First Reflections on the Charles Taylor Appeals Judgment – Part 2

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.

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First Reflections on the Charles Taylor Appeals Judgment – Part 1

Part I of a two-part post on the Appeals Chamber judgment in the Taylor case; the second post is available here.

On September 26th, 2013, the Appeals Chamber rendered its final judgment in the case against Charles Taylor at the Special Court for Sierra Leone (SCSL). The final judgment in the Taylor case is a major landmark for modern international criminal law. Not only is Taylor the first head of state to be convicted by a modern international criminal tribunal, but the conclusion of the Taylor case also marks the end of the SCSL’s judicial activities.  As such, the SCSL has become the first international criminal court to finish its prosecutions since Nuremberg.

The Taylor case is also unique because Taylor was charged with crimes committed outside his own geographic jurisdiction. Taylor was the head of Liberia during the Sierra Leonean civil war, but was charged with crimes committed in Sierra Leone because of his close ties with the Rebel United Front (RUF) and Armed Forces Revolutionary Council (AFRC) rebel groups; groups considered responsible for most atrocities committed during the Sierra Leonean civil war.  The Prosecution argued that Taylor participated in a joint criminal enterprise (JCE) with the RUF/AFRC to commit crimes in Sierra Leone, and charged Taylor with 11 counts of war crimes, crimes against humanity, and other serious violations of international humanitarian law.

On April 26th, 2012, the SCSL convicted Taylor on all 11 counts. However, the Trial Chamber concluded that the Prosecution failed to establish Taylor’s participation in a JCE with the RUF/AFRC. Instead, the judges found Taylor individually criminally responsible for aiding and abetting the rebel groups, and for participating in the planning of rebel attacks in Kono, Makeni, and Freetown. The Trial Chamber sentenced Taylor to 50 years in prison. The defence filed 45 grounds of appeal and called for Taylor’s full acquittal, arguing that the Trial Chamber made systematic errors when evaluating the evidence against Taylor, and also erred in its legal interpretation of aiding and abetting liability. The prosecution on the other hand produced four grounds of appeal, arguing that the Trial Chamber erred by failing to find Taylor individually criminally responsible for ordering and instigating the commission of crimes, and by only sentencing Taylor to 50 years.

In the end, and after a year of deliberations, the Appeals Chamber more or less affirmed the Trial Judgment, with few exceptions.  The Appeals Chamber rejected all substantial defence grounds, but did – per the Prosecutor’s appeal – reverse the Trial Chamber’s holding that aiding and abetting liability warranted a lesser sentence than other forms of criminal responsibility. As such, the Appeals Judgment itself was somewhat shorter and less eventful than what might have been expected. Nevertheless, there were three interrelated issues that stood out to me as I watched the live transmission of the Appeals Judgment:

(i) The difficulty of proving crimes under international criminal law

Half the grounds of appeal made by the defence in the Taylor appeal were related to evidentiary issues. The defence appealed on the basis that the Trial Chamber based its evidentiary findings on uncorroborated hearsay evidence; an argument the Appeals Chamber rejected.

The evidentiary issues in the Taylor case have been controversial from the start. An alternate judge in the case garnered substantial international attention when he publicly concluded that “the guilt of the accused from the evidence provided in this trial is not proved beyond a reasonable doubt”. Academics and practitioners have also questioned whether the evidence presented in the Trial Judgment is enough to prove the charges against Taylor.

To the public, it is often difficult to understand that it could be problematic to collect evidence against a man like Charles Taylor. But, as the Taylor case illustrates, finding evidence tying senior political perpetrators to atrocity crimes is difficult. Few war criminals are compelled to record their criminal activities in writing. As the Chief Prosecutor in the Taylor case has stated, “[t]he Accused never set foot in Sierra Leone when these crimes were being committed… He never directly, physically committed these crimes”. The physical distance between the person on trial and the crimes alleged is typical in a war crimes trial; hence the need to rely on hearsay witness testimony that documents meetings and communications between the defendant and the physical perpetrators of the crime. But, as illustrated by the Taylor case, striking a balance between the use of such hearsay evidence and the defendants fair trial rights, continues to be controversial.