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

by Annie Gell

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

report coverYesterday, 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.

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Guest Post: Suffering Victims and Collective Crimes: The Limits of International Criminal Law

by dov jacobs

[Dov Jacobs is an Assistant Professor of International Law at Leiden University. He can be followed on his blog, Spreading the Jam]

On the 30th of May, the SCSL sentenced Charles Taylor to 50 years in prison. The sentencing judgment raises a number of interesting issues. some commentators, such as William Schabas, or on this blog, Marina Aksenova, have discussed the length of the sentence, finding it either too long, or adequate, depending on the preferred objectives of criminal justice (rehabilitation, retribution, deterrence). Wherever one stands on this issue, I think that, despite it being common practice in a number of international judgments, handing down a single sentence for the entire array of crimes convicted, rather than having them individualized does not help achieve the goals one ascribes to sentencing. Indeed, how can there be deterrence, if there is no knowledge that a specific crime for which a person is convicted carries a specific sentence? There is also a problem of predictability, because we don’t know what the judges would have decided if Taylor had for a reason or another been acquitted on one of the counts. The only thing that can be taken out of the sentencing is that it is condemnable to generally participate in the events, and the fact that a couple of crimes more or less took place in the course of things becomes irrelevant.

Which brings me to the main point I want to address here: the limits of criminal law in addressing mass atrocities, both because of the question of gravity (A) and because of the collective dimension of the acts (B).

A) The question of gravity

I have often commented on Spreading the Jam on the difficult assessment of the criteria of gravity in the ICC framework. In a nutshell, given the fact that the ICC, and international tribunals in general, are competent to prosecute the gravest crimes of interest to the international community as a whole, how does one define…


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

Guest Post: Why 50 Years of Imprisonment is an Adequate Sentence for Charles Taylor

by Marina Aksenova

[Marina Aksinova is a Researcher/PhD Candidate in complicity issues in international criminal law at the European University Institute.]

The Special Court for Sierra Leone recently convicted Charles Taylor to 50 years of imprisonment. This pronouncement stirred public debate as to whether this sentence is acceptable. Kevin Jon Heller, for example, expressed his concern about the length of Taylor’s sentence, mainly because it resonates with the Trial Chamber finding that Taylor is a mere accomplice, rather than a primary perpetrator of the crimes committed during the Sierra Leonean civil war. Arguably, 50 years of imprisonment is a disproportionately lengthy sentence for this type of criminal participation. This conclusion, in turn, leads to a more general question as to whether there was sufficient evidence before the court to find Taylor responsible as a perpetrator in the joint criminal enterprise – a mode of liability that usually justifies heavier sentences.

It appears that the judges of the SCSL placed Taylor “in a class of his own” when deciding upon his punishment. His leadership role as the former president of Liberia, and not the particular way in which he got involved in the crimes, appears to have played the central role at sentencing. More detailed analysis will have to wait until the sentencing judgment is released, some initial thoughts could be outlined here.

I would like to defend the length of the sentence imposed on Taylor and the mode of criminal participation under which he stands convicted. I am not trying to assess the evidence presented in the proceedings and the appropriateness of Chamber’s findings on the merits. Rather, my goal is to support the hypothesis that complicity, as a mode of liability, is compatible with a relatively heavy punishment given to Taylor…

Taylor Sentenced to 50 Years Imprisonment

by Kevin Jon Heller

So reports The Guardian:

Liberia’s former president, Charles Taylor, has been sentenced to 50 years in jail for being “in a class of his own” when committing war crimes during the long-running civil war in neighbouring Sierra Leone.

Judges at a UN-backed tribunal in The Hague said his leadership role and exploitation of the conflict to extract so-called “blood diamonds” meant he deserved one of the longest prison sentences handed down so far by the court.

Taylor, 64, was found guilty last month of 11 counts of aiding and abetting war crimes and crimes against humanity, when supporting rebels between 1996 and 2002 in return for conflict gems.

The offences included murder, rape, sexual slavery, recruiting child soldiers, enforced amputations and pillage.

Delivering the decision at the special court for Sierra Leone, Judge Richard Lussick said Taylor’s crimes were of the “utmost gravity in terms of scale and brutality”.

He added: “The lives of many more innocent civilians in Sierra Leone were lost or destroyed as a direct result of his actions.”

Taylor was “in a class of his own” compared with others convicted by the court. “The special status of Mr Taylor as a head of state puts him in a different category of offenders for the purpose of sentencing.”

Prosecutors had asked the judges to impose an 80-year prison term. Lussick said such a long term would have been excessive as Taylor was convicted of aiding and abetting which “as a mode of liability generally warrants a lesser sentence than that imposed for more direct forms of participation”.

Definitive analysis will have to await the sentencing judgment, but the length of the sentence appears troubling — particularly in light of Judge Lussick’s comments. It is difficult to see how Taylor received a “lesser sentence” than the direct perpetrators of the crimes in question, given that his 50-year sentence is as long as any of the convicted defendants in the AFRC case (and five years longer than Brima Kamara’s) and is only two years shorter than the longest sentence imposed in the RUF case (52 years for Issa Sesay) and considerably longer than the two other sentences (40 years for Morris Kallon and 25 years for Augustine Gbao).

The comparison with Gbao is particularly revealing. Unlike Taylor, Gbao was convicted of participating in a joint criminal enterprise to commit “unlawful killings, sexual violence crimes, physical violence crimes, enslavement, the crime of pillage and acts of burning.” The Trial Chamber justified Gbao’s lesser sentence (compared to his co-defendants) on the ground that, although he had participated in the JCE, “he did not have direct control over fighters,” was “not a member of the AFRC/RUF Supreme Council,” “remained in Kailahun during the Junta regime,” “did not have ability to contradict or influence the orders of men such as Sam Bockarie,” and “was not directly involved and did not share the criminal intent of any of the crime committed in the Bo, Kenema, or Kono Districts.” The Trial Chamber also emphasized that Gbao’s role in the RUF enterprise was “not at the policy making level nor was it at the ‘fighting end’ where the majority of the actual atrocities were committed.” Indeed, the Trial Chamber accepted the Defence’s submission that Gbao “has not been found to have ever fired a single shot and never to have ordered the firing of a single shot.” Taylor and Gbao thus seem similarly situated, the primary difference between them being that, unlike Taylor, Gbao was not convicted solely on the basis of aiding and abetting. Taylor’s 50-year sentence, therefore, seems significantly disproportionate to Gbao’s 25-year sentence. If a member of the RUF enterprise who had no direct involvement in atrocities deserves a 25-year sentence, how can someone — even a head of state “in a class of his own” among aiders-and-abettors — who not only had no direct involvement in atrocities but was not even a member of any JCE deserve a sentence twice as long?

In a previous post, I expressed my fear that the work the Trial Chamber put into the 2,499 page judgment would affect its sentence determination. That seems to have happened. I look forward to the sentencing judgment — and to Taylor’s appeal.

ADDENDUM: I should add, for the record, that my problems with the sentence are unrelated to my personal view of Taylor’s culpability. Having followed the trial relatively closely for the past few years, I think the Trial Chamber’s judgment understates — perhaps seriously — Taylor’s responsibility for the AFRC and RUF’s crimes. In particular, although I agree with the Trial Chamber’s rejection of ordering and command responsibility, I would have had no problem convicting Taylor for many of the charged crimes via JCE. My problem with the sentence is that, although the Trial Chamber refused to convict Taylor on the basis of JCE or ordering, it has imposed a sentence that seems to require viewing Taylor as much more than an aider and abettor. I view him that way — but the Trial Chamber cannot, given its judgment. And his sentence needs to reflect that fact.