Background
Charles Ghankay Taylor, the 21st President of Liberia, became the first former African Head of State to be arraigned before a treaty-based international criminal tribunal that was jointly set up by the United Nations and the Government of Sierra Leone, for alleged commission of 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 Special Court for Sierra Leone (SCSL). According to the allegations in the Amended Indictment (11 instead of the initial 17-count) filed by former Prosecutor, Desmond da Silva, Mr. Taylor, by his acts or omissions, is criminally responsible under Article 6(1) of the Statute of the Court for those three serious crimes witnessed in Sierra Leone between 30th November 1996 to 18thJanuary, 2002.
Mr. Taylor made his debut appearance in a packed courtroom on Monday, 3rd April 2006, before then Presiding Judge of Trial Chamber II, Richard Lussick, five days after he was transferred to Freetown via Monrovia, following his reported arrest on the Nigeria/Cameroon border on Wednesday, 29th March 2006, while allegedly trying to escape from Nigeria. After the charges were read, Mr. Taylor questioned the jurisdiction of the Court over him as ex-President and also raised concerns about the legality of his transfer to the Court’s seat in Freetown. He was, however, advised by the Presiding Judge to enter a plea which could give him the locus standi to take up whatever issues he may have through motions before the Trial Chamber. Accordingly, Mr. Taylor passionately responded by saying: “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.”
However, the euphoria that accompanied Charles Taylor’s arrest, transfer and subsequent arraignment before a crammed but quiet Chamber dissipated few days later. A day after Mr. Taylor’s transfer to the Special Court in Freetown, former President of the Court, Judge Raja N. Fernando, sent a letter to both the Government of the Kingdom of The Netherlands and the President of the International Criminal Court (ICC) asking them to facilitate the trial of Charles Taylor in The Hague. According to the Press Release issued by the Court, Judge Fernando’s decision was taken in light of the seeming security risks created by Mr. Taylor’s detention in Freetown, which prompted the initiation of diplomatic steps to establish whether Mr. Taylor’s trial could be held outside of the sub region. The facility of the ICC in The Hague was identified as a possible venue.
The Dutch Government agreed to host the trial of Charles Taylor after a Security Council resolution had supported the request. It, however, insisted that a third country be found to take Taylor in, whether or not he is found guilty. Thus, on the 19th June 2006, the President of the SCSL ordered that the pre-trial proceedings, trial, and any appeal of Mr. Taylor be conducted in The Hague.
Change of Trial Venue
According to Article 10 of the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court provides that: “The Special Court shall have its seat in Sierra Leone. The Court may meet away from its seat if it considers it necessary for the efficient exercise of its functions, and may be relocated outside Sierra Leone…” In addition, Rule 4 of the Special Court’s Rules of Procedure and Evidence explicitly provides for a sitting away from the seat of the Court. It states that: “A Chamber or a Judge may exercise their functions away from the seat of the Special Court, if so authorized by the President.”
However, before the President of the Court made the official pronouncement of the Charles Taylor case to be conducted in The Hague, Taylor’s Defence Counsel, Karim A.A. Khan, on 7th April 2006, filed an Urgent Defence Motion before Trial Chamber II for an Order that no Change of Venue from the seat of the Court in Freetown be ordered without the Defence being heard on such an important issue. According to the Motion, it had not been judicially ascertained that such a proposed change of venue was required in the interests of justice. It therefore asked for the President of the Court to withdraw the Request he had made to (i) The Government of the Kingdom of The Netherlands to permit that the trial of Charles Ghankay Taylor to be conducted on its territory and (ii) to the President of the International Criminal Court (ICC) for the use of the ICC Building and Facilities in The Netherlands during the proposed Trial of Charles Ghankay Taylor until after arguments from parties that such a change of venue was of absolute necessity.
In spite of Defence Motions, the Government of Sierra Leone, war victims as well as civil society advocacy for the trial of Charles Taylor to be conducted in Freetown, the President of the Court, while exercising the power of Security Council Resolution 1688 (adopted on 16 June 2006), ruled for the trial of Charles Taylor to be done in The Hague.
Reconsider a Change of Venue
On the 22nd February 2007, Defence Counsel for Mr. Taylor filed another Motion to the President of the Court, Hon. Justice George Gelaga King, to reconsider a change of venue of proceedings in their client’s case. According to the Motion, the Defence requested that the President of the Court: Reconsider his Order Changing Venue of Proceedings of 19th June 2006; Invite Representatives from the Sierra Leonean and Liberian Governments, The African Union, Civil Society Groups and Other Interested Parties on the issue of venue on an expedited basis; Order that the Trial of Charles Taylor be held at the Special Court’s premises in Freetown; and Make such other consequential orders as are deemed necessary on the grounds that “there has been a significant change in circumstances” and that the accused’s “fair trial rights will be violated or made significantly more difficult to guarantee if the trial proceeds in The Hague.”
Furthermore, some civil society organizations jointly wrote an Application to the President of the Court, requesting his permission, pursuant to Rule 74 of the Special Court Rules of Procedure and Evidence, to file an amicus curiae brief in response to that pending Defence Motion for Reconsideration of Order Changing Venue of Proceedings.
The President of the Court, however, dismissed the Defence Motion in its entirety on the basis that the Rules do not provide the Applicant an avenue for “reconsideration” or review and that that present Motion was improperly placed before him having regard to the Rules. Moreover, the Deputy Registrar
of the Court responded to the Application by the various civil society groups for an amicus curiae brief that the Decision of the President dismissing the Defence Motion, taken in his administrative capacity and issued on 12 March instant, rendered the need for an amicus curiae brief on the matter irrelevant.
Simply put, the decision of the President of the Court to have Charles Taylor tried in The Hague has been laid to rest; it cannot be reversed.
The Hague Trial: Implications
Since the setting up of the Court, the issue of security has always been a priority. The decision to transfer the Taylor trial to The Hague is hinged on the belief that his continued presence in West Africa will not augur well for the peace in Sierra Leone and Liberia and to international peace and security as a whole in the sub region. However, the Government of Sierra Leone stated unambiguously that it does not share such security fears as it had adequate security to have held the trial in the country. That not withstanding, many important governmental institutions, most remarkably the Legislature, as well as civil society groups and the Amputees and War Wounded Association, in whose name the court is said to be dispensing justice, have echoed that the trial of Mr. Taylor should be held in the country.
When the late Chief Sam Hinga Norman, former head of the Civil Defence Forces (CDF) – national hero for many- was arrested, many people feared that his cohorts would cause an uprising. After the International Criminal Tribunal for Rwanda and Yugoslavia repudiated the request of the Special Court to provide temporary detention for him and to host his preliminary appearance, he was subsequently tried in Sierra Leone with no reported security disturbances up to his death in February this year. Similarly, when Charles Taylor left office, he resided in Nigeria as a ‘free man’ with no public evidence to date extenuating his threat to security in the sub region. Both cases definitely make the much trumpeted security concern obsolete. The contentious issue is the actual arrest and trial of Taylor, and not whether he is tried in Freetown or The Hague.
The decision by the President to move the seat of the Court in the Charles Taylor trial from Freetown to The Hague has had serious implications for the Court. Given the political and legal significance of the Taylor trial in the continent at large, his trial in The Hague may possibly, like the Dujail Tribunal which tried former Iraqi leader Saddam Hussein, discredit the Court as nothing more than the new imperialism disguised as international rule of law to tame the “beast of impunity”.
The transfer of the trial has undermined the entire rationale for having the Court located where the crimes were perpetuated, thus making it difficult for people, in whose name and on whose behalf the Court is said to be rendering justice, to access the process of justice in the trial. Indeed for many victims, the most significant succor they can get for their afflictions during the decade long conflict is for them to see those that they consider responsible, tried in their presence. However, with the trial being conducted in The Hague, Sierra Leoneans and Liberians, particularly war victims, would not be getting first hand information of the proceedings. The transmission of the trial through video link will not be enough as many people, particularly in Sierra Leone do not have access to television sets, and, for those who do, electric power supply remains a crisis. Equally so, for two monitors/observers (from civil society groups) to report to the whole country every trial month on proceedings in The Hague will be travesty of accountability. Hence, the people would have been denied the right to see, first hand, justice being administered.
The change in the trial venue also makes room for serious financial, logistical and administrative burden on the Court. The cost of hosting Charles Taylor’s trial in The Netherlands has been projected at $20million. The establishment of a second Special Court Office in The Hague, the relocation of Trial Chamber II, the re-deployment of staff, the transfer of and accommodation arrangements for witnesses, and the establishment of an enhanced Outreach presence in Liberia are very challenging. The President of the Court, in the Order Changing Venue, stated that “while it is true that certain witnesses may have to travel to The Hague, this should not present an undue financial or administrative burden.” It is worth noting that as of 30 January 2007, it has been reported that the Court only had sufficient funds to continue operations until the middle of the year. This will be halfway through the opening statement of trial scheduled for 4 June. Thus, if the Court fails to solicit more funds from donor countries, there is the possibility that the trial, once started, will not be finished. Hence continuing to stage the trial in The Hague will impose undue difficulty for a Court that is already bleeding white.
Ever since Charles Taylor’s arraignment before the Court, he had relayed two concerns. First, fear for his life and second, that he is completely opposed to his transfer to The Hague. Pursuant to Article 17(3) of the Statute of the SCSL which provides for “The accused to be presumed innocent until proved guilty according to the provisions of the present Statute,” Mr. Taylor’s trial should be transparent, fair, just and equitable. On the contrary, the Taylor Defence have filed a number of Motions alleging that the change of venue has resulted in violations of their client’s rights to equal treatment with other SCSL detainees contrary to Article 17(1) of the Statute of the SCSL which states that “ All accused shall be equal before the Special Court.” The Defence alleges that the accused’s lawyer-client privilege consultations have been subjected to video surveillance, and the Detention Centre at the ICC where Mr. Taylor is held in custody has imposed an excess of unnecessary, unreasonable, and discriminatory restrictions that are not applicable to other detainees in Freetown. The Defence has incriminated the Special Court for abdicating its jurisdiction in a flawed Memorandum of Understanding between the Court and the ICC over decisions relating to Mr. Taylor’s detention conditions. Consequently, the defence has even threatened to boycott the trial if these “unnecessary, unreasonable, and discriminatory restrictions” are not removed immediately.
Conclusion
The underlying principle for the establishment of the Special Court, hailed as a new model because it is located where the atrocities were committed, is arguably to provide the victims of the war with some sense of justice and restitution and to allow for a mix of international legal principles with local participation from those affected by the conflict. With the International Criminal Tribunal for Rwanda, sitting in Arusha, Tanzania already criticized for denying the people of Rwanda the opportunity to closely follow the trial, thus having very little impact on Rwandans, the same could be said of the Special Court if the Taylor trial is not made accessible to those most affected.
Be that as it may, the Court must take into account the rights and wishes of the accused, who, incidentally, is the only non-Sierra Leonean and with the highest profile before the Court, lest there be a claim, again as in the internationally discredited Dujail Tribunal, for falling short of fairness standards.
