Special Court for Sierra Leone Dismisses Taylor Motion Against Change of Venue

Introduction

On May 29, 2006, the Appeals Chamber of the Special Court for Sierra Leone ruled that the Urgent De fence Motion Against Change of Venue filed by Karim A.A. Khan, the Provisionally Assigned Counsel representing former Liberian President Charles Ghankay Taylor, was inadmissible. The motion was therefore dismissed.[1]

Background to the Motion

On April 3, 2006, at his initial appearance before the Special Court in Freetown, Sierra Leone's capital, Mr. Taylor was formally charged with an 11-count Amended Indictment for 1) crimes against humanity, 2) war crimes and 3) other serious violations of international humanitarian law contrary to Articles 2, 3 and 4 respectively of the Statute of the Special Court.[2] In the Amended Indictment,[3] the Prosecutor uses theories of command responsibility and joint criminal enterprise to allege that Mr. Taylor is, by his acts or omissions, criminally responsible for planning, ordering and/or instigating numerous unlawful killings, acts of terrorism, sexual and physical violence, conscripting or recruiting children under fifteen years into armed forces or groups, abductions, child labour and looting, during the latter half of the decade-long civil war in the small West African nation (between November 30, 1996 to about January 18, 2002).

On March 29, 2006, a day after Mr. Taylor's transfer to the Court, Justice Raja N. Fernando (Sri Lanka), the President of the Court at the time,[4] sent a letter to the Government of the Netherlands and the President of the International Criminal Court (ICC) asking them to facilitate the Special Court's trial of Taylor in the Hague. Judge Fernando's letter cited concerns about security of the West Africa sub-region as the main motivation for seeking to hold the Taylor trial in the Netherlands.[5] The Dutch Government is apparently willing to host the trial, provided a Security Council resolution formalizes the request and a third country is found to take Taylor after his trial, whether or not he is found guilty or not guilty.[6]

On April 7, 2006, Counsel for Mr. Taylor filed an urgent motion before Trial Chamber II,[7] which is currently seized of the Taylor case, seeking the following orders: 1) that no change of venue be made without first giving Mr. Taylor an opportunity to be heard on the important issue of venue of his trial; 2) that the President of the Special Court withdraw his requests to the Netherlands and the ICC; and, in the alternative, 3) clarification that the requests and the decision to transfer the Taylor case to the Netherlands had not yet been made.[8]

On April 24, 2006, the Prosecution filed its Response in which it opposed the Taylor motion principally on the ground that the decision authorizing a judge or Trial Chamber to sit away from the seat of the Special Court is one made by the President of the Court acting in his administrative, rather than judicial, capacity. The Prosecution also argued, inter alia, that the de fence motion was misconceived because it failed to show that there had been an order changing the venue of Taylor's trial; or that any of Taylor's Article 17 rights had been violated; or that any of the applicable instruments of the Special Court required a hearing of the parties by the President before a decision to change the venue of a particular trial is made.

In an Order issued on May 3, 2006, Trial Chamber II found that the motion filed by Mr. Khan raised fundamental objections relating to jurisdiction because it challenged the President's authority to change the venue of the trial and alleged his abuse of the processes of the Special Court. Thus, Trial Chamber II referred the motion to the Appeals Chamber of the Special Court for determination pursuant to Rule 72(B)(E) and (F) of the Special Court's Rules of Procedure and Evidence (RPE).

The Appeals Chamber Decision

Upon the referral of the De fence Motion to the Appeals Chamber, Justice Fernando, the President of the Special Court whose actions were being challenged by the motion, was immediately faced with the preliminary question of the proper composition of the panel of three judges to hear the motion. In a surprising move, instead of seeking the recusal of the two judges of the Appeals Chamber who had already publicly expressed certain views on the Taylor matter, the De fence filed a new motion in which Taylor waived any objections to those judges being assigned to hear his motion against change of venue or, and this is particularly significant, any other aspect of his case.[9] The panel of three judges of the Appeals Chamber appointed by President Fernando to consider the motion did not include himself or Justice Geoffrey Robertson, who Taylor had also indicated could form part of the bench hearing the motion.[10]

In the short four-page decision issued last week, the Appeals Chamber first observed that Trial Chamber II's referral of the de fence motion to it for determination was improper. First, the motion had nothing to do with either jurisdiction or abuse of process. And second, the motion sought relief that the Trial Chamber did not have the power to grant.

While the Appeals Chamber could have exercised discretion not to examine the merits of the motion because of the improper referral by Trial Chamber II, it decided to do so and concluded that the motion was inadmissible because it would amount to judicial interference with the "administrative and diplomatic functions"[11] of the President, which neither the Trial nor the Appeals Chambers are authorized to do under the relevant instruments of the Special Court. The Appeals Chamber then explained that the procedure regarding a change of venue for a trial is to be found in the Agreement between the UN and Sierra Leone establishing the Special Court and under the RPE. In addition, according to the Appeals Chamber, the residual powers of the Trial Chamber to ensure a fair trial for an accused could not avail the De fence in its attempt to secure pre-emptive relief when the President had not taken any formal decisions affecting the fair trial rights of Mr. Taylor. In the final analysis, the Appeals Chamber held, at this stage of the proceedings wherein the President is undertaking diplomatic steps to secure a new venue (as contemplated under the relevant provisions), questions about venue of the Taylor trial are best directed to the President of the Court rather than the Chambers. Consequently, the Appeals Chamber concluded that the motion is inadmissible and must be dismissed.

Conclusion

This decision by the Appeals Chamber is important for at least three reasons. First, it addresses the first de fence motion brought before the Special Court challenging the possible transfer of a trial outside of Sierra Leone, and in the process, clarifies to some extent the relevant rules governing a possible change of venue of a trial before the Special Court (that is, Article 10 of the Agreement and Rule 4 of the RPE[12]).

While the Appeals Chamber did not expound how those rules will apply to the case at bar, it seems that Article 10 of the Agreement would only be determinative if we read the second sentence of the provision, which in relevant part provides that "The Court may meet away from its seat if it considers it necessary for the efficient exercise of its functions," to mean that the Special Court may conduct trials at locations other than its seat - Freetown. As the Prosecution and the De fence briefs disagreed on how to construe this sentence, especially the word "functions" (whether, for instance, "functions" meant hearing an entire trial or a single witness, or both), it would have been helpful to Counsel on both sides, as well as to the judges of Trial Chamber II, for the Appeals Chamber, the final arbiter of the law applicable in the Special Court, to spell out how to properly interpret and apply Article 10. This matter remains unresolved and could therefore again come before Trial Chamber II once the President of the Special Court makes a formal decision on the venue of the Taylor trial.

The second provision cited by the Appeals Chamber, Rule 4 of the RPE, is derived from the equivalent provision in the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda (ICTR RPE). At first blush its applicability is less controversial because of the simplicity of its language which states: "A Chamber or Judge may exercise their functions away from the Seat of the Special Court, if so authorized by the President."[13] Indeed, as the Prosecution argued, Rule 4 seems to be in line with the administrative functions entrusted to the President of the Special Court by Rule 19, in particular 19(A), of the RPE.[14]

The crux of the interpretative problem between the Prosecution and the De fence in respect of this provision arises from the difference in language of Rule 4 of the ICTR RPE, upon which Rule 4 of the Special Court's RPE is based. ICTR Rule 4 allows the President of that tribunal to authorize a Chamber or a Judge to exercise their functions away from the seat of their tribunal provided that this is found to be "in the interests of justice," a standard that was removed from the iteration of the equivalent rule in the Special Court.[15] Even in its ICTR version, the rule is silent on how the determination is made that something is "in the interests of justice," much as its equivalent at the Special Court does not indicate the basis upon which the President should determine when to authorize a Chamber or judge to sit elsewhere. For example, can the President make that determination ex parte or should the views of the De fence (and thus the Prosecution) be taken into account" On this issue, Mr. Khan submitted that the Special Court should adopt the relatively more transparent ICC procedure that would allow Taylor to express views on the proposed change of venue of his trial. By implication, Mr. Khan suggested that with the enhanced transparency arising from the participation of the parties, the President's decision to move a trial to another location would less likely be made for extrajudicial or purely political reasons.[16]

Secondly, the bench was careful not to be seen to have pronounced, in this ruling, on the propriety of the procedure followed by Justice Fernando, the previous President of the Special Court, who merely took what the Appeals Chamber characterized as "preliminary diplomatic steps," as opposed to a final decision.

Whether intended or not, the effect of this approach by the Appeals Chamber is to give considerable latitude to Justice George Gelaga King (Sierra Leone), the new President of the Special Court,[17] to examine the approach of his predecessor, and to agree or disagree with him as to whether a change of venue for the Taylor case is necessary. If he stands by the decision of the previous President, as he most likely would given the stated concerns about the security and stability of the West Africa sub-region, this decision will allow him to continue seeking to put in pace the modalities facilitating the trial of Taylor in the Hague without worrying about further judicial challenges to his (administrative) actions until the final order for transfer of the trial is formally made.[18] The language of the decision implies that at such a point, if and when it is reached, Counsel for Mr. Taylor could choose to file a motion invoking the (residual) inherent jurisdiction of Trial Chamber II to ensure that Mr. Taylor has a fair trial by seeking judicial review of the President's (administrative) decision.[19]

Furthermore, when the new President determines whether a change of venue for the Taylor trial is necessary, the decision leaves open the distinct possibility that Justice King could choose to seek the views of the parties (though the Appeals Chamber decision implies that he would not be required to do so under the applicable provisions of the Special Court).

Third, and closely related to the previous point, from the perspective of the accused and many Sierra Leonean victims of the war, the manner in which this matter is disposed of by Justice King, who is a national of the country in which Taylor's alleged crimes took place, will in the end serve as a barometer on which they could measure the extent to which their interests are balanced against each other by the Special Court and the international community, especially given the position adopted by the accused and the victims that the trial should be held in Sierra Leone.[20]

About the author

Charles Chernor Jalloh holds the B.A. (Guelph), LL.B. (McGill), and B.C.L. (McGill). He is a member of the Bar of Ontario, Canada, and is Legal Advisor to the Office of the Principal Defender, Special Court for Sierra Leone. He is concurrently a Chevening Scholar and candidate completing the Master of Studies in International Human Rights Law at the University of Oxford (Kellogg College). The opinions expressed in this article are his own and not necessarily those of the Special Court or any other organizations with which he may be associated. E-mail: jallohc@yahoo.com.

Footnotes

[1]See Prosecutor v. Charles Ghankay Taylor, SCSL-2003-01-AR72-104, Decision on Urgent De fence Motion Against Change of Venue, 29 May 2006, online: <http://www.sc-sl.org/Documents/SCSL-03-01-AR72-104.pdf> (last accessed: 31 May 2006).

[2] See Statute of the Special Court for Sierra Leone, online: <http://www.sc-sl.org/scsl-statute.html> (last accessed: 31 May 2006).

[3] See Prosecutor v. Charles Taylor, SCSL-03-01-I-75, Amended Indictment; online: <http://scsl-server/sc-sl/new/Documents/SCSL-03-01-I-75.pdf> (last accessed: 31 May 2006). The Amended Indictment was sealed and was only disclosed by the Trial Chamber in March 2006. David Crane, the Special Court's first Prosecutor, issued the initial 17-count indictment against Mr. Taylor. For that and other decisions related to the Taylor case, see <http://scsl-server/sc-sl/new/taylor-decisions.html>. For a summary of the Appeals Chamber decision following Taylor's unsuccessful challenge of the Special Court's jurisdiction over him while he was still President of Liberia, see C. Jalloh, ASIL Insight: Immunity from Prosecution for International Crimes: The Case of Charles Taylor at the Special Court for Sierra Leone (October 2004) <http://www.asil.org/insights/insigh145.htm> (last accessed: 31 May 2006).

[4] Justice King was elected President of the Special Court at the Plenary held between May 12 and 14, 2006 in Freetown. See Special Court for Sierra Leone, Press Release dated 15 May 2006, "New President for the Special Court for Sierra Leone", online: <http://www.sc-sl.org/Press/pressrelease-051506.pdf> (last accessed: 31 May 2006).

[5] For an analysis of the intersection of international law and international politics in the Taylor case, see Charles Jalloh, The Law and Politics of the Charles Taylor Case, Canadian Council on International Law Web Exclusive (April 2006), online: <http://www.ccil-ccdi.ca/index.php?option=com_content&task=view&id=165&Itemid=76> (last accessed: May 31, 2006).

[6] While the Security Council has drafted a resolution that would authorize the transfer of the Taylor trial to the Netherlands, it has become a challenge to find a country willing to receive Mr. Taylor after his trial. The trial has not started; based on the experience with similar high profile cases in other international criminal tribunals, it may be at least a year or two away.

[7] Trial Chamber II is composed of Justices Richard Lussick (Samoa), Presiding; Julia Sebutinde (Uganda); and Teresa Doherty (Northern Ireland). The Government of Sierra Leone nominated the former while the Secretary-General of the United Nations appointed the latter two.

[8] See Prosecutor v. Charles Ghankay Taylor, SCSL. SCSL-03-01-PT-91, Urgent De fence Motion for an Order that no Change of Venue from the Seat of the Court in Freetown be Ordered without the De fence Being Heard on the Issue and Motion that the Trial Chamber Request the President of the Special Court to Withdraw the Requests Reportedly Made to (1) The Government of the Kingdom of the Netherlands to Permit that the Trial of Charles Ghankay Taylor be Conducted on its Territory and (2) to the President of the ICC for use of the ICC Building and Facilities in the Netherlands during the Proposed Trial of Charles Ghankay Taylor, especially paras. 2-3.

[9] See Prosecutor v. Charles Ghankay Taylor, SCSL-03-01-PT, De fence Filing on Composition of Appeals Chamber Pursuant to Trial Chamber's Order Dated 03 May 2006.

[10] See Taylor waiver, ibid at Annex A.

[11] Appeals Chamber Decision at para. 5.

[12] See Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, online: <http://www.sc-sl.org/scsl-agreement.html> (last accessed: 31 May 2006).

[13] Indeed, the rules of procedure and evidence obtaining before the ICTR were to apply mutatis mutandis before the Special Court. See Article 14 of the Statute of the Special Court.

[14] See Prosecution Reply to Urgent De fence Motion at para. 7.

[15] It is hard to discern why this decision was made given that neither the De fence nor the Prosecution, or for that matter the public, have access to the Minutes of the Plenary that adopted the RPE at the Special Court. Otherwise, both sides could have had recourse to the travaux préparatoires in an attempt to discern the intent of the judges in adopting a somewhat different rule for the Special Court.

[16] See De fence Reply to the Prosecution Response to the Urgent De fence Motion filed on 27 April 2006 at para. 16.

[17] See Press Release, supra note 4.

[18] In this vein, it is important to note that Justice King, the new President of the Special Court, also participated in the bench comprised by the President to dispose of this de fence motion. This could raise important questions about fundamental principles of justice.

[19] At that point, two arguments could be made by De fence Counsel should Taylor wish to oppose his transfer. First, the same one made in this Urgent De fence Motion, i.e., that the President should not make the decision to transfer the case until Taylor puts forth his views on the matter because of the possible impact of the move on his right to a fair trial. Second, the decision to move the trial itself could be challenged on the basis that it violates fair trial guarantees contained in Article 17 of the Statute of the Special Court.

[20] For more on this, see The Law and Politics of the Charles Taylor Case, supra note 5.