This week, one of our readers, Sylvanus, asked an important question about Charles Taylor’s trial: “can you explain to some of us the reason why it has already been decided that if Taylor is convicted he would be imprisoned in Britain. Could it be that there is a predetermined outcome of this trial?”
The short answer is no.
In fact, it is very normal administrative practice for the Special Court for Sierra Leone – and indeed, of international criminal tribunals generally, like the ones set up for the conflicts in Rwanda and the former Yugoslavia – to try to create “sentence enforcement agreements” with countries before a trial has finished. These agreements basically indicate that a state would be willing to imprison people who are on trial if they are found guilty, and they also set out the responsibilities of that state if the person was transferred to a jail in their country, including ensuring that the person’s human rights were upheld and respected while he or she is in prison. Given how long it usually takes to get agreement within countries to accept potential prisoners, the process can take years to negotiate and conclude. This means that the Special Court has to try to make these arrangements before the trials and appeals have finished and a verdict is handed down. Otherwise the Special Court would risk not having any place for the person to serve their sentence if they are convicted: the Special Court’s own holding cells for the accused people are not intended to be long-term options for imprisonment. And concerns about the poor prison conditions in Sierra Leone – particularly the main prison in Freetown on Pademba Road which may not meet international human right standards — have meant that the Special Court has needed to look elsewhere for imprisonment options in case they are needed.
The little known fact about the Special Court is that this sentence enforcement agreement with the United Kingdom for Charles Taylor is not the only one the Special Court has. The Special Court actually has a number of these agreements with other states in case the people being tried by the court are found guilty. Just in March 2009, it made an agreement with Rwanda to imprison persons from the Special Court if they are found guilty. It has similar agreements with Sweden and Finland. But it still does not have enough of these agreements to house all of the accused persons who have gone on trial at the Special Court if they are found guilty (and five of its nine accused have been found guilty on appeal so far).
These agreements, then, really just represent a practical, precautionary administrative arrangement to ensure a smooth transition for the person in case of a guilty verdict – but it does not presume there will be one. It is just a matter of being prepared.
This process of reaching out to States to get these agreements is provided for in the Special Court’s governing documents: its Statute and also its Rules of Procedure and Evidence.
Article 22(1) of the Court’s statute says “Imprisonment shall be served in Sierra Leone. If circumstances so require, imprisonment may also be served in any of the States which have concluded with the International Criminal Tribunal for Rwanda or the International Criminal Tribunal for the former Yugoslavia an agreement for the enforcement of sentences, and which have indicated to the Registrar of the Special Court their willingness to accept convicted persons. The Special Court may conclude similar agreements for the enforcement of sentences with other States.”
Meanwhile, Rule 103(A) of the Court’s Rules of Procedure and Evidence says: “Imprisonment shall be served in Sierra Leone, unless circumstances require otherwise. The Special Court may conclude agreements with other countries willing to accept and imprison convicted persons.”
In the case of Charles Taylor, the States involved in his coordinating the transfer of the trial to The Hague wanted to make sure that all the administrative logistics – including a courthouse for him to be tried in, a State willing to host the trial, and a State willing to imprison Mr. Taylor if he was found guilty at the end of the trial — were in place before his trial even started. So, in essence, they just tried to speed up a process which would have happened anyway, no matter who the accused person was.
In terms of specifics, it might be worth remembering the process leading up to Mr. Taylor’s transfer to The Hague. After he was arrested in Nigeria on March 29, 2006, he was transferred back to Liberia and then on to the Special Court for Sierra Leone in Freetown. Yet there were concerns about whether Mr. Taylor should be tried in Sierra Leone. Citing fears over instability in Liberia if Taylor were to be tried in Freetown, both the Special Court for Sierra Leone and the Liberian President, Ellen Sirleaf-Johnson, backed a bid to have Taylor’s trial moved to The Hague.
The Dutch Government asked for a Security Council resolution to authorize the transfer, and said it would host Taylor’s trial on the condition that another country agreed in advance to take Taylor after his trial finished, should he be convicted. The then United Nations Secretary General, Kofi Annan, made a request for states to consider hosting Mr. Taylor if he was found guilty. The United Kingdom agreed. Meanwhile, the International Criminal Court expressed willingness for the Special Court for Sierra Leone to use its premises in The Hague for the trial.
The Security Council resolution was drafted by the United Kingdom. Security Council Resolution 1688 was passed unanimously on June 16, 2006, paving the way for Taylor to be tried by the Special Court on the premises of the International Criminal Court in The Hague. And now, here we are today with the trial in full swing.
The UN issued a fairly comprehensive press release about the process when the Security Council issued the resolution. I would encourage readers to check it out here: http://www.un.org/News/Press/docs/2006/sc8755.doc.htm
So, please, dear readers, do not see this agreement with the UK as indicating a foregone conclusion of the trial. The defense is still presenting its case and we are still a while away from seeing a verdict handed down by the judges. It is only then, once the judges decide on the case, that we will know whether this agreement with the United Kingdom is needed for Charles Taylor, or not.