On the verge of the final verdict in the Charles Taylor trial, Thijs B. Bouwknegt joins JiC for this critical examination of the role and purpose of international criminal tribunals. Thijs is a legal historian and researcher at the NIOD Institute for War, Holocaust and Genocide Studies in Amsterdam. Enjoy!

“The purpose of a trial is to render justice, and nothing else,” wrote Hannah Arendt two years after the trial of Adolf Eichmann in Jerusalem (1961). The political theorist observed that, “the making of a record of the Hitler regime which would withstand the test of history” could “only detract from law’s main business: to weigh the charges against the accused, to render judgement and to mete out due punishment.” Arendt’s reflection is a useful tutorial for international criminal tribunals and the International Criminal Court (ICC). They carry the responsibility not to arouse false hopes by raising high expectations.

International tribunals pledge an awful lot: justice for the victims, peace in conflict zones and reconciliation in shattered communities. Alongside these ambitions, they also claim to unravel and record history. These aspirations breathe the strong cosmopolitan human rights dogmatism that drives the transitional justice and humanitarian enterprises. Yes, they are noble. But like other ideals, they are mostly unrealistic. Remember that the UN’s International Criminal Tribunal for Rwanda (ICTR) exclusively prosecuted Hutus and no Tutsis. Ratko Mladic carried out the Srebrenica genocide less than two years after the UN gave birth to the International Criminal Tribunal for the former Yugoslavia (ICTY). And against the background of almost five million Congolese war victims, we still await an ICC appeals verdict against one local militia leader. It is true that tribunals deal with events of historic significance and that they assemble and generate historical sources. However – at best – judges write up agency history, through the straitjacketed lens of law. Their verdicts narrate the criminal actions of individual defendants in the context of genocide and other episodes of mass violence.

The trials in The Hague, Arusha, Dili, Phnom Penh, Leidschendam-Voorburg and in Dakar illustrate one certainty: the everyday business of prosecuting and judging alleged war criminals and génocidaires is not easy. Tribunals simply do no have ‘extraordinary’ or ‘special’ powers as some of their names purport. That also counts for the Sierra Leone tribunal (SCSL), which shall deliver its last verdict on 26 September 2013. Guest of honour at that historical occasion is Charles Ghankay Taylor. The Special Court’s Appeals Chamber will definitively rule whether the former Liberian president is liable for a campaign of terror in Sierra Leone. Last year, the Trial Chamber of the tribunal sentenced him to a half-century of imprisonment for planning and aiding and abetting the countless murders, rapes and mutilations perpetrated by the Revolutionary United Front (RUF) and the Armed Forces Revolutionary Council (AFRC) military junta. Taylor insists he only mediated in the civil war as a peace broker and appealed the verdict and sentence. But so did SCSL Chief Prosecutor Brenda Hollis. She wants to see the 65-year-old Taylor spend at least 80 years in a UK prison. In her view, Taylor did not only give the rebels money, weapons and advice. For Hollis, Taylor was their “Godfather” and directly orchestrated their crimes.

Charles Taylor (Photo: AFP)

Time will tell which narrative will prevail. One outcome is already unambiguous. Taylor will not be held to account for a litany of human rights violations committed in Liberia between Christmas Eve 1989 and August 2003. This is the poignant consequence of the constricted focus of the SCSL. It solely has jurisdiction over crimes committed in Sierra Leone after November 1996. How does that ever generate a sense or feeling of justice for Liberian victims? What kind of reconciliation does a trial against a foreigner bring about in Sierra Leone? And what about atrocities committed since the beginning of the Sierra Leonean inferno in March 1991? The answers are obvious. The only side-goal that was achieved by indicting, arresting and prosecuting Taylor is regime change. Meanwhile, all lofty rhetoric out voiced the beating heart of the criminal proceedings: determining beyond any reasonable doubt whether the presented evidence supports the charges levelled against Taylor.

While Taylor’s trial is propagated as being the jewel in the crown of modern international criminal justice, the case was far from crystal clear. The prosecution presented the judges with a convoluted scenario, rooted in events that reached far beyond their jurisdiction. They suggested that together with former photographer and RUF-leader Foday Sankoh, Taylor – somewhere in one of Myanmar Gaddafi’s revolutionaries’ training camps in Libya approximately between 1987 and 1989 – forged a criminal conspiracy to conquer the West African coast. Their motive: to enrich themselves with diamonds from Sierra Leone. Their modus operandi: terrorising civilians. How do you prove all that?

With a relentless absence of documents or forensic traces, the prosecutor flew no less 94 – including experts – witnesses to the Dutch municipality of The Hague. In the borrowed courtrooms of the ICC and Lebanon tribunal (STL), 58 victims reminded the judges of the surrealistic theatre of violence that took place in Sierra Leone. They got an important – but often traumatic – opportunity to talk about their painful and sad experiences. In spite of that, so much heartbreaking live testimony (lawyers call that crime-base evidence) about the actual violence itself was legally unnecessary. Taylor acknowledges all those events. He only insists that he was not there and would have had to have been “Superman” to commit such deeds while he was busy running Liberia.

It was for Hollis and her team to link the crime scenes to decisions taken in Taylor’s presidential mansion in Monrovia. After years of investigations, they managed to ascertain such connections only between December 1998 and February 1999. The conspiracy with Sankoh – or even the assertion that they ever met in Libya – remains legally unproven and, despite the statements of superstar witnesses Naomi Campbell, Mia Farrow and Carole White, there was no trace of diamonds. The only direct eyewitness evidence linking Taylor to the massacres, amputations and rapes came from 29 ‘insiders’ – Taylor’s old comrades and opponents. Some were outright criminals. Like Joseph “Zigzag” Marzah – chief of Taylor’s security services. He testified how he killed babies, how he ripped open the bellies of pregnant women and how he cooked the tastiest human flesh. He tirelessly repeated that it was all on the instigation of Taylor. Zigzag was the representation of Taylor’s evil, but his devilish revelations were inconsistent and vague. For the judges, his testimony was insignificant. The prosecution consequently hoped that Taylor himself – during an unprecedented seven-month long testimony and cross-examination – would incriminate himself. It was in vain.

How to objectively ascertain that these insiders – or linkage witnesses – tell a true version of what happened in Sierra Leone and Liberia? Did they testify in exchange for immunity from prosecution and an attractive witness protection programme?

(Photo: AP)

The Appeals Chamber has to decipher riddles like these. Taylor argues that all witness statements against him were fabricated. He asked the prosecutor what she had spent the money she received from the USA government on: was it used to pay witnesses? The appeal judges should also consider the dissenting opinion by El Hadji Malick Sow, although it was censored and deleted from the trial transcript. The Senegalese alternate judge – minutes after the verdict was read out last year – lamented the work of his three colleagues. Although the tribunal turned down his microphone and closed the blinds in the public gallery, he managed to exclaim that the prosecution had not proven the guilt of Taylor beyond reasonable doubt and he hinted that the Trial Chamber had not even “deliberated” the evidence.

If what Sow said is accurate, Taylor might walk free. And the Liberian ‘Big Man’ would not be the first. The Appeals Chambers of the Yugoslav and the Rwanda tribunals likewise acquitted a score of heavyweight defendants in the past year. They all cite insufficient evidence.

A possible acquittal based on a dispassionate weighing of the available evidence quashes aroused hopes. Victims will deem it an injustice and perpetrators will argue that history is on their side. Moreover, any potential return of Taylor to Liberia is a recipe for instability and tension. The outcome of trials often leads to irrevocable deception.

It is therefore clear that these tribunals, their creators and their protagonists – including human rights organisations, policy makers and activist academics – carry the fundamental responsibility to be frank and not romanticise the meaning of international criminal justice. They should – in line with Hannah Arendt’s sober but realistic observation – explicate that establishing the individual guilt or innocence of the accused – and not even the truth – is the one and only theme in a trial. The purpose of international tribunals is to issue verdicts, and nothing else. They should unemotionally distance themselves from detracting side-activities such as politics, reconciliation or peacemaking. Likewise, they ought to be frank that victims are not at the heart of the criminal trial. Since the ICC painfully reduces them to code numbers, victims should get their own international civil tribunal that is specifically designed to hear their views and review their claims against convicted war criminals. As for unravelling and explaining history, leave that to professional historians and to truth commissions.