On 4 June 2003, former Pentagon lawyer and Prosecutor of the United Nations-sanctioned Special Court for Sierra Leone (SC-SL), David Crane, unsealed and made public the indictment of Charles Ghankay Taylor, President of Liberia. The indictment accused Mr. Taylor of personal responsibility for multiple and egregious violations of international humanitarian law, war crimes and crimes against humanity in relation to the recently abated war in Sierra Leone. In the view of the Prosecutor, Mr. Taylor falls within the category of “persons who bear the greatest responsibility” for serious violations of international law in Sierra Leone. Soon after Mr. Taylor, who was in Accra to attend a peace conference on Liberia convened under the joint auspices of both the African Union (AU) and the Economic Community of West African States (ECOWAS), was compelled to flee from Ghana.

As a suspect in potential criminal proceedings, and in accordance with Article 17(3) of the Statute of the SC-SL, Mr. Taylor is to be presumed innocent until his guilt is proved. The responsibility for proving this guilt belongs to Prosecutor Crane and his team. Yet, few citizens of West Africa can find it in themselves to voluntarily stand up in defence of Mr. Taylor. To Liberians, Africans, persons of goodwill everywhere and, in particular, the millions of West African nationals murdered, maimed or displaced by Mr. Taylor and his war networks, due process could seem like a luxurious nuisance.

Since Mr. Taylor's rebellion against the rightly un-mourned late President Samuel Doe began in Liberia in December 1989, he has been implicated directly or indirectly in civil wars in Sierra Leone, Guinea Bissau and Côte d'Ivoire; in the overthrow of otherwise elected regimes in Gambia and Guinea Bissau; and in the subversion of Guinea (Conakry). In the process, Mr. Taylor stands accused of having the blood of hundreds of thousands of West Africa's children, men, and women on his hands. He stands accused of being responsible for the displacement and exile of millions more. And he stands accused (with his cohorts) of deliberate targeting of civilian populations, of recruiting tens of thousands of children into arms, and of institutionalising egregious outrage on civilian populations as instruments of armed conflict. He has reduced a once proud people with their rich culture to beneath beggarliness, destroying the lives of much of the posterity of the region in the lifetime of the parents that they will never know.

This is not the first time that Mr. Taylor will be threatened with prosecution for war crimes. To force him to the negotiating table in 1996, the Council of Ministers of the then Organisation of African Unity (OAU), by resolution CM/Res 1650 of July 1996, was compelled to threaten Mr. Taylor with “setting up a war crimes tribunal” to try him and the leadership of the then warring factions in Liberia. ECOWAS Heads of State reinforced that threat in August of the same year as a way of giving teeth to the Abuja Agreement embodying the Liberian Peace Plan. All this was while Mr. Taylor was a rebel fighting presumably for power. The following year, a frightened Liberian population surrendered power to Mr Taylor in severely flawed elections in July 1997, in the vain hope that the responsibilities of high office would slake his thirst for blood. Rising from their Summit attended by senior representatives of major multilaterals and countries - including the Unites Nations, the USA, and major European Union countries - in Abuja, Nigeria, on 26 July 1997, and immediately following Mr. Taylor's election in the same month to the Presidency of Liberia, the leadership of ECOWAS, “congratulated His Excellency, President Charles Ghankay Taylor on his election and encouraged him to continue his policy of reconciliation and national unity.” In the event, the man took the bush with him to the Presidency and continued his war. Only this time it was aimed at suppressing basic rights of Liberia's citizens.

Given this background then, is there much more that can be said about the Taylor indictment besides applauding the belated arrival of supposedly just desserts? Indeed, there is. To begin with, the people of Liberia must wonder why the destruction of themselves and their country matters less than the destruction of their Mano River neighbour. It is difficult to explain to Liberians why the man whose trail of destruction began and continues in their country has ended up being charged for crimes allegedly committed against neighbouring Sierra Leone and its people who have their own home grown villains to worry about.

The Legal Situation

In reality, for much of the months of April and May 2003, the existence of the Taylor indictment and the probable occasion for its unveiling and attempted execution was an ill-concealed secret in Freetown. The indictment itself was confirmed and the arrest of Taylor authorised by the Bench of the SC-SL on 7 March 2003. The moment three months later on which it was unsealed was therefore significant. The Prosecutor had decided to take advantage of Mr. Taylor's travel to Ghana. In his press statement announcing the indictment of Mr. Taylor, Prosecutor Crane acknowledged that he decided to serve a warrant for Mr. Taylor's arrest on the authorities in Ghana “upon learning that Taylor was travelling to Ghana. This is the first time his presence outside of Liberia has been publicly confirmed.” In explaining his timing, Prosecutor Crane claimed in the same statement that he was concerned to ensure the legitimacy of the Accra negotiations, arguing that “it is imperative that the attendees know that they are dealing with an indicted war criminal.” The Prosecutor felt the need “to make it clear that in reaching my decision to make the indictment public, I have not consulted with any state. I am acting as an independent prosecutor and this decision is based solely on the law.”

But law, especially international law, is often pregnant with mutually contradictory plausibility. It is possible that in justifying himself as he did above, Prosecutor Crane was preserving sovereign confidences. If not, then his position was a tad optimistic at best. At worst it was naive or arrogant (or both) to believe that he could unveil the warrant when he did without prior extensive consultation with and co-operation from the leaders who were attending the Accra negotiations. As a matter of comity, the leadership of ECOWAS, the AU and the host State had invested considerable energy, resources and political capital in bringing the parties to the negotiating table in Accra. In doing so, they gave minimal guarantees in good faith to the invitees. Whatever one may think of the parties at the table, to fail to consult the joint hosts before releasing this kind of bombshell showed scant respect to the combined goodwill of these leaders and the peoples they represent. Not having factored the Taylor arrest warrant into their plans, they could hardly be expected to embrace it spontaneously having heard of it through the media.

As a practical matter, Ghana's authorities, if they had been consulted, may well have sought assurances or made arrangements as to how to safeguard against any security implications of Mr. Taylor being arrested on their territory. They would naturally have sought to safeguard against Mr. Taylor's associates exporting their cannibalistic brand of instability to Ghana. This is not an altogether unreasonable concern given Mr. Taylor's record.

Consultation with the region's leadership was all the more imperative because the law to which the Prosecutor's press release refers is at best opaque or, even worse, unhelpful. The SC-SL is set up under an Agreement reached between the United Nations and the Government of Sierra Leone in January 2002, itself concluded under the authority of Security Council Resolution 1315(2000). Unlike the International Criminal Tribunals for former Yugoslavia (ICTY) and Rwanda (ICTR), the SC-SL is not set up by the Security Council as such in exercise of its enforcement powers under Chapter VII of the UN Charter to safeguard international peace and security. In accordance with Sierra Leone's 1991 Constitution, Sierra Leone's Parliament enacted the Special Court Agreement (Ratification) Act in 2002, which permits the Court to function in the country. This would not have been necessary if the Court had been set up in exercise of the enforcement powers of the Security Council. As a matter of law, the SC-SL is not a Sierra Leonean court as such; it is more plausibly viewed as a foreign court authorised to function in Sierra Leone, exercise jurisdiction in and over Sierra Leone and, in part at least, to apply Sierra Leonean law, in addition to international law.

This point has significant legal consequences. It means that unlike the situation with Chapter VII tribunals like the (Yugoslavian) ICTR and (Rwandan) ICTY, there is not necessarily an obligation of compulsory co-operation with the Court. Strictly speaking, co-operation would be governed by bilateral, mutual assistance treaties. Such treaties, arguably, do not envisage such hybrid courts as the SC-SL within their scope. Customary international law is equally unhelpful here. The much-cited and much misunderstood Pinochet (No.3) decision of the (British) House of Lords [1999] 2 All E.R. 97, looked to domestic statutory (rather than international law) basis to justify much narrower grounds for Mr Pinochet's arrest than the panel in the Pinochet (No. 1) case [1998] 4 All E.R. 897 had been prepared to allow. In its most relevant decision in the Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), the World Court in Den Haag controversially decided in February 2002, that the procedural immunity enjoyed by serving foreign sovereigns effectively trumped the prohibitions of international criminal law (from which even Heads of State are not immune), including those against war crimes and crimes against humanity that were directly in issue in the case.

The relevant practice concerning the procurement for trial of suspected war criminals largely remains as summed up by Geoff Gilbert in Aspects of Extradition Law, page 209 (1992), to the effect that “a uniform approach is still lacking.” Barring an abduction of the kind in the (case of the German Nazi leader) Eichmann Case, 36 International Law Reports 5 (1961), international (or in this case, regional) co-operation remains the only lawful means of procuring the rendition of Mr. Taylor for trial. In the provisions of Article 4(h) of the Constitutive Act of the African Union authorising intervention in situations of genocide, war crimes and crimes against humanity, African countries have now equipped themselves to provide such co-operation when it is sought collaboratively.

With considerable experience of criminal trials in the USA where prosecutorial deal making is an art form, Prosecutor Crane cannot have been unaware of this reality. Ultimately, he bears responsibility for success or failure in securing rendition of his indictees - big and small. With the exception of the now late Sam “Maskita” Bockarie, allegedly deceased former military ruler, Johnny Paul Koromah, and Mr. Taylor, the SC-SL has so far succeeded in securing the arrest of all of its indictees. However, none of those so far arrested, including ex-defence minister, Chief Hinga Norman, confronts the Court with the weight of logistical, security, doctrinal or legal problems that accompany the indictment of Mr Taylor. In favour of Prosecutor Crane, it should be acknowledged that his public indictments appear so far to have been largely well received both within and outside Sierra Leone.

The Political Questions

Two political questions stand out among many. First, how does the indictment affect the peace process in Liberia, including, in particular, the critical issues of disarmament and demobilization of combatants? Mr Taylor, whose current Presidential term expires in January 2004, staked out his position on these issues at a news conference in Monrovia 12 June, declaring that “[I]f the President of Liberia is treated in an unfriendly fashion or manner with the thousands of combatants that support me in Liberia, where is the incentive for any supporter of Charles Taylor to disarm if they know their own security is not guaranteed?” Neither the SC-SL nor its Prosecutor can directly answer this question. It remains open whether the Accra negotiations on the back of the 17 June ceasefire agreement between Taylor's regime and rebels opposed to him will be able to address it.

Next, as unpalatable and unfortunate as it is, Mr. Taylor is recognized as the elected President of Liberia. Now that he has been indicted, this throws up the political question of how other African Leaders and civil society alike will relate to him. For example, will they continue business as usual, adopt a wait-and- see attitude, or will they enforce his isolation? The individual and collective positions of Africa's leaders could well be determined by how each leader perceives himself vis a vis the potential to face similar charges and the response of the world beyond Africa. Does it matter that the Prosecutor has not shown more lateral vision in his handling of the unsealing of the indictment?

Conclusion

This is the first time that a serving President will be openly indicted for war crimes by an international court. By contrast, the indictment of ex-President Milosevic by the ICTY became known after he had been ousted from office. It will not be the last. Over the past few years, similar attempts in the courts of different European countries, most especially Belgium, have run into a headwind of insuperable legal, procedural and political obstacles. With the swearing in of the ICC Prosecutor in June 2003 in Den Haag, the need for such desperate efforts or ad-hoc arrangements (as in the SC-SL) will now be minimized if not yet entirely eliminated. The irony will not be lost on African leaders that the SC-SL Prosecutor comes from a country – the USA – whose government has undermined the International Criminal Court (ICC) Process and is exerting its utmost weight to secure impunity for similar crimes in international law for its own nationals. At the beginning of June, 39 countries had concluded with the US government impunity agreements under pressure.

Nevertheless, the indictment of Mr. Taylor at least ensures that he is under some pressure. This could not have come too soon. But if Mr. Taylor is not to elude and outlast the SC-SL, Prosecutor Crane should reckon more with the goodwill of Africa's leaders and peoples than the management of the Taylor indictment so far has shown. There is little sympathy for Mr. Taylor in the region. Bringing him to overdue accountability should not be an opportunity to rub regional leaders up the wrong way. Meanwhile, Liberians and Africans await the day Mr. Taylor will also answer for his misdeeds against Liberia and its citizens.

* A lawyer and activist from Nigeria, Chidi Anselm Odinkalu is associated with several African and international non-governmental organisations and academic institutions. He was formerly Human Rights Advisor to the UN Observer Mission in Sierra Leone (UNOMSIL). Mr Odinkalu is widely published on a variety of subjects on human rights and international law in Africa. The views expressed here are his personal opinions.

* Please send comments on this editorial to Read comments on previous editorials in the Letters and Comments section of Pambazuka News.

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