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Max Planck Encyclopedia of Public International Law [MPEPIL]

Charles Taylor Case

Simon M Meisenberg

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 15 December 2018

War crimes — Crimes against humanity — Heads of state and other senior officials

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Introduction

Charles Ghankay Taylor, the former and 21st President of Liberia is the first former Head of State who has been convicted for the commission of crimes against humanity and war crimes, since the conviction of Klaus Dönitz before the International Military Tribunal in Nuremberg. He was sentenced to 50 years’ imprisonment by an international criminal tribunal, the Special Court for Sierra Leone (‘SCSL’) for assisting and planning crimes in the armed conflict in Sierra Leone. The SCSL was established in 2002 pursuant to an agreement between the government of Sierra Leone and the UN (Mixed Criminal Tribunals [Sierra Leone, East Timor, Kosovo, Cambodia]). Its mandate was to prosecute persons ‘who bear the greatest responsibility’ for committing serious violations of international humanitarian law (Humanitarian Law, International) in the territory of Sierra Leone since 30 November 1996. The SCSL Statute provided the court with jurisdiction over crimes against humanity, serious violations of Common Art. 3 Geneva Conventions I–IV (1949) and Geneva Conventions Additional Protocol II (1977), and other serious violations of international humanitarian law and specified crimes under Sierra Leonean law.

B.  Overview and Background

Taylor was born on 28 January 1948 in Arthington in the Republic of Liberia. In 1976 he graduated with a BSc degree in economics from Bentley College, Massachusetts, US. In the early 1980s, he served as the Director General of the General Services Administration of the Liberian Government and as Deputy Minister of Commerce. He fled to the US following allegations of embezzlement by Liberian authorities and was detained in the US pursuant to a Liberian extradition request in June 1984. He escaped from prison in the US in 1985, while awaiting his extradition, and returned to West Africa, where he formed an armed opposition group, the National Patriotic Front of Liberia (‘NPFL’), in opposition to the government of then President Samuel Doe with the aim of toppling his corrupt and violent regime. The NPFL led an insurgency into Liberia in December 1989 and engaged Liberia in an armed conflict until 1996. In July 1997, free and fair elections were held, which Taylor won. Taylor’s government, however, came under attack itself in 1999 from a rebel insurgency within Liberia, which lasted until Taylor’s resignation in August 2003.

Accusations that the Liberian Government under President Taylor sustained rebel forces in neighbouring Sierra Leone, in particular the armed rebel group, the Revolutionary United Front, with military equipment and other forms of assistance in exchange for diamonds mined using civilian slave labour (Kimberley Process) were first voiced in 1998 by Nigerian ECOMOG (Economic Community of West African States Monitoring Group) military officials and later by the UN. Following a report of the Panel of Experts established by UNSC Resolution 1306 (2000), the Liberian Government and Taylor were personally accused by the UNSC of assisting the Sierra Leonean rebels (see UNSC Res 1343 [2001], Res 1395 [2002], Res 1408 [2002], Res 1470 [2003], and Res 1478 [2003]).

Following the establishment of the SCSL in 2002, its Prosecutor charged Taylor with crimes against humanity and war crimes, and obtained an indictment and warrant of arrest on 7 March 2003, which remained under seal until 4 June 2003. Liberia filed a complaint against Sierra Leone to the International Court of Justice (ICJ) in August 2003, claiming a violation of Head of State immunity by the issuance of the indictment and warrant of arrest by the SCSL. No action was taken, however, as Sierra Leone did not consent to the ICJ’s jurisdiction. Before his arrest, and still in the position of an incumbent President, Taylor made a similar claim before the SCSL. Following the Arrest Warrant Case (Democratic Republic of the Congo v Belgium) one of the core questions was whether the SCSL was a ‘certain international criminal court’ that had the jurisdiction to issue an indictment against a sitting Head of State. The SCSL Appeals Chamber denied Taylor’s claim, arguing that the SCSL was indeed an international criminal court. It stated further that Art. 6 (2) SCSL Statute, which provided that any official position, including a Head of State or Government, ‘shall not relieve such person of criminal responsibility’, was not in conflict with any peremptory norm (Ius cogens) of international law.

Taylor resigned the Liberian presidency on 11 August 2003 and accepted an offer from the Nigerian President to live in exile there. This offer was revoked in March 2006 upon the surrender request of newly-elected Liberian President Ellen Johnson Sirleaf. Taylor was arrested by Nigerian authorities on 29 March 2006 and transferred to the custody of the SCSL in Freetown on the same day. Following the transfer, the SCSL President determined that Taylor’s detention and trial at the seat of the SCSL in Freetown was a serious threat to the security and stability of the West African sub-region. The SCSL President therefore requested the permission of the Government of the Netherlands and the President of the International Criminal Court (‘ICC’) to relocate Taylor’s proceedings to The Hague and to hold the trial on the premises of the ICC. The Government of the Netherlands in turn requested the UNSC to issue a resolution under Chapter VII of the United Nations Charter in order to ensure a legal basis for the relocation and trial. The UNSC decided in Resolution 1688 (2006) that the SCSL had exclusive jurisdiction over Taylor and that the Government of the Netherlands should facilitate the trial in the Netherlands by allowing for Taylor’s detention and trial in The Hague, facilitating his transportation outside the areas under the authority of the SCSL and enabling the appearances of witnesses that were mostly called from Sierra Leone or Liberia. The UNSC also ensured that Taylor was held in the ICC Detention facility in Scheveningen. All challenges by Taylor against this change of venue were rejected. As there was a possibility that potential Liberian witnesses in the Taylor trial were on a UN sanctions list and their travel outside Liberia banned by UNSC Resolution 1171 (1998), the UNSC acted again under Chapter VII of the UN Charter in December 2007, deciding to exempt from the measures of that Resolution the travel of any witnesses whose presence at trial before the SCSL was required (SC Res. 1793 (2007)). In 2010 the court proceedings were moved to the premises of the Special Tribunal for Lebanon in Leidschendam, as the ICC needed its courtroom premises for its own trials.

Taylor was considered to be indigent by the SCSL. Therefore the SCSL bore the expenses of his defence lawyers. His trial commenced on 4 June 2007 and after an interruption, due to successful challenges by Taylor to the inadequacy of the resources allocated to his defence by the SCSL, the first witnesses were only called in January 2008. On 11 March 2011 the Trial Chamber declared the case closed. During the trial, 115 viva voce witnesses were called, about 50,000 pages of evidence were transcribed and more than 1,500 exhibits were admitted into evidence. Taylor himself testified in his own defence for about seven months. The trial chamber rendered an oral judgment on 26 April 2012 and issued the written judgment on 18 May 2012. The sentencing judgment was issued on 30 May 2012 and the final appeal judgment on 26 September 2013.

The Taylor Case was the fourth and final case to be heard by the SCSL, following a total of eight convictions of three leaders and members the Revolutionary United Front (‘RUF’); their one-time ally, the Armed Forces Revolutionary Council (‘AFRC’); and their mutual adversaries, the Civil Defence Forces (‘CDF’) (on the history of the conflict see Sierra Leone). The SCSL’s mandate ceased in December 2013.

C.  Indictments and Charges

The initial indictment issued on 7 March 2003 was amended twice. Initially, Taylor was charged on 17 counts of war crimes and crimes against humanity. Charges of intentionally attacking, taking hostages, and killing UN peacekeeping forces in 2000, as well as charges of collective punishment pursuant to Geneva Conventions Additional Protocol II and extermination as a crime against humanity were dropped from the earlier indictment. It was in fact established in the trial judgment that Taylor was instrumental on a diplomatic level in the release of the UN peacekeepers, a fact that was, however, denied as a mitigating circumstance for sentencing purposes by the Trial and Appeals Chamber. The operative indictment relevant for trial charged Taylor with 11 counts of war crimes and crimes against humanity in six districts of Sierra Leone between 30 November 1996 and 18 January 2002.

Five counts charged Taylor with crimes against humanity pursuant to Art. 2 SCSL Statute, ie murder, rape, sexual slavery (Gender Based Crimes), and other inhumane acts and enslavement (Forced Labour/Slave Labour). Five counts charged violations of Common Art. 3 and Additional Protocol II pursuant to Art. 3 SCSL Statute, ie acts of terrorism; violence to life, health, and physical or mental well-being of persons, in particular murder; outrages upon personal dignity; violence to life, health, and physical or mental well-being of persons, in particular cruel treatment; and pillage. One additional war crimes count charged Taylor with other serious violations of international humanitarian law, punishable under Art. 4 SCSL Statute, namely conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities (Children and Armed Conflict).

10  The indictment charged Taylor with individual criminal responsibility pursuant to Art. 6 (1) and (3) SCSL Statute. Pursuant to Art. 6 (1), the indictment alleged that Taylor, by his acts or omissions, planned, instigated, ordered, committed, aided and abetted or participated in a common plan (Criminal Responsibility, Modes of) involving the crimes charged. In addition, or in the alternative, pursuant to Art. 6 (3) SCSL Statute, the indictment alleged that Taylor was responsible as a superior (Command Responsibility) for the crimes charged. More specifically, the SCSL prosecution alleged that Taylor was individually criminally responsible for the crimes against the civilian population (Civilian Population in Armed Conflict) as part of a joint criminal enterprise (‘JCE’), along with members of the RUF and later the AFRC, the purpose of which was to inflict a campaign of terror against the civilian population of Sierra Leone in order to pillage the resources of Sierra Leone, in particular its diamonds. The Trial Chamber corrected the purpose of the JCE on a different reading of the indictment, finding that the purpose of the JCE was a ‘campaign to terrorize the civilian population of the Republic of Sierra Leone’ (see Decision on Public Urgent Defence Motion regarding a Fatal Defect in the Prosecution’s Second Amended Indictment relating to the Pleading of JCE).

11  Taylor denied his participation in or assistance to the crimes and pleaded not guilty to all counts in the indictment. Taylor did not dispute that war crimes and crimes against humanity against the civilian population were committed during the armed conflict in Sierra Leone. He argued instead that he was not responsible for those atrocities and denied any involvement with the RUF in the critical period of the indictment. He admitted only to a brief military collaboration with them prior to the indictment period for the purpose of self-defence, as an adversary rebel group was supported by the Sierra Leone government and posed a threat to him in Liberia. He argued that he and his government did not have the means to support the Sierra Leone rebels as Liberia was subject to an arms embargo (Arms, Traffic in). According to Taylor, his prosecution was ‘selective and vindictive in nature’ and he was singled out for prosecution on the basis of the US government’s political motives and interests.

D.  Trial Judgment

12  The case was heard by Trial Chamber II of the SCSL, which was composed of Judge Lussick (Samoa, appointed by the Government of Sierra Leone), Judge Doherty (United Kingdom [Northern Ireland], appointed by the UN Secretary-General), Judge Sebutinde (Uganda, appointed by the UN Secretary-General), and an alternate Judge Sow (Senegal, appointed by the UN Secretary-General and the Government of Sierra Leone).

13  In its judgment, pronounced on 26 April 2012, the Trial Chamber found that at all times relevant to the indictment, ie November 1996 to January 2002, an armed conflict existed in Sierra Leone involving, among others, members of the RUF, AFRC and CDF, and that the RUF/AFRC directed a widespread and systematic attack against the Sierra Leonean civilian population. The Trial Chamber did not, however, characterize the conflict as international or non-international, ostensibly following a decision of the Appeals Chamber that concluded that the SCSL’s jurisdiction to try crimes in its Art. 3 (ie Common Art. 3 Geneva Conventions I–IV and Geneva Convention Additional Protocol II) was not restricted to non-international armed conflicts (see Trial Judgment para. 563). The Trial Chamber found that the prosecution established all crime-bases as charged in the 11 counts beyond reasonable doubt.

14  With respect to Taylor’s individual responsibility, the Trial Chamber was not satisfied that Taylor participated in a JCE to terrorize the civilian population of Sierra Leone, as alleged by the prosecution. Further, because the Trial Chamber found that Taylor was not part of the RUF’s command structure, and that the instructions and guidance he provided were generally of an advisory nature, it concluded that he was not individually criminally responsible for ordering or as a superior. It also rejected the allegations that Taylor had instigated crimes in Sierra Leone.

15  However, the Trial Chamber found that Taylor supplied the RUF with arms, ammunition, military personnel or fighters, and operational and moral support during the course of their military operations in Sierra Leone. According to the panel of judges, the RUF could not have sustained its military operations without that support. It further held that the military operations of the RUF and RUF/AFRC were ‘inextricably linked to the commission of the crimes charged in the Indictment.’ With respect to Taylor’s knowledge, the Trial Chamber held that he was aware of the RUF’s systematic campaign of crimes against civilians and consequently concluded that Taylor knew that his support would aid the commission of RUF and AFRC crimes. The Trial Chamber found Taylor responsible on the mode of planning on the basis that he, in concert with an RUF commander, intentionally designed a plan for the AFRC/RUF to attack Sierra Leone’s capital, Freetown, and that this plan substantially contributed to the commission of crimes. Moreover, Taylor’s advice to senior AFRC/RUF members and his facilitation of supplies of arms and ammunition led the Trial Chamber to conclude that he had aided and abetted the commission of the crimes. According to the Trial Chamber, Taylor was aware of RUF atrocities as early as August 1997. It concluded that he assisted, encouraged, and supported the AFRC/RUF in committing crimes during the course of their military operations in Sierra Leone.

16  The Trial Chamber thus convicted Taylor on all 11 counts in the indictment. It found him individually criminally responsible under Art. 6 (1) SCSL Statute for aiding and abetting the commission of crimes, charged in all 11 counts, between August 1997 and 18 January 2002 in the Districts of Bombali, Kailahun, Kenema, Kono, Port Loko, and Freetown and the Western Area. It further found Taylor individually criminally liable under Art. 6 (1) SCSL Statute for planning the crimes, charged in all 11 counts, which were committed in the attacks on Kono and Makeni in December 1998, and in the attack on and retreat from Freetown, between December 1998 and February 1999.

17  On 30 May 2012, the Trial Chamber sentenced Taylor to a single term of imprisonment of 50 years. It rejected all mitigating circumstances, or attached no weight to them in light of the gravity of the crimes, advanced by Taylor, in particular his voluntary resignation as Liberian President in 2003, his cooperation with the prosecution, his age, his expression of sympathy for the victims, his good conduct in the detention facility, and his diplomatic efforts in the release of the UN peacekeepers that had been abducted by the RUF in 2000. It found the following aggravating circumstances: the prolonged harm and suffering of the Sierra Leone victims through Taylor’s actions; his status as a Head of State which put him ‘in a class of his own when compared to the principal perpetrators’ who had been convicted by the SCSL and his abuse of authority on diplomatic committees that dealt with the Sierra Leone crisis. With respect to the last aggravating factor, and despite the Trial Chamber’s silence on whether the conflict was international or non-international in character, the judges emphasized the extraterritoriality of Taylor’s conduct, referring to the Nicaragua decision of the ICJ (Military and Paramilitary Activities in and against Nicaragua Case [Nicaragua v United States of America]), holding that the violation of the principle of non-intervention (Intervention, Prohibition of) by a Head of State who individually engages in criminal conduct can be taken into account as an aggravating factor.

E.  Appeal Judgment

18  The Appeals Chamber, composed of Judges King and Kamanda (Sierra Leone, appointed by the Government of Sierra Leone), and Judges Winter (Austria, appointed by the UN Secretary-General), Fisher (US, appointed by the UN Secretary-General), Ayoola (Nigeria, appointed by the UN Secretary-General) and alternate Judge Waki (Kenya, appointed by the UN Secretary-General and the Government of Sierra Leone), affirmed the judgment and sentence against Taylor and rejected most grounds of his appeal and those of the prosecution.

19  The majority of Taylor’s grounds of appeal challenged the factual findings of the Trial Chamber, submitting that the Trial Chamber erroneously relied on hearsay without corroboration and caution, on double or even triple hearsay without properly assessing its reliability. The Appeals Chamber rejected all those challenges and held that the Trial Chamber properly and cautiously assessed the credibility and reliability of witnesses and documentary evidence, and applied the recognized standards of proof of guilt beyond reasonable doubt to reach each of its findings. The Appeals Chamber further rejected Taylor’s submission that the Trial Chamber had erroneously concluded that the modus operandi of the war efforts of the Sierra Leone rebels was primarily focused on targeting and terrorizing the Sierra Leonean civilian population (Indiscriminate Attacks).

20  Taylor further challenged the legal findings of the Trial Chamber pertaining to the modes of responsibility of aiding and abetting and planning. With respect to aiding and abetting, the Appeals Chamber rejected his submission that the Trial Chamber erred by failing to distinguish sufficiently between criminal and non-criminal assistance, thereby violating the principle of personal culpability, as any assistance to a party to an armed conflict would result in criminal liability. The Appeals Chamber emphasized the definition of aiding and abetting in that the accused’s conduct must have ‘a substantial effect on the commission of the crime.’

21  Similarly Taylor’s challenge of the requisite mens rea standard for aiding and abetting, arguing that the ‘purpose standard’—as applied in the ICC—rather than the ‘knowledge standard’ should have been applied, was rejected. The Appeals Chamber held that customary international law provided for the knowledge standard. According to the Appeals Chamber, it was only necessary to determine whether Taylor ‘knew that his acts would assist the commission of the crime by the perpetrator’, or alternatively, ‘that he was aware of the substantial likelihood’ that his acts would assist the perpetrator in committing the crime. With respect to the definition of aiding and abetting one of the main questions was whether the material elements of aiding and abetting liability included a requirement that an accused’s contribution had to be ‘specifically directed’ towards the crimes, as recognized by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the Perišić appeal judgment. The SCSL Appeals Chamber rejected the argument that the contribution had to be specifically directed towards a crime. It held that ‘the actus reus of aiding and abetting liability under Art. 6 (1) Statute and customary international law is that an accused’s acts and conduct of assistance, encouragement and/or moral support had a substantial effect on the commission of each charged crime for which he is to be held responsible’.

22  The Appeals Chamber also rejected other grounds of appeal inter alia concerning the mode of responsibility of planning; cumulative convictions of rape and sexual slavery; and the fair trial rights of the accused, specifically the proper constitution of the bench and adequate deliberations of the judges. The Appeals Chamber dismissed challenges to, and reaffirmed, the 50-year sentence. It also dismissed four grounds of appeal by the prosecution. Having affirmed the judgment and sentence, the SCSL President on 4 October 2013 ordered that Taylor be transferred to the UK, where he would serve his sentence. The SCSL concluded an agreement with the United Kingdom in 2007 that ensured, in the case of a conviction, the enforcement of Taylor’s sentence there. Taylor was transferred to the United Kingdom on 15 October 2013.

F.  Assessment

23  Following the failures of other international criminal courts to successfully complete a trial against (former) Heads of State, as in the Milosević Trial before the ICTY, or to apprehend them, as in the Bashir Case before the ICC, the Taylor Case demonstrates that the arrest, trial, and sentence of a former Head of State is possible. The Taylor Case therefore symbolically stands out as the first conviction of a former Head of State by a modern international criminal tribunal.

24  In its immunity decision the SCSL tackled most controversial legal issues of the immunity ratione personae of a serving Head of State under international law and in that respect stands in stark contrast to the immunity decision in the Milosević Case (see ICTY Prosecutor v Milosević [Decision on Preliminary Motions] [8 November 2001] paras 26–34). With respect to the dicta of the ICJ in the Arrest Warrant Case and the specific establishment of the SCSL through an agreement by Sierra Leone and the UN, ie not by a UNSC resolution under Chapter VII of the UN Charter, the question is whether this treaty affected the legal rights of third States, here Liberia, and whether according to the principle of nemo plus iuris transferre potest quam ipse habet Sierra Leone could transfer jurisdiction that it itself did not have pursuant to customary international law to the SCSL. The Appeals Chamber resolved this question by focusing mainly on the international character of the SCSL stating that ‘the principle that one sovereign State does not adjudicate on the conduct of another State … has no relevance to international criminal tribunals which are not organs of a State but derive their mandate from the international community’. This reasoning of focusing only on the internationality of the court has been questioned by scholars as it would seemingly allow States to circumvent the jurisdictional limitations incumbent on national courts, as declared by the ICJ in the Arrest Warrant Case, by the creation of an international criminal tribunal. In that regard it should be noted, however, that following the Taylor immunity decision, Liberia implicitly accepted the jurisdiction of the SCSL over Taylor through its direct request to the Nigerian Government to arrest and surrender Taylor to the SCSL in 2006. It furthermore cooperated with the SCSL during the proceedings, such as in search and seizure operations. Moreover, it should be noted that the UNSC decided under Chapter VII of the UN Charter in Resolution 1688 (2006) that the SCSL had exclusive jurisdiction over Taylor, thereby ex post silencing any further questions of immunity.

25  With respect to the substantive application of the law of the elements of crimes against humanity and war crimes, the Taylor judgment largely relied on previous SCSL, ICTY, and International Criminal Tribunal for Rwanda (‘ICTR’) jurisprudence and consolidated international criminal law with respect to those crimes. In particular, the findings of the Trial Chamber that sexual violence was used as a weapon of war by rebel forces in Sierra Leone was notable for the development of international criminal law. The rejection of the ‘specific direction’ standard was remarkable and, in fact, subsequently referred to by the ICTY Appeals Chamber in the Šainović et al Case when it overturned its own previous jurisprudence in the Perišić Case.

26  Despite these achievements the judgments also stand out for a lack of specificity with respect to their legal findings and their accepted extensive and expansive use of hearsay evidence and circumstantial evidence, which sets questionable standards when compared to standards under the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950).

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