Taylor's Lawyers Want More Preparation Time

Defence lawyers acting for former Liberian president Charles Taylor have resumed consultations with their client following an 18-day protest, but they have warned the court trying his case that they will need more time to prepare his case because of a power struggle over jurisdiction.



Taylor is due to go on trial in June, to face charges of war crimes and crimes against humanity relating to conflict in Sierra Leone.



Proceedings against him are being conducted by the Special Court for Sierra Leone, SCSL, which is based in Freetown, but he is being held at detention facilities belonging to the International Criminal Court, ICC, in The Hague, and his trial will take place there. Special Court officials took the view that holding his trial in Freetown could pose security risks in West Africa.



His lawyer Karim Khan suspended consultations with him from March 5 to 22, after objecting to the presence of a video surveillance camera in the designated meeting room at the ICC.



The camera had been in Taylor’s consultation room since November, and Khan argued that the “monitoring of confidential communications” had a “constraining and chilling effect” on what should have been free and frank consultations.



Khan said an inordinate amount of time had been spent dealing with the camera issue, which he deemed a “violation of Mr Taylor’s fair trial rights”. Coupled with the 18-day suspension of consultations, he said the defence “does not see how this matter can be easily remedied [without] the provision of additional time for the preparation of the trial”.



Since Taylor was transferred to The Hague in June last year, his defence team have since argued that the trial no longer poses a threat to security in the region, and in February 2007 they requested that it be returned to Freetown.



They have also argued that the memorandum of understanding between the SLSC and the ICC which underpins Taylor’s presence in The Hague is flawed because it “cedes jurisdiction, without authority” to the ICC, even though the Sierra Leone court technically retains full jurisdiction of the trial and the way its detainee is treated.



Khan said that the issue of surveillance cameras fell into the chasm created by the apparent grey area of procedure. The ICC has insisted that the use of surveillance cameras is one of its rules, there for security rather than monitoring purposes. The SLSC’s procedure is for client-lawyer consultations to be visually monitored by a security officer out of earshot.



Although the camera in Taylor’s meeting room had no microphone, his lawyers said the presence of the camera inhibited their client from communicating freely with them.



Observers of the court such as legal expert Alison Smith from the No Peace Without Justice group, said that “the [SLSC-ICC] memorandum provides that the SCSL has charge of Taylor’s trial and detention, so it is not clear how this confusion arose”.



In late 2006, cameras were fitted in the consultation room set aside for Thomas Lubanga Dyilo from the Democratic Republic of Congo – the ICC’s first and only indictee in custody. But Lubanga’s defence lawyer Jean Flamme objected, and pre-trial judges in charge of his case ordered the registry to remove the cameras.



Taylor and his team, however, did not have the luxury of a trial chamber in The Hague, and the decision taken by the ICC judges was not binding for his case.



Although the SCSL presidency and registry backed moves to have the cameras, in accordance with the rules of detention applied in Freetown, the ICC stood firm. However, on March 22, the ICC backed down, sending a letter to the Special Court saying that surveillance cameras would not after all be used when Taylor was in consultation with his legal team.



As Khan pointed out when he notified trial judges in Freetown on March 23 that legal consultations with Taylor were resuming, the ICC decision mirrors the ruling issued by the SCSL president over a month earlier, on February 21.



Smith told IWPR that the issue of surveillance cameras may foreshadow more problems, because there seems to be an “inherent uncertainty over who has the power to do what”.



She pointed out that the two individuals currently held at the ICC detention facility belong to different legal regimes, and that “ICC judges do not have a say over one of the accused [Taylor]”.



Smith also expressed broader concerns about what would happen if other tribunals such as the Iraqi Special Tribunal asked for persons they had indicted to be held in the ICC’s detention facilities. This could be problematic, for instance because the Iraqi tribunal can issued the death penalty, while the ICC does not.



Speaking from South Africa, Justice Richard Goldstone, an international justice expert and war crimes prosecutor, told IWPR that it was clear that “SCSL judges have to be completely in charge of all procedures and rules that apply”.



The former Liberian leader may be in detention on ICC premises, but Goldstone insisted, “This is merely a housing arrangement and the ICC has no jurisdiction over decisions relating to Taylor.”



Khan stressed that Taylor’s legally privileged consultations with his defence team have been monitored since November 2006, and the “apparent inability of the Special Court registry and the ICC registry to resolve the issue in an expedient and transparent fashion forced the defence to suspend consultations”.



Khan said the defence was kept “entirely in the dark” for two-and-a-half weeks as to what action the SCSL registry was taking either to deal with its complaint, or to implement the decision of the Special Court’s president.



Avi Singh, who also works on Taylor’s defence told IWPR that although no formal appeal has yet been filed to push the trial back, “there of course exists good cause for it, and it is something that will need to be decided”.



He said that the prejudice suffered by his client related not only to the 18-day freeze when “we were forced to suspend legal consultations”, but also to the preceding period since the camera was installed, in which “we have continued legal consultations with some prejudice for more than three months, and under protest”.



“We ended up expanding considerable energy fighting the camera, when a reasonable administrative decision would have let us focus on the case,” added Singh.



Khan said the question of a possible postponement of the trial start was a matter for the three trial chamber judges – Justice Julia Sebutinde, Justice Richard Lussick and Justice Teresa Doherty – to decide on.



Taylor’s trial is due to start in The Hague in June 2007.



Katy Glassborow is an IWPR reporter in The Hague.