July 26, 2012

II. The Trial

Trials of the highest-level leaders for serious crimes committed in violation of international law can be complex, lengthy, and fraught.[59] Proving the guilt or mounting a defense of a senior official who is allegedly 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, such as 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 trial of Charles Taylor was notable for its generally professional atmosphere and relatively well-managed character, high-quality defense, and due regard for witness protection. Taylor’s representation by counsel instead of self-representation appears to have contributed in a significant positive way. Moreover, the trial involved a high-quality defense composed of experienced counsel, and provides a strong model for other trials to draw from with regard to managing complex witness logistics and protection.

Yet 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 which sometimes actually 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 crime-base evidence—helped ensure that the parties were satisfied with their opportunities to present their case, but contributed to the length of proceedings. Judgment drafting—which took over one year—was also a factor in the trial’s length. 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.

In addition, the court’s lack of resolution of defense concerns regarding time and resources to prepare before the start of trial posed challenges for efficiency and promoting Taylor’s fair trial rights, as did delay in rendering a decision on the pleading of joint criminal enterprise. Finally, the provision of funds by the prosecution to potential witnesses and sources for their “safety … support and … assistance”[60] during investigations may be unavoidable, but was a contentious issue in the Taylor trial that should be managed more effectively in future proceedings.

The Indictment: A Complicated Balance

Human Rights Watch believes that having charges that are representative, but not exhaustive, of the most serious crimes committed should be a fundamental objective of a prosecutor in trials of the highest-level leaders. This reflects the balancing of two central goals: first, providing a thorough account of an individual’s alleged role in the crimes; and second, encouraging a trial that can be concluded in a reasonable time period, especially taking into account the reality of limited resources. At the same time, indictments should be specific enough to provide sufficient notice of the nature and cause of the charges to protect the accused’s fundamental rights.[61]

The Milosevic trial showed the significant risks of highly detailed indictments that include a large number of charges and crimes scenes: the counts of the Milosevic indictments totaled 66 and referenced hundreds, if not thousands, of crime scenes. This contributed to a four-year-long, unfinished trial with numerous delays in the proceedings.[62]

The Taylor prosecution employed a different approach than that of Milosevic, using a technique called “notice pleading”—a short and plain statement of the charges to give the defendant notice, while omitting substantial detail.[63]The indictment, and accompanying case summary, provides more general geographic areas and time periods of crimes rather than specific crime scenes and identification of individual victims.[64]The Taylor indictment also includes a limited list of charges—11 in all.[65]

The prosecutor’s efforts to provide an indictment in the Taylor case unencumbered by excessive details with a limited number of counts alleged appear to have contributed to avoiding some of the pitfalls of the Milosevic trial. Notice pleading had never been expressly used in international or hybrid tribunals prior to the Special Court. [66]

However, defense counsel and some observers have questioned the adequacy of the notice provided in the indictment and accompanying case summary, arguing the lack of specificity in these materials meant that the indictment did not give the accused adequate notice. [67]

The sufficiency of Taylor’s indictment was affirmed by a designated judge as required by the Special Court Rules, and by the Trial and Appeals Chambers in more limited decisions on aspects of the pleadings. [68] Yet jurisprudence continues to evolve regarding the requirements for indictments before international and hybrid tribunals. Notably, the ad hoc tribunals have over time required greater specificity in their indictments in order to ensure adequate notice to the accused. [69]

Crafting indictments that are representative of the crimes committed but not burdened by an unmanageable number of charges or excessive detail is desirable. However, achieving expeditious and fair proceedings will necessitate carefully balancing considerations of efficiency and manageability with the imperative of providing sufficient information to ensure adequate notice to the accused.

Trial Management

Taylor’s Representation by Counsel

Taylor agreed to be represented by counsel in the proceedings and was generally cooperative during the trial.[70] This is in stark contrast to Slobodan Milosevic, who refused representation and often obstructed proceedings during his trial.[71] Sources interviewed for this report were unanimous in their assessment that Taylor’s representation by counsel contributed positively to the generally respectful and organized tenor of the courtroom.[72] In addition, it likely facilitated the court’s focus on the key substantive legal work before it, including by helping to avoid grandstanding that can occur when self-representing accused seek to use the courtroom as a political platform. According to some observers, Milosevic’s decision to represent himself was the single largest problem with his trial.[73]

The Courtroom Calendar and Rulings on Motions

The Trial Chamber set an ambitious trial calendar during the Taylor proceedings: it sat for consistently long hours and did not allow many breaks in comparison to other trials by the Special Court and other tribunals, and often compensated for lost time by re-convening earlier than scheduled and by sitting for extra sessions on Friday afternoons.[74] The long courtroom hours helped to keep the trial moving forward. However, they left little time for the Trial Chamber to deal with important matters outside the courtroom that also needed to be addressed, namely motions.

The Trial Chamber issued many rulings on motions in a relatively timely manner. However, a number of decisions took more than 90 days and at least 4 decisions took more than 180 days.[75] It is notable that the Trial Chamber became significantly faster at issuing decisions over time: from March 2009 until the recess for deliberations in March 2011, most, if not all, decisions were rendered in approximately two months or less. However, more timely rendering of decisions overall can make an important contribution to the efficiency of the process.

Delay in Decision on Pleading of Joint Criminal Enterprise

Extended delays in delivering decisions on motions raise particular concerns when fair trial issues are implicated, such as the Trial Chamber’s decision on the defense’s motion challenging the pleading of joint criminal enterprise (JCE). The pleading of JCE in the Taylor trial was a highly contested issue: defense team members and trial observers have argued that the prosecution submitted an indictment that does not adequately identify the elements of the JCE, and then used a shifting conception of “common purpose,” a key element, throughout its case.[76]

The defense submitted a motion for clarification of the pleading of JCE before the start of the prosecution’s case.[77] The Trial Chamber took over 10 months from the date of the parties’ final submissions on the issue in April 2008 to deliver its decision dismissing the defense’s motion and affirming the prosecution’s pleading of JCE as sufficient, which it announced on the same day the Taylor prosecution rested.[78] The Appeals Chamber affirmed the Trial Chamber’s decision.[79]

Defense team members claim that they did not have adequate notice of the charges they were defending against during the prosecution’s case and suffered “irremediable prejudice” due to the Trial Chamber’s delay in rendering a decision.[80] While the judges disagreed with their claim, allegations of prejudice to the accused might have been avoided if the Trial Chamber had rendered its decision in a more reasonable time.[81]

Though the Trial Chamber ultimately found Taylor not guilty of participating in a joint criminal enterprise, the prosecution is expected to appeal the not guilty verdict on the basis of joint criminal enterprise liability.[82]

Timely rendering of decisions on motions should thus receive priority, both to avoid inefficiency and to ensure the real and perceived fairness of proceedings.

Two Major Confrontations Stalled Court Proceedings

The Taylor trial was bracketed by two significant delays: the appointment and preparation of a new defense team after the first team ceased representation, and a dispute over the defense’s submission of its final trial brief.

In both instances, the court seemed to prioritize the trial moving ahead over flexibility in engaging with defense requests. This approach potentially created longer delays than if the Trial Chamber had agreed to the defense’s requests or than if the Trial Chamber had more actively sought compromise solutions. This reality points to the difficult balancing act judges must perform during proceedings to implement methods that should promote efficiency, while remaining flexible enough to amend practices where such methods prove counterproductive.

Taylor’s first lead defense lawyer, Karim Khan, left the case after indicating on the opening day of the trial that Taylor had terminated his representation due to what both saw as insufficient resources to put forward a vigorous defense.[83] Khan had previously made requests to the court for a five-month postponement of the trial start date, additional staff, and increased legal support—requests the court denied.[84]

Sources suggest that the court’s limited willingness to engage with the defense was at least partly due to a sense that any further postponements would create perceptions that the trial was not proceeding efficiently.[85] However, the approach actually led to a nine-month delay in proceedings while a new defense team was appointed and given time to prepare. The trial restarted on January 7, 2008.

The Trial Chamber and the defense had a second major confrontation when the defense team filed a motion on January 10, 2011, for an extension of the January 14 deadline to submit its final trial brief.[86] The defense requested an extension of one month or until outstanding motions were resolved on the basis that they “significantly impacted on the Accused’s ability to present a conclusive and well-reasoned Final Trial brief.”[87] The Trial Chamber denied the request on January 12, but noted that it would entertain applications to subsequently supplement the final briefs.[88] Defense did not meet the deadline and sought to submit its brief on February 3, 2011, which the Trial Chamber declined to accept by a majority opinion.[89]

Defense appealed the decision and the Appeals Chamber ruled on March 3, 2011, that the Trial Chamber must accept the brief, stating that Taylor had not given an adequate waiver of his fundamental rights to be heard and to put on a defense.[90] In the end, the standoff between defense and the Trial Chamber created a two-month delay as opposed to the one-month delay the defense originally requested.

Witness Testimony: Largely Unlimited in Scope and Duration

Under the SCSL Rules, the Trial Chamber “may admit any relevant evidence” but must balance this with the imperative to “avoid the wasting of time.”[91] In the Taylor trial, the Trial Chamber took a non-interventionist approach to witness testimony: the judges did not set limits on the length of witness testimony or actively interrupt prosecution or defense counsel during examinations except to clarify small details.[92]

The impact of the Trial Chamber’s approach was seen most significantly during Taylor’s direct testimony, which lasted 13 weeks. During the testimony, the Trial Chamber allowed Taylor to cover a range of topics that went beyond the court’s temporal and geographic jurisdiction, although they were arguably related. More specifically, observers noted that Taylor and his defense team used his time on the stand to discuss at length issues such as his rise to power, West African politics, his alleged support for the RUF, and his reaction to prosecution witnesses’ testimony.[93]

The prosecution also enjoyed latitude regarding the scope of the evidence it presented. As highlighted in the defense’s final trial brief, for example, prosecution witnesses testified to crimes perpetrated in areas not included in the indictment despite defense objections.[94]

This approach has its merits in that neither side is likely to claim that it was not given the time it needed in presenting its case.[95] However, more active management of examinations by the bench and attempts to focus testimony likely would have contributed to more expeditious proceedings without compromising international fair trial standards. Specifically, an interventionist style can make positive contributions by setting a tone of efficiency in which proceedings are pushed forward and counsel are held accountable.[96]

Some trials, including the Milosevic trial, have employed time limits on examinations.[97] However, strict time limits may not always be the most sensible or desirable option. In such instances, regular intervention by the judges during examinations to keep them as bounded and relevant as possible can serve as a valuable alternative by balancing the need for flexibility and a full hearing of the parties with the need for an efficient presentation of evidence.

Lengthy Presentation of Crime-Base Evidence

To prove Taylor guilty of any of the counts alleged, the prosecution had the burden of demonstrating beyond a reasonable doubt two issues: first, the crimes alleged actually occurred; and second, Taylor was linked to the crimes in such a way as to make him individually criminally responsible for them.

The defense in the Taylor trial repeatedly stated in court and elsewhere that it did not contest that widespread atrocities were committed in Sierra Leone during the war. [98] The RUF and AFRC trials at the SCSL also already extensively explored and established the underlying crimes of the armed conflict in Sierra Leone. This opened up the possibility that the prosecution’s case would focus largely on evidence linking Taylor to the crimes (“linkage evidence”).

The prosecution and defense engaged in negotiations on limiting the number of witnesses presenting evidence of the underlying crimes (“crime-base” evidence) given that the fact of the crimes’ commission was in theory not at issue.[99] However, agreement on almost any facts related to the crime-base could not be found.[100] One reason for this was because the defense team concluded that many of the witnesses that the prosecution identified as crime-base witnesses might also present linkage evidence.[101]

Some presentation of crime-base evidence, even where the crimes themselves are not at issue, is important because one fundamental purpose of a trial is to provide a forum in which victims’ voices can be heard. In addition, crime-base evidence could be a powerful tool for the prosecution to emphasize the gravity and extent of the underlying crimes, while the defense is under no obligation to stipulate to crime-base evidence. At the same time, the extent of presentation of crime-base evidence should be balanced with the need for an efficient proceeding in which the prosecution sufficiently focuses on key evidence to meet its burden of proof, which in the Taylor case was the linkage between an accused and the crimes.

Ultimately, 59 witnesses testified to the crime-base evidence, roughly twice as many as those who testified concerning Taylor’s alleged links to the crimes. The Trial Chamber, for its part, did not significantly intervene to narrow the number of witnesses, either through status conferences or its ability to take judicial notice of adjudicated facts or documentary evidence from previous SCSL trials.[102] Had it used such tools, the Trial Chamber might have helped promote further efficiencies without negative implications for fair trial rights. This should be considered for future proceedings.

A Delayed Judgment

Over 13 months passed between the close of arguments on March 11, 2011, and the announcement of a verdict and judgment summary on April 26, 2012. During that time, the court formally and informally indicated an estimated date for the judgment’s release several times, only to reschedule it. In December 2011 a court staff member told media that the court had intended to deliver its verdict in September 2011. However, the court pushed the date to October 2011 and then December 2011. The staff member said that the verdict might be delivered in January 2012 but that there were no guarantees.[103]

One factor that undoubtedly contributed to the time taken to prepare the judgment was its length (more than 2,500 pages). Another was staff turnover, especially of legal officers in the Trial Chamber who had worked on the trial since its start.[104]

While no individual is irreplaceable, new staff can be expected to need far more time to perform tasks—especially sensitive responsibilities such as judgment drafting—than staff who had been at the court throughout the trial. Finding new legal officers who could take up such a difficult position on short notice was also resource-intensive.[105]

The Special Court offered financial incentives for staff to stay through the judgment-writing phase.[106] However, greater efforts to communicate accurate projections of the court’s timeline and greater consultation about adequate terms for continued employment may have enhanced the prospects for staff to remain in their posts.

As a tribunal with a limited mandate conducting its last anticipated trial, the Special Court has been winding down operations for some time. Staff who continued to work on the trial through the delivery of judgment could be expected to need to find new employment shortly thereafter. As a result, uncertainty over when the judgment would be issued may have fueled decisions by some staff to leave for positions that were available before the judgment was drafted, rather than risk a period of unemployment.

The issue of staff retention is likely to present an obstacle for all tribunals that have limited mandates—such as the ad hoc tribunals for the former Yugoslavia and Rwanda—during their final trials. Silver bullet solutions to this challenge are unlikely. However, greater clarity on timelines and active discussion with staff about possible ways to better ensure retention may make it more feasible for staff to remain until judgment drafting is completed.

A Challenge for the Judges

The judges did not have an easy job at the Taylor trial. In the relatively nascent system of international criminal justice, there is limited jurisprudence and practice in comparison to more developed national judicial systems. Moreover, trials of the highest-level leaders are heavily scrutinized affairs involving a tremendous amount of evidence and complex charges. In addition, as is common at international and hybrid tribunals, the judges of the Special Court are drawn from various judicial traditions. This can create further challenges for effective operation.

Experience has shown that appointing judges with prior experience in complex criminal proceedings—whether as judges, prosecutors, or defense attorneys—can help maximize efficient trial management.[107] The judges of Trial Chamber II, while experienced jurists, largely did not join the Special Court with extensive experience in managing complex criminal trials.[108]

Such experience would have likely proved valuable in helping judges to manage the multiple, changing, and sometimes-conflicting factors at play in the courtroom. As described throughout this section, these include using methods that generally promote efficiency, being flexible in making exceptions to these methods when it would improve efficiency, and allowing adequate opportunities for case presentation while encouraging efficiency by the parties.

Future recruitment and appointment processes for judges should make relevant criminal trial experience a priority. This will help ensure the best possible management of sensitive, complicated trials of the highest-level suspects for serious crimes.

The Defense

Defense Teams

A vigorous defense with adequate support is a key component to ensuring fair, credible judicial proceedings. As discussed above, assembling a defense team acceptable to Taylor was not without its hiccups.

On the opening day of the proceedings on June 4, 2007, Taylor boycotted the trial and his first defense lawyer, Karim Khan, told the court that Taylor had withdrawn permission to have Khan represent him.[109] Khan read a letter from Taylor in which Taylor stated that, due to inadequate time and facilities provided to his one court-appointed lawyer to prepare a case, he believed he would not receive a fair trial.[110] Despite Taylor’s letter terminating Khan’s representation, the court ordered Khan to stay and represent Taylor through the first day of the trial.[111] However, Khan said he no longer had Taylor's authority and left the courtroom.[112]

Following Khan’s firing and walk-out, the judges noted in court on June 25 that defense concerns over resources and time to prepare “ha[ve] been known to the Acting Registrar in general and the Principal Defender in particular since early March 2007 and nothing practical seems to have been done to address the problems.”[113]

On July 6, 2007, the Registry almost doubled the defense budget to US$70,000 per month.[114] With additional funds allocated for the senior investigator and office space for the defense team included, the revised budget for Taylor’s defense team amounted to approximately $100,000 per month.[115] In addition, the principal defender compiled a list of candidates and approved the hire of a second defense team of highly experienced lawyers, including what is referred to as a Queen’s Counsel in the British legal system, and two eminent co-counsels. They began work on July 17.[116]

Taylor’s firing of his first defense team drained time and resources. Greater efforts by the Registry and Trial Chamber to manage concerns raised by Taylor’s first defense team would have been valuable to promote Taylor’s fair trial rights and encourage smoother proceedings from the start of the trial, and should be given priority in future proceedings involving serious crimes.

Office of the Principal Defender

When it was created, the SCSL’s Office of the Principal Defender (OPD) within the Registry represented a potentially pioneering step towards promoting the rights of accused at an international or hybrid tribunal. In addition to administrative functions, such as paying counsel fees, the OPD has the authority to advocate on behalf of the interests of the accused vis-à-vis other court actors, such as the registrar or judges.[117] The rules also authorize the OPD to provide legal support to the accused.[118]

In practice, the OPD’s functioning at the SCSL has faced criticism.[119] In particular, several defense counsel—including those representing Taylor—have stated that the legal assistance the OPD provided defense teams was weak.[120] OPD staff also expressed the view that the OPD model is not suitable for providing legal support to semi-autonomous defense teams, partly due to confidentiality issues.[121] In the Taylor case, defense counsel indicated that they preferred to rely on their own team members to perform substantive legal work. They also suggested providing greater financial support directly to defense teams to conduct tasks such as legal research is preferable to an OPD with a dual administrative-legal assistance role.[122]

At the same time, the OPD made some important contributions, particularly during times of crisis or transition in the case. For example, after the first defense team was terminated, the principal defender and other OPD staff consulted with Taylor to advise him of his legal rights and the best course forward, spearheaded efforts to create a new defense team, and appeared in court on behalf of Taylor.[123] OPD staff also worked to ensure that the contracts of key defense team members were extended during the deliberations phase, enabling them to better prepare for potential sentencing and appeal briefs and to address any potential issues with Taylor’s detention during this period.[124]

Witnesses and Sources

Protecting and Supporting Witnesses

The Witness and Victims Section (WVS), which is located in the court’s Registry, did a commendable job handling the formidable challenges of witness protection and support for the more than 100 witnesses who testified. Witnesses testifying in the Taylor trial included individuals who had never left West Africa, insider witnesses who had admitted to extensive criminal activity, and victims who had suffered severe trauma. Many witnesses had to be transported from West Africa to the Netherlands, which involved complex logistics.[125] Witnesses also had to be kept safe and secure in both locations, requiring constant supervision of safe houses.[126] In addition, WVS provided psycho-social support to witnesses on and off the stand, allowing them to successfully testify.[127]

By various accounts, the bench, prosecution, and defense generally treated witnesses respectfully during their testimony. At the same time, there were isolated incidents where victim witnesses were treated harshly by the defense or bench, such as insensitive questioning of witnesses who testified to the atrocities they or their loved ones suffered. For example, defense counsel harshly questioned a prosecution witness about her continued allegiance to the RUF after her small child had been allegedly buried alive by an RUF commander.[128]In addition, the bench made witnesses who had suffered obvious injuries such as amputations display their injuries to the court.[129]

It is critical that when witnesses come forward to testify, often at great risk to themselves and their families, they are treated with dignity and respect. This is a matter of principle but also pragmatic, as ill-treatment of witnesses can have a chilling effect on witness cooperation with the court and undermines the very principles on which trials for serious crimes are pursued.

Prosecution’s Provision of Funds to Potential Witnesses and Sources

Under the SCSL rules, for the purpose of its investigation, the prosecution “may take … special measures to provide for the safety, the support and the assistance of potential witnesses and sources.”[130] The Witness Management Unit (WMU), located within the Office of the Prosecutor, handles funds for such purposes. No such funds are available for the defense to use for potential witnesses and sources, partly because the prosecution bears the burden of proof.

The situation for potential witnesses and sources is different from witnesses who take the stand and receive assistance from the Registry via Witness and Victims Services (WVS).[131] WVS funds are available to both prosecution and defense witnesses. In addition, while the types and amount of support that the Registry provides to witnesses are determined based on guidelines, no public guidelines exist for the prosecution’s provision of support to potential witnesses and sources.[132]

During the Taylor trial, the prosecution’s support and assistance to potential witnesses and sources led to a number of disagreements between the parties. First, the defense alleged that payments to the prosecution’s potential witnesses and sources created inappropriate incentives for those later selected as witnesses to give favorable testimony to the prosecution.[133] Second, the prosecution and defense disagreed over whether all payments and support provided by the WMU to individuals who were ultimately called to the stand rose to the level of “exculpatory evidence,” which must be disclosed to the defense.[134]

Third, the parties disagreed over whether the prosecution’s disclosure obligations extended to individuals who received funds from the prosecution in the course of its investigation, but who were ultimately called as defense witnesses. For example, defense made a motion for the disclosure of prosecution payments estimated at $30,000 to witness DCT-097, which the prosecution opposed on the grounds that DCT-097 was called as a defense witness. The Trial Chamber ruled that the prosecution was obligated to disclose the payments because they qualified as potentially “exculpatory material” and the prosecution’s disclosure obligation exists “regardless of whether or not [the individual] was called by the Prosecution to testify.”[135]

Providing funds to witnesses, potential witnesses, and sources is a controversial issue for international and hybrid courts, especially when these institutions are engaging with impoverished and war-torn areas and where insiders—who are themselves implicated in crimes—may be crucial witnesses or sources.

The prosecution’s provision of funds to potential witnesses and sources may be unavoidable in conducting a criminal investigation and building a case. But increased transparency and clear guidelines for prosecution funds given to potential witnesses and sources may help to avoid distraction and unnecessary suspicion in future tribunals.

[59]See Human Rights Watch, Judging Dujail: The First Trial before the Iraqi High Tribunal, November 2006. http://www.hrw.org/reports/2006/11/19/judging-dujail-0; Human Rights Watch, The Balkans – Weighing the Evidence: Lessons from the Slobodan Milosevic Trial, December 2006, http://www.hrw.org/reports/2006/12/13/weighing-evidence-0.

[60]SCSL Rules, Rule 39.

[61] The Statute of the SCSL enshrines the accused’s fundamental right “to be informed promptly and in detail in a language which he or she understands of the nature and cause of the charge against him or her.” SCSL Statute, art. 17(4)(a). See also International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No.16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, art. 14.

[62] Human Rights Watch, Weighing the Evidence, pp. 52-57.

[63] The SCSL Rules require that the indictment be accompanied by a case summary that should set forth allegations that, “if proven, amount to the crime or crimes as particularised in the indictment.” Rules of Procedure and Evidence of the Special Court for Sierra Leone (SCSL Rules), amended May 28, 2010, Rule 47(E)(ii).

[64]Prosecutor v. Charles Ghankay Taylor, Amended Indictment; Prosecutor v. Charles Ghankay Taylor, Second Amended Indictment; Human Rights Watch email correspondence with Office of the Prosecutor former staff, New York, March 26, 2012.

[65]Prosecutor v. Charles Ghankay Taylor, Amended Indictment; Prosecutor v. Charles Ghankay Taylor, Second Amended Indictment.

[66] Human Rights Watch email correspondence with Office of the Prosecutor former staff, March 26, 2012; Human Rights Watch email correspondence with former SCSL defense counsel, The Hague, May 9, 2012. See also International Center for Transitional Justice, “The Special Court for Sierra Leone: The First Eighteen Months,” March 2004, http://ictj.org/publication/special-court-sierra-leone-first-eighteen-months (accessed May 21, 2012), p. 5. But see also Wayne Jordash and John Coughlin, “The Right to be Informed of the Nature and Cause of the Charges: A Potentially Formidable Jurisprudential Legacy,” Judicial Creativity at the International Criminal Tribunals, February 2010, which discusses the limited detail provided in early indictments at the ad hoc tribunals.

[67] Human Rights Watch interview with member of Taylor defense team, London, November 9, 2011; Human Rights Watch interview with member of Taylor defense team, London, November 10, 2011; Human Rights Watch telephone interview with SCSL former staff, November 28, 2011. See also Prosecutor v. Charles Ghankay Taylor, Special Court for Sierra Leone, SCSL-03-01-T-775, Decision on “Defence Notice of Appeal and Submissions Regarding the Majority Decision Concerning the Pleading of JCE in the Second Amended Indictment” (Appeals Chamber), May 1, 2009, paras. 2-6.

[68]SCSL Rules, Rule 47; Prosecutor v. Charles Ghankay Taylor, Special Court for Sierra Leone, SCSL-03-01-T-752, Decision on Public Urgent Defence Motion Regarding a Fatal Defect in the Prosecution’s Second Amended Indictment Relating to the Pleading of JCE (Trial Chamber II), February 27, 2009; Prosecutor v. Charles Ghankay Taylor, Decision on “Defence Notice of Appeal and Submissions Regarding the Majority Decision Concerning the Pleading of JCE in the Second Amended Indictment” (Appeals Chamber).

[69]Human Rights Watch interview with former SCSL defense counsel, Pittsburgh, April 21, 2012; Human Rights Watch telephone interview with former SCSL staff, May 23, 2012 .

[70]At the opening of the trial, Taylor’s first attorney, Karim Khan, told the court that Taylor had fired Khan and intended to represent himself. However, this decision was short-lived and by June 25, 2007, Taylor indicated to the principal defender that he would agree to court-appointed representation provided the team had adequate resources. Prosecutor v. Charles Ghankay Taylor, Special Court for Sierra Leone, SCSL-2003-01-T, trial transcript (“Taylor trial transcript”), June 25, 2007, pp. 344-345.

[71] Human Rights Watch, Weighing the Evidence, p. 70.

[72]These include Human Rights Watch interview with member of Taylor defense team, The Hague, November 7, 2011; Human Rights Watch interview with civil society member, The Hague, November 7, 2011; Human Rights Watch interview with Office of the Prosecutor former staff, November 10, 2011; Human Rights Watch interview with Registry staff, New York, December 6, 2011; Human Rights Watch interview with Office of the Principal Defender staff, Freetown, January 17, 2012.

[73] Human Rights Watch, Weighing the Evidence, p. 70. At the same time, the ICCPR provides that in the determination of any criminal charge against him, everyone has the right “to defend himself in person.” ICCPR, art. 14(3)(d).

[74] Human Rights Watch interview with member of Taylor defense team, November 7, 2011; Human Rights Watch interview with member of prosecution team, Leidschendam, November 9, 2011; Human Rights Watch telephone interview with SCSL former staff, November 28, 2011. See also Jennifer Easterday, The Trial of Charles Taylor Part I: Prosecuting “Persons Who Bear the Greatest Responsibility, UC Berkeley War Crimes Study Center, June 2010, p. 30.

[75] Human Rights Watch conducted an informal review of the approximate time measured from the filing date of the last submission by parties to the issuance of a ruling on the motion for public decisions available on the court website for the Taylor trial as of March 2012. The analysis—which does not capture confidential motions or any other motions that were not posted on the court’s website—is on file with Human Rights Watch.

[76] Human Rights Watch interview with civil society member, November 7, 2011; Human Rights Watch interview with member of Taylor defense team, November 7, 2011; Human Rights Watch interview with member of Taylor defense team, Leidschendam, November 8, 2011; Human Rights Watch interview with member of Taylor defense team, November 9, 2011; Human Rights Watch interview with member of Taylor defense team, November 10, 2011. See also Wayne Jordash and Penelope Van Tuyl, “Failure to Carry the Burden of Proof: How Joint Criminal Enterprise Lost Its Way at the Special Court for Sierra Leone,” Journal of International Criminal Justice, vol. 8(2), May 2010, p. 2.

[77] Defense’s motion was submitted December 14, 2007. See Prosecutor v. Charles Ghankay Taylor, Decision on Urgent Defence Motion Regarding a Fatal Defect in the Prosecution’s Second Amended Indictment Relating to the Pleading of JCE (Trial Chamber II), February 27, 2009. It was known at the time of the defense’s submission that the SCSL Appeals Chamber would be deciding the same issue in the context of the AFRC case. Handing down its decision in late February 2008, the Appeals Chamber found that the prosecution’s formulation of JCE, which mirrored that of the Taylor prosecution, was proper. Prosecutor v. Brima, Kamara, and Kanu, Judgment (Appeals Chamber), February 22, 2008, paras. 84-86. After the appellate decision, parties in the Taylor trial were permitted to submit responses to the Appellate Chamber’s decision in the AFRC case.

[78]“Prosecution Response to the Defence’s Consequential Submissions Regarding the Pleading of JCE” was filed on 10 April 2008 and “Defence Reply to the Prosecution Response to the Defence’s Consequential Submission Regarding the Pleading of JCE” was filed on 15 April 2008. See Prosecutor v. Charles Ghankay Taylor, Special Court for Sierra Leone, SCSL-03-01-T-752, Decision on Public Urgent Defence Motion Regarding a Fatal Defect in the Prosecution’s Second Amended Indictment Relating to the Pleading of JCE (Trial Chamber II), February 27, 2009.

[79]Prosecutor v. Charles Ghankay Taylor, Special Court for Sierra Leone, SCSL-03-01-T-775, Decision on “Defence Notice of Appeal and Submissions Regarding the Majority Decision Concerning the Pleading of JCE in the Second Amended Indictment” (Appeals Chamber), May 1, 2009.

[80] Human Rights Watch interview with member of Taylor defense team, November 7, 2011; Human Rights Watch interview with member of Taylor defense team, November 8, 2011; Human Rights Watch interview with member of Taylor defense team, November 9, 2011; Human Rights Watch interview with member of Taylor defense team, November 10, 2011; Prosecutor v. Charles Ghankay Taylor, Special Court for Sierra Leone, SCSL-03-01-T, Defence Final Trial Brief, May23, 2011, para. 52.

[81]Prosecutor v. Charles Ghankay Taylor, Special Court for Sierra Leone, SCSL-03-1-T-1281, Judgment (Trial Chamber II), May 18, 2012, paras. 141-147.

[82] Human Rights Watch informal discussion with former members of prosecution team, Leidschendam, April 26, 2012.

[83]Prosecutor v. Charles Ghankay Taylor, Special Court for Sierra Leone, trial transcript, June 4, 2007, pp. 250, 259, 267.

[84] See Prosecutor v. Charles Ghankay Taylor, Special Court for Sierra Leone,SCSL-03-1-PT, Decision on Defence Application for Leave to Appeal “Joint Decision on Defence Motions on Adequate Facilities and Adequate Time for the Preparation of Mr. Taylor’s Defence” Dated 23 January 2007 (Trial Chamber II), February 15, 2007; Human Rights Watch interview with former member of Taylor defense team, The Hague, November 8, 2011; Human Rights Watch interview with former member of prosecution team, The Hague, November 8, 2011.

[85] Human Rights Watch interview with civil society member, November 7, 2011; Human Rights Watch interview with former member of Taylor defense team, November 8, 2011.

[86]Prosecutor v. Charles Ghankay Taylor, Special Court for Sierra Leone, SCSL-03-01-T-1144, Urgent and Public Defence Motion for a Stay of Proceedings Pending Resolution of Outstanding Issues, January 10, 2011.

[87]Prosecutor v. Charles Ghankay Taylor, Special Court for Sierra Leone, SCSL-03-01-T-1186, Confidential with Annexes A-C Defence Final Brief, February 3, 2011.

[88]Prosecutor v. Charles Ghankay Taylor, SCSL-03-01-T-1154, Decision on Defence Request for a Status Conference Pursuant to Rule 65bis and Defence Motion for Stay of Proceedings Pending Resolution of Outstanding Issues (Trial Chamber II), January 12, 2011, pp. 3-4.

[89]Prosecutor v. Charles Ghankay Taylor, Special Court for Sierra Leone, SCSL-03-01-T-1191, Decision on Late Filing of Defence Trial Brief (Trial Chamber II), February 7, 2011, p. 3.

[90]Prosecutor v. Charles Ghankay Taylor, Decision on Defence Notice of Appeal and Submissions Regarding the Decision on Late Filing of Defence Final Trial Brief (Appeals Chamber), SCSL-03-01-T-1223, March 3, 2011, paras. 48 & 65.

[91] SCSL Rules, Rule 89(C); SCSL Rules, Rule 90(F)(ii).

[92] Human Rights Watch interview with civil society member, November 7, 2011; Human Rights Watch interview with member of prosecution team, November 8, 2011; Human Rights Watch interview with member of Taylor defense team, November 9, 2011. See also U.C. Berkeley War Crimes Studies Center, “Charles Taylor on the Stand: An Overview of his Examination-In-Chief,” January 4, 2010, http://www.charlestaylortrial.org/2010/01/04/charles-taylor-on-the-stand-an-overview-of-his-examination-in-chief-by-u-c-berkeley-monitors/ (accessed May 21, 2012).

[93] U.C. Berkeley War Crimes Studies Center, “Charles Taylor on the Stand: An Overview of his Examination-In-Chief.”

[94] See, for example, Taylortrial transcript, April 18, 2008, p. 8054; Defence Final Trial Brief,para. 40.

[95] Human Rights Watch interview with civil society member, November 7, 2011; Human Rights Watch interview with member of prosecution team, November 8, 2011; Human Rights Watch interview with member of Taylor defense team, November 9, 2011; Human Rights Watch interview with member of prosecution team, November 9, 2011.

[96] See Human Rights Watch, Justice in Motion, p. 12.

[97] See Human Rights Watch, Weighing the Evidence, pp. 62-63.

[98] Human Rights Watch interview with member of Taylor defense team, November 9, 2011; Taylor trial transcript, July 13, 2009, pp. 24295-24296.

[99] Human Rights Watch interview with member of prosecution team, September 13, 2011; Human Rights Watch interview with former member of prosecution team, November 2, 2011; Human Rights Watch interview with civil society member, November 7, 2011; Human Rights Watch interview with civil society member, November 7, 2011.

[100]Prosecutor v. Charles Ghankay Taylor, Special Court for Sierra Leone, SCSL-03-01-PT-227, Joint Filing by the Prosecution and Defence, Admitted Facts & Law, April 26, 2007.

[101] Human Rights Watch interview with civil society member, November 7, 2011; Human Rights Watch interview with member of Taylor defense team, November 7, 2011; Human Rights Watch interview with member of Taylor defense team, November 8, 2011; Human Rights Watch interview with member of prosecution team, November 8, 2011; Human Rights Watch interview with member of Taylor defense team, November 10, 2011.

[102] SCSL Rules, Rule 65bis; SCSL Rules, Rule 94(b). International criminal law expert Patricia Wald has noted the need for judges to allow for summaries of evidence for the crime-base, limit the number of crime-base witnesses, or even have an investigative judge or truth and reconciliation commission make determinations on crime-base facts. Patricia Wald, Tyrants on Trial: Keeping Order in the Courtroom, Open Society Justice Initiative, 2009, pp. 25-26.

[103] The Eighth Annual Report of the Special Court covering the period ending May 2011 stated that the court’s latest completion strategy “envisaged that the Trial Judgment in the Charles Taylor case would be delivered in June 2011.” SCSL Eighth Annual Report, p. 5; Othello B. Garblah, “Taylor’s Verdict Due Next Month?,” The New Dawn Liberia, December 2, 2011, http://www.thenewdawnliberia.com/index.php?option=com_content&view=article&id=4790:taylors-verdict-due-next-month&catid=25:politics&Itemid=59 (accessed May 4, 2012). On March 1, 2012, the Trial Chamber issued a scheduling order announcing that the verdict would be released on April 26, 2012.

[104] Human Rights Watch interview with Registry staff, November 9, 2011.

[105] Ibid.

[106] Ibid.

[107]See Human Rights Watch, Courting History: The Landmark International Criminal Court’s First Years, July 12, 2008, http://www.hrw.org/reports/2008/07/10/courting-history, p. 10.

[108] See biographies of Trial Chamber II judges, http://www.sc-sl.org/ABOUT/CourtOrganization/Chambers/TrialChamberII/tabid/89/Default.aspx (accessed May 17, 2012).

[109] Taylortrial transcript, June 4, 2007, p. 250.

[110] Ibid., pp. 248-250; Letter from Charles Taylor to the Special Court for Sierra Leone, June 1, 2007, http://charlestaylortrial.files.wordpress.com/2007/06/taylor_l.pdf.

[111] Taylortrial transcript, June 4, 2007, p. 259.

[112] Ibid., pp. 266-267.

[113] Taylortrial transcript, June 25, 2007, p. 382.

[114] Marlise Simons, “Liberian Ex-Leader’s War Crimes Trial is Stalled,” New York Times, August 27, 2007, http://www.nytimes.com/2007/08/27/world/africa/27taylor.html?pagewanted=1&_r=1&adxnnl=1&adxnnlx=1338394327-Bt7aa2OFKHLq0gLLqxEG1g (accessed May 30, 2012).

[115] Eric Witte, “Acting Registrar Agrees to Increased Funding for Taylor Trial,” Open Society Justice Initiative, July 6, 2007, http://www.charlestaylortrial.org/2007/07/06/acting-registrar-agrees-to-increase-funding-for-taylor-trial/ (accessed May 4, 2012).

[116] See Eric Witte, “Principal Defender Assigns Taylor New Counsel,” Open Society Justice Initiative, July 18, 2007, http://www.charlestaylortrial.org/2007/07/18/principal-defender-assigns-taylor-new-counsel/ (accessed May 21, 2012).

[117] SCSL Rules, Rule 45; Special Court for Sierra Leone, “Directive on the Assignment of Counsel,” adopted October 1, 2003.

[118] Ibid. However, the Special Court’s rules and directives do not provide guidance on the extent to which to OPD should act independently of the Registry or on the relationship between the Office of the Principal Defender and the accused after the assignment of defense counsel, which appears to be a contributing factor to difficulties it has faced.

[119] For a more detailed discussion of the Office of the Principal Defender, see Human Rights Watch, Bringing Justice, pp. 21-28; Human Rights Watch, Justice in Motion, pp. 3-5, 14-16.

[120] Human Rights Watch interview with member of Taylor defense team, November 7, 2011; Human Rights Watch interview with member of Taylor defense team, November 10, 2011; Human Rights Watch interview with former SCSL defense counsel, April 21, 2012.

[121] OPD staff stated that legal research tasks for Taylor’s defense would often necessarily involve sensitive and confidential issues related to defense strategy and therefore could not be performed by individuals outside of Taylor’s defense team. Human Rights Watch interview with Office of the Principal Defender staff, January 17, 2012.

[122] Human Rights Watch interview with member of Taylor defense team, November 10, 2011.

[123] Human Rights Watch interview with Office of the Principal Defender staff, January 17, 2012. See Taylortrial transcript, June 25, 2007; Taylor trial transcript, July 3, 2007; Eric Witte, “Principal Defender Assigns Taylor New Counsel,” Open Society Justice Initiative.

[124] Human Rights Watch telephone interview with Registry staff, May 4, 2012.

[125] Human Rights Watch interview with Witness and Victims Services former staff, Leidschendam, November 8, 2011; Human Rights Watch interview with Registry staff, November 9, 2011; Human Rights Watch interview with Registry staff, December 6, 2011; Human Rights Watch interview with Witness and Victims Services staff, Freetown, January 17, 2012.

[126] Human Rights Watch interview with Witness and Victims Services staff, January 17, 2012.

[127] Human Rights Watch interview with Witness and Victims Services former staff, November 8, 2011; Human Rights Watch interview with Registry staff, December 6, 2011; Human Rights Watch interview with Witness and Victims Services staff, January 17, 2012.

[129]Taylortrial transcript, October 17, 2008, pp. 18607-18608. See also Human Rights Watch interview with civil society member, November 7, 2011; Human Rights Watch interview with member of Taylor defense team, November 10, 2011.

[130] SCSL Rules, Rule 39.

[131] WVS provides support and assistance to witnesses in the form of monetary allowances, rehabilitation, and counseling, among others. SCSL Rules, Rule 34.

[133] Human Rights Watch interview with civil society member, November 7, 2011; Human Rights Watch interview with member of Taylor defense team, November 7, 2011; Human Rights Watch interview with member of Taylor defense team, November 8, 2011; Human Rights Watch interview with member of Taylor defense team, November 9, 2011; Human Rights Watch interview with member of Taylor defense team, November 10, 2011.

[134]The SCSL rules state that the prosecution is required to disclose any evidence “which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence.” SCSL Rules, Rule 68. Human Rights Watch interview with member of prosecution team, September 13, 2011; Human Rights Watch interview with former member of prosecution team, November 2, 2011; Human Rights Watch interview with member of prosecution team, November 8, 2011; Human Rights Watch interview with member of Taylor defense team, November 8, 2011; Human Rights Watch interview with member of Taylor defense team, November 9, 2011; Human Rights Watch interview with member of Taylor defense team, November 10, 2011.

[135]Prosecutor v. Charles Ghankay Taylor, Special Court for Sierra Leone, SCSL-03-01-T-1084, Decision on Defence Motion for Disclosure of Statements and Prosecution Payments to DCT-097 (Trial Chamber II), September 23, 2010, para. 11.