آغاز محاکمه چارلز تیلور رئیس جمهور اسبق لیبریا
The Law and Politics of the Charles Taylor Case
By Charles Jalloh*
I. Introduction
On Monday, 3rd April 2006, at 3 P.M. local time, former Liberian President Charles Ghankay Taylor was arraigned before Presiding Judge Richard Lussick of Trial Chamber II, Special Court for Sierra Leone (“the Court”). At that initial appearance, held under Rule 61[1] of the Court’s Rules of Procedure and Evidence, Mr. Taylor was formally charged with an 11-count indictment for crimes against humanity, war crimes, and other serious violations of international humanitarian law contrary to Articles 2, 3 and 4 of the Statute of the Court. According to the allegations in the Amended Indictment[2] filed by the Court’s Prosecutor Desmond da Silva, Mr. Taylor, by his acts or omissions, is criminally responsible under Article 6(1) of the Statute[3] of the Court for those three serious crimes witnessed in Sierra Leone between 30th November 1996 and about 18th January 2002.
After the charges were read, Mr. Taylor had a brief exchange with Judge Lussick in which he questioned the jurisdiction of the Court over him as 21st President of Liberia and raised concerns about the legality of his transfer to the Court’s seat in Freetown. Urged by the judge to enter a plea which would then give him standing to take up whatever issues he may have through motions before the full three-member trial chamber, Mr. Taylor responded emphatically:
Most definitely, Your Honour, I did not and could not have committed these acts against the sister Republic of Sierra Leone. I think that this is an attempt to continue to divide and rule the people of Liberia and Sierra Leone, so most definitely I'm not guilty.
With those two sentences, officially clocked at 15:46:40 Freetown time, Mr. Taylor became the first former African Head of State to come before a treaty-based international criminal tribunal set up jointly by the UN and one of its member states, in this case Sierra Leone, for the alleged commission of various international crimes on the territory of that state.[4]
II. Background: The Arrest and Transfer of Taylor to the Special Court
Mr. Taylor’s arraignment before a packed but quiet courtroom in which one could hear a pin drop came five days after he was transferred to Freetown following his arrest on Wednesday, 29th March 2006, while allegedly seeking to flee Nigeria where he had been granted asylum by President Olesugun Obasango since 4th August 2003. The 58-year old Taylor’s asylum in Nigeria was part of a peace package[5] for Liberia between him, the African Union, the United States and other powerful governments which facilitated the peaceful transfer of power to an interim government that then organized democratic elections. The disputed elections were won by former Taylor rival Ellen Johnson-Sirleaf in November 2005.
The newly elected Sirleaf government had been pressured into requesting Nigeria to hand Taylor over to the Court in February, despite her trepidations about the wisdom of such a move for her as yet unsettled government. In return, the United States and the European Union pledged to assist President Sirleaf with aid to rebuild her country shattered by a decade and a half long civil war.
Mr. Taylor’s reported arrest at the Nigerian/Cameroonian border and subsequent transfer to Freetown via Monrovia, Liberia’s capital, came a day after Nigerian authorities incredulously claimed that he had disappeared, without their knowledge, from his Calabar villa in the south-eastern part of the country.[6]
With the recent death of former Yugoslav President Slobodan Milosevic in the Hague, and the apparent show trial of former Iraqi President Saddam Hussein before an internationally discredited Special Tribunal for Iraq, the case of Charles Taylor, the most high profile (and only non-Sierra Leonean) accused before the Court in Freetown, will raise profound questions about the substance, enforcement and legitimacy of international criminal law.
Among other issues, the Taylor case will implicate the nature and extent of immunity afforded by contemporary international law to a former head of state for acts allegedly committed while he was in office; the legal validity and status of the UN’s establishment of a treaty-based criminal tribunal under Chapter VI, as opposed, to Chapter VII of the Charter of the United Nations and the authority of such a tribunal to assert personal jurisdiction over the nationals of a third (non-party) state; the question of extradition;[7] the extent and limits, if any, of the Security Council’s power to effect the direct arrest and transfer of individuals by its peacekeeping forces and the relationship between international and domestic legal systems.
Based on the experience of other international criminal tribunals with high profile cases, it is already clear that the Taylor case will not be properly appreciated from a solely legal perspective. The events leading up to his indictment, arrest, and ultimately, transfer to the Court implicate long-standing matters that could impact upon the fairness and outcome of the proceedings, guaranteed under Article 17 of the Statute of the Court and under international human rights law. These non-legal factors include domestic politics in Sierra Leone, Liberia and Nigeria; international politics, especially in respect of the United States; diplomacy; arms embargoes and sanctions busting; the advocacy activities of human rights and “civil society” groups and networks; the media; and last but not least, international public opinion. The intersection, and to some degree collision, of legal and non-legal imperatives will make the Taylor case a fascinating study of the relationship between international law and international politics.
The apparent tension between international law and international politics can be illustrated by the request for the transfer of the Taylor case to the Hague.
III. Analysis: The Interplay of Law and Politics in the Request for the Transfer of the Taylor Case to The Hague
A day after Mr. Taylor’s transfer to the Court, the President of the Court Judge Raja N. Fernando sent a letter to the Government of the Netherlands and the President of the International Criminal Court asking them to facilitate the Taylor trial in the Hague. According to the Press Release[8] issued by the Court, Judge Fernando’s letter cited concerns about security in the region as his justification for requesting the transfer of the Taylor case to the Netherlands. According to media reports, the Dutch Government has agreed in principle to host the trial of Taylor in the Netherlands, provided that the Security Council passes a resolution approving the request. The Netherlands has also insisted that a third country be found to take Taylor in, whether or not he is found innocent or guilty.
Yet, at his arraignment in Freetown, Mr. Taylor had relayed two concerns to Judge Lussick and the world through Court Principal Defender Professor Vincent Nmehielle.[9] First, that he feared for his life, especially in the light of the death of former Sierra Leonean rebel leader Foday Sankoh in the custody of the Court, and the recent death of Milosevic in the Hague. Secondly, that he is completely opposed to the transfer of his trial to the Hague for both fair trial and family-related reasons.
As media reports indicate that a draft resolution approving the transfer of his trial is currently in circulation at the Security Council, and will likely be passed soon, the provisionally assigned counsel for Mr. Taylor by the Court’s Defence Office Karim A.A. Khan, a renowned British Barrister, filed an urgent motion before Trial Chamber II on 7th April 2006 arguing that requests such as that of the President of the Court “are premature and raise a real risk of the appearance of unfairness in that the Accused in this case has not been afforded a right to be heard on the important issue of venue.”[10]
Furthermore, according to the motion, “it has not been judicially determined that such a proposed change of venue is necessary in the interests of justice.”[11] The Defence is therefore seeking “an order from the Trial Chamber that no change of venue for the proposed trial of Charles Ghankay Taylor be made without first giving the Defence an opportunity to be heard on this important issue.”[12] Counsel for Mr. Taylor is asking Trial Chamber II to direct the President of the Court:
to withdraw the Requests reportedly made to the Government of the Kingdom of the Netherlands and to the President of the ICC (and to any other entities or organisations that may have been contacted) without the Trial Chamber or the President finding, after full arguments from the parties, that such a change of venue is necessary and merited.[13]
While the Prosecution has not yet even responded[14] to the urgent Defence motion, meaning that the tribunal is at least a few weeks away from rendering a decision on the change of venue challenge,[15] media reports suggest that this is more than a purely judicial issue since agreement for Taylor to be tried in the Hague was part of the pre-conditions of the Sirleaf government’s request for Taylor’s extradition to the Court because of its fear of the impact of the arrest on Liberia’s security.
Interestingly, the Sierra Leonean government has stated unequivocally that it does not share such security fears.[16] In fact, many prominent Sierra Leoneans as well as governmental institutions, especially Parliament,[17] as well as human rights and war victims groups are now arguing that the Taylor trial should be held in the country.[18] Otherwise, they maintain, the people of the country will be denied the opportunity to closely follow the trial; a powerful argument coming as it is from those in whose name the Court is said to be rendering justice.[19]
IV. Conclusion
Those who argue in favour of the transfer of the Taylor case to the Netherlands will face some difficulties explaining their reasoning which suggests that his trial overseas is necessary to ensure the security of Sierra Leone, Liberia, and indeed, the rest of West Africa. However, because the contentious issue is the actual arrest and transfer of Taylor to the Court, it is difficult to sustain the proposition that instability will result if he is tried in Freetown but not if he is tried in the Hague.[20]
Also, given the legal and political significance of the trial, especially for those to whom the trial would serve as a deterrent for dictatorial regimes on the continent, many would wonder why if the first indicted African leader cannot be tried in Freetown, another suitable African, rather than European, venue is not being considered, especially given the presence of the International Criminal Tribunal for Rwanda, with all the requisite facilities, in Arusha, Tanzania.[21]
Be that as it may, care must be taken to resolve this issue taking into account the rights and wishes of the accused, lest there be a claim that international criminal law is being built on the back of Africans. This is particularly important given that, so far, Africa is the only scene of investigations and the first indictment by the freshly minted permanent International Criminal Court. Failure to address such concerns may have profound implications and could undermine the legitimacy of the international criminal law regime by suggesting that it is nothing more than the new imperialism masquerading as international rule of law.
*B.A. (Guelph), LL.B. (McGill), B.C.L. (McGill); of the Bar of Ontario, Canada; Legal Advisor to the Principal Defender, Special Court for Sierra Leone. Mr. Jalloh was one of two Provisional Duty Counsel assigned to Mr. Charles Ghankay Taylor after his arrest/transfer to the Special Court. He is currently on leave from the Department of Justice Canada. Needless to say, the opinions expressed in this article are his own and not necessarily those of the Special Court or any other organizations with which he may be associated. E-mail: jallohc@yahoo.com. jallohc@yahoo.com. jallohc@yahoo.com. jallohc@yahoo.com. This email address is being protected from spam bots, you need Javascript enabled to view it
[1] Rule 61 (Initial Appearance of Accused and Plea) provides:
Upon his transfer to the Special Court, the accused shall be brought before the Designated Judge as soon as practicable, and shall be formally charged. The Designated Judge shall:
(i) Satisfy himself that the right of the accused to counsel is respected, and in so doing, shall question the accused with regard to his means and instruct the Registrar to provide legal assistance to the accused as necessary, unless the accused elects to act as his own counsel or refuses representation;
(ii) Read or have the indictment read to the accused in a language he speaks and understands, and satisfy himself that the accused understands the indictment;
(iii) Call upon the accused to enter a plea of guilty or not guilty on each count; should the accused fail to do so, enter a plea of not guilty on his behalf;
(iv) In case of a plea of not guilty, instruct the Registrar to set a date for trial;
(v) In case of a plea of guilty, shall refer the plea to the Trial Chamber so that it may act in accordance with Rule 62.
[2] See Prosecutor v. Charles Taylor, SCSL-03-01-I-75, Amended Indictment; online: http://scsl-server/sc-sl/new/Documents/SCSL-03-01-I-75.pdf. The Amended Indictment was sealed and was ordered disclosed by the Trial Chamber in March 2006. David Crane, the Court’s first Prosecutor, issued the initial (17-count) indictment against Mr. Taylor. For that and other decisions related to the Taylor case, see
[3] See Statute of the Special Court for Sierra Leone; online:
[4] However, on 27th October 1997, Jean Kambanda, Prime Minister of Rwanda between 8th April 1994 to about 7th July 1995, was charged by the Prosecutor of the International Criminal Tribunal for Rwanda with genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, complicity in genocide, and crimes against humanity, contrary to Articles 2 and 3 of that tribunal’s Statute. Of course, the ICTR is a Chapter VII tribunal whereas the Court is not. See Prosecutor v. Jean Kambanda, ICTR-97-23-I (28th October 1997).
[5] Aside from losing credibility as a peace broker, Nigeria’s failure to adhere to the bargain struck with Taylor will have dire implications for dispute resolution in Africa by undermining efforts to peacefully solve disputes by regional and sub-regional bodies such as the African Union (AU) and the Economic Community of West African States (ECOWAS). This has serious human security consequences for a continent dogged by a spate of rebel-led intra-state conflicts, not least in nearby Ivory Coast where regional leaders are seeking cessation of hostilities by the warring parties.
[6] See BBC News Africa, Taylor missing from Nigerian home, Tuesday, 28th March 2006; online:
[7] Neither Nigeria nor Liberia has any cooperation agreements with the Court for Sierra Leone. Neither does Liberia have a bilateral extradition agreement with Sierra Leone. Media reports indicate that the Liberian government will likely face a law suit from Taylor supporters challenging the constitutionality of his mode of arrest and transfer to the Court in Freetown.
[8] See Press Release dated 30 March 2006, Special Court Requests Charles Taylor be Tried in the Hague; online at <http://scsl-server/sc-sl/new/Press/pressrelease-033006.pdf>
[9] The Office of the Principal Defender of the Court was created under Rule 45 of the Court’s Rules of Procedure and Evidence to ensure the rights of suspects and accused persons. This innovation in international criminal justice administration aims to serve as an institutional counter-balance to the Prosecution. The Office, which technically falls under the Registry, is currently seeking independence from the Registry, a matter that is before the Court’s Management Committee. Independence will help ensure greater "equality of arms" as between the Prosecution and Defence.
[10] See Prosecutor v. Charles Ghankay Taylor, SCSL. SCSL-03-01-PT-91, Urgent Defence Motion for an Order that no Change of Venue from the Seat of the Court in Freetown be Ordered without the Defence Being Heard on the Issue and Motion that the Trial Chamber Request the President of the Special Court to Withdraw the Requests Reportedly Made to (1) The Government of the Kingdom of the Netherlands to Permit that the Trial of Charles Ghankay Taylor be Conducted on its Territory and (2) to the President of the ICC for use of the ICC Building and Facilities in the Netherlands during the Proposed Trial of Charles Ghankay Taylor, paras. 2-3.
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] Under the Court’s rules, the Prosecution has ten days to respond to the motion and the Defence five days from the date of filing to reply to the Prosecution response. The clock also stops running during the Court's recess which will last until April 24, 2006.
[15] Given the fast pace of events, it is possible that the matter could become moot if Taylor is transferred to the Hague before a judicial determination is made.
[16] See Emmanuel Aiah Sennessie, “Taylor’s going to the Hague not for Security Reasons” Berewa, Sierra News (7 April 2007) (reporting that Sierra Leonean Vice-President Solomon Berewa told journalists at a press briefing that the intention to transfer Taylor to the Hague was not for security reasons, as widely believed; according to Berewa, Sierra Leone had adequate security for the trial to hold in the country).
[17] Legislators representing the ruling Sierra Leone People’s Party as well as all other major parties “overwhelmingly demanded” that Charles Taylor be tried in Sierra Leone. See Ishmael Bayoh, SLPP, APC, PLP want Taylor tried in Sierra Leone, Independent Observer (6 April 2006).
[18] See Vidal Boltman, Amputees Want Taylor tried in Freetown, Awareness Times (5 April 2006) (noting that members of the Amputees and War Wounded Association want Taylor tried in Freetown so that they can witness the proceedings; they claim that this will help in their healing). Other groups have met with Prosecutor da Silva to express their opposition of the transfer of the Taylor case to the Hague. Mohamed Suma, head of an independent group monitoring the work of the Court, explained that “The lack of justice, the lack of access to justice was one of the primary causes of the war, so people want to see justice.” See Heidi Vogt, Sierra Leone tribunal an experiment, Associated Press (5 April 2006).
[19] As a hybrid court of mixed jurisdiction and composition, the Court has been widely hailed for its location in the country that was the theatre of conflict. By taking away this important advantage that is has over the other international criminal tribunals, the international community will effectively be rendering nugatory this core hybrid feature of the Court.
[20] The suggestion that the Court in Freetown could come under attack by pro-Taylor forces seems a bit far fetched, especially in the light of the position taken by the Sierra Leonean government. On the other hand, while not as vocal as the pro-Freetown Taylor trial advocates, many ordinary Sierra Leoneans seem worried about the security implications of holding the trial in the country. To those individuals, the sooner the case is transferred to some location outside Sierra Leone, the better. The situation is not helped by the lack of professionalism on the part of some members of the local media that speculate on possible attacks of Freetown by pro-Taylor Liberian forces.
[21] Some might contend that the symbolism of trying a former African leader in Europe, for crimes committed in Africa, is attached to a deep-seated racist desire to humiliate the people of the continent, especially given Europe’s failure to try those who commit crimes against African immigrants living in Europe.
