Guest Post: The Special Court for Sierra Leone’s Landmark Prosecution of Charles Taylor: Lessons for Trial Practice

[Annie Gell is the Leonard H. Sandler fellow in the International Justice Program at Human Rights Watch]

Yesterday, Human Rights Watch released the report “Even a ‘Big Man’ Must Face Justice”: Lessons from the Trial of Charles Taylor. It examines the conduct of Taylor’s trial at the Special Court for Sierra Leone (“SCSL”), the court’s efforts to make its proceedings accessible to affected communities, and perceptions and initial impact of the trial in Sierra Leone and Liberia.

The aim of the report is to draw lessons to promote the best possible trials of high-level suspects who are implicated in genocide, war crimes, and crimes against humanity. It is based on interviews in The Hague, London, Washington, DC, New York, Sierra Leone, and Liberia, as well as review of expert commentary, trial transcripts, and daily reports produced by trial observers.

This post focuses on Human Rights Watch’s analysis of the trial’s conduct and lessons learned for future proceedings.

The Challenges of Prosecuting the Highest-Level Suspects

Trials of the highest-level leaders for serious crimes committed in violation of international law can be complex, lengthy, and fraught. The Taylor trial progressed against a backdrop of criticism and concern over the viability of trying the highest-level leaders before international or hybrid courts following the 2002-2006 trial of former Serbian President Slobodan Milosevic before the International Criminal Tribunal for the former Yugoslavia (ICTY). That trial was notable for its sometimes-chaotic atmosphere and Milosevic’s death before a judgment could be issued almost seven years after his indictment.

Proving the guilt or mounting a defense of a senior official who is alleged to be legally responsible for crimes—but who was not near the locations of their commission—can be difficult and time-consuming. The often-large breadth of alleged crimes, long time period, and wide geographic areas involved present further obstacles.

Judges face particular challenges in such trials. They are tasked with holding expeditious proceedings, ensuring respect for international fair trial standards, and avoiding manipulation of the trials, including by the accused to advance political interests. Coordinating the logistics and protection for a large number of witnesses—who often are not based where the trial takes place and may face security risks—presents additional difficulties for the court.

A Relatively Well-Managed Trial

The Taylor trial largely avoided major disruptions that could have marred the proceedings. It is also notable for its generally professional atmosphere and relatively well-managed character.

Taylor’s representation by counsel appears to have contributed positively to the generally respectful and organized tenor of the courtroom, and may have helped to avoid grandstanding or other distractions from the primary legal and factual issues of the case. Moreover, the trial involved a high-quality defense composed of experienced counsel.

In addition, the Taylor trial provides a strong model for other trials to draw from for witness management. The court handled complex logistics and sensitive arrangements for numerous witnesses who had never before left West Africa, insider witnesses who had admitted to extensive criminal activity, and victims who had suffered severe trauma. Psycho-social support was made available both on and off the stand for witnesses.

Areas for Improvement in Future Similar Proceedings

At the same time, lessons should be drawn to improve future practice in similar types of proceedings with regard to trial management, representation of the accused, and interaction with potential witnesses and sources.

Notably, the judges adopted practices that sought to prioritize efficiency but sometimes contributed to delays, such as the ambitious courtroom calendar in comparison to other tribunals and insistence on parties meeting certain deadlines.

Other practices—such as the Trial Chamber’s non-interventionist approach to witness testimony and the admission of extensive evidence of the underlying crimes—lengthened proceedings. Judgment drafting—which took over one year, partly due to turnover of staff—also was a factor in the trial’s length.

More active efforts by the Trial Chamber and Registry to address defense concerns in the lead-up to the trial may have encouraged smoother proceedings. Taylor’s first defense team left the case due to concerns over inadequate resources and time to prepare, leading to the appointment of a second team and a hiatus in proceedings.

These challenges underscore the value of previous complex criminal trial experience among judges who adjudicate these cases. The three judges of Trial Chamber II, while experienced jurists, did not generally join the Special Court with such extensive experience.

Finally, the provision of funds by the prosecution to potential witnesses and sources during investigations may be unavoidable, but was a contentious issue in the Taylor trial that should be managed more effectively in future proceedings.

Lessons Learned

Our analysis of the conduct of the Taylor trial points to several important lessons that may be useful for similar types of trials. These are:

• Appointing judges with substantial complex criminal trial experience could contribute significantly to effective courtroom management.
• Measures aimed at increasing efficiency should be periodically assessed for their contribution to the desired outcome and amended as necessary.
• Active management of examinations by the bench may contribute to more expeditious proceedings without compromising international fair trial standards.
• Decisions on motions should be rendered in a timely manner to avoid inefficiency and negative implications for ensuring the fairness of proceedings.
• Active engagement by judges and Registry staff with defense regarding concerns about resources and time to prepare in the lead-up to trials may be important to avoid disruptions in proceedings and ensure the promotion of international fair trial rights.
• Transparent projection of accurate timelines and active consultation with key staff with substantive knowledge may promote greater staff retention during judgment drafting.
• Developing guidelines for the provision of funds by prosecution offices to potential witnesses and sources during investigations, and greater transparency regarding these payments, can help minimize concerns over potential inappropriate use of such funds.
• Providing adequate protection and support to witnesses requires high-quality and complex organization of witness logistics and should be a priority in trials concerning serious crimes, as was the case in the Taylor trial.