Dear readers – The article below is written by Professor Charles C. Jalloh at the University of Pittsburgh School of Law. It originally appeared on the JURIST website, available here. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.
The case against the former Liberian president Charles Taylor, who is being tried at the Special Court for Sierra Leone (SCSL) in The Hague on an 11-count indictment for war crimes and crimes against humanity, formally started with the prosecution’s opening statement on June 4, 2007.
Although the oral hearings phase concluded when the last defense witness took the stand on November 12, 2010, the defendant, his alleged victims, as well as the international public, still have no idea when Trial Chamber II will issue its judgment in one of the highest profile trials in modern international criminal law.
To those who know how important the Taylor case is for Sierra Leoneans, the delay in the release of the Taylor trial judgment may be surprising for several reasons.
First, the verdict is obviously important for the accused, but equally important, for the people of Sierra Leone in whose name the tribunal was established and asked to render credible justice. After all, Taylor is presumed innocent until proven guilty by the prosecution. He also has the right to be tried without “undue delay,” which under Article 17 of the Statute of the SCSL necessarily includes the right to know the outcome of his trial. The verdict will also be an important milestone for the Court, since with the conclusion of this case, it will become the first independent ad hoc international penal tribunal to successfully complete its work and to close down its operations.
Second, Sierra Leoneans, who suffered one of the worst civil conflicts in recent history when a rag tag rebel group known as the Revolutionary United Front (RUF) attacked the eastern part of their country on March 23, 1991, have proven to be extremely patient in letting justice take its course in the most important case to be tried before the SCSL. Although the RUF claimed to be waging a “people’s war” to “liberate” future generations of Sierra Leoneans from decades of Kleptocratic rule, there was nothing revolutionary about the RUF. Led by a disgruntled former army corporal known as Foday Sankoh, who had an axe to grind with the government and allegedly enlisted Taylor’s help to achieve his treasonous objectives, nearly everything about the RUF proved to be conventional, scattered, and a façade.
Their preferred means and methods of warfare illustrate the point. They would typically raid a village, kidnap underage children, force them to amputate, maim, kill or otherwise commit outrageous sexual and other acts against their own family members, quickly teach them how to use an AK-47 rifle, and then drug them. The child victims, high on drugs, turned into fearless killers. In their signature orgy of violence, they would murder, rape, pillage, burn or otherwise destroy any unfortunate human being, or living thing, that crossed their path. Though gruesome, their military strategy generally worked, not to liberate, but to terrorize; a nightmare for the thousands of innocent unarmed civilians, especially women and children, who bore the brunt of the notoriously brutal “blood diamonds” driven conflict.
With the scars of a traumatic war still etched on their minds, the impatience of interested Sierra Leoneans to know the verdict in the Taylor trial is perhaps understandable. It is, after all, the last of the nine trials conducted by the SCSL since the Court was established jointly through a bilateral treaty between the UN and the government of Sierra Leone signed on January 16, 2002. For Taylor, as well as his alleged victims in Sierra Leone, the long wait for judgment must be excruciating.
Taylor was indicted as far back as March 7, 2003. It did not take long for the existence of his indictment to be known publicly, however. That occurred on June 4, 2003, when the then SCSL prosecutor announced it, in a miscalculated bid to secure Taylor’s arrest after he had traveled to Ghana for peace talks. A couple of months later, Taylor stepped down from the presidency. He then took up asylum in Nigeria. This permitted the establishment of an interim transitional government in Liberia, and later, a democratically elected one led by Africa’s first woman head of state, Ellen Johnson Sirleaf (who recently won a second term in office). In return, Taylor claimed that he had been promised immunity from prosecution before the SCSL.
To be fair to the Court, Taylor was only arrested three years later in Nigeria, on March 29, 2006. However, he was then swiftly transferred to Liberia and then to the SCSL. A few days later, on April 3, 2006, he was arraigned at the seat of the tribunal in the Sierra Leonean capital, Freetown, and entered a plea of “most definitely … not guilty” to all the charges. Although he was subsequently transferred to The Hague on June 30, 2006, due to concerns about security, this means that he would have been in the tribunal’s custody for almost six years by the end of March 2012. Yet, Sierra Leoneans, as well as Taylor, are still in the dark regarding when to expect the trial judgment in the only single accused trial to be conducted by the Court.
The third reason why some Sierra Leoneans may become concerned about the lack of a judgment in the Taylor case is actually the Court’s fault: it offered inconsistent and unrealistic dates in the timetable generated for this case in its Completion Strategy. The Eighth Annual Report of the SCSL explained that the completion strategy, which used to be available on the tribunal’s website, had provided that the trial judgment would be delivered in June 2011. Sentencing judgment, if applicable, was to follow by August 2011, with the final appeal to be completed by February 2012. Later, despite some hiccups, the same annual report states that the judgment would be delivered by the end of 2011.
As we approach the end of February 2012, and still have no trial let alone appeals judgment, it is obvious that these deadlines have not been met. What are the reasons for this, we might wonder? Well, the tribunal’s Eighth Annual Report essentially blamed the delay on “unforeseen legal and procedural developments.” They focused, in particular, on the Taylor defense team’s refusal to file their closing brief by the January 14, 2011 deadline fixed by the chamber. The defense team, which was basically seeking a one month extension of the mid-January deadline, invited scrutiny when they failed to file the final brief by the date the trial chamber specified.
But the majority of Trial Chamber II, which denied the request, was also at least partly at fault. They added nearly three months delay to the trial calendar because, in a perhaps unprecedented move in the history of international criminal trials, the majority of the Court (Judge Sebutinde dissenting) rejected the defense closing brief when it was filed three weeks late. That is significant, because the final brief sets out the central arguments on the disputed factual and legal issues in the trial. It is also usually a useful document to the judgment drafting process. Fortunately, the Appeals Chamber subsequently reversed that erroneous decision. The defense team then made their closing oral arguments on March 9-10, 2011.
Although completion strategies are admittedly based on the best information available at the time, it is equally true that ad hoc tribunals like the SCSL, which are under significant pressure to wrap up their work, use over optimistic date estimates as a way to ward off political pressure to wind down their operations from the donor states that make the tribunal’s work possible. This may help explain the retention of the wrong projections, even in the latest annual report.
On the other hand, the Taylor trial has probably been one of the largest and longest running of all the cases tried by the SCSL. How large? Well, while somewhat of a rudimentary measure, the parties called about 115 viva voce witnesses in total. Of those, 94 were prosecution witnesses; while the defense called 21. Taylor, who took the stand on July 19, 2009, only completed his testimony nearly six months later on February 5, 2010. Collectively, the transcripts of testimony totalled 49,622 pages, an average of about 118 pages of transcripts per day. The trial also ran over approximately four years which, from the date of opening to final closing submissions, amounted to 420 trial days. This is not to mention the 1,522 exhibits that the parties tendered into evidence, many of which were large documents.
Furthermore, in a still controversial decision, the complex Taylor trial was the only SCSL case to be moved thousands of miles away from the seat of the tribunal in West Africa to the heart of Europe. Even in The Hague, the self-styled “legal capital of the world,” Taylor’s trial posed serious logistical difficulties which, all things considered, were handled well by the tribunal. The main part of the case was initially heard in a courtroom leased from the International Criminal Court (ICC), and once that tribunal had its own cases, the SCSL was forced to relocate to the premises of the Special Tribunal for Lebanon.
Fourth, another factor that may have contributed to some of the delay in the issuance of the trial judgment may be the preoccupations of some of the judges of Trial Chamber II. They are all reasonably expected to be fully engaged upon final deliberations in the Taylor case at this stage. But Judge Teresa Doherty traveled to Freetown in July 2011 to preside over five distracting and relatively minor contempt cases involving witness tampering. Whereas Judge Julia Sebutinde was seeking a judicial appointment by UN member states to the bench of the International Court of Justice (ICJ). She was finally elected on December 13, 2011.
While a chronic problem of tribunal completion strategies is staff and judicial flight for better opportunities elsewhere, and even though it is an impressive achievement that Judge Sebutinde has now become the first African woman to be elected to the bench of the ICJ, for the Taylor case, her election may raise some concerns regarding the appropriate role of judges in war crimes trials held in temporary tribunals. As ICJ judges were supposed to take office on February 6, 2012, her election seemed to suggest that Trial Chamber II was close to issuing judgment in the Taylor case since she would either have to complete her duties at the SCSL by early February 2012, or resign and hand over to the alternate (fourth) judge who also sat throughout the trial (Judge Malick Sow).
From the SCSL perspective, which Judge Sebutinde has served with professionalism and fierce independence since she was sworn in on January 15, 2005, the tribunal’s statute (Article 12(4)) and rules of procedure and evidence (Rule 15(C)) anticipate that, if a judge is unable to continue with the trial, the judge may withdraw voluntarily. The President of the SCSL may then assign the alternate judge to serve in her place. This will not necessarily cause disruption in this trial, since the alternate (Judge Sow) is already required by the rules and would have been present for all deliberations carried out so far (pursuant to Rule 16bis(C)). The difference, once the president assigns the alternate judge, would be that he would acquire voting power and play a role in determining the guilt or innocence of the accused.
By all indications, based on what is known publicly, Judge Sebutinde has not yet withdrawn or resigned from Trial Chamber II. Although the other four newly elected judges took office at the ICJ in early February as scheduled, she has been conspicuously absent from their number. Presumably, after having sat through the lengthy Taylor trial, she wished to be part of the final deliberations in that historic trial over which she presided during the prosecution’s opening statement in June 2007. That participation would obviously end were she to depart at this stage.
From the perspective of the ICJ, a legal issue appears to arise. Article 16(1) of the Statute of the ICJ stipulates that “[n]o member of the Court may exercise any political or administrative function, or engage in any other occupation of a professional nature.” That article speaks for itself. It basically focuses on prohibiting individuals from exercising political, administrative or professional functions elsewhere while at the same time occupying a position on the ICJ bench.
For this reason, the ICJ would likely have had to permit her to complete her duties on the Taylor case. Such permission could be open ended or for a specified period, for example, until the verdict is rendered. Viewed from the prism of the SCSL, assuming her pending judicial post later may not necessarily raise concerns. Firstly, the SCSL explicitly envisaged, at least initially, that some of the tribunal’s (appeals) judges would serve in a part-time capacity (which, by implication, suggests that they would be holding other positions elsewhere). Though Judge Sebutinde is a trial judge, it would not be a stretch to argue that a similar possibility should be retained to permit participation and the conclusion of the tribunal’s last trial.
Secondly, if this argument is correct, there would appear to be little cause for concern given Judge Sebutinde’s professionalism and the fact that, if there is any doubt about compliance with Article 16, the issue would be resolved by decision of the ICJ. That said, some observers may wonder what the consequence of pressure to swiftly issue the judgment would now be going forward. Could it, for example, lead to a rush to final judgment that could be detrimental to Taylor’s interests due to Judge Sebutinde’s apparent dedication to finishing her work on the trial before taking up her nine-year judicial appointment at the ICJ?
This also raises the related issue whether, if she were to stay on to participate in the final deliberations, she would necessarily have to be present for sentencing judgment, in the event of Taylor’s conviction. While this will obviously not be an issue if the verdict is an acquittal, it appears that there is no explicit provision in the SCSL statute or rules of procedure covering such an eventuality. Still, it would seem to be implied that, as a matter of principle and basic procedural fairness, she is probably prohibited from playing a role in deciding guilt only to relinquish the subsequent stage of the criminal justice process (i.e. sentencing, which again is only in issue, if the final outcome is not an acquittal).
Looking ahead, as the chamber continues to deliberate, whatever decision is taken to resolve the Trial Chamber’s composition during this final stage, the SCSL should consider announcing a firm date for the Taylor trial judgment. More importantly, given that the accused as well as Sierra Leoneans and the international public are all watching, it should be sure that its timeline is realistic and complied with once notified to the world. It is in this way that the Court can bring its last trial to closure with the admiration and respect of Sierra Leoneans and the international community.
Charles C. Jalloh is an Assistant Professor of Law at the University of Pittsburgh School of Law. Before joining academia, he was a Legal Advisor to the Office of the Principal Defender in the Special Court for Sierra Leone, in which capacity he was appointed to temporarily represent Charles Taylor. All the information used in this article comes from the SCSL website and other public documents.