Part II of a two-part post on the Appeals Chamber judgment in the Taylor case; the first post is available here.
(ii) Disagreements on the elements of aiding and abetting liability
Between the release of the two Taylor judgments, the International Criminal Tribunal for the Former Yugoslavia (ICTY) issued its Appeals Judgment in the Perišić case. The Perišić Trial Judgment had been an important authority in the Taylor Trial Judgment, as the Taylor Trial Chamber had cited it as one of its main authorities for the elements of aiding and abetting liability. However, the Perišić Appeals Chamber overturned the Perišić Trial Judgment, and articulated a new legal standard for aiding and abetting in its Appeals Judgment. Thus, many questioned whether the Taylor Appeals Chamber would follow this new legal standard for aiding and abetting. A standard under which Perišić was acquitted, and under which Taylor’s conviction might also have been overturned.
The Perišić Appeals Judgment added ‘specific direction’ as a third element of the actus reus (physical element) of aiding and abetting. Hence, the new Perišić standard establishes a higher threshold or degree of involvement for aiding and abetting, as the accused’s assistance now has to be shown to have been directed specifically at the commission of a crime (and not simply be a more general form of contribution).
The elements of aiding and abetting had been another central appeals ground for the Taylor defence; with the defence arguing that the Trial Chamber’s interpretation of aiding and abetting was so overly broad that an alleged aider could easily fulfill them unconsciously (p. 49898 of Appeal Transcript). The defence argued that the Trial Chamber had breached the principle of personal culpability because it had essentially criminalized any contribution made to a party during and armed conflict (Taylor Appeal Brief para. 446-449). In my mind, this again goes back to the problem of evidence. While none of the parties disputed the fact that Taylor had provided general assistance to the RUF/AFRC, it was much harder to find concrete proof that Taylor had provided assistance towards the commission of specific crimes.
In the end, the Taylor Appeals Chamber rejected the new Perišić standard, and concluded that its own independent review of post-WWII jurisprudence showed that specific direction is not an element of aiding and abetting under customary international law (Appeals Judgment para. 474). So we now find ourselves in a position where Appeals Chambers at the SCSL and ICTY have, within a 7 month time frame, issued very different opinions on the elements of aiding and abetting under customary international law. This perhaps being an indication of how subjective the exercise of determining customary international law can be in practice. The ICC is not bound by case law from the ad hoc or hybrid tribunals, and it will be interesting to see how the ICC consolidates conflicting jurisprudence from the various temporary courts.
(iii) The Charles Taylor judgment, political selectivity or a brave new doctrine in international criminal justice?
As we have seen, Taylor (as a head of state) has not been convicted of crimes committed within his own territory. Rather he now stands convicted of having planned and aided the commission of crimes in a neighboring country, by virtue of having provided substantial assistance to a rebel group. This is certainly a novel conviction, and a precedence that is seen by many as highly problematic.
On the one hand we can argue that the Charles Taylor case can be seen as a brave new doctrine in international criminal justice, allowing for heads of states to be punished for their criminal involvement in other countries. However, the likelihood of the Taylor doctrine being used to indict senior political leaders from powerful States – for their involvement in the commission of crimes in foreign countries – is arguably slim.
When the first Taylor Judgment was issued, Taylor’s defence council, Courtenay Griffiths, argued that Taylor had been convicted of actions that are a common practice amongst many other heads of state:
‘So Taylor was convicted of aiding and abetting combatant forces in a neighboring country knowing that they were committing atrocities’, Griffiths tells the audience. ‘Help me here. What was the US doing with the Contras in Nicaragua? What did Kissinger do with the Indonesians in East Timor? I am not arguing here that because of that Taylor should not have stood trial. But when I went to university to study law I was told that whether you’re a princess or prostitute, whether you’re the president of the United States or the president of Liberia, the law should be above you.’
The Taylor defence further argued that the Trial Chamber’s articulation of aiding and abetting was:
“so broad that it would in fact encompass actions that are today carried out by a great many States in relation to their assistance to rebel groups or to governments that are well known to be engaging in crimes of varying degrees of frequency …”. And that such assistance: “is going on in many other countries that are supported in some cases by the very sponsors of this Court” (p.49896 Appeal Transcripts).
These allegations are certainly thought provoking, and further frustrates the legitimacy crisis in international criminal justice; as some will undoubtedly see the Taylor case as western countries having bankrolled the prosecution of an African head of state, for actions that they themselves regularly practice.
In her concurring opinion Justice Fisher tackles these allegations head on, and it is refreshing to see a judge directly confront the question of politics in an international criminal trial. Judge Fisher makes the important observation that judges cannot allow themselves to be influenced by accusations of prosecutorial selectivity, when deciding a case before them, or when interpreting the law. To do so, would in itself, be to politicize the trials in a way that is incompatible with an independent judiciary.
Likewise, I would make the point that it would have severely compromised the prosecutions at the SCSL, if the Chief Prosecutors had dropped the case against Taylor based on the idea that other heads of states were committing similar crimes. Had the prosecution dropped the Taylor case because it felt that some donor States to the Court were engaging in similar behavior, it would have been an atrocious miscarriage of justice for the victims of the civil war.
The Chief Prosecutors at the SCSL only had jurisdiction over crimes committed during the Sierra Leonean civil war. In this sense, the Taylor prosecution is not selective, because Taylor was (probably) the only head of state that you could have indicted for the crimes in Sierra Leone. Nevertheless, the allegation that Taylor has been convicted for actions that other heads of states never would have been charged with, is going to linger over the Taylor case. The totality of the evidentiary issues and controversies over aiding and abetting will presumably augment the criticism of the Taylor case as a politically selective prosecution.
In conclusion, the Taylor Appeals Judgment illustrates many of the key challenges in international criminal law, and with the gradual closing of the temporary courts, it will now be left to the ICC to solve these issues. As such, what significance the Taylor judgment will have, and whether or not the ICC will choose to apply this new ‘Taylor doctrine’, remains to be seen.