Closure of Taylor Trial

On Friday, Charles Taylor’s defence officially closed its case in the case of Prosecutor v. Taylor (Taylor, far right) at the Special Court for Sierra Leone. In his final submissions, Taylor’s lead counsel, Courtenay Griffiths, told the judges that "it has been accepted by us right from the outset that terrible crimes were committed in Sierra Leone. We share the concerns for the victims of these crimes, and we want to make clear that differences between the parties in the courtroom should not be exploited as evidence that either party naturally assumes a morally superior position. On that note, this is the case for Mr. Taylor."
Taylor is charged with responsibility for 11 counts, including the crimes against humanity of rape and sexual slavery, and the war crimes of recruitment and/or use of child soldiers and committing acts of terror. The defence formally opened on July 13, 2009, and Taylor took the stand in his own defence the next day. He remained on the stand until February 18, 2010. The defence called 21 witnesses on its behalf, ending with the testimony of Sam Flomo Kolleh, a Liberian national and former member of the Revolutionary United Front in Sierra Leone. The defence used Mr. Kolleh’s evidence to try to rebut the prosecution’s evidence that Taylor was responsible for providing support to the Revolutionary United Front.
Written final trial briefs will be filed in January 2011, with oral closing arguments for both parties scheduled for February 8-11, 2011. The trial judgment is expected in mid 2011. The trial began in 2008 at the premises of the International Criminal Court in The Hague, and then moved in May to the premises of the Special Tribunal for Lebanon in nearby Leidschendam, Netherlands.
The Registrar of the Special Court, Binta Mansaray (right), noted that the closure of the defence case “is not only a major milestone in the Charles Taylor trial, but in the work of the court as a whole.” The end of the Taylor trial and any subsequent appeals will mark the end of the current work of the Special Court. The Special Court will then close and be succeeded by a residual mechanism in order to carry out legal and practical obligations that naturally continue after closure, such as victim protection and sentence enforcement monitoring. The Prosecutor, Brenda Hollis (left), also welcomed the closure of the defence case, expressing thanks to all of the witnesses who testified during both the prosecution and defence phases of the trial: “Their courage and willingness to take the stand and bear witness has been an inspiration. We in the Prosecution have always said that we fight for justice in the name of the victims, but they are the ones who have truly made justice possible.”
The Taylor trial has been lauded for its efficiency, which was directly related to the cooperation of Taylor. As well, Taylor’s lead defence counsel, Griffiths, has garnered attention for his effective – and dramatic - advocacy on his client’s behalf.
As I noted in an earlier post on the Taylor trial, the most difficult aspect of this case for the prosecution is adequately proving the linkages between Charles Taylor, who was in Liberia during the time period of the indictment, and the crimes committed in Sierra Leone. The prosecution brought linkage witnesses, and Taylor’s defence worked to raise doubts about that evidence.
In February, keep an eye on the incredibly helpful blog The Trial of Charles Taylor for updates on the closing arguments in the Taylor case. You can also watch the closing submissions through live streaming on the Special Court’s website.

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.

Chuckie Taylor Update

To close the loop on some prior stories we’ve been covering, a Florida-based federal judge has entered a final, multimillion-dollar default judgment in a civil suit against Charles Taylor’s son, Charles McArthur “Chuckie” Taylor (right).
As you’ll recall, Chuckie was arrested while entering the U.S. and prosecuted for torture and conspiracy to commit torture in connection with his role as commander of the so-called “Demon Forces” anti-terrorism paramilitary unit in Liberia (map at left). In 2008, a federal jury in the Southern District of Florida had found Taylor guilty, and a judge sentenced him to 97 years in prison.
The World Organization for Human Rights (USA) subsequently filed a civil suit against him on behalf of some of his Liberian victims. The suit ultimately resulted in a default judgment in the amount of $22.5 million.
Plaintiffs had sought class certification as a damages class action under FRCP 23(b)(3), but U.S. District Judge Adalberto Jordan ruled that the questions of law and fact common to the proposed class did not predominate over the individual issues. See Kpadeh v. Emmanuel, 261 F.R.D. 687 (S.D. Fl. 2009).
In so ruling, the judge considered, but declined to follow, two prior certification rulings in human rights cases: Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996), and Doe v. Karadzic, 1176 F.R.D. 458 (S.D.N.Y. 1997). Hilao made waves for the 9th Circuit's acceptance of a decision below to use statistically significant sampling and damages schedules to apportion damages to different sub-groups of plaintiffs. Judge Jordan ruled that such an approach would fall below the due process owed to the defendant and to each individual plaintiff. 261 F.R.D. at 692. Judge Jordan reasoned nothing prevented other potential plaintiffs from filing additional suits against Taylor. He noted that while contingency fees are probably unavailable given that the first judgment is unlikely to be executed in full, human rights clinics would undoubtedly be willing to bring additional cases against Taylor pro bono.
Documents concerning the case, including the federal indictment and several amicus briefs, are available here.

On April 12

On this day in ...
... 1980 (30 years ago today), 28-year-old Master Sergeant Samuel K. Doe seized power following a "surprise" coup in Liberia, during which the democratically elected President, William R. Tolbert Jr., was killed at the executive mansion. The New York Times reported that the coup occurred 3 days after Amnesty International released a report criticizing the Tolbert regime for a "'crackdown'" against opposition party members. Pictured at right (credit) with U.S. President Ronald Reagan in 1982, Doe would be killed 10 years later amid a civil war led by Charles Taylor, now on trial before the Special Court for Sierra Leone.


(Prior April 12 posts are here, here, and here)

Human rights' new DOJ home

Brand-new in D.C.:
The Human Rights and Special Prosecutions Section, established within the U.S. Department of Justice yesterday.
HRSP, as it's to be known, is intended to combat human rights violations and to endeavor to bring war criminals to account. Its approval by Congress last week culminated plans 1st announced by U.S. Assistant Attorney General Lanny A. Breuer during testimony last October 6 before the Senate Judiciary Subcommittee on Human Rights and the Law.
This new section within the Criminal Division was formed through the merger of 2 existing DOJ units:
► 1st, the Domestic Security Section, which since 2002 has concentrated on international human rights violations, offenses brought under the under the Military Extraterritorial Jurisdiction Act and related statutes, and and complex immigration and border crimes. The section worked alongside federal prosecutors in the Southern District of Florida in a case about which we've posted: the 1st-ever conviction, secured in 2008 against Boston-born Chuckie Taylor (below) (image credit), son of Liberia's ex-President, under the United States' extraterritorial torture statute.
► 2d, the Office of Special Investigations, formed in 1979 to investigate and prosecute Nazi-era crimes. In 2004 OSI's mandate was expanded to citizenship revocation proceedings against perpetrators of genocide, official torture, and extrajudicial killing in other contexts. Among its notable cases is that of Ukraine-born John Demjanjuk (bottom) (photo credit), now on trial in Munich after having been stripped of U.S. citizenship and sent to Germany.
Leading HRSP is Teresa L. McHenry. Most recently chief of the Domestic Security Section, McHenry, also has served as head of DOJ's Alien Smuggling Task Force, as a trial attorney in the Organized Crime and Racketeering Section, as an Assistant U.S. Attorney in the District of Columbia, and as a prosecutor at the International Criminal Tribunal for the former Yugoslavia.
Meanwhile, Eli M. Rosenbaum becomes the Director of Human Rights Enforcement Strategy and Policy. Since 1995, he's led the Office of Special Investigations; before that, he was a corporate litigation associate with Simpson Thacher in Manhattan and general counsel of the World Jewish Congress.
Looking forward to good works from this new section.

Brenda Hollis - Chief Prosecutor

While we're on the subject of women in high places, the United Nations Secretary General, Ban Ki-Moon, recently named Brenda Hollis as Chief Prosecutor for the Special Court for Sierra Leone (SCSL). Hollis takes over from Stephen Rapp, who is serving as Ambassador-At-Large for War Crimes in the Obama Administration. Hollis had served as a principal trial attorney in the Office of the Prosecutor in the SCSL, where she heads up the legal team prosecuting ex-Liberian President Charles Taylor, under indictment for war crimes and crimes against humanity as we've discussed here and here. Prior to that, she was a legal consultant on international law and criminal procedure, training judges, prosecutors and investigators at courts and international tribunals in Indonesia, Iraq and Cambodia. She was also senior trial attorney at the International Criminal Tribunal for Yugoslavia (ICTY) from 1994-2001, serving as lead counsel in preparing the case against former Serbian president Slobodan Milosevic. (More on Hollis's background is available here).

Congratulations!

Difficulties of exercising extraterritorial criminal jurisdiction: The acquittal of a Dutch businessman for crimes committed in Liberia

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

With this post I briefly present my recently published article, "The Difficulties of Exercising Extraterritorial Criminal Jurisdiction: The Acquittal of a Dutch Businessman for Crimes Committed in Liberia". An outgrowth of research on domestic efforts, particularly Dutch efforts, to investigate and prosecute international crimes, the article recently was published in the International Criminal Law Review (left).
As host state to the International Criminal Court and fierce promoter of The Hague as the City of Peace and Justice, the Dutch Government is adamant that its own justice system must perform well as a fighter of international crimes. Therefore, a special investigation unit has been entrusted with the task of investigating and prosecuting such offences. Most investigations concern so-called 1F cases, which flow from files of asylum seekers who have been rejected on the basis of a Dutch provision implementing Article 1F of the 1951 Convention relating to the Status of Refugees, which states:

The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) He has been guilty of acts contrary to the purposes and principles of the United Nations.

In addition, two cases have been pursued against Dutch nationals. First of all, there has been a case against Frans van Anraat for supplying chemicals to the regime of Saddam Hussein (judgement in first instance here; appeal judgement here). This post concerns the second case, namely that against Guus Kouwenhoven (credit for 2008 image of Kouwenhoven, at far right, in a court proceeding at The Hague).
In March 2003, the nongovernmental organization Global Witness published a report entitled, The Usual Suspects: Liberia's Weapons and Mercenaries in Côte d'Ivoire and Sierra Leone. The cover of the report depicted Kouwenhoven standing in a lineup with, among others, Charles Taylor (below left), then the Liberian President, now a defendant on trial before the Special Court for Sierra Leone. The report's implication of Kouwenhoven in the civil war in Liberia served as the lead for the Dutch Prosecution Office to start a criminal case against this Dutch national.
In June 2006, a Dutch court in first instance, via this judgement, convicted Kouwenhoven for the violation of an arms embargo, but acquitted of the count on war crimes. This judgement on appeal acquitted Kouwenhoven of all charges. In its judgment quashing the prior conviction, the Dutch Court of Appeal heavily criticized the Public Prosecutor, and maintained that the case against Kouwenhoven was built on quicksand.
Even though not grounded in universal jurisdiction, given that it occurred in the defendant's state of nationality, the case does illustrate the inherent complexities of exercising extraterritorial criminal jurisdiction:
► A remarkable aspect of the case is that the Court of Appeal evaluated the evidence presented in a fundamentally different way than the Court of First Instance had done. This might be related to the inherent difficulties of assessing “foreign evidence”. In my article, I argue that when adjudicating such foreign cases, national judges, given their unfamiliarity with the historical and cultural setting in which the alleged crimes took place, should call upon experts on the region to assist in the evaluation of the evidence.
► In terms of substance, the case leads to interesting questions as to how charges of illegal arms trade do and should relate to charges of complicity in war crimes. On this point, the Court of First Instance observed that Kouwenhoven’s conviction of illegal arms trading, for having supplied Taylor and/or his armed forces with weapons, was in itself not sufficient evidence to consider it proven that the defendant participated in committing war crimes under one of the modes of liability charged. The Court indicated that the weapons delivered could also have been used for acts that are legally permitted or acts that cannot be qualified as war crimes. One may wonder which legally permitted acts the Court had in mind in the context of Liberia at the time. (Just last month, Taylor denied any trading of arms-for-diamonds in his testimony before the Special court.) Yet, the Court’s general conclusion that the illegal delivery of arms to a region where war crimes are being committed does not necessarily lead to responsibility for war crimes is probably correct.
In sum, the case leads to the complex legal question whether, and under which circumstances, an arms trader can be held criminally responsible for international crimes potentially committed with the arms that he delivered. This is a question that has not yet received a final answer.

Gender-based crimes & the Charles Taylor trial

(We welcome IntLawGrrl guest/alumna Valerie Oosterveld back for a guest post on the Special Court for Sierra Leone. Valerie, in turn, extends her thanks for the invitation to contribute to the blog.)

Charles Taylor (below right), former President of Liberia, has been testifying in his own defense before the Special Court for Sierra Leone since shortly after the defence opened its case 4 weeks ago. To date, Taylor has focused on vigorously denying linkages between him and the Sierra Leonean rebel group, the Revolutionary United Front. He stated that he did not support the RUF in the early 1990s, saying that he only worked with the RUF to fend off attacks from a rival armed group in Liberia. He attacked the Prosecutor’s contention that he directed the RUF and said that he was too busy with events in Liberia to also be involved in the conflict in Sierra Leone. Taylor is casting himself as a peacemaker, describing his efforts as head of the Committee of Five -- a group created by the Economic Community of West African States to end the Sierra Leonean conflict. He also denied any links to Liberian fighters who participated in the Sierra Leone conflict, saying that these were former members of the Liberian army who had escaped to Sierra Leone and become part of the Special Task Force in support of the Sierra Leone military. He also refuted claims that he used or condoned the use of child soldiers in Liberia and Sierra Leone.
Taylor is charged with 11 counts of crimes against humanity, war crimes and other serious violations of international humanitarian law (see indictment here). The charges include one count of rape and one count of sexual slavery as a crime against humanity, as well as one count of outrages upon personal dignity as a violation of article 3 common to the Geneva Conventions and of Additional Protocol II. Taylor is also charged with conscripting or enlisting children (both boys and girls) under the age of 15 years into armed forces or groups or using them to participate actively in hostilities, as an “other serious violation of international humanitarian law” under the Statute. Taylor is charged on the basis of individual criminal responsibility for planning, instigating, ordering or aiding and abetting. Additionally, the Prosecutor has argued that Taylor can be held liable under the doctrine of joint criminal enterprise. Finally, the Prosecutor has alleged that Taylor’s responsibility can be proven through the doctrine of superior responsibility.
The Prosecutor presented his opening statement in June 2007, and witness testimony began half a year later, in January 2008. The Prosecutor called 91 witnesses in total:
► 56 crime base witnesses to demonstrate the range of atrocities carried out by those fighting with the RUF and Armed Forces Revolutionary Council (AFRC) groups;
► 31 insider or linkage witnesses to link Taylor to the crimes committed by the RUF and AFRC; and
► 4 expert witnesses.
In addition, the Prosecutor submitted written statements by 4 crime base witnesses and reports by two additional expert witnesses. The prosecution rested its case on February 27, 2009.
A number of prosecution witnesses presented evidence of gender-based crimes, especially of forced marriage and rape. For example:
► Witness TF1-028 testified in early May 2008 about events in 1998 in and near her home in Karina, Bombali district. TF1-028 described how, when the rebel forces came to town, her brother and his son were beaten by soldiers and molten plastic was dripped over her brother’s body. Her 7-, 8-, and 12-year-old nieces were raped, as was her 13-year-old daughter. She saw her sister-in-law, who was wounded, being forced to walk among a group of naked women. The witness was also stripped naked along with other women and taken to Mandaha, where she described a scene of continuous rape, with rebels raping girls and women in the street and in the bush. She also described how she and others were subjected to ongoing rape as forced “wives”, as well as how they were forced to cook for their junta “husbands”. She described how women who did not submit to rape would be locked in a box for hours. The witness told the court that, as a result of the rape, she and her husband have separated. Her daughter gave birth to a baby and suffers from mental illness.
► On June 18, 2009, the prosecution asked: “Can you explain what you mean when you say a … combatant would say, “I’m taking this away, she is my wife”? What do you mean by that?” Witness TF1-584 answered: “He will bring her to the base and turn her into his wife. Like they would sleep together, the woman would work for him just like a woman would work for her husband in the home … If you were a small child, maybe a woman who was not up to the age of staying with a man, you would be there as a ward and he will take care of you and you would be working for him … When they get old enough, a man who was an RUF fighter would take her and turn her into his wife from the person who had captured her.”
► On June 24, 2008, witness TF1-375 described how rebels captured girls and made them into “wives”, captured and armed boys and made them into fighters in Small Boys Units and captured other people to serve as domestic labourers in the soldiers’ houses.
► On July 9, 2008, witness TF1-388 explained how some male civilians were killed so their wives could be taken.
► In late January 2009, witness TF1-303 described how a man was caught trying to escape from the rebels, and his testicles were cut off as punishment. TF1-303 was captured by a boy soldier when she was quite young (she did not know her age). The boy soldier raped her and forced her to work as a domestic maid in his sister’s house. A more senior soldier then took her as his “wife”, and she was again raped and forced to do domestic chores. Witness TF1-174 also testified to numerous rapes committed during the rebel capture of Makeni, and how the RUF demanded the “donation” of young boys ands girls to its ranks because they are more easily commanded. Witness TF1-062 testified how the Civil Defence Forces drove the rebels from Tongo (a diamond mining area) and killed 20 men accused of being soldiers and four women who were accused of being wives of soldiers.
The evidence of gender-based violence presented by the prosecution in the Taylor case was not about Taylor himself committing these acts. Rather, the Prosecutor is arguing that Taylor can be found guilty of these acts because of his linkages to the RUF and AFRC leaders and perpetrators of these acts. Of the various cases heard by the Special Court, the Taylor case is one of the most difficult in which to prove gender-based violations. This is because of the physical distance, and the distance in the chain of command, between Taylor and the perpetrators of these crimes.
At the close of the prosecution’s case, Taylor brought a motion for judgment of acquittal under Rule 98 of the Special Court’s Rules of Procedure and Evidence. On May 4, 2009, the Trial Chamber dismissed this motion. In an oral ruling, the Trial Chamber found that, based on the joint criminal enterprise mode of liability, the Prosecutor had presented sufficient evidence on all counts which, if believed, would be capable of supporting a conviction. The Chamber agreed with the prosecution that it was not necessary to evaluate the sufficiency of the evidence in relation to the other modes of liability.
The defence case is expected to last at least several months. For those wishing to follow the ongoing developments in the Taylor trial, I suggest checking the Charles Taylor Trial website hosted by the Open Society Justice Initiative, as well as live-streaming of the trial available through the Special Court’s website.

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.

On April 3

On this day in ...
... 2006, appearing in the Freetown courtroom of the Special Court for Sierra Leone, Charles Taylor, former President of Liberia, pleaded not guilty to charges of "war crimes and crimes against humanity, including sexual slavery, mutilation and sending children into combat." (credit for March 29, 2006, U.N. photo of Taylor arriving at Freetown) According to the International Herald Tribune, Taylor initially balked in this appearance, telling the international war crimes court he could not plead because he did not recognize the court's right to try him. But he went on to say he was not guilty, telling Justice Richard Lussick 'I did not and could not have' committed the atrocities that allegedly occurred during Sierra Leone's civil war. The court accepted his comment as a formal plea. The Special Court later moved the proceeding to The Hague, as we've posted. The trial continues. Counsel recently announced Taylor will be "first witness on the stand when his defence case starts this summer," and is likely to "'be in the witness box for a couple of months.'"
... 2004 (5 years ago today), in a working-class neighborhood of Madrid, suspects in the March 11 bombings of railways in the capital city killed themselves by blowing up their apartment (left) as police approached the hideout. A Spanish Special Forces police officer also was killed. (photo credit)

(Prior April 3 posts are here and here.)

Guest Blogger: Cecily Rose

It's IntLawGrrls' great pleasure today to welcome guest blogger Cecily Rose.

Cecily (right) is an associate at Steptoe & Johnson LLP, Washington, D.C., where she is a member of the International Regulation & Compliance Group in the International Department.
Before joining the firm, she worked as Law Clerk at the International Court of Justice and as an Associate Legal Officer at the Special Court for Sierra Leone, and interned with the International Center for Transitional Justice in New York and with the Wisconsin Project on Nuclear Arms Control in Washington, D.C. Articles that Cecily has written focus on issues of international criminal law; an examination of reconciliation mechanisms in northern Uganda, for instance, as well as consideraton of the International Criminal Court's oral proceedings. Her guest post below discusses her article, forthcoming in the Journal of International Criminal Justice, which criticizes the indictment of former Liberian President Charles Taylor. (The trial of Taylor, about which IntLawGrrls have posted here, may be watched via webcast here.)

Cecily dedicates her post as follows:

I have long admired Katharine Graham [right] for what she accomplished in the world of journalism, and at a time when women did not rise to such heights in this field. She led the Washington Post for over two decades, including the period in which the paper published the Pentagon Papers, leading to the Watergate scandal. Her memoirs are remarkably candid and inspirational.

Graham, a pathbreaker among women in business and journalism who died in 2001 at age 84, today joins other IntLawGrrls transnational foremothers in the list just below our "visiting from ..." map at right. (photo credit)

Heartfelt welcome!

Trouble with the Taylor indictment

Many thanks to IntLawGrrls for this opportunity to guest blog about a portion of my article entitled "Troubled Indictments at the Special Court for Sierra Leone: The Pleading of Joint Criminal Enterprise and Sex-Based Crimes," to be published in the Journal of International Criminal Justice.
Followers of international criminal law have long been familiar with the problems involved in crafting indictments, as well as the debates surrounding the theory of joint criminal enterprise. The two issues, however, have recently collided at the Special Court for Sierra Leone. In particular, the indictments at the Special Court have pleaded joint criminal enterprise, or JCE, in ways that threaten the right of the accused persons to have notice of the charges against them. This post will focus on the sparse and confused pleading of joint criminal enterprise in the ongoing case against Charles Taylor (above right), the former President of Liberia. (credit for Michael Kooren/EPA photo)
Indictments alleging a joint criminal enterprise must include several specific types of material facts, including the nature and purpose of the enterprise. The amended Taylor Indictment, however, neglects to do so. This omission is striking given the importance of this form of liability to the Prosecution’s case against Taylor. In the Taylor trial, as in the trials of many high-profile figures, JCE represents an important form of liability because the Prosecution does not seek to prove that Taylor personally committed any of the alleged atrocities. Therefore, much of its case could rest on its ability to prove that Taylor participated in a joint criminal enterprise to commit such crimes.
The most recently amended version of the Taylor Indictment charges joint criminal enterprise by alleging that the accused is individually criminally responsible for crimes which

amounted to or were involved within a common plan, design or purpose in which the ACCUSED participated, or were a reasonably foreseeable consequence of such common plan, design or purpose.

This paragraph notably omits the phrase “joint criminal enterprise” as well as any description of what constituted the “common plan, design, or purpose” in which Taylor allegedly participated. This manner of pleading departs from the other indictments at the Special Court as well as standard practice at the ICTY and the ICTR.
Since issuing this amended Indictment in May 2007, the Prosecution has actually made matters worse by attempting to clarify the contents of this common plan. The Prosecution has articulated two different, and not entirely consistent, versions of this plan:
► In its opening arguments at the trial in June 2007, the Prosecution argued that Taylor participated in a common plan to achieve and hold political power and physical control over the civilian population of Sierra Leone through criminal means involving a campaign of terror against the civilian population of Sierra Leone. This common purpose resembles the one articulated in the original Taylor indictment.
► Two months after opening arguments, however, the Prosecution offered a different common purpose in its Amended Case Summary. It argued that Taylor participated in a common plan
to carry out a campaign of terror . . . in order to pillage the resources of Sierra Leone. This common purpose resembles the one found in the pre-trial brief submitted immediately before opening arguments.
Unfortunately, the text of the current amended Indictment offers little support for either version of the common purpose of Taylor’s joint criminal enterprise.
Ultimately, the Prosecution may have failed to provide the accused with necessary information concerning the nature and the purpose of the JCE. By oscillating from one common purpose to another, and by failing to anchor its arguments in text of the indictment, the Prosecution has not only provided Taylor with untimely, inconsistent, and confused information, but it also may have substantially weakened its case against Taylor.
A defense motion pending before the Trial Chamber essentially argues that the Prosecution has failed to provide Taylor with sufficient notice of the case he has to meet because it has advanced more than one common plan during the critical early phases of the case.
What will Trial Chamber II have to say on this issue? Only time will tell—we’ve been waiting for its ruling since the spring of 2008.

And as for Taylor fils ...

In focusing above on the Special Court for Sierra Leone case against Charles Taylor père, IntLawGrrls by no means intends to ignore the latest news respecting his son, Charles Emmanuel (right), also known as Chuckie Taylor. (photo credit)
As IntLawGrrls posted, back in October Emmanuel was convicted "for torture and conspiracy to commit torture, the first conviction ever under the U.S. statute providing for universal jurisdiction over acts of torture." (Additional post here.)
Just days ago, Miami-based U.S. District Judge Cecilia M. Altonaga delivered the sentence: 97 years behind bars.
As we've posted before, Emmanuel's case begs comparison with other torture allegations abrew in the United States -- earlier, with regard to claims of vagueness, and now with regard to sentence imposed.

Breaking News! Taylor (Chuckie) Convicted

CNN has just reported the conviction of Charles "Chuckie" Taylor, Jr. for torture and conspiracy to commit torture, the first conviction ever under the U.S. statute providing for universal jurisdiction over acts of torture. (The courtroom sketch at right is from the CNN blurb). The statute in question (18 U.S.C. sec. 2340) provides:

(a) Offense.— Whoever outside the United States commits or attempts to commit
torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—

(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.

(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.

We've discussed the case before here. Now we know it can be done.

Sierre Leone Prosecutor on the ICC's Darfur Indictment

For all of us watching the debate generated by the Darfur indictment (prior IntLawGrrls posts here and here), I highly recommend David Crane's July 21, 2008, editorial inthe Baltimore Sun. David (left), who was the Chief Prosecutor of the Special Court for Sierre Leone, opens as follows:

On June 4, 2003, as Liberian President Charles Taylor walked up the steps for the opening ceremony of the Accra Peace Accords in Ghana, I stood in front of the world's press and announced that I had unsealed an indictment charging him with 17 counts of war crimes and crimes against humanity. The international community reacted with praise - and condemnation.
Politicians and diplomats voiced concern that my announcement had jeopardized the newly organized peace process and hopes for stability in West Africa. Some even said that the indictment put lives at risk. Yet five years later, Liberia is stable, and a fairly elected government is in place with a real possibility that it is on the correct path to a sustainable peace under the leadership of the first woman ever elected a head of state in Africa. Mr. Taylor sits in The Hague on trial before a judicial chamber of the Special Court of Sierra Leone.

You can read the whole editorial here.

Prosecutorial Puzzler Answered

(Solution to today's Prosecutorial Puzzler above)

a. 4

b. Heads of state who've been prosecuted, other than Sudan's President Omar al-Bashir, are:
(1) Charles Taylor (above left), indicted by the Special Court for Sierra Leone while he was the sitting President of Liberia. The Court, sitting specially at The Hague, is trying him now. Yesterday Chief Prosecutor Stephen Rapp said "that the case was in its fifth month of hearing the prosecution’s evidence, and could possibly wrap up 'within a year.'" (photo credit)
(2) Slobodan Milosevic (right), indicted by the International Criminal Tribunal for the former Yugoslavia while he was the incumbent President of Serbia. He was put on trial for genocide and other offenses, but died before any verdict could be rendered.
(3) Jean Kambanda (left), former Prime Minister of Rwanda. His 1998 plea of guilty to genocide, crimes against humanity, and related offense marked the 1st conviction of the International Criminal Tribunal for Rwanda.
(4) Karl Dönitz (right). Though best known as Nazi Germany's top naval officer, Dönitz served as President for the 23 days after Adolf Hitler committed suicide and before the end of World War II in Europe. The International Military Tribunal at Nuremberg convicted him of crimes against peace -- known today as aggression -- and crimes against humanity; he served 10 years in prison, then lived in Germany till his death by heart attack in 1980.

On April 22

On this day in ...
... 1980, at an army barracks near Monrovia, Liberia, 13 top officials of the deposed government, among them the brother of assassinated President William Tolbert, were publicly executed by shootings that journalists described as "cruel and messy." The executions took place on orders of coup leader Samuel Doe; eventually he would lose power to Charles Taylor, who served as president of Liberia (flag above right) for a decade but now is on trial before the Special Court for Sierra Leone, sitting at The Hague, Netherlands.
... 2003 (5 years ago today), Martha Wright Griffths (below left) died in Amarda, Michigan, at age 91. Born and raised in Missouri, in 1940 she was graduated from the University of Michigan Law School, and practiced law in that state. In Michigan she served as an elected official -- 1st a legislator, then a judge -- from 1948-54, and again as lieutenant government from 1982-91. As a Member of Congress from 1955-74, Griffiths came to be known as a "graceful feminist": the Democrat introduced the Equal Rights Amendment during her 1st year in Congress, and thereafter fought for its adoption continuously, albeit unsuccessfully. A 1970 Time Magazine article reported:

Although the other nine women Representatives in the House recently urged that she be considered for appointment to the high court because she is a highly competent lawyer as well as legislator, Mrs. Griffiths considers such an event 'out of the range of possibility.'

As we've posted, it'd be another 11 years before the 1st woman, Sandra Day O'Connor, won a seat on the U.S. Supreme Court. (photo courtesy Library of Congress)

On this day

On March 29, ...
... 1973 (35 years ago today), American troops withdrew fully from South Vietnam (right). In the long years of U.S. involvement in the Indochinese country, "the cost to the United States has been almost 46,000 men killed and more than 300,000 wounded," according to the New York Times. It further reported that the war was "unfinished" and had "deeply scarred" both Vietnam and the United States, and that among the departing troops "[t]here was little emotion or joy as they brought to a close almost a decade of American military intervention."
... 2002, Sierra Leone's Parliamant enacted Special Court Agreement, 2002 (Ratification) Act, thus setting the stage for the Special Court for Sierra Leone, a hybrid tribunal charged with trying persons believed most responsible for atrocities during the civil war that wracked the country in the 1990s. As we've posted, among those now on trial before the Court is Charles Taylor (left), former President of Liberia. Recently, a witness before the Court testified that troops cannibalized captives -- including U.N. peacekeepers -- on Taylor's orders.

A new kind of war crimes trial for Sierra Leone

At last, the trial of Charles Taylor, the former President of Liberia, began today before the Special Court for Sierra Leone. Taylor stands accused of war crimes and crimes against humanity for supporting and directing the Revolutionary United Front, one of the militias that committed atrocities in Sierra Leone, in exchange for Sierra Leone’s coveted diamonds. (See our prior posts about the trial here.) What makes this trial different than the others already held by the Special Court? After all, the Court’s other prosecutions have been targeted at government officials and militia leaders, in keeping with the understanding that responsibility for atrocities should extend beyond the immediate perpetrators to those who planned and directed the acts.
But this trial targets a different category of accomplices: outsiders who finance and arm militias in full knowledge of their atrocities, either for direct financial benefit (e.g., payoffs of diamonds) or to profit indirectly from the opportunities to seize land and natural resources that are presented by the resulting mayhem (e.g., control of the mines themselves). This kind of outside support radically escalated the level, extent, and duration of violence against civilians in Sierra Leone’s conflict (and has done so elsewhere as well, for example in the Democratic Republic of Congo). Thus, this prosecution is similar in some ways to the ongoing series of Alien Tort Claims Act lawsuits in the US against corporations who knowingly involve themselves in and profit from human rights violations abroad (prior post here), as it seeks to extend liability to the profiteers of international crimes against civilians.
Can the prosecution succeed in proving a direct link between Taylor’s support and the RUF’s misdeeds? Tying such acts to distant leaders is always difficult, and some argue that the available circumstantial evidence here may be insufficient here. But regardless of the eventual verdict in the Taylor case, this effort to extend responsibility to those who knowingly support and profit from war crimes and crimes against humanity is a welcome development.