Courts in charge of (re)writing history?
My only worry is that the whole system is not consistent with all the principles we know and love, and the system is not consistent with all the values of international criminal justice, and I’m afraid the whole system is under grave danger of just losing all credibility, and I’m afraid this whole thing is headed for failure’.
– Justice Sow, alternate judge at Charles Taylor’s trial.
Judges of International Criminal Law sit in the no man’s land between international politics and law. The judgement given by the Trial Chamber II of the Special Court for Sierra Leone (SCSL) on 26 April 2012 – convicting former President of Liberia Charles Taylor of war crimes and crimes against humanity – is not just a legal declaration. It is also a politically sensitive statement of fact. Indeed, the Trial Chamber II’s judgement conferred the weight of International Criminal Law’s authority on a particular narrative of what happened in Sierra Leone during the civil war, and the extent of Charles Taylor’s responsibility for these events. What Justice Sow was trying to say last Thursday in his ‘impromptu dissent’, before his microphone was cut and the curtains dropped on the public gallery, is that the SCSL has a political agenda that is incompatible with some of the fundamental procedural and substantive requirements of a legal system. So long as this remains the case for the SCSL and similar courts, International Criminal Law is bound to remain a form of soft power used by and against governments in repentance of their past failures rather than a vehicle for the legal accountability of political actors, and the impunity of these actors is far from being a thing of the past.
One can only speculate as to what precisely Justice Sow meant when he said that ‘there were no serious deliberations’ in Charles Taylor’s case. Less equivocal is his statement that ‘under any mode of liability, under any accepted standard of proof, the guilt of the accused from the evidence provided in this trial is not proved beyond reasonable doubt’. What transpires from these statements is that the guilt of Charles Taylor was not established through a legal process, or at least not one in which judges give serious consideration to the proof presented by the Prosecution and Defence, and certainly not one which adheres to the principle of presumption of innocence (embodied in the necessity to prove culpability beyond reasonable doubt). This might explain why the SCSL has an almost perfect track record of conviction (with only one acquittal) despite hearing complex and time consuming cases. In mature legal systems, cases with a similar complexity and scope are notoriously unsuccessful. In the U.S. for example, the DiNorscio trial, which lasted years, was such a fiasco that it was made the subject of a movie.
Justice Sow’s statement is not a dissenting judgement. It is an accusation brought against the SCSL which needs to be taken seriously. Other UN-mandated courts, for example the International Criminal Tribunal for Rwanda (ICTR), are open to the same criticism. Despite having jurisdiction to do so, the ICTR has refused to bring any indictments against any of the officers of the Rwandan Patriotic Army (RPA). In 2006, Human Rights Watch published, to no avail, its concern for the ICTR’s failure to address violations of Humanitarian International Law by the RPA during 1994.1 In 2004, Filip Reyntjens commented that the post-genocide regime in Rwanda has prevented the ICTR from carrying out its full mandate. The ICTR’s subjection to politics has caused it to fail in two respects. Firstly, it means that the RPA’s actions were committed with impunity despite the existence of a jurisdiction to try them, which contradicts the very purpose of International Criminal Law. Secondly, and perhaps more importantly, the ICTR has contributed to rewriting history: the Rwandan genocide has obscured the fact that there was a civil war in Rwanda during the genocide.
Many are of the opinion that Charles Taylor deserves to spend the rest of his life in prison, and have hailed his conviction as a triumph of international justice. Nevertheless, if we are sacrificing the fundamental principles of legal systems in order to appease the exigencies of politics and public opinion, we are lynching both Charles Taylor and the ideal of international criminal law itself at the same time.