Taylor Verdict Adds Impetus to ICC Efforts

Simon Jennings

Africa Editor

Friday, 27 April, 2012

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Former Liberian president Charles Taylor was convicted of war crimes this week by the United Nations Special Court for Sierra Leone, SCSL. Simon Jennings, IWPR’s Africa editor, looks at the trial and its significance.

What are the wider implications of this verdict for west Africa, and also for international justice?

Taylor was convicted on all 11 charges of aiding and abetting war crimes and crimes against humanity in Sierra Leone between 1996 and 2002, during that country’s brutal civil war. As Liberian president, he instructed and provided operational support to the Revolutionary United Front, RUF, a rebel group operating in Sierra Leone. He was found guilty of aiding and abetting acts of terrorism, murder, rape, sexual slavery and pillage.

He was not, however, found to have had command responsibility for acts committed by the RUF.

The verdict has been welcomed by many in the wider west African region, where leaders have for years acted with impunity and inflicted suffering on civilians.

The ruling will also be seen as a success for the SCSL’s prosecutor, who narrowed down a broader indictment of 17 counts to the 11 heard by the court, and secured a guilty verdict on all of them.

More broadly, the verdict demonstrates that a sitting head of state is not immune from prosecution. Supporters of international justice will welcome this as a massive stride forward, particularly when set against the slow progress of the International Criminal Court, ICC, in The Hague which has so far struggled to bring heads of state and senior rebel leaders to justice.

The question of command responsibility was key to the trial. It wasn’t about whether Taylor committed the acts himself; it was whether he ordered, supported or condoned them. What are the possible implications of the judges’ findings on this?

Judges did not support the view that Taylor was guilty of the crimes at the higher threshold of actually ordering rebel forces to commit them. This will come as a blow to the lead prosecutor, Brenda Hollis, and she is likely to appeal against the decision.

The prosecutor of the ICC, Luis Moreno Ocampo, and his successor-in-waiting, Fatou Bensouda, will also probably be reading that part of the judgement carefully as they seek to convict former Congolese vice-president Jean-Pierre Bemba Gombo for crimes committed by troops belonging to his Movement for the Liberation of Congo, when they operated in the Central African Republic in 2002-03.

Experts in international law say it is hard to successfully prove a formal, superior-subordinate relationship between a political leader and armed forces on the ground.

International case law, particularly stemming from judgements at the SCSL’s sister court, the International Criminal Tribunal for the former Yugoslavia, ICTY, is arguably setting a high standard of proof for establishing that a defendant had effective control over troops.

When it comes to sentencing, Taylor’s conviction for aiding and abetting may not result in more leniency than if he had been convicted of directly ordering the RUF to commit crimes. Following a sentencing hearing set for May 16, judges will have free rein to assess the importance of Taylor’s contribution to these crimes and to deliver an appropriate sentence.

The western intervention that ended the RUF insurgency in Sierra Leone has been held up as a model for military action for humanitarian goals. Is the process by which Taylor has been brought to justice likely to be viewed in the same light?

While seen as an overall success, this verdict and the work of the SCSL are tempered by the fact that it has so far only convicted eight individuals of war crimes or crimes against humanity, despite the vast array of atrocities and perpetrators during Sierra Leone’s civil war.

Completion of the Taylor trial has also been a long time coming, and he is slightly old news in the region, having been incarcerated in The Hague for six years.

The trial covered crimes in Sierra Leone, but did not address atrocities committed in Liberia itself or in the neighbouring countries of Guinea and Côte d’Ivoire where abuses were also reported. While the verdict will be welcomed in Sierra Leone, it has received a more mixed response in Liberia, where Taylor maintains some support.

In this part of the world, criminal trials are only half of the story. Real justice would involve the perpetrator actually accepting responsibility, rather than his guilt just being established in a trial – and this has not happened.

So is this case a success for international justice?

The judgement can be seen as capping a rare success story of western intervention, which has achieved both peace and justice after a protracted conflict.

The international community has often faced the conundrum of whether to prioritise peace or justice in conflict interventions.

This case would seem to be a coup for advocates of prioritising peace and undertaking the justice process later, rather than trying to deliver both simultaneously as has happened with Darfur and more recently Libya.

Despite being charged in March 2003, Taylor was offered safe haven in Nigeria before finally surrendering to the SCSL in 2006. But following this example, it seems unlikely that other fleeing heads of state will agree to safe haven.

In the context of the ICC, the verdict will add significant momentum to attempts to hold heads of state accountable.

With the recent capture of Libya’s former intelligence chief, Abdullah al-Senussi, and now the first-ever African head of state behind bars, there could be less and less room for manoeuvre for the likes of Sudan’s president, Omar al Bashir, who is wanted by the ICC on charges of genocide in Darfur.

The verdict will be welcomed by the ICC as one that could help its cause as a new prosecutor starts work in June and works to boost the court’s credibility on the African continent.

There is an important caveat to this. Western powers are coming under greater scrutiny for their role in the emerging sphere of international justice. It is a much highlighted fact that the ICC has only charged leaders from the African continent, when serious atrocities also occur elsewhere in the world.

The ICC prosecutor has free rein to investigate crimes in any of the court’s member states, and the UN Security Council council can refer cases to the court. While the court has broadly been welcomed for holding war crimes perpetrators to account, questions about its selectivity continue to undermine its legitimacy.

The SCSL has made efforts to relay proceedings in The Hague back to Sierra Leone via radio, print, blogs and seminars. But have people on the ground really been able to follow the trial?

One might well ask whether such a protracted trial has been able to sustain public interest, but that is a necessary evil of international justice, which involves lengthy proceedings.

The Special Court has had a strong record of bringing trials held both in Sierra Leone and in The Hague to the victims of the conflict. Hundreds of people watched the two-hour long verdict proceedings on screens at the SCSL in Freetown. But there are still going to be people who feel the Taylor trial should have been held in the country.

The question of where cases are heard will continue to be debated as the ICC struggles to persuade Libya to hand over Saif al-Islam Gaddafi to stand trial in The Hague. International courts will continue to face this dilemma.