July 26, 2012

Summary

The indictment of Taylor showed law is powerful. It might be imperfect or uneven, but when engaged, it is powerful.
–Civil society leader, Freetown, January 13, 2012

On April 26, 2012, former Liberian President Charles Taylor became the first former head of state since the Nuremberg trials of Nazi leaders after World War II to face a verdict before an international or hybrid international-national court on charges of serious crimes committed in violation of international law.

It was a landmark moment for war victims in Sierra Leone—where Taylor was convicted of aiding and abetting crimes against humanity and war crimes during the country’s brutal armed conflict from 1991-2002—the West Africa sub-region, and international efforts to ensure perpetrators of the gravest crimes are held to account. [1]

The announcement of a judgment in the Taylor case was also a moment that some believed would never come. For nearly three years after the June 4, 2003 unsealing of Taylor’s indictment by the Special Court for Sierra Leone (SCSL, or “Special Court”), Taylor lived in comfortable exile in Nigeria, still a player in West African politics. After Taylor was arrested on March 29, 2006, six more years passed before the Special Court issued its verdict, with almost four years of trial proceedings during this period.

While it has been a long road, Taylor’s trial and the issuance of a judgment in a credible judicial process send a strong signal that the world has become a less hospitable place for the highest-level leaders accused of committing the most serious crimes. The Taylor trial reflects a major departure from the impunity that heads of state traditionally enjoyed when implicated in genocide, war crimes, and crimes against humanity, which are referred to throughout as “serious crimes.”

The Taylor trial has particular significance for West Africans. For decades, so-called “big men”—powerful individuals who either lead armed groups or wield significant political power—have been able to perpetrate abuses in the sub-region with seemingly no fear of being investigated or held accountable. The Taylor trial is the first time such an individual has been taken into custody and forced to answer for alleged international crimes at trial.

This report provides an analysis of the trial’s practice and impact. The report is not a chronological account of the Taylor trial, nor an examination of the various legal arguments.

Part One provides background on the Sierra Leone armed conflict, the Special Court for Sierra Leone, and Charles Taylor. Part Two examines the trial itself, including issues related to efficiency, fairness, and interaction with witnesses, potential witnesses, and sources. Part Three examines the trial’s impact, including the court’s efforts to make its work accessible to communities most affected by the crimes, perceptions of the trial in Sierra Leone and neighboring Liberia, and its effects on thinking and practice related to accountability and respect for human rights.

Our overarching aim is to draw lessons to promote the best possible trials in the future of high-level suspects who are implicated in genocide, war crimes, and crimes against humanity.

With regard to trial practice, trials of the highest-level leaders for serious crimes committed in violation of international law can be complex, lengthy, and fraught—particularly since there is limited jurisprudence and practice in the relatively nascent system of international criminal justice compared to more developed national judicial systems.

The Taylor trial progressed against a backdrop of criticism and concern over the viability of trying the highest-level leaders before international or hybrid war crimes courts following the 2002-2006 trial of former Serbian President Slobodan Milosevic before the International Criminal Tribunal for the former Yugoslavia (ICTY). That trial was notable for its sometimes-chaotic atmosphere and Milosevic’s death before a judgment could be issued almost seven years after his indictment.

Proving the guilt or mounting a defense of a senior official who is alleged to be legally responsible for crimes—but who was not near the locations of their commission—can be difficult and time-consuming. The often-large breadth of alleged crimes, long time period, and wide geographic areas involved present further obstacles.

Judges face particular challenges in such trials. They are tasked with holding expeditious proceedings, ensuring respect for international fair trial standards, and avoiding manipulation of the trials, including by the accused to advance political interests. Coordinating the logistics and protection for a large number of witnesses—who often are not based where the trial takes place and may face security risks—presents additional difficulties for the court.

The Taylor trial largely avoided major disruptions that could have marred the proceedings. It is also notable for its generally professional atmosphere and relatively well-managed character.

The prosecutor’s effort to craft an indictment unencumbered by excessive detail—along with the limited number of counts alleged, totaling 11—appears to have helped avoid some of the pitfalls of the Milosevic trial, although attention to ensuring that indictments have adequate information to provide sufficient notice to the accused remains vital. Taylor’s representation by counsel also appears to have contributed positively to the generally respectful and organized tenor of the courtroom, and may have helped to avoid grandstanding or other distractions from the primary legal and factual issues of the case, as can occur with self-represented accused. Moreover, the trial involved a high-quality defense composed of experienced counsel.

In addition, the Taylor trial provides a strong model for other trials to draw from with regard to managing witnesses. The court handled complex logistics and sensitive arrangements for numerous witnesses who had never before left West Africa, insider witnesses who had admitted to extensive criminal activity, and victims who had suffered severe trauma. Psycho-social support was made available both on and off the stand for witnesses.

At the same time, lessons should be drawn to improve future practice in similar types of proceedings with regard to trial management, representation of the accused, and interaction with witnesses, potential witnesses, and sources.

Notably, the judges adopted practices that sought to prioritize efficiency but sometimes contributed to delays, such as the ambitious courtroom calendar in comparison to other tribunals and insistence on parties meeting certain deadlines.

Other practices—such as the Trial Chamber’s non-interventionist approach to witness testimony and the admission of extensive evidence of the underlying crimes (“crime-base evidence”)—lengthened proceedings, although they helped ensure that each party was satisfied with its opportunities to present its case. Judgment drafting—which took over one year, partly due to turnover of staff—also was a factor in the trial’s length.

More active efforts by the Trial Chamber and Registry to address defense concerns in the lead-up to the trial’s start may have encouraged smoother proceedings and enhanced promotion of fair trial rights. Taylor’s first defense team left the case due to concerns over inadequate resources and time to prepare, leading to the appointment of a second team and a hiatus in proceedings after the trial began. In addition, a delay in rendering a decision on the pleading of joint criminal enterprise raised potential implications for ensuring Taylor’s fair trial rights.

These challenges point to the difficulties judges face in managing the multiple, changing, and sometimes conflicting factors at play in trials of high-level suspects on charges of serious crimes and underscore the value of previous complex criminal trial experience among judges who adjudicate these cases. The three judges of Trial Chamber II, while experienced jurists, did not generally join the Special Court with extensive experience in managing complex criminal trials.

Finally, the provision of funds by the prosecution to potential witnesses and sources during investigations may be unavoidable, but was a contentious issue in the Taylor trial that should be managed more effectively in future proceedings.

Trials of highest-level leaders for serious crimes also are significant beyond the happenings within the courtroom. One crucial objective is to convey a sense of accountability to those communities most affected by the alleged crimes so that justice has local resonance and becomes a meaningful concept. The Taylor trial suggests important lessons for outreach to local populations to maximize the impact of future proceedings, particularly those held far from the location of the crimes, as will typically be the case at the International Criminal Court (ICC).

The impact of the Taylor trial in Sierra Leone and Liberia should be understood within the particular context of the two countries. After devastating armed conflicts, both countries have sought to distance themselves from their violent past and a fragile peace currently exists. Even as neighbors such as Guinea and Côte d’Ivoire continue to face significant challenges across porous borders, Sierra Leone and Liberia are attempting to build rights-respecting democracies and advance prosperity. Yet the institutions that underpin the rule of law in both Sierra Leone and Liberia—including the police, the judiciary, prosecutors, and corrections—remain extremely weak and other persistent problems, such as corruption, risk undermining hard-won gains.

Consideration of the impact of the trial at this stage is constrained by at least three factors: first, the Trial Chamber only handed down its verdict in April 2012 and it could be years, if not decades, before the trial’s full impact is realized; second, there are inherent challenges to isolating the trial’s impact because, though significant, it is one factor of many in a complex social and political landscape; and third, analysis of the trial’s impact in this report is based in large part on information drawn from individual interviews and informal focus groups with civil society members, former combatants, members of government, journalists, and war victims in Monrovia and Freetown rather than quantitative or large-scale surveys.

Despite these limitations, several noteworthy observations can be made. First, many people from affected communities are aware of the trial and have reflected on its significance. Since its inception, the Special Court has demonstrated a clear institutional commitment to conducting outreach within affected communities, and its outreach efforts provide a strong model for other courts. Among other activities, court staff created audio and video summaries of the trial in local languages for dissemination in Sierra Leone and Liberia, and facilitated visits to the court in The Hague by civil society members from these countries—who in turn disseminated their impressions of the proceedings to their communities.

Second, the trial is seen by affected communities as highly significant, and as having increased local understanding of the importance of accountability. Sierra Leoneans and Liberians consistently told Human Rights Watch that Taylor’s arrest and trial helped reveal the possibility for and value of justice in West Africa.

However, the trial is only one part of the much larger process of accountability. It has contributed to increased expectations for justice, but also to frustrations over the absence of greater advances to ensure wider accountability in the two countries. Sierra Leoneans and Liberians said they felt dejected that direct perpetrators, former field commanders, and Taylor allies live freely as regular citizens; some even hold governmental and other powerful posts.

Domestic efforts to investigate serious crimes committed in Sierra Leone and Liberia that are beyond the Special Court’s mandate are essential for justice to be done more fully. Lack of political will on the part of the Sierra Leonean and Liberian governments to pursue these cases remains, among other factors, a major challenge.

Finally, Taylor’s trial, and the court more generally, appear to have contributed to promoting long-term respect for human rights and the rule of law in the sub-region. Attempting to assess the Taylor trial’s future impact on governments is a particularly complicated inquiry given the multiple factors involved. Yet nearly all those interviewed by Human Rights Watch said the Taylor trial has had some significant positive impact on human rights in West Africa. As one official put it:

[The trial has] helped … change the historical concept that leaders are above the law and [challenge] the acceptance that leaders and elected officials can use war and violence as way[s] to carry out their personal agendas.

This arguably has contributed to an environment in which Sierra Leone and Liberia have held successful democratic elections and made some progress in improving basic human rights, addressing endemic corruption, and facilitating economic growth, although major difficulties persist for both countries.

[1] Taylor was found guilty beyond a reasonable doubt on all 11 counts of the indictment on the theory that he aided and abetted the commission of the crimes and was therefore individually criminally responsible for them. He was also found guilty of planning attacks on the diamond-rich Kono district in eastern Sierra Leone and the town of Makeni, the economic center of northern Sierra Leone, in late 1998 and the invasion of Freetown in early 1999, during which war crimes and crimes against humanity were committed. The court sentenced Taylor to 50 years in prison.