Breaking News: Taylor Conviction Affirmed

We've blogged before on the criminal proceedings against Roy Belfast Jr (a.k.a. Charles MacArthur Emmanuel ) the son of Charles Taylor Sr., former President of Liberia. (See here, here, here, & here) (photo, below right).
Yesterday, the 11th Circuit (Judges Birch, Marcus & Baldock (10th Cir. sitting by designation)) affirmed Taylor Jr.'s conviction and 97-year sentence for torture and other atrocities committed in Liberia in 1999-2003 when Taylor Jr. was the head of the Anti-Terrorism Unit, an elite guard charged with protecting Taylor Sr. and with torturing prisoners. The facts presented at trial were horrific: execution-style killings, prison pits filled with corpses and stagnant water, beheadings, & burnings with hot wax or plastic.
Taylor had appealed his conviction on a number of grounds, including that

• The definition of torture in 18 U.S.C. §2340 (the federal torture statute, see our prior coverage here) exceeded the definition of the crime in the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (CAT). Specifically, in what amounted to a facial challenge, he argued that

1. The CAT requires proof that the defendant was acting in order to extract information or other such purposes whereas the statute is silent as to motive (or specific intent if it maybe called that).
2. The CAT requires that the torture must actually result in severe pain or suffering, whereas the statute requries that the defendant act with the specific intent to inflict severe physical or mental pain or suffering.
3. The CAT reaches torture committed by public officials or persons acting in an official capacity, where as the statute reaches torture committed "under color of law."

• The Statute could not apply to conduct committed prior to when Liberia had ratified the treaty or to extraterritorial conduct.
• Congress had no authority to penalize conspiracy to commit torture in §2340A(c) absent a basis to do so in the treaty;
• The conviction under 18 U.S.C. §924, a weapons enhancement charge, was improper because that statute does not apply extraterritorially; and
• There were procedural and evidentiary errors that rendered the trial and outcome fundamentally unfair.

The appeals court rejected each of these arguments in turn.
► With respect to the definition variations, the court ruled that §2340 is a valid exercise of congressional power under the Necessary and Proper Clause, which grants Congress the power to:

make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States.” U.S. Const. art. I, § 8, cl. 18.

So long as the enactment bears a rational relationship to the treaty, it will be valid. Slight variances between the treaty language and the implementing statute do not make the enactment invalid, so long as the latter tracks the language of the treaty in all material respects. In particular, the court ruled that the CAT created a floor and not a ceiling and that the treaty specifically provides that it is

without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

The fact that the statute penalizes acts taken with the specific intent to commit torture (even if severe pain or suffering is not in fact inflicted) is analogous to attempts to commit torture, which are equally forbidden by the treaty.
► With respect to the question of jurisdiction rationae temporis and loci, the court held that Taylor was bound by territorial and extraterritorial legislation applying to him as a U.S. citizen. In any case, CAT requires penalization for all acts of torture, regardless of where they are committed. Congress is empowered to regulate the conduct of citizens abroad, and any baseline presumption against extraterritoriality is easiy overcome by an express or inferrable contrary intent in the language or nature of the statute.
► With respect to the conspiracy question, the court noted that the CAT requires penalization of complicity and participation in torture, which would include conduct like conspiracy that encourages and furthers the commission of torture by others. That the Hamdan plurality rejected the notion of a conspiracy to commit war crimes as a customary international law offense punishable by military commission was of no moment, because the Taylor indictment did not implicate the law of war and the conspiracy charge had a treaty basis. In addition, the court noted that

extraterritorial jurisdiction over a conspiracy charge exists whenever the underlying substantive crime applies to extraterritorial conduct.

► With respect to §924, about which we've blogged before (see here), the court ruled that it applies extraterritorially so long as the predicate crime applies extraterritorially. In particular, it may be charged in connection with any crime of violence that “may be prosecuted in a court of the United States,” including those crimes with an extraterritorial reach.
► None of the alleged procedural or evidentiary errors had merit. In particular, the court rejected Taylor's claim that he should have been able to obtain copies of classified memoranda on "enhanced interrogation techniques" approved by the U.S. government. The court ruled that those documents had no bearing on the definition of torture contained in the torture statute. Indeed,

The Torture Act contains a specific and unambiguous definition of torture that is derived from the definition provided in the CAT. The language of that statute -- not an executive branch memorandum -- is what controls the definition of the crime.

► Finally, the court confirmed that the 1,164-month sentence is not invalid under the federal sentencing guidelines given the nature of the charges and the underlying events.

Conspiracy to Commit Torture

Within and without the U.S. government, debate continues about whether there should be legal accountability for the United States’ detainee policies, especially where those policies amounted to a license to torture and otherwise mistreat individuals in U.S. custody. (Prior IntLawGrrls posts on this issue may be found here.) Although little serious debate now occurs about whether particular techniques, such as waterboarding, constitute torture, questions remain as to the theories of penal responsibility that might be employed to reach senior levels of the Bush Administration.

Folks interested in this issue would do well to revisit the case law under the operative statute, the so-called Torture Act, 18 U.S.C. § 2340, which was enacted upon the United States’ ratification of the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.

One does not have far to go.

To date, the only case to proceed under that statute is that against Charles “Chuckie” Taylor, Jr. aka Charles Emmanuel (left), the son of ex-President Charles Taylor of Liberia and a presumptive U.S. citizen who was apprehended at the Miami airport on passport fraud charges. (See posts here). He was later indicted by a grand jury for torture, conspiracy to commit torture and carrying or using firearms in connection with a felony (an enhancement statute, 18 U.S.C. § 924). The most important opinion generated during the case is here: United States v. Charles Emmanuel, 2007 U.S. Dist. LEXIS 48510 (S.D. Fl. July 5, 2007) (upholding constitutionality of the federal torture statute).

An oft-overlooked aspect of the Torture Act is that it criminalizes not only the commission and attempted commission of acts of torture, but also the conspiracy to commit torture:

(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

This provision does not find a direct parallel in the Torture Convention, which at Article 4 directs state parties to enact penal legislation as follows:

Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

The lack of specific mention of conspiracy liability in the treaty is not surprising given that many nations, especially those of the civil law tradition, either reject conspiracy liability outright or utilize more limited notions of conspiracy (in some cases limiting conspiracy liability to crimes against the state, such as sedition).

With representation from the Federal Public Defender, Taylor fils challenged the indictment against him, arguing inter alia that:

► Congress exceeded its authority in enacting the Torture Act, because the definition of torture does not precisely match the treaty definition, as torture can be prosecuted even where the pain and suffering are not inflicted for the purposes of intimidation, coercion, or for obtaining a confession as is stated in the treaty;

► Congress did not intend the Torture Act to apply extraterritorially;

► His prosecution violated the principle of sovereign immunity;

► The statute is void for vagueness, especially in light of contradictory memoranda emerging from the Department of Justice (the 2002 Bybee memo and the 2004 Levin memo superseding the Bybee memo) on the definition of torture; and

► The prosecution lacked a sufficiently nexus to the U.S. in violation of his 5th A due process rights.

The court disposed of these arguments with ease:

► Congress had the authority, and indeed was obligated, to enact the Torture Act in light of the U.S. ratification of the Convention Against Torture, which requires implementing legislation. Congress does not exceed its authority under the Necessary and Proper Clause of Article I of the Constitution when it does not enact treaty language verbatim, so long as the statutory language

bears a rational relationship to the stated objectives of the Convention.

Id. at *24. In any case, the court noted, the Offenses Against the Law of Nations Clause of Article I would also provide the necessary authority. Id. at *25-28.

► The statute applies extraterritorially by its express terms, which reach torture committed “outside the U.S.” Id. at *32-33. Furthermore, the court held that because the substantive statutory provision targets extraterritorial conduct, so too does the conspiracy provision. Id. at *33 (iting United States v. Layton (9th Cir. 1988), overruled on other grounds, Guam v. Ignacio (9th Cir. 1993)).

► On the sovereign immunity argument, the court ruled that the Foreign Sovereign Immunities Act does not apply to criminal actions, per binding 11th Circuit authority in the Noriega case. Id. at *40.

► On vagueness, the court held that the allegations in the indictment, coupled with the specific intent statutory language, sufficiently advised the ordinary person of the prohibited conduct. Id. at *43-45.

► On the due process challenge, the court ruled that the defendant’s presumptive U.S. citizenship (he was born in Boston) was a sufficient nexus to justify the application of the statute against him even for extraterritorial acts with no other connection to the United States. Id. at *45-*47. The Taylor case thus involved the nationality principle of jurisdiction rather than universal jurisdiction per se. The court specifically reserved the question of whether Taylor's mere attempt to enter the United States would have been a sufficient nexus for due process purposes, leaving open the question of whether the U.S. can constitutionally exercise "pure" universal jurisdiction. Id. at *47-48 n.12.

In October 2008, as we posted, a jury convicted Taylor of conspiracy, torture, and the possession of firearms during the commission of same and sentenced him to 97 years’ imprisonment.

It remains to be seen whether Taylor pere will follow in the footsteps of his son.

Across the pond, the Special Court for Sierra Leone recently rejected Charles Taylor Sr.'s Motion for Judgment of Acquittal.

JCE before the ECCC

As we’ve blogged before, the August 8, 2008 Closing Order (Indictment) filed before the Extraordinary Chambers in the Courts of Cambodia (ECCC) (its first) with respect to defendant Duch. Duch, who ran the detention, interrogation and execution camp S-21, a.k.a. Tuol Sleng (above) (photo credit), has been indicted for crimes against humanity (imprisonment, enslavement, torture, rape, murder, extermination, persecution, other inhumane acts) and war crimes (unlawful confinement, depriving rights to a fair trial, wilfully causing great suffering, torture and inhumane treatment, willful killing). In terms of the applicable forms of responsibility, Duch (left) is alleged to have committed, ordered, planned, instigated, aided, and abetted the crimes in question. In addition, he has been indicted under the doctrine of superior responsibility by virtue of the fact that he exercised effective command and control over the staff of S-21. The Closing Order limits his “commission” of crimes to those incidents in which Duch “personally tortured or mistreated detainees.”

The Co-Prosecutors have appealed the Closing Order, arguing inter alia that Duch should also have been indicted for his participation in crimes pursuant to a joint criminal enterprise (JCE). The ECCC Law does not specifically mention the availability of JCE as a form of commission, but the International Criminal Tribunal for Yugoslavia (ICTY) in the landmark Tadić decision treated JCE as a prosecutable form of “commission,” even though its Statute is also silent as to this form of responsibility and excludes conspiracy except with respect to the crime of genocide (in keeping with Article III of the Genocide Convention).

The ECCC invited Professor Antonio Cassese (left), among others, to submit an amicus curiae brief focused on the availability of the doctrine of JCE before the ECCC, with a particular emphasis on its applicability during the Khmer Rouge era. Incidentally, another defendant, Ieng Sary (below left), moved to disqualify the brief on the ground that it would be “result determinative” given that Cassese served on the appellate panel of the International Criminal Tribunal for the former Yugoslavia that rendered the Tadić opinion. The Pre-Trial Chamber rejected the disqualification challenge for lack of standing.
As Sary prophesied, the brief, which was filed on October 27, 2008, largely tracks the ICTY’s reasoning in the Tadić case. In particular, it identifies a collection of cases from the post-World War II prosecutions that were based on theories of common purpose or design and argues that these doctrines had crystallized into customary international criminal law prior to 1975. In addition, the brief argues that JCE liability would have been sufficiently established and assessable in domestic legislation and case law (including from France and Cambodia) to provide adequate notice to the accused in keeping with the principle of nullum crimen sine lege (no crime without law).

JCE is traditionally conceived of as encompassing three overlapping forms.
► The first (“basic”) mode provides for liability where an individual intentionally acts collectively with others to commit international crimes pursuant to a common plan.
► The second (“systemic”) form provides for liability for individuals who contribute to the maintenance or essential functions of a criminal institution or system, such as a concentration or detention camp.
► The third, and most controversial form, provides for extended liability, not only for crimes intentionally committed pursuant to the common design, but also for crimes that were the natural and foreseeable consequence of implementing the common design.
The theory with this latter form is that participants in the JCE willingly took the risk of the commission of additional non-intentional but foreseeable crimes.

Most relevant to S-21, of course, is the second JCE form. Under this form, Duch could be held liable not only for crimes he personally committed or ordered, but also for crimes that were committed throughout S-21 pursuant to the prison’s criminal mission. (Photo at right is a display from S-21, now a museum, showing dozens of the thousands of people who passed through the prison. More photos are available here). The punishment accorded to the defendant can be modulated at the sentencing phase to reflect the precise degree of an individual’s involvement in, and thus culpability for, the crimes of the JCE.

It is not clear how many crimes might escape prosecution in the absence of JCE allegations in the indictment.
► As chairman of S-21, Duch can be held responsible for any crimes committed by his subordinates when he knew, or should have known, about such crimes and failed to take adequate steps to prevent or punish them.
► He can also be held directly liable for ordering or planning crimes, or for otherwise aiding or abetting them through the knowing or intentional provision of substantial assistance to the direct perpetrator.
The only crimes that seem to fall through the cracks without JCE liability are crimes committed by non-subordinates (individuals over whom Duch did not exercise effective command or control), crimes of which he was not aware and could not have reasonably been aware, or crimes that he did not order, plan, or substantially assist.

The third, extended, form of JCE could also be utilized to hold Duch responsibility for crimes (such as rape and other forms of sexual violence) that he did not order, did not intend to be committed, or did not know had been committed, but were nonetheless foreseeable given the abject conditions of detention prevailing at S-21.

Given the volumes of direct evidence against Duch, including his own partial confessions and admissions as detailed in the Closing Order, he is unlikely to escape responsibility entirely. Nonetheless, the Co-Prosecutors are no doubt looking to the future to ensure that JCE liability is available for other defendants in the dock who were likely very far from the commission of crimes, but nonetheless could be alleged to have participated in, indeed launched, a vast JCE to establish a utopian agrarian state, through violence where necessary, and to rid Cambodia of enemies of the revolution.