CSI comment on the conviction of Charles Taylor
Date of publication: 04/05/2012
Why was the alternate judge's microphone cut off as he tried to give his dissenting opinion?
4 May 2012
Charles Taylor, the former president of Liberia, was convicted last week for his role in supporting the rebels in neighbouring Sierra Leone. His conviction represents another milestone in the creation of a supranational system of justice which awards immunity to itself but denies it to legally constituted and internationally recognised states and their most senior officials.
Commentators have been quick to notice that the judgement was marred by an attempted intervention by the alternate judge, Justice Sow of Senegal. He tried to speak but his microphone was cut off. His words were not heard by the public or by those watching the session live on the Internet. Cutting off microphones has been a habit of international tribunals ever since Slobodan Milosevic first appeared at The Hague tribunal on 3 July 2001: the former Yugoslav presdident's microphone was switched off twice by the presiding judge and the session closed after only eleven minutes. It was to be cut off on repeated occasions during the rest of the trial, including during the Defence when the Accused was cross-examining Prosecution witnesses. But this is the first time it has happened to a judge.
The substance of what Judge Sow wanted to say is as interesting as the fact that he was not allowed to say it. His was a dissenting opinion, and as such part of a long and noble tradition of dissenting opinions in international criminal justice which started with Radhabinod Pal's magnificent denunciation of the findings of the International Military Tribunal for the Far East after the Tokyo trials in 1948. Just as Pal's dissenting opinion was never published by the IMT for the Far East (he had to publish it himself in book form in Calcutta in 1953), so neither Sow's dissenting opinion nor even any mention of it appears on the Court's official transcript of the hearing or in the official summary of the judgement.
Here is what Justice Sow said:
The only moment where a Judge can express his opinion is during the deliberations or in the courtroom, and, pursuant to the Rules, when there are no serious deliberations, the only place left for me is the courtroom. I won’t get — because I think we have been sitting for too long but for me I have my dissenting opinion and I disagree with the findings and conclusions of the other Judges, because for me under any mode of liability, under any accepted standard of proof, the guilt of the accused from the evidence provided in this trial is not proved beyond reasonable doubt by the Prosecution. And my only worry is that the whole system is not consistent with all the principles we know and love, and the system is not consistent with all the values of international criminal justice, and I’m afraid the whole system is under grave danger of just losing all credibility, and I’m afraid this whole thing is headed for failure.
This is powerful stuff. Perhaps the most interesting statement is that there were no serious deliberations: Justice Sow is here saying that the conviction was a foregone conclusion reached without any serious discussion. If this is true, then it is indeed a serious indictment of the practices of today's international criminal tribunals.
It is certainly not the first time such an indictment has been expressed during the Taylor trial - a trial, incidentally, which managed to escape from the oblivion into which most international trials immediately fall only because of the testimony given to it by two celebrities, Mia Farrow and Naomi Campbell: CSI has drawn attention elsewhere to the fact that celebrities have started to get involved in international justice, always for the Prosecution. Charles Taylor's lead Defence counsel, Courtenay Griffiths QC, said during the proceedings, in March 2011, that the trial was politically motivated. Among other things he cited the US dilpomatic cable revealed by Wikileaks which show that the State Department was determined to use legal means to sideline Taylor from power in Liberia.
News reports and comments by political leaders unanimously mentioned that Taylor was the first head of state since Karl Dönitz at Nuremberg in 1946 to be convicted by an international tribunal. However, he is far from being the only head of state to "face justice" in our brave new world in which regime change and criminal prosecution of the former president seem to go hand in hand: since 2008, the following other heads of state or heads of government have been put on trial or indicted by national or international tribunals: Omar al-Bashir of Sudan (ICC), Alberto Fujimori of Peru, Radovan Karadzic of Republika Srpska (ICTY), Julia Timoshenko of Ukraine, Geir Haarde of Iceland, Hosni Mubarak of Egypt, Efrain Rios Montt of Guatemala, Zine el-Abidine Ben Ali of Tunisia and Muammar Gaddafi of Libya (ICC).
Instead, the historical reminder of the Dönitz precedent serves only to obscure they key fact that Charles Taylor was not the head of the state where the crimes were committed: his case was not, therefore, an example of "a dictator being held to account" as both Alain Juppé and William Hague said in their prepared statements after the verdict. The conviction of Taylor was not a conviction for the abuse of power within his own country, or against his own people, which is the usual paradigm used, or abused, to justify interventionism against sovereign states (over Libya, for instance). Instead, Taylor was convicted for his foreign policy. The conviction for aiding and abetting war crimes has also obscured from the public mind the fact that the Prosecution in fact failed to prove its main charges, namely that Taylor "planned, instigated, ordered, committed" the crimes in question, that they resulted from a common plan, and that he enjoyed command and control over the Revolutionary United Front in Sierra Leone and therefore had command responsibility for their acts. (See the Indictment pars 33, 34.)
The full judgement has not yet been published but, given the above, it is notable that there is no reference to the seminal US v. Nicaragua judgement of 1986 by the International Court of Justice in the summary. That landmark ruling, which generally found against the USA, nonetheless exonerated that country from criminal responsibility for acts committed by the Contra rebels it was supporting. It said,
The Court has taken the view … that United States participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself, of the basis of the evidence in the possession of the court, for the purpose of attributing to the United States the acts committed by the contras in the course of their military or paramilitary operations in Nicaragua. All the forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependence on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well be committed by the contras without the control of the United States. For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that the State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.
(Case concerning Military and Paramilitary in and against Nicaragua, International Court of Justice, 27th June 1986, paragraph 115.)
Has the Special Court for Sierra Leone invented a different standard of liability from that laid down by the ICJ? Is this what Justice Sow was referring to when he attacked the conviction for aiding and abetting? Maybe such legal artifices are what the senior US official had in mind when he wrote,
All legal options should be studied to ensure Taylor cannot return to destabilise Liberia. Building a case in the US against Taylor for financial crime such as wire fraud would probably be the best route. There may be other options, such as applying the new law criminalising the use of child soldiers or terrorism statutes.