PAMBAZUKA NEWS 116: 26 - 06-03
1.EDITORIAL
THE INDICTMENT OF CHARLES TAYLOR
Chidi Anselm Odinkalu
On 4 June 2003, former Pentagon lawyer and Prosecutor of the United
Nations-sanctioned Special Court for Sierra Leone (SC-SL), David Crane,
unsealed and made public the indictment of Charles Ghankay Taylor, President
of Liberia. The indictment accused Mr. Taylor of personal responsibility for
multiple and egregious violations of international humanitarian law, war
crimes and crimes against humanity in relation to the recently abated war in
Sierra Leone. In the view of the Prosecutor, Mr. Taylor falls within the
category of "persons who bear the greatest responsibility" for serious
violations of international law in Sierra Leone. Soon after Mr. Taylor, who
was in Accra to attend a peace conference on Liberia convened under the
joint auspices of both the African Union (AU) and the Economic Community of
West African States (ECOWAS), was compelled to flee from Ghana.
As a suspect in potential criminal proceedings, and in accordance with
Article 17(3) of the Statute of the SC-SL, Mr. Taylor is to be presumed
innocent until his guilt is proved. The responsibility for proving this
guilt belongs to Prosecutor Crane and his team. Yet, few citizens of West
Africa can find it in themselves to voluntarily stand up in defence of Mr.
Taylor. To Liberians, Africans, persons of goodwill everywhere and, in
particular, the millions of West African nationals murdered, maimed or
displaced by Mr. Taylor and his war networks, due process could seem like a
luxurious nuisance.
Since Mr. Taylor's rebellion against the rightly un-mourned late President
Samuel Doe began in Liberia in December 1989, he has been implicated
directly or indirectly in civil wars in Sierra Leone, Guinea Bissau and Côte
d'Ivoire; in the overthrow of otherwise elected regimes in Gambia and Guinea
Bissau; and in the subversion of Guinea (Conakry). In the process, Mr.
Taylor stands accused of having the blood of hundreds of thousands of West
Africa's children, men, and women on his hands. He stands accused of being
responsible for the displacement and exile of millions more. And he stands
accused (with his cohorts) of deliberate targeting of civilian populations,
of recruiting tens of thousands of children into arms, and of
institutionalising egregious outrage on civilian populations as instruments
of armed conflict. He has reduced a once proud people with their rich
culture to beneath beggarliness, destroying the lives of much of the
posterity of the region in the lifetime of the parents that they will never
know.
This is not the first time that Mr. Taylor will be threatened with
prosecution for war crimes. To force him to the negotiating table in 1996,
the Council of Ministers of the then Organisation of African Unity (OAU), by
resolution CM/Res 1650 of July 1996, was compelled to threaten Mr. Taylor
with "setting up a war crimes tribunal" to try him and the leadership of the
then warring factions in Liberia. ECOWAS Heads of State reinforced that
threat in August of the same year as a way of giving teeth to the Abuja
Agreement embodying the Liberian Peace Plan. All this was while Mr. Taylor
was a rebel fighting presumably for power. The following year, a frightened
Liberian population surrendered power to Mr Taylor in severely flawed
elections in July 1997, in the vain hope that the responsibilities of high
office would slake his thirst for blood. Rising from their Summit attended
by senior representatives of major multilaterals and countries - including
the Unites Nations, the USA, and major European Union countries - in Abuja,
Nigeria, on 26 July 1997, and immediately following Mr. Taylor's election in
the same month to the Presidency of Liberia, the leadership of ECOWAS,
"congratulated His Excellency, President Charles Ghankay Taylor on his
election and encouraged him to continue his policy of reconciliation and
national unity." In the event, the man took the bush with him to the
Presidency and continued his war. Only this time it was aimed at suppressing
basic rights of Liberia's citizens.
Given this background then, is there much more that can be said about the
Taylor indictment besides applauding the belated arrival of supposedly just
desserts? Indeed, there is. To begin with, the people of Liberia must wonder
why the destruction of themselves and their country matters less than the
destruction of their Mano River neighbour. It is difficult to explain to
Liberians why the man whose trail of destruction began and continues in
their country has ended up being charged for crimes allegedly committed
against neighbouring Sierra Leone and its people who have their own home
grown villains to worry about.
The Legal Situation
In reality, for much of the months of April and May 2003, the existence of
the Taylor indictment and the probable occasion for its unveiling and
attempted execution was an ill-concealed secret in Freetown. The indictment
itself was confirmed and the arrest of Taylor authorised by the Bench of the
SC-SL on 7 March 2003. The moment three months later on which it was
unsealed was therefore significant. The Prosecutor had decided to take
advantage of Mr. Taylor's travel to Ghana. In his press statement announcing
the indictment of Mr. Taylor, Prosecutor Crane acknowledged that he decided
to serve a warrant for Mr. Taylor's arrest on the authorities in Ghana "upon
learning that Taylor was travelling to Ghana. This is the first time his
presence outside of Liberia has been publicly confirmed." In explaining his
timing, Prosecutor Crane claimed in the same statement that he was concerned
to ensure the legitimacy of the Accra negotiations, arguing that "it is
imperative that the attendees know that they are dealing with an indicted
war criminal." The Prosecutor felt the need "to make it clear that in
reaching my decision to make the indictment public, I have not consulted
with any state. I am acting as an independent prosecutor and this decision
is based solely on the law."
But law, especially international law, is often pregnant with mutually
contradictory plausibility. It is possible that in justifying himself as he
did above, Prosecutor Crane was preserving sovereign confidences. If not,
then his position was a tad optimistic at best. At worst it was naive or
arrogant (or both) to believe that he could unveil the warrant when he did
without prior extensive consultation with and co-operation from the leaders
who were attending the Accra negotiations. As a matter of comity, the
leadership of ECOWAS, the AU and the host State had invested considerable
energy, resources and political capital in bringing the parties to the
negotiating table in Accra. In doing so, they gave minimal guarantees in
good faith to the invitees. Whatever one may think of the parties at the
table, to fail to consult the joint hosts before releasing this kind of
bombshell showed scant respect to the combined goodwill of these leaders and
the peoples they represent. Not having factored the Taylor arrest warrant
into their plans, they could hardly be expected to embrace it spontaneously
having heard of it through the media.
As a practical matter, Ghana's authorities, if they had been consulted, may
well have sought assurances or made arrangements as to how to safeguard
against any security implications of Mr. Taylor being arrested on their
territory. They would naturally have sought to safeguard against Mr.
Taylor's associates exporting their cannibalistic brand of instability to
Ghana. This is not an altogether unreasonable concern given Mr. Taylor's
record.
Consultation with the region's leadership was all the more imperative
because the law to which the Prosecutor's press release refers is at best
opaque or, even worse, unhelpful. The SC-SL is set up under an Agreement
reached between the United Nations and the Government of Sierra Leone in
January 2002, itself concluded under the authority of Security Council
Resolution 1315(2000). Unlike the International Criminal Tribunals for
former Yugoslavia (ICTY) and Rwanda (ICTR), the SC-SL is not set up by the
Security Council as such in exercise of its enforcement powers under Chapter
VII of the UN Charter to safeguard international peace and security. In
accordance with Sierra Leone's 1991 Constitution, Sierra Leone's Parliament
enacted the Special Court Agreement (Ratification) Act in 2002, which
permits the Court to function in the country. This would not have been
necessary if the Court had been set up in exercise of the enforcement powers
of the Security Council. As a matter of law, the SC-SL is not a Sierra
Leonean court as such; it is more plausibly viewed as a foreign court
authorised to function in Sierra Leone, exercise jurisdiction in and over
Sierra Leone and, in part at least, to apply Sierra Leonean law, in addition
to international law.
This point has significant legal consequences. It means that unlike the
situation with Chapter VII tribunals like the (Yugoslavian) ICTR and
(Rwandan) ICTY, there is not necessarily an obligation of compulsory
co-operation with the Court. Strictly speaking, co-operation would be
governed by bilateral, mutual assistance treaties. Such treaties, arguably,
do not envisage such hybrid courts as the SC-SL within their scope.
Customary international law is equally unhelpful here. The much-cited and
much misunderstood Pinochet (No.3) decision of the (British) House of Lords
[1999] 2 All E.R. 97, looked to domestic statutory (rather than
international law) basis to justify much narrower grounds for Mr Pinochet's
arrest than the panel in the Pinochet (No. 1) case [1998] 4 All E.R. 897 had
been prepared to allow. In its most relevant decision in the Case Concerning
the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v.
Belgium), the World Court in Den Haag controversially decided in February
2002, that the procedural immunity enjoyed by serving foreign sovereigns
effectively trumped the prohibitions of international criminal law (from
which even Heads of State are not immune), including those against war
crimes and crimes against humanity that were directly in issue in the case.
The relevant practice concerning the procurement for trial of suspected war
criminals largely remains as summed up by Geoff Gilbert in Aspects of
Extradition Law, page 209 (1992), to the effect that "a uniform approach is
still lacking." Barring an abduction of the kind in the (case of the German
Nazi leader) Eichmann Case, 36 International Law Reports 5 (1961),
international (or in this case, regional) co-operation remains the only
lawful means of procuring the rendition of Mr. Taylor for trial. In the
provisions of Article 4(h) of the Constitutive Act of the African Union
authorising intervention in situations of genocide, war crimes and crimes
against humanity, African countries have now equipped themselves to provide
such co-operation when it is sought collaboratively.
With considerable experience of criminal trials in the USA where
prosecutorial deal making is an art form, Prosecutor Crane cannot have been
unaware of this reality. Ultimately, he bears responsibility for success or
failure in securing rendition of his indictees - big and small. With the
exception of the now late Sam "Maskita" Bockarie, allegedly deceased former
military ruler, Johnny Paul Koromah, and Mr. Taylor, the SC-SL has so far
succeeded in securing the arrest of all of its indictees. However, none of
those so far arrested, including ex-defence minister, Chief Hinga Norman,
confronts the Court with the weight of logistical, security, doctrinal or
legal problems that accompany the indictment of Mr Taylor. In favour of
Prosecutor Crane, it should be acknowledged that his public indictments
appear so far to have been largely well received both within and outside
Sierra Leone.
The Political Questions
Two political questions stand out among many. First, how does the indictment
affect the peace process in Liberia, including, in particular, the critical
issues of disarmament and demobilization of combatants? Mr Taylor, whose
current Presidential term expires in January 2004, staked out his position
on these issues at a news conference in Monrovia 12 June, declaring that
"[I]f the President of Liberia is treated in an unfriendly fashion or manner
with the thousands of combatants that support me in Liberia, where is the
incentive for any supporter of Charles Taylor to disarm if they know their
own security is not guaranteed?" Neither the SC-SL nor its Prosecutor can
directly answer this question. It remains open whether the Accra
negotiations on the back of the 17 June ceasefire agreement between Taylor's
regime and rebels opposed to him will be able to address it.
Next, as unpalatable and unfortunate as it is, Mr. Taylor is recognized as
the elected President of Liberia. Now that he has been indicted, this throws
up the political question of how other African Leaders and civil society
alike will relate to him. For example, will they continue business as usual,
adopt a wait-and- see attitude, or will they enforce his isolation? The
individual and collective positions of Africa's leaders could well be
determined by how each leader perceives himself vis a vis the potential to
face similar charges and the response of the world beyond Africa. Does it
matter that the Prosecutor has not shown more lateral vision in his handling
of the unsealing of the indictment?
Conclusion
This is the first time that a serving President will be openly indicted for
war crimes by an international court. By contrast, the indictment of
ex-President Milosevic by the ICTY became known after he had been ousted
from office. It will not be the last. Over the past few years, similar
attempts in the courts of different European countries, most especially
Belgium, have run into a headwind of insuperable legal, procedural and
political obstacles. With the swearing in of the ICC Prosecutor in June 2003
in Den Haag, the need for such desperate efforts or ad-hoc arrangements (as
in the SC-SL) will now be minimized if not yet entirely eliminated. The
irony will not be lost on African leaders that the SC-SL Prosecutor comes
from a country - the USA - whose government has undermined the International
Criminal Court (ICC) Process and is exerting its utmost weight to secure
impunity for similar crimes in international law for its own nationals. At
the beginning of June, 39 countries had concluded with the US government
impunity agreements under pressure.
Nevertheless, the indictment of Mr. Taylor at least ensures that he is under
some pressure. This could not have come too soon. But if Mr. Taylor is not
to elude and outlast the SC-SL, Prosecutor Crane should reckon more with the
goodwill of Africa's leaders and peoples than the management of the Taylor
indictment so far has shown. There is little sympathy for Mr. Taylor in the
region. Bringing him to overdue accountability should not be an opportunity
to rub regional leaders up the wrong way. Meanwhile, Liberians and Africans
await the day Mr. Taylor will also answer for his misdeeds against Liberia
and its citizens.
* A lawyer and activist from Nigeria, Chidi Anselm Odinkalu is associated
with several African and international non-governmental organisations and
academic institutions. He was formerly Human Rights Advisor to the UN
Observer Mission in Sierra Leone (UNOMSIL). Mr Odinkalu is widely published
on a variety of subjects on human rights and international law in Africa.
The views expressed here are his personal opinions.
* Please send comments on this editorial to [log in to unmask] Read
comments on previous editorials in the Letters and Comments section of
Pambazuka News.
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