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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