JURIST Guest Columnists Amy Ross of the University of Georgia Department of Geography and Chandra Lekha Sriram, Chair of Human Rights at the University of East London School of Law (UK), say that the debate over where to try ex-Liberian president Charles Taylor for crimes against humanity and war crimes raises critical questions of justice and suggests that we need to rethink the significance of location in enforcing international criminal accountability…
Last week, Charles Taylor, ex-president of Liberia, abandoned his once comfortable exile in Nigeria, fleeing an indictment for crimes against humanity and war crimes. Apprehended on the border as he tried to escape to Cameroon, Taylor was flown briefly to Liberia.
But his journey didn't end in his homeland. Taylor was whisked, almost immediately, by helicopter to Freetown – the capital of Sierra Leone, and the site of a United Nations' war crimes tribunal (the "Special Court") designed to prosecute perpetrators such as Taylor.
While Taylor is considered responsible for fomenting a conflict that resulted in tens of thousands of deaths in the region, it is only in the UN-backed Special Court for Sierra Leone that he has been indicted. Taylor made his first appearance in the Special Court on Monday, to hear charges that included enlisting children as soldiers and sexual violence.
Still, Mr. Taylor and his trial might be in for further travels. Now, the UN Security Council is considering a resolution (at the request of Liberia and Sierra Leone, as well as the Special Court itself) for the trial of Charles Taylor to be held in The Hague. Under this proposal,the Special Court for Sierra Leone (the SCSL) would conduct the trial, but in the facilities of the newly established International Criminal Court.
Why all this debate and drama over the appropriate place to conduct the prosecution of a notorious accused war criminal?
Selecting the appropriate jurisdiction for high-profile defenders (who often claim to be war heros rather than war criminals) is a complex job. When it comes to genocide, crimes against humanity and other so-called 'crimes of international concern,' WHERE a defendant is tried can be as contentious as the charges.
Mr. Taylor's trajectory, from president to human rights-precedent, and the decision to move his trial, highlights the complex politics and geography of justice in the wake of mass atrocity.
The proposal to send Taylor to The Hague presents certain ironies. The removal of a critical case from a local court flies in the face of the core principles that gave rise to the Special Court for Sierra Leone in the first place.
Unlike the UN tribunals for the former Yugoslavia (located in The Hague) and for Rwanda (located in neighboring Tanzania), the Special Court for Sierra Leone was meant to bring justice 'closer' to the population most affected by the violence. Some human rights supporters have argued that holding trials 'away' (internationally) robs the traumatized population of the ability to heal.
The Special Court for Sierra Leone – referred to as a 'hybrid' tribunal in that it combined international expertise in a local setting – was meant to address some of these concerns with doing justice 'from afar.'
In theory, hybrid tribunals have the advantages of an international tribunal, and yet are close to the peoples most affected by the atrocities. Hybrid tribunals, such as the Special Court in Sierra Leone, are created precisely because both international and local responses to these crimes have been attempted, and found wanting.
Nations are frequently "unwilling or unable" to prosecute past crimes: unwilling because prosecutions may affect those still in power, or provoke instability; unable due to the weak capacities of judicial and security systems associated with regions in intense conflict.
Allegations of bias often accompany local prosecutions. International proceedings may rise above these problems, but suffer critiques of their own.
International courts have been viewed as attacks by the international community upon the sovereignty of a proud nation: Slobodan Milosevic took this position repeatedly during his trial at the ICTY.
Perhaps more importantly, international trials may have little meaning for societies rent by conflict, and for traumatized victims of abuses who may simply be unaware that proceedings are occurring, or unable to follow them.
The proposal for the transfer of the trial of Charles Taylor to The Hague suggests that hybrid tribunals are not, after all, the best of all possible worlds. Even with the presence of international staff and security, fears that his supporters could disrupt proceedings, and even destabilize the region, justify his removal to The Hague.
Ironically, it appears that the only place the Special Court for Sierra Leone can hear this case is outside Sierra Leone.
There is further irony in the proposal to move Mr. Taylor to The Hague. Moving Mr. Taylor's trial to the premises of the International Criminal Court – an institution which the Bush Administration has actively opposed – represents a victory for the fledgling ICC.
This is indeed, a remarkable reversal for the Bush Administration, which has been adamant in its opposition to the International Criminal Court. The Bush Administration has been implacably opposed to supporting the ICC, going to great lengths to have other, smaller nations promise to refuse cooperation with the ICC.
In its statement abstaining from a resolution referring the situation in Darfur to the ICC last year, the US made a point of stating that a regional or hybrid court would be preferable. Yet when confronted with the potential problems of prosecuting Charles Taylor locally, the US has opted for an international jurisdiction.
Perhaps these ironies are reassuring, as they reveal the complex politics surrounding international criminal accountability. The re-location of the Sierra Leone Special Court to The Hague, and the American support of this proposal, would constitute a
part of a constructive ferment in international criminal law.
On the other hand, the debates and dilemmas concerning the appropriate place to prosecute Charles Taylor might signal a wake up call: we need to re-think the appropriate locations for accountability, and who benefits from justice, and where.
Amy Ross is a professor in the University of Georgia Department of Geography specializing in human rights, international justice, geographies of justice, genocide, and the spatiality of violence. Chandra Lekha Sriram is Chair of Human Rights at the University of East London School of Law (UK).
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