I met Courtenay Griffiths QC in July 2009 when I was stationed at the Office of the Prosecutor of the International Criminal Court in The Hague. My office so happened to be adjacent to that of the Charles Taylor defence team. Although not being tried by the International Criminal Court, the trial of the former Liberian President and warlord was being hosted in The Hague as opposed to the usual seat of the Special Court for Sierra Leone in Freetown due to security concerns.
A perpetual debate Courtenay and I would have, which we continue to discuss to this day, is whether international criminal justice is a genuine pursuit to end impunity in respect of the most heinous crimes that shock the conscience of humanity – or whether it is an instrument in the hands of western states to execute justice ‘a la carte’ against the enemies of powerful states, particularly those in Africa. It is often asked why the only defendants before the International Criminal Court are African and why war crimes committed in Iraq, Syria, Venezuela and the Middle East are never the subject of international criminal law – the major exception of course being those charged with international crimes committed in the early nineties in the former Yugoslavia by the UN International Criminal Tribunal for the former Yugoslavia.
Those, like Courtenay, who are generally opposed to the motives underlying international criminal justice take the view that the International Criminal Court and other UN-assisted international criminal tribunals have become a tool that western liberal democracies impose on developing country leaders with whom they have fallen out of political favour – in other words, a backdoor by which powerful states target their political enemies. The statistics would suggest that this is an attractive position to adopt – 100 per cent of the cases at the International Criminal Court relate to conflicts in sub-Saharan Africa.
But, let’s take the case of Charles Taylor.
After training as a guerilla fighter in Libya, he led the National Patriotic Front of Liberia which intiated the First Liberian Civil War. He gained control of a large portion of the country and became one of the most prominent warlords in Africa. He was elected president of Liberia in 1997. Opposition to his regime grew, culminating in the outbreak of the Second Liberian Civil War. Over a thousand civilians were killed during the conflict and thousands more were displaced from their homes. It is almost undisputed that Taylor commanded militia that were responsible for the atrocities and horrific acts of violence committed in Liberia. For these atrocities, one can argue with relative ease, that he was directly responsible and ought to have been found accountable. It is on this basis that most people have little difficulty with the prospect of Taylor facing a custodial sentence in the United Kingdom – but are these the offences for which Taylor was charged in the proceedings conducted in The Hague?
The short answer is no.
The charges Taylor faced before the Special Court for Sierra Leone had nothing to do with his conduct in Liberia. Rather, the charges were based on the assistance he provided to the Revolutionary United Front (RUF) in their attempt to overthrow the Jospeh Momoh government. The resulting civil war lasted 11 years and left over 50,000 people dead. Crucially, Taylor never set foot in Sierra Leone. It is his participation in this conflict that resulted in his prosecution and conviction in The Hague.
Being an African and an international criminal lawyer – I am a staunch supporter of the international criminal justice project. However, international criminal law remains law and prosecutions of this nature need to be true to matters of principle. The difficulties that the prosecution faced in the Taylor trial were myriad:
1. The judgment rejects the overdrawn prosecution argument that Taylor and Forday Sankoh, the leader of the RUF “made common cause” in Libya to wage wars in West Africa.
2. The prosecution failed to prove beyond reasonable doubt that Sankoh took orders from Taylor or that Taylor participated in the planning of the invasion of Sierra Leone. In any event, the Special Court for Sierra Leone had no jurisdiction over the crime of aggression. The indictment period did not cover the origins of the war – the temporal jurisdiction of the court is from November 1996 to the end of the war in 2002.
3. The witnesses used by the prosecution, the majority of which adduced hearsay evidence, did not constitute the best evidence in respect of Taylor’s conduct. The person who could have most usefully testified that Sankoh took orders from Taylor would have been Sankoh himself but he died before the trial commenced. The court’s conclusion that the prosecution succeeded in proving that Taylor “aided and abetted” the crimes in Sierra Leone is controversial since Taylor had effectively eliminated key witnesses to that crime. It is alleged that Taylor caused the murder of Sam Bockarie, his key link to Sankoh and the RUF during the period of the indictment, in Liberia shortly after Bockarie was indicted. Johnny Paul Koroma, a notorious Sierra Leonean coup maker who also dealt intimately with Taylor, curiously disappeared. He was also allegedly murdered either in Liberia or Ivory Coast on Taylor’s orders after his indictment.
4. The prosecution’s reliance on the concept of joint criminal enterprise was ill-advised, given that the court had rejected the argument in successive judgments by the court. The prosecution argued that Taylor was in common purpose with Sankoh to invade Sierra Leone and loot is diamond reserves, and that the RUF’s terror campaign was a direct result of this blood pact. Taylor’s Defence made no effort to deny Taylor’s support for the RUF, but it stated that “diamonds only financed the procurement of arms and ammunition” for the RUF between 1998 and 2001. The Defence contends that there was a “purely political motive” for Taylor’s support of the RUF war, which may be immoral but certainly not illegal in international law (since the law of aggression was not at issue).
Given these gaping holes in the case, should Charles Taylor have been convicted? This is obviously not an easy question to answer and the jury is still out on the matter.
Undoubtedly, few will be sorry to see Taylor locked up – if only for reasons of karmic retribution. He committed atrocities in Liberia and his case set an important precedent as far as ensuring heads of state are brought to account for war crimes and crimes against humanity. This is especially important in Africa where, too often, leaders are seen as being above the law and get away with murder – and much worse.
Having said that, to ensure that the legitimacy of international criminal law is not lost, we must remain cognisant of the danger of the political expediency factor and the degree to which international criminal law can be exploited for the benefit of the powerful. Some would go as far as to suggest that countries such as the US, China, and India who worry about the politicisation of the Office of the Prosecutor, and, by extension, the politicisation of the ICC are justified in so thinking. In some ways, the Taylor case lends credence to this view.
For the rest of us, however, the trial and conviction of Charles Taylor is an important step in the fight against impunity in Africa, particularly in respect of heads of state who often too large to fall within the grasp of domestic criminal law.