Analysis

Why Taylor Should be Tried at the Hague

1 April 2006 at 21:25 | 462 views

This is a learned response by the Sierra Leonean jurist and writer John L.Musa, to another learned Sierra Leonean jurist Dr. Peter Dumbuya. Both gentlemen are members of a Sierra Leonean listserv (Leonenet UMBC) from which this response is culled. Dr. Dumbuya argued that Taylor should be tried in Sierra Leone and not anywhere else. Here is Mr. Musa’s response:

By John L. Musa

Dear Dr. Dumbuya,

I read your argument against a probable change of venue of the Special Court for Sierra Leone to try the indicted Charles Macarthur Ghankay Taylor with profit because it makes valuable sense to raise those questions you interposed.

You are right in the main of your argument but let me add a few points of departure to illuminate the proposition why a change of Venue looms in the wake of the arrest, detention and trial of Mr. Taylor. To do justice to your argument, I shall respond to each element of your argument not as a counter weight but to agree with you while disposing of some of your points I consider as deserving confutation.

Before responding to your argument, let me state with certainty that there is good cause and legal basis for changing the Venue of the Special Court for Sierra Leone if a substantial reason exists that such a change would be in the best interest of the Court. As you well know, the Agreement between the UN and the Government of Sierra Leone says in pertinent part:

"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, if circumstances so require, and subject to the conclusion of a Headquarters Agreement between the Secretary-General of the United Nations and the Government of Sierra Leone, on the one hand, and the Government of the alternative seat, on the other" (Article 9: Seat of the Court) (emphases are mine).

In the following interpretation of the provision in the Agreement, I assume that the Agreement warrants a change of Venue for the Court to hear a case outside Sierra Leone in one instance and a change of the Seat to be moved outside Sierra Leone for another germane reason to efficiently carry out her duties. Thus, any of the two parties - the UN or Sierra Leone may invoke these changes. In that regard, the provision will motivate the UN to transfer one accused person -Taylor to the Hague for trial in the Chambers of the new International Criminal Court (ICC) while under the terms of the Agreement and operating under the Rules of the Special Court which would be still sitting in Sierra Leone. It would a fortiori be assumed that a change of Venue for Taylor, is not Prima Facie change of the whole Seat of the Special Court for Sierra Leone from her capital location at New England, Freetown.

This governing principle for change of Venue supplied above having been canvassed, now let us return to your reasonable argument against a probable transfer of Venue for Mr. Taylor’s trial.

First, you averred that:

"(1) Of the fifty-something independent countries in Africa, I have yet to hear one of them mentioned as a possible venue for Charles Taylor’s upcomig war crimes trial. Not even Arusha (Tanzania), the seat of the International Criminal Tribunal for Rwanda (ICTR), has been suggested as a possible venue for the trial. I’m assuming that Arusha has, by now, developed excellent facilities for conducting such an important international trial! "

JLM: As you already know, the Special Court for Sierra Leone was originally considered to have its Seat of operations in another African state such as the International Criminal Court has its Seat in Arusha, Tanzania. But the question of the judicial economy and the burden on the Prosecutor to arrest suspects and the difficulty of Registry in locating and transferring the those indicted into custody from Sierra Leone to another country near or far, would have been onerous and expensive given the Court’s small budget supplied by voluntary donations.

What is more, transfer in any other African country would require that Taylor be tried in a court house with security detail which would be more likely to be expensive. Can Arusha take on the additional burden of an infamous accused in its facilities? Trying Mr. Taylor in another African country besides Arusha, Tanzania, would also require an adjustment to the detention facilities to house an infamous indicted person such as Taylor. You would agree that Milosevic and other leaders of Bosnia are being tried at the Hague because such facilities exist there. A probable trial of Taylor at the Hague will vitiate the anxieties and sympathies of other African leaders as their former colleague now at bar.

While making these points of departure, there is a greater reason to transfer Taylor’s Venue for trial. President Johnson Sirleaf of Liberia, ruling a country in which Taylor supporters dwell has signaled with apprehension that the Seat of the Sierra Leone tribunal is deemed hostile to Taylor’s rights of a fair trial. Other African leaders would less likely agree to host a trial of one of their former colleagues as this would be contrary to their custom of buffeting their deposed colleagues, hence Mengistu of Ethiopia resides in Zimbabwe, Habre of Chad took refuge earlier in Senegal as Taylor has resided in Nigeria under similar friendly auspices, notwithstanding the accusations against them for war crimes and crimes against humanity.

The reasons given by the President of Ghana to the Registry of the Special Court that it will not cooperate in the arrest of Taylor when he was at a meeting of African leaders in Accra (and let Taylor leave in a Ghanaian aircraft back to Monrovia), is the same reason other African leaders will give to avoid any transfer of Venue to their countries to try Taylor - African comity among the various leaders in the African Union.

Accordingly, while you raised a valid point to try Taylor in Africa, personal comity and many cases diplomatic amity will collide against the noble cause of trying Taylor for war crimes in Sierra Leone. Moreover, the SCSL lacks a budget which the two Article VII Courts in Rwanda and that for the former Yugoslavia possess. On this picayune budget, Taylor’s detention and trial will be a bane. You may recall that the other two international criminal courts have an Article VII mandates with generous budgets which far surpass that for the Court in Sierra Leone.

Then you also interposed that:

"If, as Secretary-General Kofi Annan wrote in his "Report" to the Security Council, dated October 4, 2000, the Special Court for Sierra Leone (SCSL) was designed to deal with impunity, develop respect for the rule of law in Sierra Leone, and assure the people that the Court is not going to conduct its business with a wink and a nod, then I would object to any change of venue from Freetown to the Hague, Netherlands (a member of the Court’s Management Committee)".

JLM: Your concern is germane. However, if Article 10 of the Agreement between the UN and the Sierra Leone Government is to be invoked to transfer Venue for only one Accused - Taylor, the Parties to the Agreement will also trigger the Amendment provision to ensure that all conflicts are avoided. You know that such conflicts invariably cross the mind of Parties to an agreement when a substantial amendment is contemplated or when it would invoke or trigger a clawback Clause such as the one in the change of Venue for an Accused in Article 10 of the Agreement cited above.

Dr. Dumbuya, you framed another stem of your argument thus:

"A change of venue would undermine, if not destroy, the sui generis stature of the Court, deprive Sierra Leoneans of an opportunity to see these war crimes trials through to the end, and help Sierra Leone develop its own judicial infrastructure."

JLM: The sui generis aspect of the Special Court would remain in the Seat of the Special Court in Sierra Leone where the rest of the accused are being tried. That Mr. Taylor was indicted by the SCSL is now legend in Sierra Leone. That he was arrested and will be facing trial is also now commonplace amongst us. The lesson of trying the RUF, the CDF and the AFRC accused for war crimes would be unlikely lost if Venue for Taylor alone is transferred. A pamphlet by the Special Court explaining the sui generis of the Court’s establishment has already been incorporated in the curriculum of the schools in Sierra Leone. Pictorial posters may be seen in Chiefdom Court houses all over the 149 chiefdoms doing the same thing for those who cannot read. Thus, while the alarm is worthy of notice, for all the valid reasons you interposed, it is axiomatic that, a change of Venue for one accused, is not necessarily a change of the Seat of the whole Court herself. What remains to be done is that the Special Court needs to add other information all reasons that would make it necessary to try one accused outside the Seat of the Court in another country with the notion that he too will be punished if found guilty as charged.

Dr. Dumbuya, you also said with ardor that

"In addition, any change of venue would have to comport with Article 9 of the "Agreement" to establishment the Court. It’s time for Sierra Leone to stand up and be counted as a nation that is not going to be intimidated by terrorists owing allegiance to Charles Taylor and his confederates!"

JLM: Well said. However, in the wake of UNAMSIL’s departure from Sierra Leone and the status of our Police and Military, as not quite stable enough to perform the defense and security duties, then a fortiori, deploying them in safeguarding Taylor’s detention at the Special Court facilities will undermine our present state of peace keeping and peace building with a small number of forces. On the horns of this dilemma, we must yield the trial of Taylor at another Venue at the Hague.

More important is the fact that we must keep in mind that the transfer of the venue for one accused is not surrender of our sovereignty lodged in the Agreement to try Taylor at the Hague. His prosecutors will be coming from the Seat of the Court where he was indicted in Freetown using the same rules to assure a fair trial and equal protection before the law. Most important is the sublime point you made about our state of security. On that score, we cannot risk another band of Taylor’s cutthroats and highwaymen probably now spoiling for a fight in Sierra Leone to conjoin forces with internal rebels to stage another insurgency in the border towns which may later quake into an invasion such as started on March 23, 1991.

Above all the reasons I have interposed in addition to your valid points of view is the fact that the UN countries supporting the Special Court for Sierra Leone are weary of their voluntary cause for justice because it is taking far much time and money than they bargained for and the time they contemplated it would last. They want this Court to finish its trials and appeals sooner rather than later. Thus, it is reasonable to assume that trial for Taylor will be protracted, and a longer trial under such circumstances will postpone the prospect of completing the course of the Special for Sierra Leone

Best regards.
John

Photo: The International Criminal Court at the Hague.

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