After four years of a trial that had its moments of drama, the International Criminal Court via the Special Court for Sierra Leone on April 26, 2012 convicted former Liberian President, Charles Taylor, for sundry war crimes and crimes against humanity during the Sierra Leonean conflict which rocked the sub-region for over one decade, beginning 1991. With his sentencing due on May 30, FUNKE ABOYADE last week sought the views of Dr. Mark Ellis, an Executive Director of the International Bar Association. Twice a Fulbright Scholar at the Economic Institute in Zagreb, Croatia, Ellis who gained his J.D. and B.S. (Economics) Degrees from Florida State University also has a Ph.D in International Criminal Law from King’s College, London. He has extensive experience in war crimes tribunals, providing in the past, technical legal assistance to the International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague,  and serving as Legal Advisor to the Independent International Commission on Kosovo, chaired by Justice Richard J. Goldstone. He was also appointed to advise on the creation of Serbia’s War Crimes Tribunal and was actively involved with the Iraqi High Tribunal

Dr. Mark Ellis, Executive Director of the International Bar Association

The verdict entered against Charles Taylor was for aiding and abetting the war atrocities committed in Sierra Leone, rather than the ordering or planning of those atrocities. In your view, has justice been served given that it may affect the severity of the sentence?

It is much more difficult for the Prosecution to prove that Taylor was involved in ordering the attacks committed by the rebel fighters in Sierra Leone. The fact that Taylor was found guilty of aiding and abetting and planning the attacks on Sierra Leoneans reinforces the legal principle that a suspect  does not have to fire a weapon in order to be found guilty of committing a crime. By aiding and abetting and planning such crimes, Taylor is equally culpable for the atrocities committed by rebel forces. By providing rebel forces with the necessary communications, technical, operational and financial support and military training he is just as guilty as those who carried out attacks on civilians directly.

Many Liberians are reportedly finding it hard to reconcile the fact that Taylor was tried for war crimes committed in Sierra Leone rather than Liberia. What would you say to such people?

The jurisdiction of the Special Court for Sierra Leone (SCSL) covered Sierra Leone and not Liberia. However, Taylor’s prosecution for crimes committed in Sierra Leone marks an important step towards ending impunity, and should be seen in that light. Under different circumstances, I believe Taylor could have faced trial for his alleged crimes in Liberia.

What message would you say the conviction of Charles Taylor is sending to other Heads of State?

The conviction of Taylor marks a progression in international law and is a significant step for international accountability for war crimes and crimes against humanity. For the first time since the Nuremberg trials, a former Head of State has been held accountable for committing international crimes.
Equally important is that the SCSL, like all international tribunals, ensures that the law applies equally to all persons without any distinction based on official capacity. In particular, official positions as Head of State or Government, member of a Government or parliament, elected representative or a government official shall in no case exempt a person from criminal responsibility.

This is the first time a former Head of State has been convicted after the Nuremberg trials. Is it a coincidence that he’s African? Some commentators would argue that the ICC is too fixated on African leaders?

The SCSL was created by the United Nations AND the Government of Sierra Leone to prosecute those most responsible for the atrocities against Sierra Leoneans. Therefore, the case against Taylor arose at the request of the Government of Sierra Leone. Similarly, current cases before the International Criminal Court, i.e. the cases against Joseph Kony, Thomas Lubanga Dyilo and  Jean-Pierre Bemba Gombo, were referred to the Court by the governments of Uganda, the Democratic Republic of the Congo and the Central African Republic, not by the ICC. The other two active indictments, i.e. the cases against Muammar Gadaffi and Saif al-Islam Gadaffi, were referred to the Court by the UN Security Council.

Does it suggest we have more rogue leaders in Africa? Or is it that we have poorer legal systems in the developing world?

I do not believe that there are more “rogue” leaders in Africa. History has shown that there is no safe haven for evil people – all corners of the world have had their equal share of leaders who have committed heinous crimes. However, some parts of the world have done a better job of advocating for and protecting human rights, as well as bringing to justice those who have committed international crimes.  For instance, Europe has the European Court of Human Rights, governed by the European Convention on Human Rights to which 47 States are party. Consequently, victims of violations committed by the State have a supra-national entity which ensures that States adhere to human rights obligations. Whereas the European Court of Human Rights has been in place for over fifty years, the African Court on Human and People’s Rights was only established in 2004 and is thus still in its infancy.

Naomi Campbell and Mia Farrow’s testimonies brought the trial to mainstream international media attention which had hitherto given it scant recognition. Was this a plus in your view? Or a media circus feeding frenzy which detracted from the main issues?

The media attention surrounding the testimony of Naomi Campbell and Mia Farrow undoubtedly played an important role as a catalyst in bringing attention to the atrocities committed during the Sierra Leonean war. The media did not shy away from showing the true impact that the war had on the civilian population. Consequently, I think beyond the testimony of celebrities, the horrors of the war and the fact that a former Head of State was facing trial for such heinous acts, are what ultimately kept people interested in the outcome of the trial.

The United States has refused to sign the Rome Statute which created the ICC, yet they are in the forefront of promoting this form of international justice. Is this not a contradiction? Should America have a moral right to do be in the forefront? As an American, what are your views?

The United States is simply wrong in its reasons and justifications for not becoming a State Party to the Rome Statute. The US plays an important role in world leadership and is rightly at the forefront of promoting human rights, but its absence from the ICC is contradictory to its standing in the international community. It suggests that the United States is willing to support international justice, so long as it is not judged by the same standards. I hope that in the future the US will reverse its position on the ICC. There is some evidence that this may be happening, albeit slowly. As a permanent member of the UN Security Council, it voted in favour of referring the cases against Omar Hassan Ahmad Al Bashir, President of Sudan and Muammar Gadaffi, then President of Libya, and his son, Saif Al-Islam Gadaffi, to the ICC.

In your experience of war crime tribunals, what are the challenges these tribunals face?

The biggest challenge facing international war crimes tribunals is securing international support. International tribunals do not have their own police force or army to apprehend indicted war criminals. The tribunals depend solely on the cooperation of the international community to hold these individuals accountable for international crimes. The current case against Omar Hassan Ahmad Al Bashir highlights the importance of international cooperation. With state support he could be apprehended and swiftly brought to face trial before the ICC. However, more than three years after an arrest warrant was issued, he still remains President of Sudan and, due to a lack of support from states to apprehend him, he continues to freely travel in the region with immunity.

Charles Taylor’s trial took some 5 years and millions of dollars in resources. Was it worth it?

Yes, it is a small price to pay to ensure that those who have committed the most serious international crimes are brought to justice. It reflects the paradigm shift in international law that there is no immunity for crimes of this nature. The Taylor case reinforces the commitment of the international community to bring to justice those who have committed these crimes – if not today then tomorrow, and if not tomorrow, then at some time in the future. Accountability will trump immunity.

 

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