor, by the United Nations-backed Special Court for Sierra Leone ("SCSL"), was remarkable in at least four respects. First, it was the only case involving a non-Sierra Leonean before the SCSL. All the other men prosecuted by the tribunal were Sierra Leoneans. They were charged, tried, convicted, and sentenced for crimes that they planned and committed against their own people in their own home country. Taylor, on the other hand, was from neighboring Liberia where he is alleged to be responsible for even worse crimes than those for which he was eventually charged in Sierra Leone. (1) But Taylor, like all the other rebel leaders who participated in Liberia's dirty war, was never prosecuted in his native country because the parties to that conflict effectively granted themselves amnesty. (2) Rather, he was implicated by the SCSL for supporting Foday Sankoh, the leader of a rebel army called the Revolutionary United Front ("RUF"), to foment a war in Sierra Leone in which numerous serious atrocity crimes were committed. Sankoh and Taylor allegedly made "common cause" (3) to help each other take over their respective countries for personal and political gain.

Second, as a criminal trial, the case against Taylor was inevitably complicated. Fie reportedly never set foot in Sierra Leone during the time the offenses for which he was charged were perpetrated. (4) This meant that the prosecution's burden to prove his case, when compared to the other SCSL cases, was going to be doubly difficult. Indeed, for most of the pre-trial and trial phases, the success of the case against Taylor appeared to hinge primarily on two expansive and controversial modes of criminal liability in international criminal law--Joint Criminal Enterprise ("JCE") (5) and command responsibility (6)--neither of which requires the suspect to directly commit the acts in question. The task for the tribunal's prosecutors was how, using those two and other forms of criminal participation such as instigating or ordering, they could link Taylor in Liberia to the offenses carried out by the RUF and its collaborators on Sierra Leonean territory. Interestingly, although they managed to secure Taylor's conviction for planning and aiding and abetting crimes in Sierra Leone, the prosecution failed to prove JCE and command responsibility. The inference could reasonably be drawn that the prosecutors over played the centrality of his role in their narratives of the Sierra Leonean conflict.

Third, although Presidents Blaise Campaore (Burkina Faso) and (the now late) Muammar Gaddafi (Libya) were apparently subjects of initial prosecutorial investigative interest for training, arming, and otherwise financially supporting the RUF, (7) Taylor was the only sitting African president indicted by the SCSL (even though he was no longer in power when he was actually arrested, prosecuted and convicted). (8) He was thus the first leader to be held criminally responsible for international crimes committed in another African State. (9) This later served as fuel for his argument that his trial was political. (10) Yet, the judges rejected his claim that the prosecution selectively and vindictively prosecuted him based on improper political motives and in order to simply advance the U.S. foreign policy interests in Africa. They also rejected the contention that he was discriminatorily singled out for prosecution, effectively painting his argument as an attempt to politicize his case and to deflect his own responsibility."

All others tried by the SCSL were leaders of rebel, militia, or other organizations. But, the eight SCSL convicts drawn from the RUF, (12) the Civil Defense Forces ("CDF", (13)) and the Armed Forces Revolutionary Council ("AFRC" (14)) cases were part of the command structure of those entities. They each either committed the crimes personally or were found to have exercised de facto or de jure authority over the subordinates who perpetrated them. Thus, before Taylor's arrest, the highest profile politician that the SCSL charged was the former deputy defense minister, Sam Hinga Norman (who later died before judgment was rendered). (15) Taylor's head of state status and the fact that he had, by the time of his indictment, gained notoriety for the abuses that his forces committed against civilians in Liberia where he ascended to the presidency in August 1997, (16) made him the most "famous" person before the SCSL. As the perceived "godfather" of the RUF, the stature of Taylor's case grew after Sankoh and his ruthless number two, Sam "Mosquito" Bockarie, died before they could be tried. (17) In other words, with the apex of the rebel organization unavailable due to Sankoh and Bockarie's deaths, Taylor became the last person standing. He inevitably gained in symbolic importance as a figure--rightly or wrongly--the prosecution could exaggeratingly blame most of the RUF depravations even though the Office of the Prosecutor was ultimately unable to prove beyond a reasonable doubt that--as William Schabas aptly put it--Taylor was the "guiding spirit," "evil genius," or "mastermind" who "manipulated the war throughout the 1990s." (18)

Finally, in a still controversial decision that made his case even more unique amongst the SCSL trials, Taylor was the only suspect tried in the heart of Europe at The Hague in the Netherlands, away from the seat of the tribunal in Freetown, Sierra Leone. (19) The decision to change the venue of his trial was taken ostensibly for security reasons. (20) Some critics, especially many from the local civil society, including myself, vehemently contested this rationale. (21) The critics argued that Taylor--who was no longer in power--could not be a threat to an entire sub-region, and that even if he was, it would have been far better, and certainly less costly, for security to be bolstered in Sierra Leone and Liberia rather than move the SCSL's most important case away from the alleged victim communities most affected by his crimes. (22) Similarly, Taylor was the only convict to be imprisoned outside Africa-- in the United Kingdom--where he is as of this writing serving a fifty-year sentence. (23) In contrast, all the others prosecuted by the SCSL for atrocity crimes were detained in Rwanda. (24) Taylor's repeated requests to be sent to Kigali or somewhere else in Africa for family reasons, cultural affinity, and other similar considerations have not gained any traction. For this reason, absent a fundamental change of circumstances, he will most likely live the remainder of his natural life in Britain.

This article examines the law and politics of the trial of former Liberian president Charles Taylor. The paper is intended to introduce non-experts to the case involving one of Africa's most notorious warlords and its controversies. Towards that end, it aims to offer the first complete assessment of the trail of legal and political controversies that came to characterize this high profile international trial from the premature release of a sealed indictment for Taylor by SCSL prosecutors in summer 2003 through to the disposition of final appeals in fall 2013. It exposes and analyzes key...