Rebuilding Sierra Leone

The University of South Carolina School of Law recently hosted a very interesting conference entitled “Rebuilding Sierra Leone: Changing Institutions and Culture” (logo at right). Organized by Professor Joel Samuels, this April 1 conference was one of the first interdisciplinary academic conferences in the United States to focus solely on the unique challenges of redeveloping Sierra Leone after its decade-long armed conflict in the 1990s.
The goal of the conference was to highlight salient issues that have hindered Sierra Leone’s post-war rebuilding, and to begin discussion among academics working in different disciplines on future collaborations on Sierra Leone-specific projects.
The conference was divided into four panels:
► “Sierra Leone in Context”
► “Paths to Rebuilding Sierra Leone”
► “The Special Court for Sierra Leone”
► “The Problem of Child Soldiers”
Some highlights included a talk by Professor Erika George (University of Utah) (left) that began with the observation that erosion or failure of the education system is one of the first indicators of a failing or failed state. She linked this idea to the state of education in Sierra Leone prior to and after the conflict, noting some post-conflict improvements but also some very worrying gaps that still remain.
Another thought-provoking speaker was Professor Jennifer Moore (University of New Mexico) (right), who argued that post-conflict Sierra Leone needs not only courtroom (retributive) justice, it also needs to focus on social justice (material well-being), and historical justice (addressing peace in community life. She highlighted the work of two nongovernmental organizations within Sierra Leone – the Centre for Development and Peace Education and Fambul Tok – in contributing to the two latter forms of justice.
Yours truly, Valerie Oosterveld, had the honour of presenting a paper on the jurisprudence of the Special Court for Sierra Leone with respect to gender-based crimes against humanity and war crimes. I traced positive and less-than-positive legal reasoning with respect to gender-based acts in the trial judgments in what are usually referred to as the Armed Forces Revolutionary Council and the Civil Defence Forces cases. I contrasted these cases with the Revolutionary United Front case, arguing that the RUF case represents a step forward in efforts to contextualize rape, sexual mutilation and other forms of sexual violence directed against women, girls, men and boys, as well as gender-based crimes such as forced marriage. My presentation represented a continuation of arguments outlined in a recently-published article - “The Gender Jurisprudence of the Special Court for Sierra Leone: Progress in the Revolutionary United Front Judgments” (2011) 44(1) Cornell International Law Journal 49-74.
The conference participants also heard interesting presentations by: Prof. Christopher DeCorse (Syracuse University), Herb Frazier (author), Kevin Lowther (author), Joseph Opala (Bunce Island Conservation Project), Ambassador June Carter Perry (former US Ambassador to Sierra Leone), Lt. Col. Mark Daubney (British Embassy), Ambassador David Scheffer (Northwestern University), James Hodes (Cochran Law Firm), Anthony Triolo (International Center for Transitional Justice), Professor Daniel Hoffman (University of Washington), Professor Mark Drumbl (Washington & Lee University) and Professor Noah Novogrodsky (University of Wyoming).
There was discussion among the conference participants about publishing an edited volume focused on possibilities and challenges facing Sierra Leone in its rebuilding efforts: I will keep IntLawGrrl readers informed about this potentially exciting development!

Guest Blogger: Elizabeth Ashamu

We're delighted to welcome Elizabeth Ashamu (right), who provides today's guest post below on her work seeking justice for victims of extraordinary rendition in the African human rights system.
A third-year law student at NYU School of Law, Elizabeth is a Root-Tilden-Kern and Institute for International Law and Justice scholar. Her academic and professional work has focused on human rights in Africa. She holds Bachelor's and Master's degrees in African Studies from Yale University.
Before law school, work on human rights, transitional justice and natural resource management took her to Togo, Rwanda, Liberia and Cameroon. As a law student, Elizabeth was a founding member and the first president of the NYU African Law Association. She has spent time in Southern Sudan researching post-conflict forest governance, and she interned with the Special Court for Sierra Leone at its Hague office. Her interest in strengthening democratic processes in Africa led her to serve as legal advisor with the Carter Center’s election observation mission for Guinea’s presidential elections and as an observer for the Southern Sudan referendum on self-determination.
Elizabeth looks forward to working with Human Rights Watch after her graduation, as its 2011-2012 NYU Fellow.
Heartfelt welcome!

War Don Don on DVD

(Delighted to welcome back alumna Rebecca Richman Cohen, who contributes this guest post)

Just wanted to let IntLawGrrls readers know the latest news regarding War Don Don, the 2010 documentary that I made about the trial of Revolutionary United Front member Issa Sesay before the Special Court for Sierra Leone.

DVDs of the film, about which I contributed this previous post, are now available at our website.

Also available, for free download, is a teacher’s guide to the film.

Hope you find both of interest.

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.

Guest Blogger: Rebecca Richman Cohen

It's IntLawGrrls' great pleasure to welcome Rebecca Richman Cohen (left) as today's guest blogger.
After receiving her B.A. in Portuguese and Brazilian Studies from Brown University, Rebecca enrolled at Harvard Law School. (photo credit) While a law student, she served as a legal intern on a defense team in the Special Court for Sierra Leone case involving the rebel Armed Forces Revolutionary Council.
As Rebecca recounts in her guest post below, her experiences in Freetown led her to make War Don Don, a documentary about the Special Court trial of Revolutionary United Front member Issa Sesay. The 86-minute film has won a number of awards, including one at the 2010 SXSW Film Festival. Screened recently at the 4th International Humanitarian Law Dialogs in Chautauqua, New York, War Don Don will be broadcast this Wednesday, September 29, at 8 p.m. Eastern and Pacific times on HBO2, with a repeat airing at 2:30 p.m. Thursday, September 30.
Rebecca's also been as an adjunct member of the faculty at the Rhode Island School of Design in Provindence, where she taught Human Rights, Mass Atrocity, and Documentary Film, and at the Human Rights Institute at American University, where she taught Criminal Justice Stories in Film.
Heartfelt welcome!

Look On! War Don Don

(My thanks to IntLawGrrls for the opportunity to contribute this Look On! guest post about my film, War Don Don)

In the summer of 2006 I sat behind bulletproof glass in Freetown, in the observer gallery of the Special Court for Sierra Leone, an international war crimes "hybrid tribunal," created jointly by the United Nations and the government of Sierra Leone. At the time I was working not as a filmmaker, but as a law student and legal intern for a defense team. I was assigned to work on the case of Alex Tamba Brima, among three members of the rebel Armed Forces Revolutionary Council charged with crimes against humanity and war crimes stemming from the 1990s civil war in that West African country.
Yet I found myself drawn to observe the trial of the leader of a different warring faction.
From my seat in the gallery of the trial involving members of the Revolutionary United Front, I first observed Issa Sesay, a former rebel leader accused of crimes against humanity and a key player in the peace negotiations – and I was fascinated by the range of roles that one man could assume amidst the intensity of such a brutal conflict. I also came to know lawyers on both the prosecution (including prosecuted by Stephen J. Rapp, who since has become the U.S. Ambassador-at-Large for War Crimes Issues) and the defense. They were some of the brightest and most passionate advocates I have ever met.
I became convinced that the story of Sesay's trial needed to reach a larger audience. Combining my legal experience in criminal defense with my background as a filmmaker, I realized that a documentary film could communicate the complexities of Sesay's rise and fall from power – and its implications for a country still reeling from the horrors of civil war.
The result is War Don Don, an 86-minute film that has won awards at festivals and that, as detailed in the post above, will air this this week on HBO2. War Don Don tells the story of Sesay (depicted in the poster above right), whom prosecutors said is a war criminal, guilty of heinous crimes against humanity, and whom defenders said was a reluctant fighter who protected civilians and played a crucial role in bringing peace to Sierra Leone. (poster credit) The film puts international justice on trial, and finds that in some cases the past is not just painful, it is also opaque.
During the process of editing, we frequently made reference to Akira Kurosawa's Rashomon (1950); that is, to the ideas that
► Film (and trials) can put multiple narratives in tension;
► Truth can be unsettled;
► Perception influences memory; and
► Historical fact may be hard to prove, particularly in a trial.
On that note, we were also inspired by Andrew Jarecki's film Capturing the Friedmans (2003), which reminded that the idea that truth can be elusive, that people can play many different roles in the same story, and that no human being can be entirely defined by the horrible things that he or she may have done.
I knew we were done editing when different people took away different things from the film, when the film acted like a Rorschach test of sorts. Different audiences will come to their own conclusions – one of the greatest joys of documentary filmmaking is the debate that arises from having to sort through the tensions within and between conflicting stories.
I hope audiences enjoy having some of their assumptions tested and coming to examine their own reactions to controversial issues.

Fact-finding Without Facts

(Tremendous thanks to IntLawGrrls for inviting me to contribute this guest post)

The international criminal tribunals confront severe impediments to accurate fact-finding.
The challenge of that fact-finding process is the subject of my book, Fact-finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions, published just days ago by Cambridge University Press. The book is summarized in an article I contributed to a 2009 symposium edition.

The basis for my study is a large-scale review of transcripts from the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, and the Special Panels for East Timor (below left). (photo credit) This review demonstrates that many international witnesses are unable to convey the information that court personnel expect – and need – to receive if they are to make reasoned factual assessments in which we can have confidence.
Moreover, what clear information witnesses do provide in court often conflicts with the information that the witnesses previously provided in their pre-trial statements. I find that:

► Such inconsistencies pervade international criminal testimony; and

► They frequently pertain to core features of that testimony.

In particular, my review of all of the completed Sierra Leone Special Court cases and a handful of the Rwanda Tribunal cases shows that more than 50 percent of the prosecution witnesses appearing in these trials testified in a way that was seriously inconsistent with their pre-trial statements. Sometimes the inconsistencies related to such details as the date, time, or place of the crime, but as frequently they related to such fundamental matters as the nature of the crime and the nature of the defendant’s involvement in the crime.
After delineating these testimonial deficiencies, I consider some of their causes:

► Limitations on witness capacity: Many witnesses lack the education and life experiences to be able to read maps, tell time, or answer questions concerning distances and dates. Cultural norms and taboos create additional communication difficulties, as some witnesses are reluctant to speak directly or at all about certain events and as international judges inappropriately assess witnesses’ demeanor and willingness to answer questions by Western norms. The need for language interpretation for virtually every fact witness and the unfamiliarity of most witnesses with the predominantly adversarial trial procedures used at the international tribunals only compound these problems.
► Witness mendacity: Educational, cultural, and linguistic factors likely cause many of the inconsistencies and other testimonial deficiencies that pervade international trials, but witness mendacity provides an equally plausible explanation. Indeed, my review of ICTR cases shows that more than 90 percent of cases that went to trial featured an alibi or another example of diametrically opposing testimony from defense and prosecution witnesses. Although some of these witnesses may be honestly mistaken, the use of alibis and the incidence of contradictory testimony so vastly exceeds that which is common to domestic trials that it would be naïve to dismiss a substantial portion of it as arising from honest mistakes.
These empirical findings lead me to conclude that international criminal trials are less reliable adjudicatory mechanisms than they appear.

But, the fact that international tribunals have considerable difficulty determining who did what to whom does not necessarily call into question the legal accuracy of international criminal judgments. What matters for that question is the way in which the Trial Chambers respond to the testimonial deficiencies that pervade their trials.

Comparison between witness testimony and the Trial Chambers’ description and treatment of that testimony led to the discovery that, as a general matter, the tribunals take something of a cavalier approach to fact-finding impediments. Many testimonial deficiencies are never mentioned in the Trial Chambers’ judgments, and most of those that are, are reflexively attributed to innocent causes that do not impact the witnesses’ credibility.
So, why do the Trial Chambers seem so unconcerned about testimonial deficiencies?

In my view, the Trial Chambers’ cavalier attitude derives most directly from principles of organizational liability that appeared in Article 9 of the 1945 Charter of the International Military Tribunal at Nuremberg. These organizational liability principles were ostensibly discredited during the Nuremberg Trial (right), but they continue to exert a powerful influence over fact-finding at today’s international tribunals.

Indeed, if the Trial Chambers appear largely unconcerned about testimonial deficiencies, it may be because the testimony itself is not the exclusive basis for the Trial Chambers’ factual determinations.

The Trial Chambers appear to be convicting defendants on the basis of the acts charged in the indictments and basing their factual findings about those acts solely on the testimony that has been presented to them. In fact, however, the Trial Chambers supplement that testimony with inferences that they draw from the defendants’ official position or institutional affiliation in the context of the international crimes that have been committed.

Careful examination shows:

► Why the inferences drawn from the position or affiliation of the accused can prove particularly compelling; and

► How such inferences can explain and justify both:

►► The Trial Chambers’ casual treatment of most fact-finding impediments; and

►► Certain otherwise inexplicable acquittals.

In short, because objective or reliable evidence is so difficult to come by in the international realm, Trial Chambers rely on official position or institutional affiliation as a proxy of sorts for the defendant’s involvement in the crimes.

Prosecutors must still present some evidence to support the specific allegations appearing in the indictment. The stronger the inferences that can reasonably be drawn from official position, however, the more that Trial Chambers are willing to overlook problematic features of prosecution witness testimony or attribute those problems to innocent causes.
After proposing methods for improving the quality of international tribunal testimony, in my book’s final chapter I consider the broadest and most pressing normative question:

Will the fact-finding impediments, if they persist, fatally undermine the work of the international tribunals?

Various ways of justifying international criminal fact-finding are addressed. The primary focus, though, is on how the evidence presented at the international tribunals interacts with the applicable standard of proof. Particularly explored are modern scholars who view beyond a reasonable doubt as variable standard that signifies -- and should signify-- different levels of certainty in different cases. I conclude that this understanding of the standard of proof not only affords an alternative explanation for international criminal fact-finding, but also provides a solid and satisfying justification for it.

On July 29

On this day in ...
... 2003, the most notorious of those who led rebels during the 1990s civil war in Sierra Leone, 65-year-old Foday Sankoh, died in custody while awaiting trial before the Special Court for Sierra Leone (logo at right). On March 7 of the same year, that court had issued against the Revolutionary United Front leader an indictment on 17 counts of crimes against humanity, violations of Article 3 common to the Geneva Conventions and of Additional Protocol II, and other serious violations of international humanitarian law. The indictment would be withdrawn on December 8, 2003.

(Prior July 29 posts are here, here, and 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)

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!

Unsettling profile of war crimes ambassador

War crimes envoy has personal touch read the headline for Colum Lynch's recent Washington Post profile of Stephen J. Rapp, who, as we've posted, became U.S. Ambassador at Large for War Crimes Issues in September.
Figured the story would talk about how Rapp's experiences as the top prosecutor at the Special Court for Sierra Leone had prepared him for this post. Fair enough.
But then came the subhead:
U.S. ambassador at large knows victimization and is a 'champion' of the brutalized
Uh-oh.
The story kicked off with a harrowing account of an all-night carjacking/kidnapping that Rapp endured 48 years ago. It then repeatedly linked this personal tragedy to Rapp's avowed self-image as "'a champion'" of the victims of crimes he's prosecuted, 1st in federal courts back home in Iowa, then at the International Criminal Tribunal for Rwanda, and eventually at the Sierra Leone court.
Midway through, the story quoted criticism of the United States' policies on war crimes, levied by Fabienne Hara of the International Crisis Group, who contended

that the United States has not lived up to its commitment to stop violence as it unfolds. Its response to war crimes in three of the most serious conflict zones of the past two years, Congo, Sri Lanka and Gaza, consists of pressing for 'accountability after the crisis rather than stopping or preventing the crisis.'

Yet the reporter seems oblivious to another concern -- a concern apparent in the way that he chose to frame his story.

I've written here and here about what I call an "impartiality deficit" in international and internationalized criminal tribunals. Included within the term is concern that victims and victimization are overemphasized, to the exclusion of other interests at play in a properly balanced criminal justice system. Values of fairness and due process preclude establishment of a criminal court -- or prosecution office -- solely for the purpose of representing victims' interests. Both the court and the prosecutor have the duty to represent the larger society, to serve the interest of public safety even if that interest at times conflicts with those of victims -- as, for instance, proper adherence to defense rights often does.

That's not my own idiosyncratic view. Rather, it embodies tradition recalled in a 1935 U.S. Supreme Court opinion.

In Berger v. United States, Justice George Sutherland, a conservative Republican, wrote this in a unanimous opinion that reversed a conviction on account of misconduct by the federal prosecutor:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Prosecutors who assume a different mantle of responsibility, who construe their their role as the victims' lawyers, as the winners of the case, do so at a risk. 1st, identifying "victims" and "perpetrators" can be a difficult task, as is evident not only in yesterday's Los Angeles Times story about cycles of violence, but also in any consideration of how to deal with former child soldiers. 2d, feeding perceptions that international criminal justice seeks vengeance stokes already overheated claims of "victors' justice." 3d, as many pretrial proceedings at Guantánamo and the trial of Saddam Hussein demonstrated, singular equation of justice with victory does little to reduce the dangers of impartiality deficit.

It's to be hoped that the spin of the Post profile reflects reportorial choice rather than any such singular equation -- that punishment will be but 1 goal of the Office of War Crimes Issues, and that postconflict reconstruction and preconflict prevention will enjoy priorityof place.

Transitions not made in Sierra Leone

Those of us who teach in the areas of international criminal law or transitional justice know well the literature that holds Sierra Leone out as something of a success story. (map credit)
Commentators point to the Special Court, established to prosecute a handful of high-level defendants, and to the Truth and Reconciliation Commission that in 2004 both published a 5,000-page record of the 1990s civil war and recommended changes. Articles often make laudatory, albeit vague, references to post-conflict rehabilitation programs. Few, however, mention the record of non-implementation of truth commission recommendations, nor the fact that the country remains destitute.
A series running in the Los Angeles Times is correcting the latter omission. Today's "Forgotten Countries" installment discusses problems in sectors as varied and health care, employment, and politics. Here's an excerpt:

Sierra Leone is one of those nations where decades of foreign aid have failed to appreciably lift the fortunes of the people. The country is a charity case: 60% of its public spending comes from foreign governments and nonprofit organizations. Since 2002, it has received more than $1 billion in aid.
Yet it has the second-highest rate of infant mortality in the world, behind Angola; even Afghanistan ranks lower. The United Nations says 1 in 8 women die giving birth in Sierra Leone; the rate in the United States is 1 in 4,800. Life expectancy in Sierra Leone is 41 years; in Bangladesh it's 60.

Keep an eye out for the series' 2d installment (here, on drug trafficking in Guinea-Bissau).

Write On! Africa & international justice

(Write On! is an occasional item about notable calls for papers.) In preparation for an international conference, the Africa Interest Group of the American Society of International Law is seeking abstracts of paper proposals.
The overarching topic is "Africa and the Future of International Criminal Justice," the title of the conference, to be held, July 14 to 16, 2010, at the School of Law of the University of the Witwatersrand, Johannesburg, South Africa. The school's program in Law, Justice & Development in Africa is organizing the event along with the ASIL interest group; supporting their work is the Open Society Initiative for Southern Africa.
Conference themes include:
► The Post-Colonial African State and Impunity: Governance, Conflicts, Human Rights Violations and Accountability
► Peace in Africa's Conflict Zones and Justice for Gross Atrocities: Mutually Exclusive or Interdependent Ends?
► The Impact of the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone on Impunity in Africa
► Africa and the Politics of International Criminal Justice: Implications for a Universally Credible International Criminal Justice Mechanism
► Africa and the International Crimial Court: Any Genuine Objections or Just a Disregard for Treaty Obligations?
► Africa and the Complementarity Principle of the International Criminal Court: Implications for the Domestic Rule of Law and Justice in Dealing with Atrocity Crimes
► Impunity and Justice: Any African International Criminal Justice Alternatives?
►The Limits of the International Criminal Court in Achieving Peace and Justice in Africa
Deadline for proposals, of no more than 1,000 words, is November 15, 2009; details here.

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.

Breaking News...

President Obama announced two key nominations yesterday:

• Michael H. Posner: Assistant Secretary of State for Democracy, Human Rights, and Labor, Department of State
  
• Stephen J. Rapp: Ambassador at Large for War Crimes Issues, Department of State

The bios of both excellent candidates are below. Congrats! Let's hope these nominations are confirmed with more alacrity than some of the earlier posts (namely Dawn Johnsen and Harold Koh).
Michael Posner (below left) currently serves as the President of Human Rights First (formerly the Lawyers Committee for Human Rights) and has been at the forefront of the international human rights movement for more than 30 years. Posner has traveled to more than 50 countries in all regions of the world on behalf of Human Rights First and other organizations. He has worked to support human rights defenders in countries as diverse as Russia, Zimbabwe, Iran, Cuba, China, Uganda, Haiti, the Philippines, El Salvador and Egypt. He also has been actively involved in promoting the rights of refugees and displaced people, and has taken a leading role in promoting stronger industry standards to ensure fair labor conditions in global manufacturing supply chains. Posner is a frequent public commentator and his opinion essays have appeared in newspapers and magazines around the country. He also has testified dozens of times before the U.S. Congress on a wide range of human rights and refugee topics. Before joining Human Rights First, Posner was a lawyer with Sonnenschein, Nath & Rosenthal in Chicago. Posner lectured at Yale Law School from 1981 to 1984, and again in 2009. He has been a visiting lecturer at Columbia University Law School since 1984. A member of the California and Illinois Bars, as well as the Council on Foreign Relations, he received his J.D. from the University of California, Berkeley Law School (Boalt Hall) and a B.A. from the University of Michigan.
Stephen Rapp (below right) has served as Prosecutor of the Special Court for Sierra Leone since January 2007, leading the prosecutions of former Liberian President Charles Taylor and other persons alleged to bear the greatest responsibility for the atrocities committed during the civil war in Sierra Leone. From 2001 to 2007, Rapp served as Senior Trial Attorney and Chief of Prosecutions at the International Criminal Tribunal for Rwanda, personally heading the trial team that achieved convictions of the principals of RTLM radio and Kangura newspaper—the first in history for leaders of the mass media for the crime of Incitement to Commit Genocide. Previously, he was United States Attorney for the Northern District of Iowa from 1993 to 2001. Prior to his tenure as U.S. Attorney, he had worked as an attorney in private practice and had served as Staff Director of the U.S. Senate Judiciary Subcommittee on Juvenile Delinquency and as an elected member of the Iowa Legislature. He received his JD degree from Drake University and his BA from Harvard College.
Congrats to both!

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.

Sierra Leone Special Court: sentences of 25, 40, and 52 years for gender-based crimes

(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.)

Today, Trial Chamber I of the Special Court for Sierra Leone imposed upon Issa Hassan Sesay, Morris Kallon and Augustine Gbao sentences of 52, 40 years, and 25 years of imprisonment, respectively, in the Revolutionary United Front case.
This sentencing followed the February 25th oral trial judgment, which convicted Sesay and Kallon of 16 of 18 counts and Gbao of 14 of 18 counts of crimes against humanity and war crimes, and the March 2nd release of the written trial judgment. My previous guest post, on the rulings of conviction, is here.
All of the accused were convicted of gender-based crimes against humanity, namely rape, sexual slavery and inhumane acts (forced marriage). They were also convicted of the war crime of outrages upon personal dignity.
The judgment – some 824 pages in total – outlines a number of brutal gender-based acts, some committed by children, such as rape and sexual mutilation, forced nudity and forced marriage. As well, the judgment recounts evidence of civilian men being forced to rape civilian women on orders of the RUF. In one case, a couple was forced to have sexual intercourse in public and in view of their 10-year-old daughter. The daughter was then forced to wash her father’s penis (paras. 1205, 1302, 1304). The judgment refers to RUF orders for men and women to be separated, so that each group could be violated in different gender-specific ways. For example, sometimes men and boys were specifically targeted to have “RUF” carved in the flesh of their backs or arms, while women and girls were targeted for forced marriage.
Here are two examples of gender-based acts recounted in the trial judgment:
► In 1998, witness TF1-195 was captured in the bush by the RUF. One ordered her to undress and he raped her as two men watched. These two then also took turns raping her. TF1-195 was forced to join a group of captured civilians. The female civilians were divided into two groups: young girls (believed to be virgins) and older women (this group included TF1-195). The older women were told to undress and were raped, and TF1-195 also had a stick inserted into her vagina. As a result of this mistreatment, she has suffered five years of physical pain (paras. 1180-1181, 1185).
► Also in 1998, witness TF1-016 and her 11-year-old daughter were captured by RUF rebels and assigned as “wives”. TF1-061 was assigned to Kotor, for whom she had to perform domestic chores: cooking, washing clothes, cleaning house and pounding rice. Kotor also forced her to have sex with him on a daily basis. Kotor held her captive for one year and three months (paras. 1209, 1211-1213).
The judgment analyzes the crimes against humanity of rape, sexual slavery and other inhumane acts (forced marriage) and the war crime of outrages upon personal dignity. There is no single international approach to defining the elements of crime for rape. The RUF judgment follows both the approach set out in the International Criminal Court’s Elements of Crimes document and the approach incorporating direct reference to non-consent (along the lines of the International Criminal Tribunal for the Former Yugoslavia in Kunarac et al.), while also stressing the coercive circumstances prevailing in cases involving armed conflict (paras. 143-151).
The Trial Chamber referred to the importance of specifically naming sexual slavery as a prohibited act, in order to

draw attention to serious crimes that have been historically overlooked and to recognize the particular nature of sexual violence that has been used, often with impunity, as a tactic of war to humiliate, dominate and instill fear in victims, their families and communities during an armed conflict (para. 156).

The Trial Chamber’s elements of crimes focus on the exercise of powers attaching to the right of ownership and emphasize that “the lack of consent of the victim to the enslavement or to the sexual acts is not an element to be proved by the Prosecution” (paras. 158-163).
With respect to forced marriage, the Chamber found that the choice of the term “wife” by the RUF was deliberate and strategic, “with the aim of enslaving and psychologically manipulating the women and with the purpose of treating them like possessions” (para. 1466). In Koidu and Wendedu, for example, the Trial Chamber identified a consistent pattern of conduct: women were “married” against their will, forced to engage in sexual intercourse and perform domestic chores, and were unable to leave their “husbands” for fear of violent retribution (para. 1293). The Trial Chamber defined the actus reus of forced marriage as the imposition of a forced conjugal association, and indicated that this association carries with it lasting social stigma which hampers the recovery and reintegration into society of those made into “wives”. This suffering is in addition to the physical injuries suffered by these “wives” through rape (paras. 1295-1296).
For its analysis of the war crime of outrages upon personal dignity, the Trial Chamber took a similar approach to the International Criminal Court’s Elements of Crimes document and the ICTY's Kunarac et al. judgments (paras. 175-177).
The accused argued that the RUF indictment was fatally flawed in certain ways. For example, following the approach in the Prosecutor v. Brima, Kamara and Kanu (Armed Forces Revolutionary Council or AFRC) trial judgment, Kallon argued that the charge of “sexual slavery and any other form of sexual violence” (Count 7) violated the rule against multiplicity, duplicity or vagueness (para. 456). The Trial Chamber agreed, but followed the remedy prescribed in the AFRC Appeals Judgment, which was to strike out the charge of “any other form of sexual violence” and proceed to consider only the charge of sexual slavery (para. 458). Kallon also argued that evidence of “any other form of sexual violence” should not be able to be considered under Count 9, the war crime of outrages upon personal dignity. The Trial Chamber opined that conduct which constitutes “any other form of sexual violence” could still be considered as the basis for charges of “outrages upon personal dignity” (para. 469).
Sesay argued that the crime of forced marriage had been defectively pleaded because the Prosecutor had initially characterized forced marriage as a sexual crime and later characterized it as a crime not predominantly sexual in nature (para. 466). The Trial Chamber noted that, while the prosecution may have caused some confusion by its initial characterization of forced marriage as a sexual crime, the material facts underlying the offence were sufficiently pleaded (para. 467).
In sum, the trial judgment captures the wide-ranging nature of gender-based violence committed by the RUF during the Sierra Leonean conflict. It is the first judgment of an international or internationalized criminal tribunal to convict individuals for the crime against humanity of forced marriage (under the category of inhumane acts). The International Criminal Court’s Lubanga case has heard quite a bit of testimony to date relating to forced marriage. While, in that case, the evidence of forced marriage is being put forward by the Prosecutor to support charges related to the recruitment and use of child soldiers, the RUF trial judgment, coupled with the Special Court’s earlier appeals judgment in the AFRC case, can provide a helpful contextual approach in which to evaluate those charges. The RUF judgment should also be helpful to the analysis of forced marriage under Cambodia’s Khmer Rouge, about which IntLawGrrl Jaya Ramji-Nogales has blogged here.

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.)