Guest Post: The Charles Taylor Sentence and Traditional International Law

by Mark Drumbl

[Mark A. Drumbl is the Class of 1975 Alumni Professor at Washington and Lee University and author of Reimagining Child Soldiers (OUP, 2012).]

Assuredly, discussion of the Charles Taylor sentence might revolve around its length – 50 years, for a 64 year-old man – and the proportionality between such a heavy sentence and the fact that most (but certainly not all) of his criminal culpability arises from aiding and abetting.

But other aspects of the sentencing judgment also deserve commentary. Two, in particular, show how the sentencing judgment sits within, and complements, the comfortable folds of traditional international law. I am thinking, first, of the emphasis on the extraterritoriality of Taylor’s acts as an aggravating factor and, second, the fetishization, again as an aggravating factor, of his status as Head of State.

In the past two decades, international law has taken a number of bold steps: to insist that intra-state atrocities and armed conflicts become judicialized rather than ignored; that a broad swath of perpetrators, including leaders of non-state actors, face accountability; and that Head of State status really isn’t that special and, therefore, privileges such as immunities should be thinned.  There is thus something countercultural in emphasizing Taylor’s status as a Head of State who meddled in armed conflict within his sovereign neighbor to accent the greater repugnance of his crimes.

Let’s take a closer look:

1. Extraterritoriality as an aggravating factor. In what is not an everyday occurrence in atrocity sentencing practice, the Taylor judges cite to the International Court of Justice (another shout-out to traditional international law!). In Nicaragua, the ICJ had held that state intervention in support of opposition within another state constitutes a breach of customary international law regarding non-intervention and, if delivered with force, will breach the principle of the non-use of force (para. 27). With appropriate verve, SCSL Trial Chamber II held that “[w]hile Mr. Taylor never set foot in Sierra Leone, his heavy footprint is there, and [it] considers the extraterritoriality of his criminal acts to be an aggravating factor” (para. 98). Looking beyond each of Nicaragua and Armed Activities in the DRC, two cases which involved state responsibility, individual penal responsibility for this customary violation could, if other criteria were met, assume the form of the crime of aggression.

No international criminal tribunal can currently prosecute this crime, however. The only one which might eventually be able to do so is the ICC. What the SCSL is essentially doing, then, is taking the elements of a crime it cannot prosecute, locating them in Taylor’s conduct based on uncertain evidentiary justifications, and then invoking them to justify a heavier sentence. Does this seem self-evident?  Taylor, after all, was not found guilty though a JCE; nor did he have command responsibility over the AFRC/RUF; nor did he issue orders to them. Yet, pursuant to the Trial Chamber, “[w]hile [the Nicaragua and Armed Activities in the DRC] provisions of customary law govern conduct between States, the Trial Chamber considers that the violation of this principle by a Head of State individually engaging in criminal conduct can be taken into account as an aggravating factor” (para. 27). Again, does this seem right, from a legality angle? Recall that aggravating factors need to be proven beyond a reasonable doubt.  In any event, the emphasis on extraterritoriality underscores the value of national sovereignty – in this case, Sierra Leone’s – in the international legal order. But does this mean that domestic leaders who aid and abet violent opposition groups at home have now become less deserving of punishment?

2. Fetishizing Head of State Status. The crimes were truly horrific, but the 50 year sentence derives in material part from the fact that Taylor was a Head of State. The sentencing judgment is redolent with cues in this regard – the crescendo of references to Taylor’s uniqueness in that he is a Head of State (paras. 97, 103), his “special status” (paras. 97, 100), how he is in a “class of his own” (para. 101), and how he himself told the judges: “I was President of Liberia […] not some petty trader on the streets of Monrovia” (para. 97).  Taylor’s trial and conviction now nourish international law’s progress narrative – hey, see here, we prosecuted a Head of State, who deserves to be punished all-the-more because he is a Head of State. That said, accountability for atrocity requires much more than a long sentence for the highest ranking convict. In my experiences with victims, the wrongdoing of the distant leader is often seen as abstract. Often more vivid is the wrongdoing of the neighbor who brutally betrays after decades of conviviality, the co-worker who kills an erstwhile colleague in the name of some deluded movement, and the youth who raped as a conscripted child soldier and who now comes home .  Being a Head of State matters, but should it really matter that much?

http://opiniojuris.org/2012/06/11/charles-taylor-sentencing-the-taylor-sentence-and-traditional-international-law/

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