The SCSL at the Security Council

On October 9th, Guatemala, as this month’s President of the UN Security Council, convened a meeting to discuss the Special Court for Sierra Leone (SCSL). The SCSL is expected to close in approximately one year, shortly after the completion of appellate proceeding in the Charles Taylor case in September 2013, so this meeting focused on taking stock of the Court’s achievements and the court's transition into the Residual SCSL. There were several representatives of the SCSL present at the discussion, including the President, Justice Shireen Avis Fisher, Prosecutor Brenda Hollis, Registrar Binta Mansaray, and the Head of the Defence Office, Claire Hanciles. President Fisher (pictured right, photo credit) noted that all four SCSL principals are female – the first time in the history of international criminal tribunals.
President Fisher also highlighted an interesting independent nationwide survey conducted in Sierra Leone and Liberia at the end of May, designed to measure the impact and legacy of the SCSL. In that survey, 79% of the people surveyed believed that the SCSL has accomplished its mandate - President Fisher credits the SCSL’s extensive outreach program for this success. As well, 91% of Sierra Leoneans and 78% of Liberians surveyed believe that the SCSL has contributed to bringing peace in their countries. This certainly is positive news for the SCSL at a time when it is working to cement its legacy. President Fisher also stressed that the SCSL model is proof that positive complementarity works - a nod to the ongoing discussion in international criminal law circles of how national jurisdictions can utilize outside assistance to undertake prosecutions for serious crimes. 
Some common themes ran through the comments of President Fisher, Prosecutor Hollis, the Government of Sierra Leone and Security Council Member States, especially relating to funding and gender-sensitive justice. President Fisher announced that the SCSL is facing a $15 million shortfall in funding to conclude the court’s work. This financial crisis is making it difficult for the SCSL to plan for its completion and transition to a Residual SCSL. The US indicated that it is contributing a further $2 million in 2012, amounting to an overall contribution of $83 million since the court’s inception. Another major donor, the UK, stressed that “[f]unds are needed urgently. Longer-term, the Residual Special Court requires secure and sustainable funding in order to continue to protect witnesses, manage the detention of those convicted and protect archives.” It stated that the “United Kingdom is considering all funding options for the Special Court and the Residual Special Court and we urge other members of the Council, and all Member States, to do so as well.” While it is not clear what those funding options are, it is hoped that they relate to steady and reliable funding sources.
Like the SCSL, the Residual SCSL is to be funded through voluntary contributions. This leaves the Residual SCSL open to the same funding shortfalls continually faced by the SCSL over the past decade. President Fisher made an impassioned plea for attention to the Residual SCSL, stressing that “[r]esidual responsibilities are not an afterthought or burden.” Rather, they are absolutely crucial: if SCSL witnesses are not protected, this will have a negative impact on witness participation at all other international courts; if the archives are not protected, revisionist history will fill the void; and if the sentences of those convicted by the SCSL are not properly supervised, then the SCSL’s reputation as a just institution will erode, undermining the moral authority of all of its past work.

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.

Joint criminal enterprise in the Taylor judgment

This post is part of the ongoing series about the Special Court for Sierra Leone (SCSL) trial of former Liberian president Charles Taylor (see prior posts here). His trial and conviction has generated wide debate, scholarship and commentary about what it has done for Sierra Leone, Liberia, the victims of those conflicts and international (criminal) law jurisprudence.
For me, though, the judgment was notable as much for what it did not do as for what it did. The Trial Chamber did not convict Taylor on the basis of the joint criminal enterprise (JCE) theory of liability, convicting instead on aiding and abetting and planning. JCE was a central issue in the Taylor trial, and the core of the prosecution’s case. It formed the sole basis for the Trial Chamber’s decision denying the defense motion for acquittal on the basis of insufficient evidence at the end of the prosecution’s case. That the Trial Chamber did not find Taylor guilty on this mode of liability was something of a surprise, but even more surprising was the paucity of discussion on JCE in the final judgment.
JCE has been a hotly debated concept in international criminal law, with critics arguing that it leads to guilt by association. The JCE debate reached new heights, however, over how the SCSL has applied (or mis-applied) JCE.
 JCE was also highly contentious in the Taylor trial (see previous posts here and here). In a tardy decision—given after the prosecution had rested its case—the majority of the Trial Chamber found that the prosecution had properly pled JCE, but also “identified” a common purpose of terrorizing the civilian population, a specific intent crime (Taylor Judgment, 6898). This decision was upheld on appeal. The common purpose identified by the Trial Chamber replaced what the prosecution had characterized as a criminal “means” (i.e. that the common plan involved the crimes) with a criminal “objective” (that the common plan amounted to the crime of terrorism, which involved the other alleged crimes). This narrower interpretation of the pleaded JCE seems to have been part of what lies behind the lack of conviction on JCE.
The Trial Chamber judgment does not provide much rationale for its decision on JCE or develop the SCSL’s JCE jurisprudence in any meaningful way. In a scant seven paragraphs of explanation (impressive when considering the judgment contains 7000 paragraphs), the Chamber found that the prosecution had failed to prove Taylor participated in a common plan of terrorizing the civilian population.

Taylor Trial Judgment Analysis: Gender Issues

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

The Special Court for Sierra Leone has been very busy over the past few months. Our earlier posts covered the announcement of the judgment in the Charles Taylor case by Trial Chamber II on April 26, the subsequent release of the written judgment – at almost 2,500 pages – on May 18, and the sentencing of Taylor to a term of 50 years of imprisonment on May 30. He is appealing both the trial judgment and his sentence. The Prosecutor is also appealing. Taylor’s Notice of Appeal lists 45 grounds of appeal, and the Prosecutor’s Notice has listed four grounds of appeal.
In addition, on June 22, Justice Teresa Doherty convicted a former member of the Revolutionary United Front, Eric Koi Senessie, on eight out of nine counts of witness tampering. Senessie was convicted on four counts of offering a bribe to a witness, and on four counts of attempting to influence a witness, to recant testimony given in the Taylor trial. He was sentenced on July 5, receiving a two year term of imprisonment. Under the Rules of the Special Court, Senessie faced a maximum sentence of seven years of imprisonment, a fine of two million leones, or both. Senessie will serve his sentence at a detention facility on the Special Court premises in Freetown.
Over the past several weeks, many of us have been reading and analyzing the massive Taylor judgment. Today, and for the next two days, IntLawGrrls will be pointing out interesting aspects of that judgment. Today’s post focuses on how three specific gender issues were addressed in the Taylor trial judgment: first, sexual violence and the war crime of committing acts of terror; second, the introduction of the term ‘conjugal slavery’; and third, the recognition of aggravated outrages upon personal dignity.
► First, as I previously posted, the judgment contains a gender-sensitive analysis of the war crime of committing acts of terror.
Replicating the analysis found in the Revolutionary United Front (RUF) trial judgment, the Court held that sexual violence committed by the RUF, Armed Forces Revolutionary Council (AFRC) and affiliated fighting forces had the primary purpose of spreading terror, and was “deliberately aimed at destroying the traditional family nucleus, thus undermining the cultural values and relationships which held society together.” [para. 2034] It also found that sexual violence was committed in public as a deliberate tactic on the part of the perpetrators to spread terror among the civilian population, and was not merely a means of sexual gratification [para. 2036]. This war crime is not normally considered a gendered crime, but the Taylor judgment - like the RUF judgment - confirms that it can be committed through sexual means.
► Second, Trial Chamber II undertakes a very thought-provoking analysis of what had been previously termed ‘forced marriage’ as it occurred in the Sierra Leone armed conflict.

HRW report: Lessons from the Charles Taylor trial

Today Human Rights Watch releases a report entitled "Even a ‘Big Man’ Must Face Justice": Lessons from the Trial of Charles Taylor.
This past May, the Special Court for Sierra Leone sentenced Taylor, the former president of Liberia, to 50 years in prison for aiding and abetting the brutal 1991-2002 armed conflict in neighboring Sierra Leone. While it has been a long road, the successful conclusion of the trial phase was a landmark for war victims, for West Africa, and for efforts to ensure perpetrators of the gravest crimes are held to account. (IntLawGrrls' Sierra Leone accountability series is here.)
The HRW report – which I authored with editorial guidance from my fellow IntLawGrrl Elise Keppler and which I summarize in this post – examines the conduct of Taylor’s trial, the court’s efforts to make its proceedings accessible to affected communities, and perceptions and initial impact of the trial in Sierra Leone and Liberia. It is based on interviews in The Hague, London, Washington, New York, Sierra Leone, and Liberia, as well as review of expert commentary, trial transcripts, and daily reports produced by trial observers.

Lessons for Trial Practice

Trials of high-level leaders for serious crimes can be complex, lengthy, and fraught. Yet the Taylor trial largely avoided major disruptions that could have marred the proceedings, and is notable for its relatively well-managed character.
Taylor’s representation by counsel appears to have contributed positively to the generally respectful and organized tenor of the courtroom. Moreover, the trial included a high-quality, experienced defense team.
The Taylor trial also provides a strong model for witness management. The Special Court for Sierra Leone handled complex logistics and support for over 100 witnesses, including insiders who had admitted to extensive criminal activity and victims who had suffered severe trauma.
At the same time, lessons should be drawn to improve future practice in similar types of proceedings, with regard to trial management, representation of the accused, and interaction with potential witnesses and sources.
Notably, the judges adopted practices that sought to prioritize efficiency, but sometimes these practices contributed to delays; examples are the ambitious courtroom calendar in comparison to other tribunals, and the insistence on parties meeting certain deadlines.
Other practices – such as the Trial Chamber’s non-interventionist approach to witness testimony – lengthened proceedings.
More active efforts by the Trial Chamber and Registry to address defense concerns could have encouraged smoother proceedings. Taylor’s first defense team left the case due to concerns over inadequate resources and time to prepare; this led to the appointment of a second team and a hiatus in proceedings. In addition, a delay in rendering a decision on the pleading of joint criminal enterprise raised potential implications for Taylor’s fair trial rights.
Finally, although the provision of funds by the prosecution to potential witnesses and sources during investigations may be unavoidable, it was a contentious issue in the Taylor trial, one that should be managed more effectively in future proceedings.

The Impact of the Taylor Trial in Affected Communities

Trials of highest-level leaders are significant beyond the happenings in the courtroom. One crucial objective is to convey a sense of accountability to affected communities so that justice has local resonance. The Taylor trial suggests important lessons for outreach to maximize the impact of future proceedings, particularly those held far from the location of the crimes, as will typically be the case at tribunals like the International Criminal Court.
Consideration of the trial’s impact is constrained by at least three factors:
► First, the Trial Chamber handed down its verdict in April 2012, and it could be years before the trial’s full impact is realized; (at right, © Peter Andersen/SCSL Outreach photo of Sierra Leoneans watching live broadcast of verdict)
► Second, there are inherent challenges to isolating the trial’s impact because, though significant, it is one factor of many in a complex landscape; and
► Third, analysis of the trial’s impact in the report is based largely on information drawn from interviews with civil society members, former combatants, government officials, journalists, and war victims in Monrovia and Freetown.
Despite these limitations, several noteworthy observations are possible:

Kudos to Annie Gell

Delighted to update readers on IntLawGrrl Annie Gell (right), who posted about the Extraordinary Chambers in the Courts of Cambodia several years ago, while she was still a law student. She's now the Leonard H. Sandler Fellow in the International Justice Program at Human Rights Watch.
After graduating from Columbia Law School in 2009, Annie spent a year with the New York nonprofit Sanctuary for Families, where she represented undocumented victims of gender-based violence who were separated from their children across international borders. Immediately before joining Human Rights Watch, Annie lived and worked in Port-au-Prince, where she used her legal and advocacy skills to support grassroots women’s groups fighting the epidemic of gender-based violence in post-earthquake Haiti.
Today Annie posts on "Even a ‘Big Man’ Must Face Justice": Lessons from the Trial of Charles Taylor, a brand-new Human Rights Watch report that she authored, with editorial guidance from another HRW staffer and IntLawGrrls contributor, Elise Keppler.
Heartfelt congratulations!

Special Court for Sierra Leone determines that Charles Taylor will serve fifty year sentence

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

This post forms part of a continuing series on the delivery of judgment in the trial against former Liberian president Charles Taylor before the Special Court for Sierra Leone. As noted in previous posts, Taylor was convicted of planning and aiding and abetting eleven counts of crimes against humanity, war crimes and other serious violations of international humanitarian law on April 26, 2012. After Trial Chamber II considered submissions from both parties on aggravating and mitigating factors (their briefs are available here), with the Prosecutor requesting 80 years, Taylor was sentenced today at 11 am.
The sentence was delivered at the premises of the Special Tribunal for Lebanon, where the Special Court for Sierra Leone is based. Members of a Dutch-based organization of Sierra Leoneans stood outside the premises with signs stating ‘No Hiding for War Criminals’ and ‘Justice! What next for the victims?’, and they continued inside to the nearly full public gallery for the delivery of the sentence.

Alternate Judge Sow Absent
Full legal teams on both sides were present in the well of the courtroom. When the judges of Trial Chamber II filed in, Alternate Judge Alhaji Malik Sow was not among them – as noted in a previous post, he had attempted to make a statement following delivery of the summary judgment and had been subsequently removed from his position by unanimous vote of the other Special Court judges meeting in plenary (the judges of Trial Chamber II abstained). Bill Schabas has noted additional details about this issue on his blog here.

Chamber Notes Aggravating Factors Contributing to Long Sentence
The Special Court for Sierra Leone dispenses global sentences, which have ranged from 15 to 52 years. The Prosecution had requested 80 years in the Taylor case due to the magnitude and seriousness of the crimes for which he was held responsible. The defense had contended that an 80 year sentence was ‘manifestly disproportionate and excessive’, and they presented a number of potential mitigating factors including Taylor’s age, his conduct in trial and detention, his role in the Sierra Leonean peace process, and his decision to step down as president of Liberia.
In a forty minute statement, Trial Chamber II’s presiding judge Richard Lussick made a number of detailed references to the gravity of the crimes and the suffering of individual victims in Sierra Leone, including victims of sexual violence and amputations. Lussick noted that Taylor had aided and abetted as well as planned some of the ‘most heinous and brutal crimes recorded in human history’, and that the Chamber had considered the ‘tremendous suffering caused by the commission of the crimes’ in determining an appropriate sentence.
The Chamber’s massive 2,499-page full judgment (original available here and in searchable form here) documents Taylor’s support to Sierra Leonean rebel forces through supplying arms and ammunition and providing operational support for attacks such as the 1999 Freetown invasion. In pronouncing the sentence, Judge Lussick noted that the ‘cumulative impact of these various acts of aiding and abetting heightens the gravity of Mr. Taylor’s criminal conduct’ and suggested that if the rebel groups had not received this support from Taylor, ‘the conflict and commission of crimes might have ended much earlier.’

‘Special Status’ as Head of State
The Chamber noted that Taylor’s conviction for the mode of liability of ‘planning’ was limited in scope, and it focused largely on Taylor’s role in ‘aiding and abetting’ the crimes of which he was found guilty. While granting that a conviction for accessory liability typically carries lower sentences in the jurisprudence of the Special Court and ad hoc tribunals for Rwanda and the former Yugoslavia, the Chamber found that ‘the special status of Mr. Taylor as a head of state put him in a different category of offenders for the purposes of sentencing.’ Noting that Taylor was in ‘a class of his own,’ the Chamber suggested that Taylor’s long sentence for what appeared to be largely accessorial liability was justified by his leadership role, and that his ‘betrayal of public trust’ is more significant for sentencing than the distinctions between different modes of liability. In effect, this brought Taylor’s sentence into the same range as those granted to principal perpetrators who had been convicted by the Special Court. Indeed, Taylor’s 50 year sentence was only surpassed by RUF leader Issa Sesay’s sentence of 52 years, and was the equivalent given to two members of the Armed Forces Revolutionary Council (Alex Tamba Brima and Santigie Kanu).
We will consider the implications of this finding in greater detail in further posts.

Searchable version of 2499-page Taylor judgment

The April 26 judgment of the Special Court for Sierra Leone in Prosecutor v. Charles Taylor, about which a number of IntLawGrrls have posted, was finally published yesterday: 2499 pages in a non-searchable file of 30MB!
It is the longest judgment of an international tribunal so far.
We academics like searching through files to identify the legal issues of a judgment we are particularly interested in. The defense team would most probably also want to search keywords. So would NGOs who might want to find out what the judgment says about particular geographic locations or specific individuals the NGOs may have worked with. Or journalists. Or people who are simply curious on a particular aspect of the judgment but who cannot read through 2500 pages.
I thought at least we need a searchable file. So I gave it a try and converted the judgment with a text recognition software. It's available here.
It doesn't look nice, of course, and the file contains many mistakes from the conversion and all the formatting is lost, but at least one can search for key terms. Nor does it change anything to the excessive length of the judgment.
But I hope it at least alleviates the challenges a little bit, and allows people to find the parts of the judgment in which they are particularly interested.

Taylor judgment & gender-based crimes

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

In 2003, the Prosecutor of the Special Court for Sierra Leone (SCSL) charged Charles Taylor with three counts of gender-related violence: the crimes against humanity of rape and sexual slavery, and the war crime of outrages upon personal dignity (Original Indictment). Specifically, he was accused of responsibility for offences occurring between November 30, 1996 and about January 18, 2002, carried out by members of the Revolutionary United Front (RUF), Armed Forces Revolutionary Council (AFRC), AFRC-RUF junta and/or Liberian fighters in Kono District, Kailahun District and Freetown and the Western Area. (map of Sierra Leone's Districts, below right; credit) These forces were alleged to have raped women and girls, both in their camps and in civilian areas, and to have abducted women and girls throughout Sierra Leone and brought them to these areas to serve as sexual slaves (paras. 14-17, Second Amended Indictment).
Nine years later, Taylor has been found guilty of aiding and abetting these crimes through the provision of arms and ammunition, military personnel, operational support and moral support (paras. 152- 165, Judgment Summary). He was also held liable for planning these crimes (paras. 172-177).

Trial Chamber II, in its Judgment Summary, found that rape was committed in Kono District and in Freetown and the Western Area by the RUF, AFRC, AFRC-RUF junta and/or Liberian fighters. The evidence of rape in Kailahun District put before the Court related to locations not charged in the indictment and therefore the Court “makes no finding of guilt for these crimes” (para 24). The Trial Chamber found that civilian women and girls were sexually enslaved in all three areas charged in the indictment (paras. 25-28). It also found that the prosecution had proven beyond a reasonable doubt that members of the RUF, AFRC, AFRC-RUF junta and/or Liberian fighters also committed widespread acts of outrages upon personal dignity against civilian women and girls, for example: "forcing them to undress in public and by raping them and committing other acts of sexual abuse in full view of the public, and in full view of family members" in Kono District and in Freetown and the Western Area (paras. 29-31). However, as with the crime against humanity of rape, “outrages upon personal dignity were committed against women and girls in various locations not charged in the Indictment” and thus the “Trial Chamber makes no finding of guilt for these crimes” (para. 32).
Taylor was also charged with the war crime of committing acts of terrorism (count 1, Second Amended Indictment).
The Trial Chamber found that the RUF, AFRC, AFRC-RUF junta and/or Liberia fighters committed acts of terrorism “as part of a campaign to terrorize the civilian population of Sierra Leone” through, inter alia, rape (“women and girls were raped in public”), sexual slavery and outrages upon personal dignity (paras. 56-57, Judgment Summary). In fact, the Trial Chamber described this campaign as the AFRC/RUF’s “operational war strategy”: “these crimes were inextricably linked to how the RUF and AFRC achieved their political and military objectives.” (para 150, Judgment Summary).
This last finding is vitally important for the continued development of gender-sensitive international criminal jurisprudence.
As I argue in a recently published book chapter titled “Contextualizing Sexual Violence in the Prosecution of International Crimes” in Morten Bergsmo (ed.), Thematic Prosecution of International Sex Crimes, sexual violence taking place during conflict or mass atrocities is usually part of a wider picture of complex victimization. Rape, sexual slavery, sexual mutilation and other similar acts are often accompanied by, or intersect with, other prohibited acts. For example, sexual violence crimes may have occurred alongside or be used to facilitate the crimes against humanity of murder, enslavement, torture or persecution. As well, seemingly gender-neutral prohibited acts may have been carried out in gender-specific ways or may have gendered outcomes. For these reasons, conscious contextualization of sexual violence within international criminal prosecutions is crucial: by pursuing investigations and prosecutions in which sexual violence is explored in and of itself and within the context of other genocidal acts, crimes against humanity or war crimes, both the serious nature of sexual violence and the potentially gendered nature of other crimes can be highlighted and understood.
In the Taylor trial judgment, and in the RUF trial judgment, the SCSL examined sexual violence and gender-based violations up close, and also in the wider context of how they contributed to the RUF’s goal of terrorizing the civilian population into submission. In doing this, both trial judgments better explain the role and effects of gender-based violence.

Questions on aiding & abetting & international law

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

Comments minimizing conviction for aiding and abetting deserve a double-take.
Chatter to this effect has been constant since last Wednesday, when Liberian ex-President Charles Taylor was found guilty of aiding and abetting 1990s rebels in Sierra Leone – but not of engaging in a "joint criminal enterprise" with the Sierra Leonean leaders of that rebellion. (credit for photo below of Taylor)
Our colleague Kevin Jon Heller was right to call this "a stunning rebuke" by Special Court for Sierra Leone Trial Chamber II – for the reason that the Office of the Prosecution had constructed its narrative of Taylor's criminality primarily on the framework of joint criminal enterprise theory.
But the failure to prove a joint criminal enterprise does not mean that Taylor was not found a criminal.
Quite to the contrary.
Paragraph 168 of the 44-page summary of the yet-to-be-released Taylor judgment states unequivocally:

'[T]he Trial Chamber finds beyond reasonable doubt that the Accused is criminally responsible pursuant to Article 6(1) of the Statute for aiding and abetting the commission of the crimes set forth in Counts 1 to 11 of the Indictment.'

Note the words "criminally responsible."
"Oh, but" – some seem to say – "but aiding and abetting isn't so bad. Not nearly as bad as JCE" (using the acronym by which supporters and detractors alike prefer to refer to joint criminal enterprise).
Closer examination undermines each of those claims, revealing both that the hierarchy of criminality implied in these statements is not universally accepted, and that the statements derive from judicial interpretation of a statute other than that at issue in the Taylor case:
►  The asserted hierarchy doesn't exist – at least not in the criminal law jurisprudence of one not-insignificant national criminal justice system. The United States' criminal code begins with this proclamation:

'Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.'

18 U.S.C. § 2(a). Applying that unequivocal statement is § 2 X2.1 of the Federal Sentencing Guidelines Manual (2007), which instructs judges to calculate the term of imprisonment for aiding and abetting as follows:

'The offense level is the same level as that for the underlying offense.'

Thus in the United States – a jurisdiction whose behavior contributes to the state practice that forms customary international law – an aider and abetter is equally criminally responsible, and subject to equal punishment, as the principal perpetrator of a crime. Both the principal and the aider/abetter stand on a higher plane than, say, the accessory after the fact, whose sentence is cut in half, or the committer of misprision of felony, who serves no more than 3 years in prison. Indeed, the principal and the aider/abetter stand on a higher plane of criminality than the conspirator: with regard to this national crime akin to the international theory of "joint criminal enterprise, 18 U.S.C. § 371, the United States' general conspiracy statute, permits no more than 5 years in prison.
► The notion that engaging in a joint criminal enterprise is worse than aiding and abetting seems to have won purchase among judges of the International Criminal Tribunal for the former Yugoslavia.

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.

The Taylor Verdict: Prosecution and Defense Claims, and a Judgment Deferred

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

As part of the broader IntLawGrrls series on accountability at the Special Court for Sierra Leone, this post considers the uptake of arguments made by prosecution and defense in their final briefs in Trial Chamber II’s summary judgment in the Taylor case.
As noted in previous posts, the Chamber has not yet produced a full judgment, so we are unable to assess how its determinations were made and what evidence it was based upon. This may complicate efforts by both parties to substantiate their sentencing briefs, which are due on May 3 for the prosecution and on May 10 for the defense.
The Court’s Statute and Rules state that the judgment

'shall be accompanied by a reasoned opinion in writing.'

(Article 18 of the Statute; Rule 88 of the RPE). The forty-four page summary judgment read by Judge Richard Lussick on April 26 was made available on the court website. There has been no indication from the Special Court as to when the full-length reasoned judgment will be available, and Trial Chamber II stated that this summary judgment – which does not contain footnoted references to specific witness testimony and documentary evidence – should be sufficient to form the basis for the parties’ appeals.
Meanwhile, full judgments in the cases against members of the Armed Forces Revolutionary Council (AFRC) and the Civil Defence Forces (CDF) were available on the respective days when the verdicts were announced. Te full judgment in the case against members of the Revolutionary United Front (RUF) was provided within a week of the summary judgment. Given that closing arguments and final oral responses from both parties in the Taylor trial were heard over one year ago and that the Chamber has had over half a year since the estimated delivery date of the judgment (late September 2011), it is unclear why Trial Chamber II was unable to produce a full judgment in time for last week’s verdict.

Claims of the Parties: Prosecution

The prosecution’s closing brief attributes much of the responsibility for the armed conflict in Sierra Leone to Charles Taylor, alleging that

'the crimes suffered by the people of Sierra Leone would not have occurred but for Charles Taylor’s supervision and support for the RUF and AFRC.'

(para. 2) The prosecution claims that Taylor not only provided material support to rebel forces by sending arms, ammunition, funding and personnel, but also that Taylor created the RUF, designed and directed its strategy, and maintained effective control over the RUF and RUF/AFRC ‘junta’ from outside Sierra Leone. (map credit) In this account, the RUF was Taylor’s ‘surrogate army’ or ‘proxy force’ – the ‘younger sibling’ of Taylor’s National Patriotic Front of Liberia (NPFL). The brief argues that Taylor played a critical role in a joint criminal enterprise united by a common plan to

 'achieve forcible control over the population and territory of Sierra Leone and to pillage the resources of that country, in particular diamonds.'

Judge Sow's struck statement & reflections on the Taylor judgment & the SCSL's legacies

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

THE HAGUE – As IntLawGrrls contributors, former Taylor trial monitors, and now academics based in The Hague, the two of us, Jennifer Easterday and Sara Kendall, welcome this opportunity to share some observations from the delivery of the historic verdict in the trial against Charles Taylor, former President of Liberia.
On a typically cold and windy Dutch spring day, we went to watch the proceedings taking place Thursday at the premises of the Special Tribunal for Lebanon in Leidschendam, an unassuming Hague suburb – the Special Court has been renting space there following its relocation from its original Hague home at the International Criminal Court.
The delivery of the judgment was well attended by current and former court personnel, representatives of civil society organizations such as the Open Society Justice Initiative and Human Rights Watch (including IntLawGrrl Elise Keppler), staff from the broader Hague-based tribunal community, legal advisers to diplomatic missions, academics, journalists, and family members of Charles Taylor.
Less present in the public gallery, however, were members of Sierra Leonean civil society organizations and other individuals who may have been more directly affected by the crimes that the Special Court was set up to adjudicate.
All four U.S. and British citizens who had served in the role of Prosecutor during the lifespan of the Special Court returned to The Hague for the reading. In the public gallery were Stephen J. Rapp – now U.S. Ambassador-at-Large for War Crimes Issues – and David Crane, the court’s first Prosecutor, whose interpretation of the Court’s mandate to try those ‘bearing the greatest responsibility’ for the crimes that occurred in Sierra Leone resulted in the indictment of thirteen individuals. Seated inside the courtroom were the current Prosecutor, Brenda Hollis, as well as past Prosecutor Desmond Da Silva.
All three defense counsel – Courtenay Griffiths, Terry Munyard, and Morris Anyah – and their legal assistants were present, as well.
Charles Taylor appeared calm and largely expressionless throughout the reading of the judgment, and he stood when prompted for the delivery of the verdict.
These lawyers, diplomats, academics, members of civil society and members of the press witnessed the reading of this judgment, which was interpreted largely in journalistic accounts as a success for the prosecution for the Chamber’s findings of guilt on all eleven counts. The prosecution’s failure to prove key modes of liability (such as joint criminal enterprise and command responsibility) remained largely absent from popular commentary.
The Taylor trial will certainly influence the legacies of the SCSL court – if we think of the court’s work in terms of multiple legacies (as noted by Viviane Dittrich of the London School of Economics at a recent conference in Pittsburgh on the Special Court), as opposed to a singular, dominant legacy.
The court’s impact on Sierra Leone and the broader West African region will undoubtedly be contested.
This was made clear by the dramatic conclusion to Wednesday’s proceedings.
Judge El Hadji Malik Sow (right), a Senegalese jurist who serves as alternate judge for Trial Chamber II, attempted to speak following the end of Presiding Judge Richard Lussick’s reading of the judgment. (photo credit) Those of us seated in the public gallery heard a few words from an unidentified speaker before the microphones were cut off, and through the glass we could hear him continuing to speak.
Shortly thereafter, what appeared to be a metal grate was lowered over the glass, so that we could not longer see into the courtroom. As people waited for press statements from the prosecution and the defense, a paper began to circulate with the statement from Judge Sow. Apparently the court stenographer had continued to type into the transcription program which appeared on the screens of those seated in the courtroom, and one of the legal assistants from the Taylor defense team copied the text and saved it out of concern that the Special Court would strike the judge’s statement from the official record (after receiving transcripts from yesterday’s proceedings, we can confirm that the comments were indeed struck from the record).
Judge Sow’s statement is copied here in its entirety from the disseminated sheet:

The Taylor Judgment and Child Soldiers

(My thanks for the opportunity to contribute this introductory post, another of IntLawGrrls' several posts on the Charles Taylor judgment, part of the Sierra Leone accountability series)

Trial Chamber II of the Special Court for Sierra Leone found Charles Taylor guilty yesterday of each of the eleven counts for which he was charged, including for conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities.
 This is not the first conviction by the Special Court for this war crime, a violation of international humanitarian law, recognized under article 4(c) of its Statute. In fact, the Special Court broke new ground when it convicted three Armed Forces Revolutionary Council (AFRC) leaders for these crimes, in 2007: the very first time individuals were found guilty by an international or hybrid court for recruiting or using ‘child-soldiers’ (Judgment of Trial Chamber II – AFRC case). These convictions were followed by others before the SCSL, ultimately paving the way for the recent decision of the International Criminal Court, which convicted Thomas Lubanga Dyilo for recruiting children under the age of 15 years into his armed group, or for using them to participate actively in hostilities.
The Taylor judgment has added to the growing jurisprudence on ‘child soldiers’ by convicting an individual for aiding and abetting others in the conscription or enlisting of children under 15 into armed forces/groups, or using them to participate actively in hostilities. It will be interesting to see, once the judgment is available, how the Chamber applied this mode of liability to a crime for which knowledge of the age of the victims is essential. From the summary judgment available here, it appears that the Chamber found that Charles Taylor knew that RUF soldiers, under the command of NPFL officers, abducted civilians in Sierra Leone, including children, forcing them to fight within the NPFL/RUF forces against the Sierra Leonean forces and ULIMO (para. 126 of the summary judgment). As early as August 1997, when he became President of Liberia, he was informed in detail of the crimes committed in Sierra Leone, including the abduction of children (para. 129 of the summary judgment).
When reading the judgment, judge Richard Lussick, the presiding judge, recalled that:

'[…] the operational strategy of the RUF and AFRC was characterised by a campaign of crimes against the Sierra Leonean civilian population, including murders, rapes, sexual slavery, looting, abductions, forced labor, conscription of child soldiers, amputations and other forms of physical violence and acts of terror. These crimes were inextricably linked to how the RUF and AFRC achieved their political and military objectives […They ] pursued a policy of committing crimes in order to achieve military gains at any civilian cost, and also politically in order to attract the attention of the international community and to heighten their negotiating stance with the Sierra Leonean government.'

(Paragraph 150 of the summary judgment). On this basis, the conscription of children in Sierra Leone seems to have served a dual goal; it was a way to pursue this policy of criminal campaign against Sierra Leonean civilians, victimizing children and their entire families; and in turn, the children, once associated with the armed groups, were used as instruments to commit atrocities and further this policy.
Brenda Hollis (right), the SCSL Prosecutor, commenting on the conviction for recruiting and using child soldiers, declared:

'Children were taken from their families, and not only used to fight, but also to commit crimes against their fellow Sierra Leoneans. This robbed these children of their childhood, and the judges have sent a clear message that this will never be tolerated.'

Another aspect of the judgment that should hopefully prove interesting is the Chamber’s approach to defining the terms ‘use to participate actively in hostilities’, and whether it confirms the earlier SCSL jurisprudence on this, or departs from it.
To date, ‘active participation’ has been interpreted somewhat expansively by the SCSL, apparently in an attempt to include the many roles performed by children associated with armed groups and forces, notably by girls, who may be ‘used’ as sexual slaves or in other non-combat roles. This broad understanding has been enthusiastically supported by those seeking to remedy past trends, where girls were too often excluded from the benefits of disarmament, demobilization and reintegration programs because they could not turn in a gun. However, there is potentially a risk in too broadly defining ‘use to participate’ especially from an IHL targeting perspective, where individuals deemed to directly participate in hostilities lose their protection against direct attack. Perversely therefore, by trying to label more activities as child soldiering, one runs the risk of making more children open to attack.

The SCSL's Taylor Judgment: A Summary

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

At 11 a.m. today Hague time, Trial Chamber II of the Special Court for Sierra Leone released its long-awaited judgment in the case of Charles Taylor, former President of Liberia. Taylor faced an 11-count indictment for crimes against humanity and war crimes. These charges included the crimes against humanity of murder, rape, sexual slavery, enslavement and other inhumane acts, and the war crimes of committing acts of terror, murder, outrages upon personal dignity, cruel treatment, pillage and conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities. In a unanimous judgment, Trial Chamber II convicted Taylor on all counts of aiding and abetting the Revolutionary United Front (RUF) and Armed Forces Revolutionary Council (AFRC) rebel groups and/or Liberian fighters operating in Sierra Leone. Specifically, Taylor was found to have provided assistance to the RUF, the AFRC or the joint RUF-AFRC junta in the following ways:
►By providing arms and ammunition, either directly or through intermediaries. For example, he facilitated two large shipments of arms used by the RUF and RUF-AFRC in their military operations, including Operation Pay Yourself and the Freetown invasion. These weapons and ammunition had a substantial effect on the crimes committed by the RUF and RUF-AFRC during the indictment period.
►By providing military personnel, including the Scorpion Unit, who helped commit crimes in various operations;
►By providing operational support, such as phones and radio contact;
►By providing financial support – for example, funds to Sam Bockarie (RUF Battlefield Commander) to purchase arms. He provided a guesthouse in Monrovia for the RUF, which facilitated their procurement of arms and ammunition;
►By providing security escorts, free passage through checkpoints, medical support, safe haven for RUF fighters, food, clothes, cigarettes and alcohol for the RUF; and
►By providing moral support through ongoing advice and encouragement to senior members of the RUF on tactics.
Taylor was also found guilty of working with Bockarie to select strategic areas within Sierra Leone to attack and control, such as the diamond mining areas and Freetown. The Trial Chamber referred to this as the Bockarie-Taylor two-pronged plan. Taylor was found to have told Bockarie to make the attacks “fearful” and Bockarie repeated this request again and again as he conveyed his orders for the attacks. Taylor was also found to have told Bockarie to “use all means” to get to Freetown. The Trial Chamber found that he was kept aware of the evolution of the Bockarie-Taylor plan and the resulting RUF-AFRC crimes committed against civilians.
The verdict is surely a disappointment to the Prosecutor, who was found to have failed to prove beyond a reasonable doubt that Taylor had superior responsibility for the RUF, AFRC, joint RUF-AFRC junta and/or Liberian fighters, or that he had participated in a joint criminal enterprise (JCE) with these groups.

Breaking news: Taylor found guilty of aiding rebels

The Special Court for Sierra Leone has just delivered its verdict finding former Liberian President Charles Taylor (right) guilty of aiding and abetting rebels during the civil war of the 1990s in Sierra Leone. (Our colleague Kevin Jon Heller's terse pronouncement on the rejection of charges that Taylor also took part in a joint criminal enterprise: "Absolutely shocking ... a stunning rebuke to the prosecution.")
Taylor's sentencing hearing's been set for May 16.
A breaking-news article is here; IntLawGrrl Valerie Oosterveld's analysis of the judgment is now online here.

The SCSL and the Taylor Judgment

Tomorrow at 11:00 a.m. Hague time, Trial Chamber II of the Special Court for Sierra Leone (SCSL) will release its judgment in the case of Charles Taylor, former President of Liberia. This event will also be streamed live, and can be viewed online (see instructions here). IntLawGrrls will be publishing a series of posts on the Taylor judgment.

Taylor was charged with 11 counts alleging responsibility for crimes against humanity, war crimes and other serious violations of international humanitarian law committed by rebel forces in Sierra Leone during the country’s civil war. He pleaded not guilty to all charges.
Taylor’s trial opened on June 4, 2007, in The Hague, but was adjourned immediately after the Prosecution’s opening statement when Mr. Taylor dismissed his defence team and requested new representation. He subsequently secured new defence counsel and witness testimony commenced on January 7, 2008. Closing arguments took place in February and March 2011.
The prosecution presented 94 witnesses in person, and written statements from four additional witnesses. The defence presented 21 witnesses, including Taylor himself. The trial judges have considered 50,000 pages of witness testimony and 1,520 exhibits.
 If Taylor is acquitted on all charges, the appeals process will begin immediately. If he is found guilty on any of the 11 counts, the Trial Chamber will schedule sentencing proceedings. See this SCSL press release for more details.

Given the impending release of the Taylor judgment, it is a good time to review developments at the SCSL since our last SCSL-related post:

► In December 2011, the Sierra Leonean Parliament passed the Residual Special Court for Sierra Leone Agreement Act 2011, to ratify the agreement between the UN and the Government of Sierra Leone on the establishment of a Residual Special Court for Sierra Leone. 

► At the end of 2011, as a result of the intense difficulties in securing adequate voluntary state contributions to cover its budget, the United Nations General Assembly agreed to a subvention of over $9 million USD to cover the SCSL's 2012 budget. This is meant to cover operations of the Court to the close of any Taylor appeals process.

►On January 31, Taylor’s defence team filed a motion to request that his case be re-opened. The defence team wished to argue that the December 7, 2011 Panel of Experts Report on Liberia showed that Liberian fighters could easily cross the Cote d’Ivoire border for their own gains, and that this demonstrates that Liberian fighters could do the same during the Sierra Leonean conflict. This request was denied on February 9. 

►On February 27, in preparation for expected appeals in the Taylor case, Justice Philip Waki of Kenya was sworn in as an alternate judge of the SCSL’s Appeals Chamber. 

►In early March, Taylor’s defence team requested that the April 26 date for the release of the judgment be changed, as Taylor’s lead counsel had prior engagements on that date and because Sierra Leone celebrates its 51st independence anniversary on April 27. This request was unanimously dismissed by Trial Chamber II.

►On March 26, the United Kingdom announced additional funding for the SCSL in the amount of £600,000, bringing the UK’s total contribution to the SCSL to £27.6 million since 2002. 

►At present, the SCSL continues to prepare for its transitionto the Residual Special Court for Sierra Leone. It is also reducing staff, liquidating its assets and preparing for handover of the physical site in Freetown. The Residual Special Court is expected to have a budget of $1.6 million in its first year, all of which is to be covered by voluntary contributions. 

(1st of several posts on the Charles Taylor judgment, part of IntLawGrrls' Sierra Leone accountability series)

Go On! Early Reflections on the Taylor Judgment

(Go On! is an occasional item on symposia and other events of interest)

Together with IntLawGrrls contributor Jennifer Easterday, yours truly, Sara Kendall, is pleased to announce that Leiden University’s Grotius Centre for International Legal Studies will be hosting an event in conjunction with the Open Society Justice Initiative following the delivery of the judgment in the trial of Charles Taylor at the Special Court for Sierra Leone.

For those of you in The Hague this Friday, one day after the trial judgment is pronounced, we invite you to join us for the early reflections of Brenda J. Hollis (below left), Prosecutor of the SCSL, as well as those of academics and representatives from the Sierra Leonean and international civil society communities.

Details are as follows:

Early Reflections on the Taylor Judgment

With Brenda J. Hollis, Prosecutor, Special Court for Sierra Leone

Friday, 27 April 2012

6:30 p.m. to 8:00 p.m.

Lange Houtstraat 5-7, Room 403

Den Haag

Reception to follow at Barlow Bar & Restaurant, Plein 15-16, Den Haag.

We look forward to seeing you there.

Completing the Work of the Special Court for Sierra Leone

In yesterday’s post, I summarized interesting developments at the Special Court for Sierra Leone (SCSL) (photo credit: SCSL) as it prepares for closure and transition into the Residual SCSL, as set out in the Eighth Annual Report of the President of the SCSL. Today, I am looking at the recently-issued report by the Open Society Justice Initiative (OSJI) titled “Legacy: Completing the Work of the Special Court for Sierra Leone”.
The OSJI report contains some interesting information on current efforts to establish the SCSL’s legacy and on the transition to the Residual SCSL.
Residual SCSL
The Residual SCSL will be created after the end of any appeals in the Charles Taylor case. The Taylor trial judgment is expected by the end of this year, and any appeals judgment by mid-2012. After the closure of the SCSL, the Residual SCSL will take over residual matters such as victim protection, monitoring of those convicted by the SCSL and serving sentences, management of the SCSL archives, conducting contempt of court proceedings, and tracking reports on the Court’s remaining indictee, Johnny Paul Koroma (thought to be dead). The Residual SCSL is separate from the International Residual Mechanism to be created for the International Criminal Tribunals for the Former Yugoslavia and Rwanda, as set out in Security Council Resolution 1966 (2010). The OSJI report calls upon the Sierra Leonean Parliament to ratify the Agreement on the Residual SCSL, entered into by the UN and the Government of Sierra Leone in August 2010, as soon as possible. Early ratification is important, in order to iron out details of how the mechanism will work and what exactly it will do. For example, the report notes that the Principal Defender has raised questions regarding the involvement of her office in the work of the Residual SCSL, such as on implementation of sentences, family visits to convicted persons and continuing outreach.
The OSJI report also contains recommendations regarding the SCSL archives. The SCSL archives include, at present, approximately 1000 boxes of materials, including judicial records, court transcripts, and audiovisual materials such as DVDs and audio cassettes. The report notes that the SCSL faced considerable challenges in maintaining its archives, given that the SCSL had no specific archiving room [note: this should be planned for in future such tribunals]. As well, the sporadic supply of electricity meant that there was no capacity to keep a constant temperature. This is why the archives have been transferred to The Hague under an agreement between the SCSL Registrar, the Government of Sierra Leone and the Government of the Netherlands. According to the OSJI report, the SCSL archives are currently stored with the Nuremberg trial records in the Dutch National Archives. Under the Agreement creating the Residual SCSL, these originals can someday be transferred back to Sierra Leone if appropriate facilities are built to protect and store the archive. An archive access policy is expected to be defined in the coming months, before the closure of the Court. The OSJI report rightfully points out that this policy should contain ways in which the Residual SCSL can update the public archives – for example, by revisiting redaction decisions after a certain amount of time has elapsed.
The OSJI Report also contains a number of recommendations to get the Residual SCSL started in a timely fashion:

• Begin the process of hiring the Residual SCSL staff, especially the President, Registrar and Prosecutor;
• Establish the Management Committee for the Residual SCSL; and
• Fundraise for the Residual SCSL.

As mentioned in yesterday’s post, the SCSL is involved in a number of legacy projects. Part of the site of the Special Court will be turned into a Peace Museum on the closure of the Court. Planning for that Museum is underway – for example, a competition has been launched for the design of the Museum’s memorial - but the OSJI report recommends that current planning and fundraising for the Museum intensify. The Peace Museum will likely host a copy of the SCSL’s public records, but there is also discussion that the Museum might host the records of the Truth and Reconciliation Commission and the National Commission for Disarmament, Demobilization and Reintegration. There is also discussion that the records relating to the civil war and the various peace processes would be sought from the UN peacekeeping missions in Sierra Leone, UNICEF, the UN Office of the High Commissioner for Human Rights, ECOWAS, ECOMOG, various diplomatic missions in Sierra Leone, academics and NGOs. While it seems unlikely that anything other than documents already made public would be provided to the Museum in response to this request, even so, if all of these documents were collected in one place and were catalogued and preserved appropriately, the Museum could become an incredibly important place for Sierra Leoneans, researchers, academics, the media and civil society organizations interested in issues related to the country’s armed conflict. That said, it is not clear yet whether the Museum will have the appropriate archival conditions to prevent deterioration of the materials due to Sierra Leone’s heat, humidity and regular power outages.
The SCSL Registry is currently involved in a legacy project to help train individuals for a domestic National Witness Protection and Assistance Unit. The OSJI report indicates that the permanent location for the main office of this Unit will be within the SCSL premises, and it is hoped that the Unit will be operational by December of this year, especially as it is meant to assist the Residual SCSL in fulfilling its continuing witness protection obligations. However, the Unit does not yet have funding; funding is being sought for the first five years of the Unit’s operation. After five years, the Unit is meant to be funded through the Government’s national budget.
On legacy issues, the OSJI report recommends that:

• Outreach become more robust, particularly around the issuance of the Charles Taylor trial judgment and any appeals judgment and on the Court’s legacy projects such as the Peace Museum. There is still outreach going on – see this news report of outreach in Liberia – but it becomes more difficult as the court’s staffing shrinks.
• The SCSL’s legacy can only be maintained with continued outreach: the Residual SCSL must therefore have the ability to continue outreach.

The report ends: "it is critical that the SCSL is not left to stumble at the final hurdle", closure. The SCSL and its Management Committee have been working hard to prepare for closure, but the OSJI report indicates that there is a great deal more work to be done.

Transition to the Residual Special Court for Sierra Leone

There has been relatively little discussion in the blogosphere on the Special Court for Sierra Leone (SCSL) for several months now, likely because the main activities of the Court are currently all behind the scenes: Trial Chamber II is drafting its judgment in the Charles Taylor case for issuance by the end of the year, and the Court is working to cement its legacy and prepare for its closure and transition into the Residual Special Court for Sierra Leone.
Two recent publications on the SCSL are therefore of interest to those of us who follow developments at the Court. I will discuss the first publication – the Eighth Annual Report of the President of the SCSL (June 2010 to May 2011; pictured at right) – in this post, and will discuss the second - the Open Society Justice Initiative’s recent report on “Legacy: Completing the Work of the SCSL” - in tomorrow’s post.
The SCSL will be the first international tribunal to close, which will happen after the completion of any appeals proceedings in the Taylor case, estimated for mid-2012. The Eighth Annual Report of the President of the SCSL outlines various challenges, and successes, associated with getting to completion.
Funding the Completion Budget
One of the main difficulties for the SCSL has been to obtain enough voluntary state contributions from year to year in order to keep operating. The Report makes clear the incredible amount of time the Registrar and others spent trying to fundraise in 2010 and 2011 in order to fund the Court to its closure. Indeed, there were likely weeks – if not months – in which the Registrar’s and the Court’s Management Committee’s main work was related to fundraising, even as the high-profile Taylor trial was ongoing. In the end, however, the Report notes that this effort was not enough: a financial crisis was only narrowly averted when the Management Committee members obtained additional funds from their own governments and the Committee, with the Registrar, secured a UN subvention grant. The Completion Budget, covering the period of 1 January 2011 to 31 May 2012, is set at $20.7 million USD: approx. $16 million for 2011 and approx. $4.7 million for 2012. This Budget is funded by the UN subvention grant of $9.9 million in 2011 and $2.4 million in 2012 and voluntary contributions from states. Yet again, the time spent by Court and Management Committee officials in fundraising and the need to ultimately obtain another UN subvention suggest that voluntarily-funded tribunals are not necessarily viable in the long run.
The Shrinking Court
The Report also outlines how the Court is shrinking to prepare for closure, both in terms of personnel and in terms of space. During the reporting period, a total of 138 posts were downsized in both Freetown and in The Hague, such that only 66 regular budgeted posts remain as of December 2011. The number of Sierra Leoneans at the Court is almost half: as of 31 March 2011, 41 out of 85 judges and court personnel were Sierra Leonean. The reduction in staff levels has been both planned and unplanned. Planned reductions occurred with the close of the Taylor trial, while the SCSL is also losing staff members with critical institutional memory who leave to take up more secure positions in other places. This loss of institutional knowledge is also severely affecting the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), as noted by the ICTY’s President Robinson in his recent speech to the UN General Assembly.
In February 2011, the UN peacekeepers of the SCSL’s Mongolian Guard Force formally handed over responsibility for the Court’s security to the Sierra Leonean Police. A total of 2,300 Mongolian peacekeepers have served at the SCSL under a UN mandate. UN peacekeepers had maintained security at the SCSL since its inception in 2002.
In March 2011, the SCSL consolidated all of its activities to one part of the site of the Court in Freetown. It had already handed over the detention facility to the Sierra Leone Prison Service in May 2010, which is currently being used for female prisoners and children born in custody. As well, almost one year ago, the SCSL transferred its original archives to The Hague, where they are stored by the Government of the Netherlands in the Dutch National Archives. The SCSL’s sub-office in The Hague retains custody over the records, and copies of these archives remain in Freetown. As the space used by the Court becomes smaller, it is handing land back to the Government of Sierra Leone and is liquidating its assets.
Amidst all of this downsizing, the Archiving Unit has been very busy, working to transform the Court’s judicial, financial and administrative records into a permanent archive. After the completion of the Court’s mandate, the Residual Special Court will be responsible for managing the Court’s records.
The Residual SCSL
The Government of Sierra Leone and the UN signed an Agreement on the Establishment of a Residual Special Court for Sierra Leone in August 2010. Article 1.1 of the Residual SCSL Statute states: “The purpose of the Residual Special Court is to carry out the functions of the Special Court for Sierra Leone that must continue after the closure of the Special Court. To that end, the Residual Special Court shall: maintain, preserve and manage its archives, including the archives of the Special Court; provide for witness and victim protection and support; respond to requests for access to evidence by national prosecution authorities; conduct contempt of court proceedings; provide defence counsel and legal aid for conduct of proceedings before the Residual Special Court; respond to requests from national authorities with respect to claims for compensation; and prevent double jeopardy.”
The Residual SCSL will have offices both in Freetown and in the Netherlands. The Freetown office will cover, inter alia, witness protection. Individuals convicted by the SCSL are serving their sentences in Mpanga Prison in Rwanda, and the Residual SCSL is tasked with continuing to work with Rwanda Prison Services to ensure that international standards are maintained, until all sentences are served.
Legacy of the SCSL
The Report outlines a number of interesting and important SCSL legacy projects. For example:

• A Peace Museum is proposed for the site of the SCSL. The Peace Museum will narrate the story of Sierra Leone’s decade-long armed conflict and return to peace. It is to open officially in 2012, and the Government of Sierra Leone and the SCSL are working together on the project, which is funded at $195,000 by the UN Peacebuilding Fund. The Museum may contain copies of the SCSL archives and might also contain the records of the Truth and Reconciliation Commission and the National Commission for Demobilization, Disarmament and Reintegration. The Museum will be an independent national institution.
• The Office of the Prosecutor (OTP) is involved in training local police prosecutors in basics of prosecutorial and advocacy skills, strategy and ethics, as well as victim/witness and case management.
• The OTP is also involved in the development of the Sierra Leone Legal Information Institute, which will provide free online access to Sierra Leonean primary legal materials. A pilot website has been developed –www.sierraleonelii.org - and the OTP is currently working with a number of Sierra Leonean stakeholders to determine a long-term sustainability plan.
• The OTP is working together with the OTPs of the ICTY, ICTR, Extraordinary Chambers in the Courts of Cambodia, and Special Tribunal for Lebanon to document recommended practices for use by practitioners of international criminal and humanitarian law at the international and domestic levels.
• The Registry continues its work with the Sierra Leonean Police to establish a National Witness Protection Unit, which would not only assist in protecting SCSL witnesses after the completion of the SCSL mandate, but would assist in national cases dealing with organized crime, corruption and gender-based crime.
• The Registry is also involved in training staff from national institutions on archive management, as well as domestic law graduates on Court practices.
  

In sum, the Report indicates that the past year has been a busy one for the SCSL. Tomorrow, this post will look more closely at the issues of the Court’s transition to the Residual SCSL and the legacy of the SCSL.