Followers of international criminal law have long been familiar with the problems involved in crafting indictments, as well as the debates surrounding the theory of joint criminal enterprise. The two issues, however, have recently collided at the Special Court for Sierra Leone. In particular, the indictments at the Special Court have pleaded joint criminal enterprise, or JCE, in ways that threaten the right of the accused persons to have notice of the charges against them. This post will focus on the sparse and confused pleading of joint criminal enterprise in the ongoing case against Charles Taylor (above right), the former President of Liberia. (credit for Michael Kooren/EPA photo)
Indictments alleging a joint criminal enterprise must include several specific types of material facts, including the nature and purpose of the enterprise. The amended Taylor Indictment, however, neglects to do so. This omission is striking given the importance of this form of liability to the Prosecution’s case against Taylor. In the Taylor trial, as in the trials of many high-profile figures, JCE represents an important form of liability because the Prosecution does not seek to prove that Taylor personally committed any of the alleged atrocities. Therefore, much of its case could rest on its ability to prove that Taylor participated in a joint criminal enterprise to commit such crimes.
The most recently amended version of the Taylor Indictment charges joint criminal enterprise by alleging that the accused is individually criminally responsible for crimes which
amounted to or were involved within a common plan, design or purpose in which the ACCUSED participated, or were a reasonably foreseeable consequence of such common plan, design or purpose.This paragraph notably omits the phrase “joint criminal enterprise” as well as any description of what constituted the “common plan, design, or purpose” in which Taylor allegedly participated. This manner of pleading departs from the other indictments at the Special Court as well as standard practice at the ICTY and the ICTR.
Since issuing this amended Indictment in May 2007, the Prosecution has actually made matters worse by attempting to clarify the contents of this common plan. The Prosecution has articulated two different, and not entirely consistent, versions of this plan:
► In its opening arguments at the trial in June 2007, the Prosecution argued that Taylor participated in a common plan to achieve and hold political power and physical control over the civilian population of Sierra Leone through criminal means involving a campaign of terror against the civilian population of Sierra Leone. This common purpose resembles the one articulated in the original Taylor indictment.
► Two months after opening arguments, however, the Prosecution offered a different common purpose in its Amended Case Summary. It argued that Taylor participated in a common plan
to carry out a campaign of terror . . . in order to pillage the resources of Sierra Leone. This common purpose resembles the one found in the pre-trial brief submitted immediately before opening arguments.
Unfortunately, the text of the current amended Indictment offers little support for either version of the common purpose of Taylor’s joint criminal enterprise.
Ultimately, the Prosecution may have failed to provide the accused with necessary information concerning the nature and the purpose of the JCE. By oscillating from one common purpose to another, and by failing to anchor its arguments in text of the indictment, the Prosecution has not only provided Taylor with untimely, inconsistent, and confused information, but it also may have substantially weakened its case against Taylor.
A defense motion pending before the Trial Chamber essentially argues that the Prosecution has failed to provide Taylor with sufficient notice of the case he has to meet because it has advanced more than one common plan during the critical early phases of the case.
What will Trial Chamber II have to say on this issue? Only time will tell—we’ve been waiting for its ruling since the spring of 2008.