The triumphant and celebratory rhetoric is in full bloom. Many have claimed that the guilty verdict for former Liberian President Charles Taylor was a huge victory, a milestone in the fight against impunity and an unprecedented achievement for international justice and human rights.
To be sure, the Taylor verdict is a significant moment. There is no doubt that he was responsible for terrible atrocities (see here for a backgrounder of the trial) and his imprisonment, likely for the rest of his life, is welcome. Further, Taylor is only the second-ever head of state to be convicted by an international criminal tribunal. The first, Karl Dönitz, was convicted at the Nuremberg Trials. He had been the delegated leader of Nazi Germany after Adolf Hitler had committed suicide and “ruled” the Third Reich for about 20 days.
Nevertheless, the Taylor verdict exposes a number of ongoing challenges and controversies in the practice and pursuit of international criminal justice.
The reading of the verdict, by the Samoan Judge Richard Lussick, was as long as it was rich. In the end, the judges found that Taylor was guilty of “aiding and abetting” the commission of all the 11 charges he faced in Sierra Leone. Aiding and abetting is a rather precarious charge in the context of international armed conflict. As my friend and colleague, Joe Hoover, pointed out: how many world leaders haven’t aided and abetted (directly or indirectly) the commission of international crimes?
Perhaps just important as what Taylor was convicted of is what he wasn’t. The judges rejected the Prosecution’s case that Taylor held direct individual responsibility for any of the charges in the indictment or that he had been involved in a “Joint Criminal Enterprise” to commit war crimes or crimes against humanity. A chorus of rights groups are claiming this is a victory for international justice and Sierra Leone. Indeed, it may be and it is important not to discount that, for many, it matters more that Taylor is locked away rather than what he is locked away for. But this seems like a minimal victory, if not a defeat, for the Prosecution. Kevin Jon Heller, for example, has described the verdict as “a colossal victory for Taylor” and “a stunning rebuke to the prosecution.”
In Defense of the Defense
A few months ago I had the opportunity to meet Taylor’s lead Defense counsel, Courtenay Griffiths. I disagreed with much of what he claimed about the state of international criminal law. But Griffiths spoke eloquently and persuasively about the role of defense lawyers in the project that is international criminal justice.
Regardless of what others may believe, Griffiths trusts in the idea of international criminal justice. He believes, however that it remains fundamentally political, that the politics of international criminal justice aren’t ‘good politics’, and that the justice it produces is far too selective. Critically, he claimed that he sees his role, and presumably that of other defense lawyers, not as undermining the work of tribunals but as making international criminal law work better and move closer to the vision of universal and unbiased justice.
It is perhaps inevitable that international criminal courts and tribunals have a predisposition in favour of prosecutors rather than the Defense. After all, it is the “worst” and “most responsible” international criminals that end up in the dock. But international justice will not, and cannot, be served if international tribunals are set up to do nothing more than convict alleged perpetrators of war crimes, crimes against humanity and genocide. It is not always going to be pretty or comfortable, but the legal defense of people like Taylor is vital to the project of international criminal justice. Defense lawyers, like Griffiths are often vilified for being “the Devil’s advocate”, heartless and immoral. But the reality is that they play an indispensable role in the functioning and progress of international justice.
Is Justice Delayed, Justice Denied?
Proponents of international criminal justice often exclaim that “justice delayed is justice denied”. Every day that justice isn’t “delivered”, as a result of undue delays, is another day of injustice for victims and survivors.
In this context, it is important to note that the Taylor trial was an arduous and drama-filled affair. When Taylor first arrived at the Court five years ago, he boycotted proceedings. In August 2007, the trial was postponed for almost half a year. The Defense regularly filed motions late which led to additional hearings about whether they were or were not in contempt of court. The Prosecution showcased a ‘star witness’, model Naomi Campbell, ostensibly to bring attention to the trial. A judge left mid-trial to take up a job at the International Court of Justice. The Defense twice walked out on the trial and, earlier this year, the Defense asked to reopen the case. Meanwhile, the SCSL consistently struggled with funding, requiring a number of “bail-outs” from donor states to ensure the trial reached a conclusion. When I visited in 2010, a staff member told me that they had three months of funding left and, if they couldn’t secure more, they would be forced to release Taylor. While it is unlikely that Taylor would actually ever have been released, all of these developments contributed to prolonging the trial.
Jon Silverman has written that the length of the proceedings was “inordinate” and that “[e]arly predictions that the trial would be over in 18 months were laughably off the mark.” Phil Clark took up this issue in his excellent article on the verdict and called the trial’s duration “unjustifiable”:
“the length of the Taylor trial is unjustifiable, delaying justice for his victims, dulling the societal impact of the case and increasing the financial costs. That it has taken the special court six years to deliver a verdict is partly due to the legal complexity of the case but also to the histrionics of international defense and prosecution lawyers, who have constantly sought media and donor attention.”
On the one hand, I can empathize with the view that justice delayed is justice denied. The trial was originally expected to take 18 months and ended up taking three times longer. Delays, particularly when the result of the decisions and issues noted above, are, as Clark rightly characterizes them, unjustifiable.
On the other hand, I am not entirely convinced that delayed justice can’t ever have positive implications. In particular, it is worth wondering whether the length of the Taylor trial contributed to ensuring that the verdict was not a source of renewed violence and instability in Liberia and Sierra Leone. While many people in both countries remain passionate about Taylor’s fate, there seems little risk, after so many years of stability and development, for the peace in either country to fail. Would the same have been true if the verdict was delivered more quickly? Perhaps, but perhaps not. Regardless, the dilemmas involved in the duration and timing of justice require more critical attention beyond the fancy rhetoric of “justice delayed is justice denied”.
Oh the Controversy!
At the conclusion of the verdict hearing, Alternate Judge El Hadji Sow began to present his dissenting position. However, as he did, the three presiding judges stood up and left the court room. Here’s what Judge Sow had the chance to say:
“The only moment where a Judge can express his opinion is during the deliberations or in the courtroom, and, pursuant to the Rules, when there are no serious deliberations, the only place left for me is the courtroom. I won’t get — because I think we have been sitting for too long but for me I have my dissenting opinion and I disagree with the findings and conclusions of the other Judges, because for me under any mode of liability, under any accepted standard of proof, the guilt of the accused from the evidence provided in this trial is not proved beyond reasonable doubt by the Prosecution. And my only worry is that the whole system is not consistent with all the principles we know and love, and the system is not consistent with all the values of international criminal justice, and I’m afraid the whole system is under grave danger of just losing all credibility, and I’m afraid this whole thing is headed for failure.”
It is pretty damning stuff. Sow’s is a voice that needs to be heard, not silenced. But it’s a pressing question whether or not the Court’s procedural rules allow Sow, as an Alternate Judge, to issue a statement or not. (Update: comments at Opinio Juris seem to suggest Sow’s decision to speak was inappropriate). Regardless, it certainly doesn’t look good for the Court to so actively disregard the views of a fellow judge. Unsurprisingly, Griffiths was described as incensed.
Nevertheless, confidentiality rules are likely to ensure that Sow’s dissenting opinion won’t be made public any time soon. But the question remains: why not, in the hours-long delivery of the verdict and years-long trial, give a few minutes for Sow to express his opinion on the matter?
Perhaps it is inevitable that accountability for atrocities is framed as a fight between good and evil, right and wrong. But this isn’t particularly helpful. It is hard to imagine prosecuting and defending the world’s worst human rights violators without legal limitations, political controversies and moral dilemmas. The Taylor trial is yet another a case in point.
UPDATE: Jennifer Easterday and Sara Kendall, who were present when the Taylor verdict was delivered, explore Sow’s comments at IntlLawGrrls. Pretty fascinating and rather dramatic stuff:
Judge El Hadji Malik Sow, a Senegalese jurist who serves as alternate judge for Trial Chamber II, attempted to speak following the end of Presiding Judge Richard Lussick’s reading of the judgment. Those of us seated in the public gallery heard a few words from an unidentified speaker before the microphones were cut off, and through the glass we could hear him continuing to speak.
Shortly thereafter, what appeared to be a metal grate was lowered over the glass, so that we could not longer see into the courtroom. As people waited for press statements from the prosecution and the defense, a paper began to circulate with the statement from Judge Sow. Apparently the court stenographer had continued to type into the transcription program which appeared on the screens of those seated in the courtroom, and one of the legal assistants from the Taylor defense team copied the text and saved it out of concern that the Special Court would strike the judge’s statement from the official record (after receiving transcripts from yesterday’s proceedings, we can confirm that the comments were indeed struck from the record)…
…Judge Sow was not technically entitled to speak in his role as alternate judge, yet his statement makes several claims that may be of interest to observers of the Special Court’s work. He points out that there were ‘no deliberations,’ suggesting communication issues among the judges of Trial Chamber II. He also notes the length of the trial – ‘we have been sitting for too long’ – which lasted 420 trial days, or nearly four years from the opening and closing of the case. Finally, he contested the Chamber’s findings that the Prosecution had sufficiently proven Taylor’s culpability beyond a reasonable doubt…