I have been asked by many people about my views on the conviction on 26 April, of Charles Taylor, Liberia’s former President, for aiding and abetting Sierra Leone’s Revolutionary United Front (RUF). He is the first Head of State-after Admiral Doenitz, who very briefly led Germany after Adolf Hitler committed suicide, and was convicted by the Nuremburg Court after World War Two–to be convicted by an international court for war crimes and crimes against humanity. The RUF that Taylor supported waged a nasty bush war against successive Sierra Leonean Governments from 1991 to its defeat by a combination of forces, mainly foreign, in 2001. Throughout that war, Taylor mentored the RUF and provided it with weapons and fighters; in turn, the RUF gave him diamonds looted from Sierra Leone’s mines. This is the sum of the judgment against Taylor, and it narrowly reflects the argument that I have been making for over a decade now.
Sierra Leone’s war started on March 23, 1991 when Foday Saybanah Sankoh, a self-adoring former Army Corporal, led a petty Army from territory controlled by Taylor, then an insurgent leader in Liberia, into southern and eastern Sierra Leone. Like Taylor, Sankoh had trained in Libya and, according to the trial judgment, met Taylor there. The Judges, however, rejected the Prosecution’s overdrawn argument that Taylor and Sankoh “made common cause” in Libya to wage wars in West Africa. The judgment accepted the Prosecution’s submission that Taylor facilitated the training of RUF recruits in Liberia and helped launch the RUF’s war, noting that Taylor’s National Patriotic Front of Liberia (NPFL) forces “actively participated” in the RUF’s initial invasion in March 1991. (Witness to Truth, Sierra Leone’s Truth and Reconciliation report of 2004, estimated that as many as 1,600 NPFL fighters were involved in the early phase of the Sierra Leonean war, or about 80% of the RUF forces. This grew to 2,000 within a few months of the invasion).
However, striking a balance between the Prosecution’s claim that Taylor “effectively controlled” and led the RUF at this point, and Taylor’s claim that only former NPFL members joined Sankoh and that he had nothing to do with the RUF after the Sierra Leone invasion, the judgment delicately noted that the Prosecution did not prove beyond reasonable doubt that Sankoh took orders from Taylor – or that Taylor participated in the planning of the invasion.
This point was always a difficult legal one, not least because the trial was not about the crime of aggression (which had not even been defined by the time Taylor faced the Court). The indictment period did not even cover the origins of the war – the temporal jurisdiction of the Court is from November 1996 to the official end of the war in 2002.
Compounding this problem was the fact that the most credible person that would have definitively testified to this would have been Sankoh, but he died long before Taylor faced the Court. In fact, it is a testimony to the tenacity and industry of the Prosecution that it was able to sufficiently prove even the crime of aiding and abetting, since Taylor had effectively eliminated key witnesses to that crime. He had Sam Bockarie, his key link to Sankoh and the RUF during the period of the indictment, murdered in Liberia shortly after Bockarie was indicted. Johnny Paul Koroma, a notorious Sierra Leonean coup maker who also dealt intimately with Taylor, simply disappeared: he was also allegedly murdered either in Liberia or Ivory Coast on Taylor’s orders after his indictment. These events must count as the most comprehensive and effective evidence-tampering in an international war crimes trial ever.
I have always thought that the prosecution’s invocation of the notion of ‘joint criminal enterprise’ (JCE) was ill-advised, and successive judgments by the Court rubbished the concept. This concept was first used by the International Criminal Tribunal for former Yugoslavia (1991-1999). It considers each member of an organized group individually responsible for crimes committed by that group within the “common plan or purpose.”
The Appeals Chamber of the ICTY decided on 21 May, 2003 that “insofar as a participant shares the purpose of the joint criminal enterprise (as he or she must do) as opposed to merely knowing about it, he or she cannot be regarded as a mere aider and abettor to the crime which is contemplated.”
The concept was roundly rejected by the Court in the trial of the leaders of the admirable Civil Defence Forces (CDF), since “the evidence led by the Prosecution in this case to show a joint criminal enterprise [is] insufficient to prove its existence against those named persons beyond reasonable doubt.” Conviction around the concept was entered only in the case of the leaders of the RUF, and even here the judgment involving the pathetic and roguish Augustine Gbao was problematic, looking very much like guilt by association. Though the Prosecution did not establish Gbao’s direct involvement in crimes during the war, the Judges concluded that because he was the RUF’s ‘ideological trainer’, Gbao “significantly contributed to the [Joint Criminal Enterprise], as the leadership of the RUF relied on the RUF ideology to ensure and to enforce the discipline and obedience of its forces to the RUF hierarchy and its orders, this being a factor which contributed to the furtherance of the Joint Criminal Enterprise.”
Justice Shireen Fisher dissented, noting that Gbao’s conviction “abandons the keystone of JCE liability as it exists in customary international law.”