You have been so active, engaged and thoughtful on our site. You continue to raise excellent issues each day, and respond to each other with new and interesting ideas. It is high time we devoted attention to you, and the issues you are raising as a prompt for further debate.
Today, I want to pick up on a regular thread infusing the commentary on this site: why is Charles Taylor being prosecuted when other former leaders, such as former American president, George W. Bush, former British Prime Minister, Tony Blair, and former Sierra Leonean Prime Minister, Ahmed Tejan Kabbah, are not answering cases about any alleged responsibility they may, or may not, have for crimes committed during conflicts in which their troops were involved?
For example, Bnker asked: “So what’s the difference between the CT, and Bush and Blair on the other? So how would you classify the attacks in Iraq? So should GW and TB be put on trial too? The reality is this will never happen, because their respective countries will fight against it….”
Aki questions: “is Bush being prosecuted for the torture that was done by American soldiers at Abu Graib prison? The answer is no. How can you then hold a President of Liberia responsible for what happened in Sierra Leone?”
Meanwhile, Irene has said: “Sure, George Bush should be tried for war crimes in Iraq. (Good luck.) But that has nothing to do whether Charles Taylor should be convicted. He should. And even more so I hate to say because I hate George Bush.”
These comments speak to a criticism often leveled at international justice: the selectivity of cases – why pick on one person when not another? And in particular, is it legitimate to prosecute only leaders of countries not powerful enough to resist international accountability? Each of these comments raises important points.
First of all, Irene hints at a key idea that is important for us to keep in mind: regardless of who else is prosecuted for international crimes, this should not detract from the idea that Charles Taylor has a case to answer for his alleged role in crimes committed in Sierra Leone after 1996. Just because other leaders have not been called to account for crimes committed in which they may or may not have played a role – it should not mean that nobody should be called to account anywhere. Mr. Taylor’s case is surely important in and of itself: not only for the victims who suffered from crimes committed in Sierra Leone to be able to hear Mr. Taylor answer the charges against him in his own words, but also for Mr. Taylor to be able to present to the world his version of events – in essence, that he was a peacemaker in Sierra Leone, not a criminal — and to defend himself as innocent unless he is proven guilty.
Irene thinks Taylor should be convicted. However, we do not yet know whether Mr. Taylor should be convicted because the judges haven’t yet heard all the evidence in the case. Only once Taylor’s defense team rests their case can the judges make up their minds about his guilt or innocence.
Second, Bnker’s argument that Bush and Blair would never be prosecuted because “their respective countries will fight against it” raises an important point too: the value of national communities pushing their own national justice systems to address their countries’ own past wrongs, even – perhaps especially – if the political leaders are unwilling to confront these crimes through prosecutions or other means. In this case, the fact that Mr. Taylor is having his day in court speaks volumes to the efforts by civil society, particularly in West Africa, to push for accountability from their leaders through legal means. In Mr. Taylor’s case, for example, two Nigerian businessmen, David Anyaele and Emmanuel Egbuna, whose limbs were amputated allegedly by Mr. Taylor’s forces in Liberia, challenged Mr. Taylor’s asylum in Nigeria in 2004 and sought to have him extradited to the Special Court for Sierra Leone to face justice. Their efforts were part of the broader movement to push for this current trial. Similarly, African civil society groups elsewhere on the continent – the Democratic Republic of Congo (DRC), for example — were instrumental in getting their governments to become parties to the Rome Statute (the document which governs the International Criminal Court (ICC)). Joining as a party to the Rome Statute then paves the way for individuals from their own countries, including their leaders, to be brought to account by the ICC for any alleged involvement in international crimes committed after 2002 (when the ICC treaty came into force) in the event that their own national justice systems prove unwilling or unable to do so.
Civil society from other countries, in the west and elsewhere, have much to learn from African civil society’s efforts to bring their own leaders to account, either in national fora or international ones. The strength and commitment of the movements in Africa, and the strategies and campaigns civil society groups have employed, to push for justice and accountability for their own leaders should serve as inspiration for other civil society groups around the world where crimes are currently committed with impunity.
Third, a variety of ways exist to bring individuals, including leaders and former leaders of States, to account for their alleged roles in international crimes. Here are four key ways this can happen:
- The ideal way is through national justice systems. But to be credible, there must be political will to bring individuals to trial, and the justice system must also be capable of being independent, fair, and operating by clear rules that meet international fair trial standards.
- Another way is through the International Criminal Court – but this court can only operate when national systems are either unwilling or unable to prosecute the crimes themselves. Also, for the ICC to be able to bring a person before its judges to answer a case, that person must either belong to a country that has signed up to the Rome Statute or to have committed a crime in a country that has signed the Rome Statute. Alternatively, an entire site of conflict where international crimes have occurred must be referred to the ICC by the United Nations Security Council (this can happen even if a state has not signed up to the Rome Statute). For example, in March 2005, the Security Council referred the situation of Darfur – the site of widespread killings, rape, torture and destruction of property – to the ICC. The ICC has since issued arrest warrants for Sudanese government officials and militia leaders, including the Sudanese president, Omer al-Bashir. The prosecutor also plans to prosecute Sudanese rebel leaders for the killing of African Union peacekeepers in 2007. (We should note that the Security Council may be able to refer a situation, but has no say over which individuals the ICC can prosecute – that is up to the ICC prosecutor, who is independent.)
- A third way is through the set-up of special tribunals to deal with particular conflicts. The Special Court for Sierra Leone is one. Such courts have also been set up elsewhere, including in Cambodia, where the court is charged with prosecuting crimes committed by the Khmer Rouge regime of the 1970s, under which an estimated 1.7 million people died from starvation, torture, extra-judicial killings and overwork. The possibility of setting up a special tribunal in Kenya to address the post-November 2007 election violence is still a live issue.
- A fourth way is through universal jurisdiction. This means that a State can prosecute individuals from another state for crimes committed anywhere. The crimes or the victims do not necessarily need to be connected to the State that is prosecuting the case. For example, earlier this year, a Spanish judge started a universal jurisdiction investigation against six advisors to former US President, George W. Bush – including high ranking military figures and others in the former US Administration, including Vice President Dick Cheney and Secretary of State Condoleezza Rice — because of their alleged role in authorizing “a systematic plan for abuse” in the American jail in Guantanamo Bay, Cuba, where the US placed enemy combatants from the “war on terror.” It is unclear how far this case will go, but it does demonstrate the availability of these types of accountability options in countries with universal jurisdiction laws on their books.
Given the success of African civil society groups in pushing for accountability for their own leaders, what this speaks to is the power of individuals — such as you, our readers on this site — to help control the direction of our own countries by pushing for reform in each of our own legal systems, and pushing our leaders to create political environments where fair national trials for international crimes can happen. Failure to address past wrongs can potentially lead to losses at the election polls when constituencies feel angry, disillusioned and that the law does not provide anything meaningful to them. No leader wants that either. The challenge for each of us is to push for greater legal accountability domestically so that this criticism of selective justice at the international level will eventually no longer be an issue, because each of us is playing our part in taking care of our own problems.
Now tell me, dear readers, what are your thoughts?