Friday, August 10, 2012

Causality and Responsibility in the Taylor Judgment

Yesterday’s post by my colleague Jennifer Easterday details how Charles Taylor was not found responsible under the controversial mode of liability known as ‘joint criminal enterprise.’ Taylor was also not convicted of superior responsibility under Article 6(3) of the Special Court’s Statute. So how was Taylor held responsible for crimes committed in a neighboring country, and how does his role relate to the narratives of the Sierra Leonean conflict told through the Special Court’s judgments in other cases?
Taylor was convicted through two modes of liability under Article 6(1) of the Special Court Statute: ‘aiding and abetting’ and ‘planning.’ Trial Chamber II found that Taylor played an active role in providing material support to the Revolutionary United Front (RUF) rebels in Sierra Leone. The lengthy judgment (available here) details his assistance with shipments of arms and ammunition, communication, and logistical support, among other things. While extensive evidence of Taylor’s role in aiding and abetting the crimes was heard during the course of the trial, the Trial Chamber’s findings regarding his role in planning the notorious 1999 invasion of Sierra Leone’s capital appears to be one of the judgment’s more controversial conclusions. Taylor’s responsibility for the atrocities carried out during the invasion is based on his well-established connections to the RUF, yet the RUF’s role in the Freetown attack was found to be minimal in two related judgments.

The Planning Conviction
The Chamber found that in November of 1998, Charles Taylor and RUF leader Sam Bockarie made a plan in Monrovia, Liberia, to carry out an attack that would culminate in the invasion of Freetown. Bockarie then returned to Sierra Leone and shared the plan with rebel commanders. (map credit) The judgment finds that the RUF and Armed Forces Revolutionary Council (AFRC) were not ultimately under Taylor’s ‘effective control,’ which would have been a necessary element in finding Taylor liable for superior responsibility (para. 6991). Instead Taylor was found individually responsible for planning the Freetown invasion, a determination made largely on the basis of hearsay testimony from several insider witnesses relaying what Bockarie told them Taylor had said.

Linguistic Agency
Although the sentencing judgment acknowledges that Taylor’s conviction for planning is ‘limited in scope’ (para. 101), the Chamber relies heavily on two phrases recounted by these key witnesses: first, that Taylor claimed the Freetown operation should be ‘made fearful’, and second, that Taylor instructed Bockarie to use ‘all means’ to capture Freetown. These two phrases were emphasized several times in the Chamber’s live reading of the summary judgment as evidence that Taylor intended the commission of grave crimes. In the absence of more detailed evidence of the plan and its implementation, Taylor’s reported utterances seem to be given great causal weight.

The planning conviction held Taylor liable for the crimes appearing in all eleven counts of the indictment that were committed during the course of the Freetown attack, including acts of terror, murder, rape, sexual slavery, and conscripting and enlisting child soldiers. Although the Chamber determined that these crimes were foreseeable consequences of Taylor and Bockarie’s plan, questions remain as to which forces carried out these crimes and whether they were in fact under Taylor’s control at the time of their commission. Taylor’s responsibility is linked to the role of the RUF (and the figure of Bockarie), but the extent of RUF involvement in the Freetown invasion was limited in other Special Court judgments.

Conflicting Narratives
The January 6, 1999 invasion of Freetown was a particularly violent event in the conflict. Human Rights Watch reported that over 7,000 people were killed, while countless others were raped, mutilated, and displaced from their homes. Sierra Leone’s Truth and Reconciliation Commission found that AFRC launched and led the attack without RUF cooperation (report available here).
Evidence concerning the 1999 Freetown invasion was heard in previous cases before both of the court’s trial chambers, and their conclusions diverge from the findings made in the Taylor case. In the judgment against three members of the RUF (available here), Trial Chamber I found that the RUF troops arrived late as reinforcements, but they did not materially assist the AFRC in carrying out the Freetown crimes. On appeal, the prosecution’s effort to establish RUF culpability for the Freetown invasion as part of a joint criminal enterprise with the AFRC was rejected by the Appeals Chamber.
In the case against members of the AFRC, Trial Chamber II – which also heard the Taylor case – found that AFRC leader Alex Tamba Brima gave the order to attack Freetown and became the overall commander of the Freetown invasion (AFRC judgment available here, at para. 614). According to the AFRC judgment, AFRC commanders established contact with Bockarie (and thus Taylor) after they had already captured the seat of government in order to request reinforcements, and the RUF only came in as part of an ‘unsuccessful’ second attack on the city (paras. 420-421).
In both the RUF and AFRC judgments, the atrocities committed during the attack on Freetown were planned by and implemented through the AFRC, with no mention of Taylor’s plan and with a limited and late role ascribed to the RUF. The Taylor judgment bridges this apparent gap by finding that the AFRC troops were ‘subordinated to and used by Bockarie’ to carry out the plan developed by Bockarie and Taylor in Monrovia, with Bockarie and AFRC commander Brima in ‘close coordination’ and ‘frequent communication.’ This suggests a different understanding of Bockarie’s de facto command and of the degree of coordination between the AFRC and RUF than the previous two judgments, enabling the Chamber to attribute responsibility for the atrocities of the invasion to Taylor through Bockarie.
New evidence appears to have emerged from the Taylor trial process, resulting in a different narrative of the Freetown invasion than has been documented in other cases before the Special Court. Yet even with this new evidence, Taylor’s conviction for planning the Freetown invasion appears to be one of the more controversial findings of the judgment.

1 comment:

Evelyne Schmid said...

Very insightful analysis! As you mention, the Taylor trial judgment is very lengthy. To make further analysis easier, I converted it into a searchable version which can be found here.