Monday, April 30, 2012

Initial Reflections on JCE and Terrorism in the Taylor Judgment

(Another of IntLawGrrls' several posts on the Charles Taylor judgment, part of our Sierra Leone accountability series)

Among scholars who follow the jurisprudence of the Special Court for Sierra Leone and the Taylor trial in particular, there was much anticipation about how Trial Chamber II would rule on the issue of joint criminal enterprise, often abbreviated JCE.
This mode of liability has been widely used in various international criminal tribunals and has been the subject of much debate. (Prior IntLawGrrls posts.) The Special Court’s application of JCE is no exception – scholars and practitioners have questioned and criticized its application by the court nearly every step of the way.
In anticipation of receiving the full reasoned judgment (which, as Sara Kendall discussed in a post yesterday, is not yet available), this post will discuss the general issue of JCE in the Taylor trial, including a key decision about the alleged common purpose handed down by the Trial Chamber very late in the trial. It will also provide a few comments on the relationship between joint criminal enterprise and aiding and abetting, the latter being one of the modes of liability on which the Trial Chamber relied in its recent conviction of Charles Taylor.

Pleading JCE 
One of the central debates about joint criminal enterprise at the Special Court is how the prosecution pleaded the required common purpose. According to paragraph 574 of the prosecution’s final trial brief, Taylor, together with the Revolutionary United Front (RUF) and Armed Forces Revolutionary Council (AFRC)/RUF junta, shared a common plan involving
'the use of criminal means, a campaign of terror encompassing the indictment crimes, in order to achieve the ultimate objective of the JCE, to forcibly control the population and territory of Sierra Leone and to pillage its resources, in particular diamonds.'
This plan was allegedly hatched between Taylor and Foday Sankoh, leader of the RUF, in the 1980s – an allegation the Chamber rejected. (credit for above photo of Taylor, at right)
During the course of the trial, however, the prosecution had put forth various versions of the common plan. The initial indictment, similar to the indictments in the RUF and AFRC cases, alleged that the RUF and AFRC were participants in a joint criminal enterprise to take political and physical control of Sierra Leone and its diamond mines. The diamonds and other natural resources, according to paragraph 23 of the Original Indictment,
'were to be provided to persons outside Sierra Leone in return for assistance in carrying out the joint criminal enterprise.'
Taylor, according to paragraph 20, allegedly participated in the JCE by
'provid[ing] financial support, military training, personnel, arms, ammunition and other support” to the RUF in order to “obtain access to the mineral wealth of the Republic of Sierra Leone, in particular the diamond wealth of Sierra Leone, and to destabilize the State.'
The Second Amended Indictment (the final indictment) did not clearly specify a common purpose, but alleged that Taylor acted in concert with the RUF, AFRC and others to commit the crimes charged “as part of a campaign to terrorize the civilian population” of Sierra Leone (para 5). There is no mention of taking control of Sierra Leone, or of its diamonds or natural resources. However, in subsequent filings the prosecution argued various other common purposes, including the theory finally relied on in its final brief.
Adding to the confusion, the Trial Chamber determined yet another version of the common plan over a year into the trial and after the prosecution had rested its case (which was later re-opened for the Campbell testimony). Some ten months after a motion was filed by the defense challenging the JCE pleading, Trial Chamber II decided by a majority that the alleged common purpose was to engage in a “campaign to terrorize the civilian population of the Republic of Sierra Leone” and that the crimes charged were part of a campaign of terror or a reasonably foreseeable consequence therefore. This was upheld on appeal.
In effect, the Trial Chamber re-characterized what the Prosecution had originally pled as one of several criminal “means,” and declared that this was the objective of the common purpose instead.
This shifting and inconsistent theory of JCE put forth by the prosecution, and its various treatment by the Special Court chambers, has been subject to much criticism and debate. Although it’s unclear why the chamber rejected joint criminal enterprise as a mode of liability, its rejection in this particular case will hopefully provide much-needed clarification and limits on the application of the doctrine in SCSL jurisprudence.

Acts of Terror as Common Purpose
Given the Trial Chamber’s holding that the common purpose was to terrorize the civilian population, for JCE to succeed, all crimes in the indictment had to be proven as either:
► The intended means used to carry out the common plan to terrorize, or
► A natural and foreseeable consequence of this plan.
Further complicating the matter, terrorizing the civilian population is a specific intent crime, which means some counts are difficult to prove under JCE.
Moreover, Special Court jurisprudence on which crimes could be considered acts of terrorism has been inconsistent.
Trial Chamber II, in the 2007 AFRC Judgment, held that the use of child soldiers, abductions and forced labor, and sexual slavery were not acts that could be included under the crime of terrorizing the civilian population. Regarding sexual slavery, Trial Chamber II found that these were crimes of opportunity, and not committed with the intent to cause fear in the civilian population. However, Trial Chamber I in the RUF trial found that sexual slavery and forced marriage were part of a campaign of terror.
Trial Chamber II appears to have changed its approach in Taylor. Although not in the context of a JCE, the Chamber did hold that the crimes alleged in counts related to sexual violence—rape, sexual slavery and outrages upon personal dignity – were considered part of a campaign of terror (Judgment Summary para 57).

JCE and Aiding and Abetting 
The relationship between aiding and abetting and joint criminal enterprise raises a number of issues to be addressed when the reasoned judgment is published. First, the aider and abettor does not need to know of a common plan – which seems like an easier mode of liability to prove. Moreover, the aider and abettor does not share the mens rea of the perpetrator, but rather merely intends to assist in the commission of a crime. 
Application of aiding and abetting to specific intent crimes, such as genocide, has been criticized. Terrorizing the civilian population, one of the crimes Taylor was convicted of, is also a specific intent crime, and it will be interesting to see how the Trial Chamber addressed this issue in its reasoned judgment. What Taylor knew or intended has critical importance when considering the expressive value of this trial, and whether he has accurately been heralded by the prosecution as the mastermind behind the entire conflict.
Another noteworthy issue is that aiding and abetting is considered a lesser form of liability than joint criminal enterprise. The late international criminal law expert Antonio Cassese (left), who served as a Judge on the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia from 1993 to 2000 (photo credit), stated in a 2007 article that liability for aiding and abetting is more “tenuous” than JCE. Furthermore, in paragraph 182 of its judgment in Prosecutor v. Vasiljević (2004), an ICTY Appeals Chamber over which Judge Theodor Meron (below right; credit) presided wrote
'that aiding and abetting is a form of responsibility which generally warrants a lower sentence than is appropriate to responsibility as a co-perpetrator.'
In the coming weeks, we will see how the Chamber weighs these factors, in addition to the planning mode of liability, in its sentencing determination.
Finally, it will be interesting to see how the aiding and abetting conviction overlaps with the planning conviction, and whether the Chamber convicted Taylor for aiding and abetting the same crimes he is convicted of planning.

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