The Trial of Charles Taylor

War crimes include grave breaches of the Geneva Conventions and other serious violations of the laws and customs that are designed to regulate the conduct of hostilities during armed conflicts. These rules are not meant to put any judgment on why conflicts are fought, but rather, they lay the ground rules about how parties to the conflict should conduct themselves and what acts are not allowed during the conflict.

War Crimes include crimes such as terrorism, sexual violence, cruel treatment, pillage, etc. In the case of Charles Taylor, the prosecution alleges that Mr. Taylor committed crimes such as terrorizing the civilian population, including widespread destruction of civilian property (Count 1), unlawful killings, including violence to life, health, physical and mental wellbeing of persons, particular murder (Count 3), sexual violence including outrages upon personal dignity (Count 6), physical violence, including violence to life, health and physical and mental wellbeing of persons, particularly cruel treatment (Count 7), and looting, including pillage, in particular the taking of civilian property (Count 11).

These are crimes that are committed as part of a widespread or systematic attack against any civilian population: They include crimes such as murder, extermination, rape, sexual slavery, torture and other inhumane acts.

The prosecution alleges that Mr. Taylor committed acts of murder (Count 2), Sexual Violence including rape (Count 4), sexual slavery (Count 5), Physical violence including other inhumane acts, i.e., widespread acts of physical violence against civilians (Count 8), abductions and forced labour, including enslavement (Count10).

The prosecution further alleges that these acts were part of a widespread attack against civilians by the RUF. For example, witnesses have alleged that RUF fighters had a policy to kill civilians in several places that they attacked, abducted several women, raped and took them as sex slaves, forced civilians to mine for them and carry their loots in various parts of the country, etc. The prosecution alleges that Mr. Taylor was part of the plan to commit these crimes, that he knew or had reason to know that said crimes were committed when he maintained a relationship with the RUF.

Crimes against Humanity must possess two major elements:

• The crime must be a product of a widespread or systematic attack, not an isolated incident. If it is isolated, it must be connected to multiple acts, pursuant to a policy.
• Such crimes must be directed against a civilian population—if it is a military target, it could be a war crime.

This refers to crimes committed against international law, which, though not found in any treaty, could be regarded as being part of customary international law. Customary international law, though not written reflects practice of states and the existence of a conviction in the international community that such practice is required as a matter of law. The prosecution alleges that Mr. Taylor was responsible for the recruitment and use of children in combat during the conflict in Sierra Leone. The Appeals Chamber of the Special Court for Sierra Leone has ruled that though not forming part of treaty law during the conflict in Sierra Leone, the prohibition on the recruitment and use of child soldiers formed part of customary international law.

This refers to any “person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime.”

The Statute of the Special Court states that “The official position of any accused persons, whether as Head of State or Government or as a responsible government official, shall not relieve such person of criminal responsibility nor mitigate punishment.” The prosecution alleges that Mr. Taylor helped in planning attacks on specific towns in Sierra Leone or that he aided and abetted in planning and executing the commission of crimes in Sierra Leone by providing arms and ammunition for the RUF in exchange for diamonds. For example, witnesses have alleged that Mr. Taylor supplied arms and ammunition, plus herbalists to immunize RUF fights for the attack on Kono in 1998.

This refers to a concept which assigns individual criminal responsibility as a perpetrator to all individuals who together are/were part of a common plan, design or purpose which amounts to or involves the commission of a crime. For example, a prison guard at a camp where prisoners were murdered would be held criminally responsible for murder, on the grounds that he formed part of a joint criminal enterprise, if his actions as a guard in some way contributed to the furtherance of the crimes, even if he did not directly participate in the physical act of killing. The prosecution alleges that through his actions or omissions, Charles Taylor was involved with the AFRC and RUF in the planning, instigating, ordering and aiding and abetting the commission of crimes in Sierra Leone. The prosecution further alleges that Mr. Taylor’s actions were part of a common plan, design or purpose whose object was to commit crimes in the territory of Sierra Leone.

This refers to the responsibility of a person in commanding authority for war crimes committed by subordinate members of his armed forces or other persons subject to his control. This responsibility is based on a failure to prevent or punish subordinates for their unlawful actions.

In order to establish command responsibility, there must exist the following:

• There has to be a commander who has the de facto authority to control subordinates
• He must know of criminal conduct that has happened, is happening and will happen or he should have known.
• He must fail to take action to prevent, stop it or have it punished.

The prosecution alleges that the RUF operated under the direct command of Mr. Taylor. The prosecution claims that Sam Bockarie, erstwhile leader of the RUF took commands directly from Mr. Taylor through radio communications, through regular visits by Bockarie to Taylor in Liberia, and through regular visits by NPFL fighters like Jungle, Zig Zag Maaza, etc, as messengers of Mr. Taylor to Sierra Leone. The prosecution further alleges that the instructions to capture Kono came directly from Mr. Taylor because he thought Kono was strategic for the diamond trade in exchange for arms and ammunition.

A judicial proceeding that is conducted in such a manner as to conform to fundamental concepts of justice and equality. Such fair trial procedures include the following:

• The right of the accused to a public hearing, subject to measures ordered by the court for the protection of victims and witnesses. In the trial of Mr. Taylor, certain witnesses whose testimony the court thinks will expose them to security risk, are made to testify under protective measures.
• Presumption of innocence until proven guilty. In Mr. Taylor’s case, before the commencement of his trial, he was made to enter a plea. Since he made a plea of not-guilty, the court regards him as such and it is for the prosecution to prove the charges against him. It is therefore not for Mr. Taylor to prove his innocence, but for the prosecution to prove his guilt.
• To be informed of the nature and cause of the charge against him. At the commencement of the trial against Mr. Taylor, the charges against him were read to him in open court and he was served a copy of his indictment.
• It is the duty of the court to make sure that the trial is conducted without delay.
• To be tried in his or her presence. Since the trial commenced, Mr. Taylor has been present in court for most of the time. However, on days when he couldn’t make it to court due to medical reasons or otherwise, he has always advised his lawyers on whether the proceedings should continue in his absence.
• To defend himself or through legal assistance of his choosing. Mr. Taylor personally selected the lawyers that should serve as his defense counsel. They are Mr. Courtney Griffiths QC, Mr. Terry Munyard, and Mr. Morris Anyah.
• To be provided with legal assistance if he does not have sufficient funds to pay for one. At the commencement of his trial, Mr. Taylor indicated that he is indigent and has no money to pay for his defense. The court, therefore, through the Registrar’s office has been paying for all legal services rendered to him, including the payment of his defense counsel.
• To examine or have examined witnesses against him. After the examination-in-chief of any prosecution witness, Mr. Taylor’s defense counsel has the right to cross-examine the witness. When Mr. Taylor presents his defense, he will have the right to call up witnesses who will be examined by his defense counsel.
• To obtain the attendance and examination of his own witnesses. Mr. Taylor’s defense team, with the help of the Registrar’s office, through the Witness and Victims Services, will present his witnesses before the court. The court will facilitate travel arrangement for these witnesses to The Hague where the trial is held. Mr. Taylor’s defense can obtain subpoena orders for witnesses who might be reluctant to testify but who Mr. Taylor thinks can be of help to his defense.
• To obtain the free assistance of an interpreter if he cannot speak or understand the language used in the court. Court interpreters are made to translate witness testimonies into various local languages. For Mr. Taylor’s benefit, there is always an interpreter who translates witness testimonies into Liberian English or English English, based on what Mr. Taylor understands.
• Not to be forced to testify against himself or to confess guilt. When charges against Mr. Taylor were read to him, he was asked to exercise his option as to whether he wanted to make a plea of guilty or not-guilty. Since he made a plea of not-guilty, the court has presumed him innocent.

According to the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the Prosecutor v. Tadic (July 15, 1999 para. 43, 44, 48, 52): “equality of arms is an expression that means that each party must have a reasonable opportunity to defend its interests under conditions which do not place him at a substantial disadvantage vis-a-avis his opponent…this principle means that the Prosecution and the Defense must be equal before the Trial Chamber. It follows that the Chamber shall provide every practical facility it is capable of granting under the Rules and Statute when faced with a request by a party for assistance in presenting its case.”

At the commencement of his trial in June 2007, Mr. Taylor protested the non-availability of logistical resources to his defense, and the limited personnel in his defense team compared to that of the prosecution. The Chamber ordered the Registrar’s Office to attend to all of Mr. Taylor needs and to provide him with same resources available to the prosecution.

• The Special Court has universal jurisdiction to try crimes against humanity and war crimes
• The Special Court tries only those accused who allegedly bear most responsibility for crimes in Sierra Leone from 30 November 1996. (Article 1(1) of the Statute of the Special Court for Sierra Leone.
• Accused person’s position (Head of State) does not bar jurisdiction for crimes against humanity or war crimes. (Article 6(2) of the Statute of the Special Court for Sierra Leone).

The temporal jurisdiction of the Special Court refers to its power to prosecute only those crimes committed from November 30, 1996. While the court can hear evidence of crimes committed prior to November 30, 1996, it cannot find an accused guilty of any such crimes committed prior to that cut-off date. During Mr. Taylor’s trial, many witnesses have testified about events which took place prior to November 30, 1996, in which they alleged that Mr. Taylor was involved. While the prosecution can argue that these issues will build the foundation for the main charges against Mr. Taylor, the judges will not find him guilty based on any activities that occurred prior to November 30, 1996.

The personal jurisdiction of the Special Court refers to its power to prosecute only “those who bear the greatest responsibility” for the grave crimes committed in Sierra Leone from November 30, 1996. The prosecutor of the Special Court has defined the phrase “bearing the greatest responsibility” to mean those individuals who served as major commanders in the various fighting factions. While many individuals might have been involved in the conflict in Sierra Leone, it is left with the prosecutor to determine who falls in the category of “those who bear the greatest responsibility.” The statute of the court provides that the official position of an individual, whether as head of state, will not stop the prosecutor from bringing charges against him. While many heads of states have been linked with the conflict in Sierra Leone, such as Presidents Ahmed Tejan Kabbah of Sierra Leone, Blaise Campore of Burkina Faso, Muamarr Ghadafi of Libya, or Lansana Conteh of Guinea, it is the prosecutor’s duty to determine where the evidence leads him. In this case, the prosecutor determined that the evidence led him to Mr. Taylor. As an independent monitoring program, we are not in a position to determine whether the prosecutor is right or wrong.

The territorial jurisdiction of the Special Court refers to its powers to prosecute individuals only for crimes committed in the “territory of Sierra Leone.” While the Special Court can indict and prosecute persons other than Sierra Leoneans, such prosecutions would only be for crimes committed in the territory of Sierra Leone. During the trial of Mr. Taylor, many witnesses have spoken about events which took place in Liberia. The court, however, will only consider those events that took place in Sierra Leone or those events that took place in Liberia but were directly a part of the events taking place in Sierra Leone. For example, if a witness testifies about a meeting in Liberia relating to RUF activities, where Mr. Taylor was present, then such issues will be considered as part of events in Sierra Leone. Or if a witness testifies about arms or diamond trade in Liberia, but which were meant to impact the war in Sierra Leone, those issues will be considered as part of the evidence relating to the war in Sierra Leone. Other than that, if a witness testifies about how the NPFL fought in Liberia or how NPFL commanders were killed in Liberia, they will not form the basis of conviction for the conflict in Sierra Leone.

These are alternate proof of facts during a trial. The Trial Chamber may allow evidence of facts without requiring witness testimony on:

• Internal armed conflict
• Acts of murder, rape, child soldiers, physical violence (amputation/mutilation), abductions and forced labour, etc
• Accused may challenge such facts by cross-examination of witness or by submission to Trial Chamber

The prosecution has indicated that testimonies of some of their witnesses will be tendered as written statements. These might be mainly witnesses who are/were victims, or witnesses whose testimonies have already been heard in the RUF and AFRC cases before the Special Court, and whose testimonies have direct relevance to the charges against Mr. Taylor. This will, however, not affect the right of the defense to request that these witnesses be called for cross-examination, if they see the need to do so.

A person whose education, training, and experience can provide the court with an assessment, opinion, or judgment within the area of his or her competence, which is not considered known or available to the general public. The person must be accepted by the court and must normally testify about facts rather than the law. The defense has the right to object to the qualification of an individual presented by the prosecution as an expert witness. For example, when Corinne Dufka, Human Rights Watch researcher for West Africa testified as an expert witness in the Taylor trial, the defense challenged her qualification as an expert witness.

Statements offered by a witness, based upon what someone else has told him/her, and not upon personal knowledge or observation. This is secondary source of evidence rather than a primary source. For a primary source of evidence, the witness actually saw an event happen or such events happened directly to him/her. The court relies more on primary evidence than on secondary evidence.

During the trial of Mr. Taylor, there have been many concerns about hearsay evidence and there have been concerns as to whether such testimonies should be admitted in evidence. The rule is that hearsay evidence is generally inadmissible. However, in international criminal tribunals, the Chamber will look at the relevance and probative value of the evidence, focusing on its reliability before admitting said evidence. In doing so, the Chamber will consider the circumstances under which the evidence arose, and the content of the said statement in evidence. If the hearsay evidence is relevant and reliable therefore, it will be admitted in evidence by the judges.

Measures to prevent disclosure of the identity or whereabouts of a victim or witness by:

• Blacking out names
• Refusing disclosure to public of records/name
• Testifying through image/voice altering devices, closed circuit television or video link
• Assignment of a pseudonym

In the trial of Mr. Taylor, certain witnesses have been made to testify as protected witnesses. Some of these witnesses have testified with voice and/or facial distortion if the prosecution convinces the Camber that their testimony will expose them to security risks.

This means that the media and public are banned from court for a particular witness’s testimony. In the trial of Mr. Taylor, for some witnesses, if their testimonies about particular issues will disclose their identity and thus expose them to security risk, their testimonies will be heard in closed/private sessions.

This is an outline of what the defense intends to show through its evidence and witness testimony. It is not evidence, it just provides a road map to the court of the defense case. It is an excellent summary for journalists of what the accused hopes to prove. When the prosecution closes it case against Mr. Taylor, he will be allowed to present his witnesses in his defense to the court. Before presenting his evidence, his defense counsel will present a defense opening statement to the court which, will summarize what the defense intends to prove.