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Charles Taylor trial highlights ICC concerns

April 26, 2012

An earlier version of this piece was first posted on Al Jazeera on April 26, 2012.

After a long and expensive trial, the Special Court for Sierra Leone finally pronounced that former Liberian president Charles Taylor is guilty of aiding and abetting war crimes.

While there has been little doubt that Taylor commanded militias that were responsible for some horrific acts of violence in his home country in Liberia, this judgment considered the extent to which he should be held responsible for ordering and condoning various war crimes (including murder, sexual violence, and enslavement) which were committed in neighbouring Sierra Leone. He was acquitted of ordering these crimes, but was found guilty of  aiding and abetting atrocities.

Amongst Western governments and their publics, there is widespread agreement that prosecuting Taylor has been the right and proper thing to do. The West considers the Special Court for Sierra Leone as upholding human rights and bringing justice to bear on a brutal dictator. Yet even though these claims undoubtedly have merit, it would be naïve to think that international justice is being pursued purely for its own sake.

It seems particularly important to acknowledge that justice, especially international justice in the context of war crimes, can never be completely isolated from its broader social and political context—no matter how hard we try to separate the two. The prosecution of Charles Taylor is no exception.

Those who are cynical about prosecuting war crimes at the international level will first point out that the Special Court for Sierra Leone has been backed and financed by the West (primarily the US, UK, Netherlands, and Canada). For Westerners who are accustomed to impartial judicial systems, this is an irrelevant fact: justice is justice no matter who is paying for it.

To the rest of the world though, there is much greater variation in judicial norms and the fact that the trial has been funded by Western powers is significant. It will also not escape unnoticed that this trial conveniently helped the US and the UK achieve an important geopolitical goal: the removal of Charles Taylor from West African soil at a fragile moment in Liberia’s post-conflict recovery in 2006.

In 2003, when the indictment was first announced, Charles Taylor was a major destabilizing force in West Africa. Aside from instigating civil war in Liberia and financing the war in neighbouring Sierra Leone, Taylor had also managed to draw Guinea and Côte d’Ivoire into border wars. Removing him from Liberia was the first of many steps towards restoring peace in the country and establishing peaceful relations with neighbouring countries. For the West, it was clear that Taylor had to go and he should not be allowed to return.

Indeed, Taylor’s lawyers have pointed to a 2009 US diplomatic cable from former US Ambassador to Liberia Linda Thomas-Greenfield which stated that if the Special Court were to acquit Charles Taylor or even to hand him a light sentence, he would be in a position to jeopardize Liberia’s stability.

Thomas-Greenfield states: “the best we can do for Liberia is to see to it that Taylor is put away for a long time”. She goes on to argue that the US should not wait for the Special Court’s verdict and that “All legal options should be studied to ensure that Taylor cannot return to destabilize Liberia.” In all likelihood then, even if Taylor were to be acquitted, it seems likely that the US will be set to charge him with financial crimes.

Clearly, the US wants to see Taylor locked up for as long as possible. But the wording of the cable is equally clear that the Special Court’s verdict remains uncertain. While the outcome is far from pre-ordained, it does lead one to worry about how this strength of sentiment from the court’s most important financial backer might indirectly affect the case.

Fundamentally though, the core concern is not with judges’ independence. The intensity of public scrutiny combined with the reputational risks to those who compromise their integrity provide strong incentives for judges to guard their independence. No, the greater worry concerns the choice of cases that international prosecutors decide to pursue in the first place.

Turning to the International Criminal Court, a brief look at those who have been indicted reveals that to date, the vast majority have been from sub-Saharan Africa, and the remaining few are from Libya, also on the African continent. While armed conflict has been more prevalent in Africa than in other parts of the world over the past decade, African leaders certainly do not hold a monopoly on the commission of war crimes.

Courts build their legitimacy partly based on the cases that they choose to hear. By focusing predominantly on Africans, there is a real worry that the ICC will be perceived by non-Western countries as providing a cloak of legitimacy for the US and other Western nations to achieve their political aims— despite the fact that the ICC’s chief prosecutor Luis Moreno Ocampo has explicitly stated that the ICC is not a court “just for the Third World.”

What the international community needs to guard against is allowing the ICC to become a tool that Western liberal democracies can impose on developing country leaders who have fallen out of political favour. For the ICC to remain viable, neither can it be perceived as the backdoor by which Western powers target their political enemies.

All of this takes us back to Charles Taylor. Make no mistake: few will be sorry to see him locked up. But Taylor’s case does highlight concerns about the political expediency factor and the degree to which it can be exploited. For countries like the US, China, and India who worry about the politicization of the Office of the Prosecutor, and by extension the politicization of the ICC, this case will only confirm that their misgivings were justified.

For the rest of us though, the conclusion of the Taylor’s trial represents a major milestone in the pursuit of international justice.

* * *

For more commentary on Liberia, I wrote a piece last year on Ellen Johnson Sirleaf receiving the Nobel Prize.

And here is my review of The Vice Guide to Liberia mixed in with some more personal reflections from my field work experiences.

For those who want references on Charles Taylor and the wars in Sierra Leone and Liberia, here are some book recommendations:

On Charles Taylor, Liberia and Sierra Leone up to 1999: Will Reno’s Warlord Politics and African States.

On Charles Taylor: Colin Waugh’s Charles Taylor and Liberia.

On Liberia’s civil war up to 1999: Stephen Ellis’ The Mask of Anarchy. Up to and including 2003: JP Pham’s Liberia: Portrait of a Failed State.

On Sierra Leone’s civil war: Paul Richards’ Fighting for the Rainforest and David Keen’s Conflict and Collusion.

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9 Comments leave one →
  1. Paul Brooke permalink
    April 27, 2012 5:17 pm

    It does appear, sometimes, that the ICC is an instrument of punishment for only Third World countries. To help change this perception, I think it is time the United States allowed George W. Bush his turn in the docket of the ICC. How much pressure would it take to get the US to hand over this criminal for trial? Is there enough political will in the world to get this done?

    • May 1, 2012 11:12 pm

      Hi Paul,
      I thought about including this possibility in the piece but I didn’t want to move too far from the Taylor case. But you might be interested in this piece from Richard Falk: http://www.aljazeera.com/indepth/opinion/2011/11/20111128105712109215.html and also the fact that the secret renditions by NATO countries including Canada have caught the attention of Ocampo.
      Christine

      Addendum: I should also clarify that I do not necessarily agree with Falk and the conclusions of the KLWCT. The truth is that I just don’t know enough about it. But I think the larger point about the politicization of international tribuanls, and the ICC in particular, still holds.

      • Paul Brooke permalink
        May 2, 2012 12:03 am

        Thank you for your reply and for the link to the article on the KLWCT. Given the apathy of most Americans for anything beyond television sitcoms, it may be up to the rest of the world to simply restrict where George W. Bush may travel without being arrested.

  2. May 2, 2012 6:52 pm

    Upon all the defects, as ascribed by analyst, of the ICC, I think the ICC is a savior leviathan for the poor, vulnerable, and weak people in conflict prone Africa.

    But why would I say this?
    I say this because, upon a close review of chronicled conflicts prevailing in Africa, it would be unveiled that the people that suffer in such situations are mostly those who have no connections to the corridors of political power, the deprived, the weak, women and children.

    These victims have no say neither do they have any channel to voice out their complains, similarly they do not posses any political will and efforts to bring to justice the God fathers and Gurus behind such brutalities and neither is the law courts in the home countries ready to bring to trail those responsible.

    So if there exist a court called ICC which is very much dedicated and committed to bring to justice, through all means, the perpetrators of war and atrocities, in my view I think the ICC is a savior to the helpless victims who always suffer each time war breaks up.

    This not to say that the ICC is excused from the critics leveled against it.

    • May 3, 2012 3:13 pm

      Exactly Philip. This is exactly why the ICC was created. I admire the ICC and what I believe to be the noble intentions of its founders. But the application of international justice is much messier.

  3. Geraint Hughes permalink
    October 25, 2012 2:33 pm

    Christine,

    I’ve just read through this piece, and I’ve only got one comment. I accept the fact that the ICC’s focus on African conflicts is treated as proof of a regional bias, but surely the point here is that the victims of these wars are themselves Africans (obviously I don’t need to tell you that, due to your own fieldwork and expertise). If politicians resent what the ICC is doing then what do civilians in Sierra Leone and Liberia think?

    I also remember that during the early 1990s the Western states had its critics within Africa because the focus of their intervention and peacekeeping/peace enforcement efforts lay with the former Yugoslavia, whilst the ongoing civil war in Angola and the genocide in Rwanda (in 1994) were ignored. When the latter happened the Nigerian ambassador to the UN asked his Permanent Five counterparts if Africa had dropped off ‘the map of moral concern’, and there was also the sentiment that Bosnia was getting all the UN peacekeepers because its inhabitants were white.

    So whilst there are double standards involved from the West I think the same is true from African politicians as well, and with reference to Omar al-Bashir there seems to be this sense that solidarity with fellow leaders trumps any consideration of human rights and justice. And if the ICC can’t put every warlord and mass-murder behind bars then surely bringing some war criminals to justice is better than leaving them all at liberty?

    • October 25, 2012 11:30 pm

      Hi Geraint,

      Your argument that partial justice in this world is better than no justice at all is one that I broadly accept. But this has to be weighed up against the concept of fairness. A court that is not perceived to be fair loses its legitimacy. Without legitimacy, the ICC could become an instrument of the powerful. Given limited resources, the issue of what “partial” justice should look like becomes critical.

      I want to live in a world where the ICC will be powerful enough to serve as a credible check on political leaders before they authorize war crimes and human rights abuses. Unfortunately, that won’t hapen if the ICC doesn’t realize that its choice of cases is eroding its own moral authority.

  4. Geraint Hughes permalink
    October 30, 2012 10:56 am

    Christine, my apologies for the delayed response. I don’t necessarily disagree about the necessity of fairness and impartiality in international justice, it’s just that I see five crucial obstacles to this which affects the work of the ICC and also other specific tribunals (SCSL and ICTY).

    Firstly, the main impediment is the states system itself, and considerations of sovereignty, self-interest etc can and will trump efforts to promote a truly international justice system. In this respect, it is not only the major powers that can act in defiance, but also the weaker ones as well. Kagame has literally got away with murder in the DRC with his sponsorship of militia groups in the Kivus – not that Rwanda is the only state with blood on its hands as far as Congo is concerned. The Sri Lankans were also able to tell the international community to go forth and multiply when it came to credible allegations of atrocities during the final phase of the war against the LTTE.

    Secondly, the institutions overseeing the promotion of human rights are themselves tainted. The UN Human Rights Council is guaranteed to issue pronouncements by the dozen whenever Israel-Palestine is on the agenda, but when it comes to other gross violations of international law its record is patchy, to say the least. Again, with reference to Sri Lanka, the passage of A/HRC/S-11/L.1/Rev.2 by a majority vote at its 11th session can only be described as a disgrace.

    Thirdly, there are grounds for arguing that the process of overseeing human rights violations and indicting the worst offenders requires more of an input from NGOs, thereby ensuring that it’s not just the outlaws who end up in court. But I question the idea that activist groups can (1) always speak for the victims and (2) are likely to be less partial than governments. Again, and as Jonathan Freedland points out, it is striking to note how the same individuals who protested against the Israeli war on Gaza nearly four years ago have said little or nothing about the current situation in Syria.

    Fourthly, when it comes to critiques about ethnocentricity and ICC I wonder whether – in the same way patriotism has become the last refuge of the scoundrel – ‘anti-imperialism’ is a convenient bolt-hole for the despot. Indictments against Omar Bashir and Kenyan politicians responsible for inciting ethnic violence during the 2007-2008 election dispute set uncomfortable precedents for certain other African leaders, and I think it is very much in their interests to claim that the ICC represents a neo-colonialist plot by the West to target its enemies.

    Finally, the quest for impartiality is always going to be a tough one, and I’m reminded here of the furore the SCSL aroused in Sierra Leone when it issued its indictment against Samuel Hinga Norman, My impression – and speak with a degree of caution because this is within your area of expertise – is that many Sierra Leoneans were outraged that he was put morally and legally on a par with the leaders of the RUF and other warlords. Likewise, the Croats were happy enough to see Mladic, Milosevic et al in front of the ICTY – but once Gotovina and his ilk were indicted it was a different matter.

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