Background Briefing

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III. Legal and Procedural Aspects Related to the Change in Location

The change in location requested by the Special Court involves court judges and staff conducting Taylor’s trial according to their statute and rules of procedure and evidence, but using the facilities of the International Criminal Court (ICC) in The Hague.

The Special Court’s founding documents permit proceedings to be conducted outside of Sierra Leone. The agreement setting up the Special Court states that the seat of the court shall be in Sierra Leone, but “the Court may meet away from its seat if it considers it necessary for the efficient exercise of its functions, and may be relocated outside Sierra Leone, if circumstances so require, and subject to the conclusion of a Headquarters Agreement between the Secretary-General of the United Nations and the Government of Sierra Leone, on the one hand, and the Government of the alternative seat, on the other.”11 The Special Court rules of procedure and evidence further delineate a process under which the court may conduct proceedings outside of Freetown.12 

In response to the request from the Special Court, the Dutch government indicated that it was willing to host Taylor’s trial assuming three conditions could be met:

  • The legal basis for the Special Court to detain and conduct Taylor’s trial in the Netherlands is provided, namely a Chapter VII U.N. Security Council resolution;

  • Arrangements for Taylor to leave the Netherlands after the trial are made, i.e. a third country agrees to accept Taylor following his conviction or acquittal; and

  • An agreement for the use of appropriate facilities is secured from one of the international criminal courts in the Netherlands which are the International Criminal Court and the International Criminal Tribunal for the Former Yugoslavia.13

    Two out of the three conditions set out by the Dutch Government were ready to be satisfied within a few weeks of the Special Court president’s request for the trial to be relocated. First, the ICC consented to the use of its facilities. The ICC statute and rules of procedure and evidence do not specifically provide a process for responding to a request for use of its facilities. In this instance, the ICC president took the decision, after consultation with other relevant court officials, to approve the request. This decision was made after all states parties to the ICC were notified of the request and no states objected, and the ICC determined that hosting Taylor’s trial is feasible, at this stage in the development of the institution.14 Second, Security Council members prepared a draft resolution to provide the legal basis for Taylor’s trial by the Special Court to take place in the Netherlands.  We understand that the draft resolution had wide support on the council. 

    However, a very regrettable delay then occurred when no country stepped forward to assist in satisfying the condition set out by the Dutch government that required a state to offer detention facilities for Taylor in the event he is convicted. States cited a number of obstacles to making such an offer, including: legal barriers such as lack of necessary parliamentary approval, financial constraints, or the fact that they have shown a commitment to international justice in other ways. 

    Human Rights Watch believes that the failure of states to have resolved this issue promptly is troubling. This is particularly the case given that the relocation request was made on the basis of security concerns. A number of states, including the United States and European Union members, played a strong role in pressing for Taylor’s surrender. While offering detention facilities to persons convicted by international criminal tribunals may be one of the less appealing aspects of international justice, it is vitally necessary to its success. The situation highlights the need for states to take a more pro-active approach to ensuring detention facilities are available for persons convicted by international tribunals.

    Approximately two and a half months after the Special Court president initially made the relocation request, the United Kingdom announced on June 15, 2006 that it will provide detention facilities for Taylor if he is convicted. This offer is subject to parliamentary approval. Human Rights Watch welcomes this offer by the United Kingdom which reflects their commitment to international justice.

     

    One day later, the Security Council passed a resolution providing a legal basis for the relocation meeting the last outstanding condition set forth by the Dutch government. The resolution provides that the Special Court shall “retain exclusive jurisdiction over former President Taylor during his transfer to and presence in the Netherlands” absent “express agreement” with the Special Court.15 Despite initial opposition by some Security Council members, the council uses its Chapter VII powers in the resolution. The government of the Netherlands required this condition in order to ensure the resolution’s binding authority in its domestic courts.16

    The resolution also addresses a number of other elements related to the relocation. In order to provide a basis for Charles Taylor, who is under a U.N. Security Council-imposed travel ban, and any witnesses who may also be under the ban to travel to The Hague for the trial, the resolution exempts these persons from the ban for this purpose.17 With regard to the issue of costs, which have been an ongoing challenge for the Special Court (see Section V), the resolution provides that the costs of the trial are those of the Special Court and will not be borne by any other party without their consent. The resolution, however, encourages states to continue to provide financial support to the Special Court.18

    On the issue of accessibility to the communities most affected by the crimes (see Sections IV and V for an in-depth discussion of this issue), the Security Council explicitly “[r]equests the Special Court, with the assistance of the Secretary-General and relevant States, to make the trial proceedings accessible to the people of the sub-region, including through video link.”19

    The also resolution incorporates the following references to the ICC:

  • “Taking note also of the Memorandum of Understanding between the Special Court and the International Criminal Court dated 13 April 2006;” and

  • “Takes note of the willingness of the International Criminal Court, as requested by the Special Court [ ] to allow the use of its premises for the detention and trial of former President Taylor by the Special Court, including any appeal.”20

    In the initial draft of the Security Council resolution, no explicit reference was made to the ICC, although the court’s facilities were the only ones under consideration to host the trial at that time. We understand that this was done in part to pacify United States concerns about the ICC.21 The United States has strongly opposed the International Criminal Court, although it supports the change in location for Taylor’s trial and accepts that the proceedings will be conducted at the ICC.

    Human Rights Watch strongly believes that the ICC must be referenced when appropriate in Security Council resolutions and other U.N. instruments and documents. In this case, such a reference was necessary given the unique role of the ICC as an independent judicial institution lending its facilities for the trial in question. This is underscored by the fact that all other major stakeholders involved in moving the trial, the Sierra Leone Special Court, the government of the Netherlands, and the United Nations were all referenced in the text of the resolution.22


    [11] Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, January 16, 2002, art. 10.

    [12] Rules of Procedure and Evidence, Special Court for Sierra Leone, amended May 2005, Rule 4 (“A Chamber or a Judge may exercise their functions away from the Seat of the Special Court, if so authorized by the President. In so doing, audio or video-link technology, e-mail or other available electronic instruments may be used if authorised by the President or Presiding Judge”).

    [13] Letter dated 31 March 2006 from the Permanent Representative of the Netherlands to the United Nations addressed to the President of the Security Council, April 3, 2006, Annex I, S/2006/207.

    [14] Human Rights Watch telephone conversations with U.N. sources and ICC staff, Brussels, New York, and The Hague, April 3-11, 2006.

    [15] U.N. Security Council Resolution 1688 (2006), S/RES/1688, operative para. 7.

    [16] Human Rights Watch telephone conversations with U.N. sources, New York, April 3-6, 11, 2006. See also "Update Report No. 1: Charles Taylor," Security Council Report, April 7, 2006 [online], http://www.securitycouncilreport.org (retrieved April 12, 2006).

    [17] U.N. Security Council Resolution 1688 (2006), S/RES/1688, operative para. 9.

    [18] Ibid., operative paras. 10-11.

    [19] Ibid., operative para. 6.

    [20] U.N. Security Council Resolution 1688 (2006), S/RES/1688, preambular para. 13 and operative para. 3.

    [21] Human Rights Watch telephone conversations with U.N. sources, New York, April 3-6, 11, 2006.

    [22] Draft resolution regarding the Netherlands hosting the trial of Charles Taylor by the Special Court for Sierra Leone, April 4, 2006, on file with Human Rights Watch.


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