Immunity from Prosecution for International Crimes: The Case of Charles Taylor at the Special Court for Sierra Leone
On May 31, 2004, the Appeals Chamber of the Special Court for Sierra Leone ("the Court"), a UN-backed hybrid criminal tribunal sitting in Freetown, Sierra Leone, ruled unanimously [1] that Charles Taylor does not enjoy any immunity from prosecution by the Court though he was the serving Head of State of Liberia at the time criminal proceedings were initiated. This historic ruling by the Court is a significant contribution to the modern international law norm asserting that Heads of State and other high-ranking governmental officials are not absolved of criminal responsibility for serious international crimes. [2]
I. Background to the Indictment of Charles Taylor
On March 7, 2003, David Crane, the Prosecutor of the Court, issued an indictment [3] against President Charles Ghankay Taylor of Liberia. The indictment alleged that Mr. Taylor had committed serious international crimes in Sierra Leone including crimes against humanity, war crimes and other serious violations of international humanitarian law. The seventeen-count indictment accused President Taylor of responsibility for terrorizing the civilian population of Sierra Leone, unlawful killings, sexual and physical violence, use of child soldiers, abductions, forced labor, looting, burning, and attacks on peacekeepers and humanitarian assistance workers.
However, the indictment was sealed until a warrant [4] for President Taylor's arrest was issued on June 4, 2003 following his arrival in Accra, Ghana, to attend peace talks that had been convened by other West African leaders. The talks were aimed at ending bitter fighting between Taylor's forces and various rebel factions that had led to the deaths of many civilians on the outskirts of Monrovia, Liberia's capital. Because of procedural mistakes by the Office of the Prosecutor, including an apparent lack of prior consultation and coordination with Ghanaian and other West African authorities, Mr. Taylor returned to Monrovia unmolested.
II. Procedural and Factual History of the Case (paras. 1-5 [5] )
On July 23, 2003, counsel for President Taylor and Liberia filed a motion before the Trial Chambers of the Court seeking an order 1) to quash the Indictment; 2) to nullify the warrant of arrest; and 3) for provisional measures restraining service of the indictment and arrest warrant on Mr. Taylor. [6] The ground for the motion was that Mr. Taylor should enjoy absolute immunity from criminal proceedings under customary international law as the sitting Head of State of Liberia at the time of his indictment.
As the Prosecution and Defence exchanged briefs before the Court, Mr. Taylor announced that he would resign from the Presidency of Liberia in August of 2003. [7] In return for his resignation, he accepted an offer of sanctuary extended to him by President Olusegun Obasanjo of Nigeria who promised not to hand him over to the Court. [8]
Approximately one month after Taylor's departure from Liberia, the Trial Chamber referred the motion challenging the Court's jurisdiction to the Appeals Chamber on the basis that it raised a fundamental issue of jurisdiction. The Appeals Chamber heard oral arguments on the motion in late fall of 2003. [9]
III. Submissions of the Parties (paras. 6-16)
The parties' submissions to the Court fall into two categories. The first category corresponds to arguments by the Defence and counterarguments by the Prosecution that the Court, by issuing an indictment and a warrant of arrest for President Taylor, had violated various rules governing jurisdiction, immunity, and sovereign equality under international law. The second category hinges on the national law of Sierra Leone and on the legality, or illegality, of the actions taken by the Prosecutor and the Court in respect of the case against Taylor, with particular reference to the consistency of those actions with various provisions of the Sierra Leone Constitution of 1991. This Insight discusses only the international law aspects of the case.
A. Defence Submissions on the Preliminary Motion
The key submission of the Defence was that Mr. Taylor was entitled to absolute personal immunity from criminal prosecution as Liberia's incumbent Head of State at the time of his indictment. The Defence claimed that the immunity which attaches to Taylor shields him from prosecution whether he is on official business in a foreign State (Ghana) or in office in Liberia. Further, the Defence argued that immunity is not nullified by any exceptions arising under other international law rules, such as resolutions enacted by the Security Council pursuant to its Chapter VII powers permitting international criminal tribunals to indict incumbent Heads of State for egregious international crimes. In any event, because the Court was a Sierra Leonean tribunal that lacked Chapter VII powers, in contrast to the International Criminal Tribunals for Yugoslavia and Rwanda ("ICTY" and "ICTR" respectively), it had no authority to assert jurisdiction over President Taylor since its judicial orders had the same (limited) force as those of a national court.
In addition, according to the Defence, by purporting to indict the President of Liberia, and by issuing and communicating a warrant for his arrest to Ghanaian authorities at a time when he was performing peace-making functions as Head of State, the Court had violated the sovereignty of Liberia and Ghana as well as the international law rule exempting incumbent Heads of State from criminal prosecution in foreign jurisdictions. Furthermore, it was argued, the Court's approval of both the indictment and the arrest warrant failed to account for the ruling of the International Court of Justice ("ICJ") in Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium) ("Yerodia"). [10]
B. Prosecution's Response
The Prosecution's response focused primarily on procedural matters, and in respect of the bulk of substantive issues, wholly on international law. In sum, the Prosecution pleaded that under the Court's Rules, the motion by the Defence should be dismissed because 1) it improperly raised an issue of immunity rather than one of jurisdiction; 2) it was "premature" because Mr. Taylor had not made the mandatory initial appearance before the Court; and 3) Mr. Taylor lacked standing to bring the motion since he was not before the Court. [11]
In response to the substantive issues raised by the Defence, the Prosecution submitted, inter alia, that 1) Yerodia concerned "the immunities of an incumbent Head of State from the jurisdiction of the Courts of another state" (which is not the case here); [12] 2) customary international law permits international criminal tribunals, of which the Court is an example, to indict serving Heads of State; 3) the lack of Chapter VII powers does not encumber the Court's jurisdiction over Heads of States because the International Criminal Court, which does not posses Chapter VII powers, similarly denies immunity to Heads of States in respect of international crimes; 4) Taylor's indictment is for crimes committed within Sierra Leone rather than elsewhere; and finally, 5) the mere transmission of the relevant documents to Ghanaian authorities could not violate that country's sovereignty.
IV. The Legal Basis of the Special Court for Sierra Leone (paras. 34-36)
After disposing of the procedural issues, the Appeals Chamber turned to the merits. It explained that the Court is a unique treaty-based criminal tribunal authorized by UN Security Council Resolution 1315 (2000). The various reports, correspondence, briefings and other documents between the Secretary-General and the President of the Security Council, taken together, "demonstrate the high level of involvement of the Security Council in the establishment of the Court including, but not limited to, approving the Statute of the Special Court and initiating and facilitating arrangements" for its funding. [13]
V. Is the Special Court an International Criminal Tribunal? (paras. 37-42)
In addressing the above question, the Appeals Chamber noted that the Court's novelty lay in the fact that it was established jointly by agreement between the UN and the government of Sierra Leone. This is in contrast to the ICTY and ICTR, which were established as subsidiary organs of the UN by the Security Council acting pursuant to its Chapter VII powers. According to the Appeals Chamber, the immediate source of authority for the Security Council to participate in creating the Court emanates from Resolution 1315, but more fundamentally, is "derived from the Charter of the United Nations both in regard to the general purposes of the United Nations as expressed in Article 1 of the Charter and the specific powers of the Security Council in Articles 39 and 41." [14] The Security Council's powers under Article 39 were sufficiently broad for it to establish the Court in agreement with Sierra Leone, since it had reiterated in Resolution 1315 that the situation in Sierra Leone "continued to constitute an ongoing threat to international peace and security in the region." [15]
Second, the Appeals Chamber asserted that while much has been read into the lack of a Chapter VII mandate for the Court, such an omission by the Security Council is not determinative of the legal status of the Court. For on a disjunctive reading of the first sentence of Article 41 [16] of the UN Charter, it is manifest that the Security Council is empowered to 1) decide what measures not involving the use of armed force should be taken to implement its decisions and 2) whether or not to call upon UN Members to apply such measures in order to maintain or restore international peace and security. Thus, the Court concluded,
Where the Security Council decides to establish a court as a measure to maintain or restore international peace and security it may or may not, at the same time, contemporaneously, call upon the members of the United Nations to lend their cooperation to such court as a matter of obligation. Its decision to do so in furtherance of Article 41 or Article 48, should subsequent events make that course prudent may be made subsequently to the establishment of the court. [17]
In addition, in executing its duties under Article 39, the Security Council acts on behalf of all UN Members as per Article 24(1) of the UN Charter, and to that extent, the agreement that it entered into with Sierra Leone to create the Court is an Agreement that is "an expression of the will of the international community" as a whole. [18] The Court is therefore "truly international." [19]
In the result, the Appeals Chamber held that the Court is an international criminal tribunal with an international mandate exercising jurisdiction over international crimes. In so holding, the Appeals Chamber observed that the "constitutive instruments of the court contain indicia too numerous to enumerate to justify that conclusion. To enumerate those indicia will involve virtually quoting the entire provisions of those instruments. It suffices that having adverted to those provisions, the conclusion we have arrived at is inescapable." [20]
VI. The Special Court and Jurisdictional Immunity (paras. 43-59)
The Appeals Chamber explained that pursuant to Article 6(2) of the Court's Statute, the position of any accused as Head of State does not relieve that person of criminal responsibility nor does it mitigate punishment. It noted the similarity of that provision to ICTY Article 7(2), ICTR Article 6(2) and ICC Article 27(2), all of which are traceable to Article 7 of the Charter of the International Military Tribunal for Nuremberg which had become a part of customary international law. Moreover, Article 6(2) of the Court's Statute is consonant with other (including peremptory) norms of international law.
Related to this point, the Court reasoned that the nature of the offences and the character of the tribunal asserting jurisdiction assist in determining the circumstances in which exceptions to immunity would be extended or denied. Thus, in the Yerodia case, the ICJ could not discern a rule denying incumbent foreign ministers immunity from criminal jurisdiction before national courts. On the other hand, the ICJ concluded that under customary international law, incumbent or former foreign ministers may be subject to proceedings before certain international criminal courts, assuming those courts have jurisdiction.
Noting the apparent differences in the treatment of immunities in national and international courts, the Appeals Chamber postulated that this may be because of "the principle that one sovereign state does not adjudicate on the conduct of another state; the principle of state immunity derives from the equality of sovereign states and therefore has no relevance to international criminal tribunals which are not organs of a state but derive their mandate from the international community." [21]
The Appeals Chamber concluded that "the principle seems now established that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court." [22] Thus, according to the Appeals Chamber, the official position of Taylor as serving Head of State of Liberia at the time of his indictment is not a bar to his prosecution. Taylor was and still is subject to criminal proceedings before the Court. In view of this conclusion, the Court declined to discuss the cases in which immunity was claimed before national courts. [23]
As to whether the issuance and transmission of the arrest warrant for President Taylor infringed the sovereignty of Ghana, the Court ruled that to the extent such a claim could be said to exist, vindication of it rests with Ghana rather than with Mr. Taylor. That said, the Court nevertheless observed that with two exceptions, [24] warrants of arrest are not self- executing; consequently, their implementation would require the cooperation of the receiving state. Therefore, "merely requesting assistance, far from being an infringement of sovereignty of the receiving state is in fact a recognition of sovereignty." [25]
Finally, the Court noted that Taylor had ceased to be Head of State at the time of its decision. Thus, whatever personal immunity he would have been entitled to is already spent. Accordingly, even if his motion had succeeded, the Prosecutor could have validly re-issued a new warrant. The motion was therefore dismissed.
VII. Conclusion
Prosecutor v Charles Ghankay Taylor is an addition to the small but growing body of jurisprudence from national and international tribunals delineating the contours of the immunity accruing to Heads of State and other senior governmental officials. While the trend in the jurisprudence suggests that the scope of immunity is highly contested and will therefore continue to evolve, [26] this decision is significant because it is the first application of the ICJ's decision in Yerodia to a former Head of State.
Though Taylor is not in the custody of the Court, the decision reaffirms the idea that the long arm of international criminal law would extend to reach the most powerful state official, so long as that person commits crimes that shock the conscience of the international community.
Regarding the Court's status as an international criminal tribunal, the Court focused on the UN's involvement with the creation of the tribunal, and in particular, the Security Council's authority to enter into an agreement with Sierra Leone to establish the Court. According to the Appeal's Chamber, that authority could emanate from 1) the general purposes of the UN as expressed in Article 1 of the Charter as well as 2) the specific powers under Article 39 and 41 to undertake appropriate measures to maintain or restore international peace and security. The Court examined the latter aspect of the Security Council's authority focusing on Resolution 1315. That resolution authorized the UN Secretary-General to negotiate the creation of the Court, while reaffirming that the situation in Sierra Leone continued to constitute a threat to international peace and security.
The Court did not elaborate on how the general powers of the Security Council applied to its establishment. Unlike the resolutions [27] [28] but a question remains whether mere reiteration in the preamble to Resolution 1315 that the situation in Sierra Leone continued to constitute a threat to the peace carries the same weight as the unequivocal language contained in the resolutions establishing the ICTY and ICTR. If the Security Council does not clearly state the nature and the scope of the authority under which it is acting, [29] [30] This is particularly so given the active role that the Security Council has assumed since the end of the Cold War to formulate and enforce decisions with serious ramifications for States and individuals as well as for the coherent development of international criminal law. Clearly, fundamental interests of States are at stake in situations wherein the Security Council purports to abrogate, through the creation of a tribunal, the immunity of a serving Head of State. creating the ICTY and the ICTR which specifically invoked Article Chapter VII of the UN Charter, the Security Council did not expressly state that it was acting under Chapter VII when it authorized the Secretary-General to conclude a treaty to create the Special Court for Sierra Leone. The Appeals Chamber noted that the lack of a Chapter VII mandate "does not by itself define the legal status of the Special Court," states may question, or perhaps even challenge, its authority to create criminal tribunals that were not contemplated by the framers of the UN Charter.
There is the additional question of the nature and status of the Court. The Court concluded that it is an international court and that there are numerous indicia to support that conclusion. However, an examination of the Court's constitutive instruments reveals that the Court also has the trappings of a national court. As the Court is distinct in its national and international character, the Secretary-General of the UN described it as a unique Court "of mixed jurisdiction and composition." [31] By focusing purely on the factors that make the Court international, [32] the Appeals Chamber may have missed an important opportunity to contribute to the jurisprudence defining the unique place of hybrid criminal tribunals in the machinery of international criminal justice.
About the Author
C. Jalloh, B.A. (Guelph), LL.B. (McGill), B.C.L. (McGill), is Legal Counsel at the Trade Law Bureau, Department of Justice Canada. His experience at Justice includes work for the Crimes Against Humanity and War Crimes Section. The opinions expressed in this Insight are his own and do not represent any policies or opinions of the Government of Canada. Mr. Jalloh wishes to thank Julia Osei-Tutu, René Robert and Alhaji Marong for helpful comments on an earlier draft. All remaining errors are his own. His email address is jallohc@yahoo.com.
Endnotes
[1] Prosecutor v Charles Ghankay Taylor, Case Number SCSL-2003-01-I, Decision on Immunity from Jurisdiction, 31 May 2004. The motion was heard in the Appeals Chamber by Justices Emmanuel Ayoola, George Gelaga King, and Renate Winter. The Decision is available at <http://www.sc-sl.org/SCSL-03-01-I-059.pdf>
[2] For an excellent summary of the law of immunities in the context of international criminal proceedings, see Dapo Akande, International Law Immunities and the International Criminal Court (2004) 98 A.J.I.L. 407.
[3] Prosecutor v Charles Ghankay Taylor, Case No. SCSL-03-01, Indictment, 3 March 2003. Available at <http://www.sc-sl.org/SCSC-03-01-I-001.html>
[4] The arrest warrant for Charles Taylor has been the object of another ASIL Insight. SeeThe Arrest Warrant Against The Liberian President, Charles Taylor by Cesare P.R. Romano and André Nollkaemper (June 2003) <http://www.asil.org/insights/insigh110.htm> An earlier Insight examined the legal basis of the Special Court for Sierra Leone, see The Special Court for Sierra Leone by Michael P. Scharf <http://www.asil.org/insights/insigh53.htm>
[5] All paragraph references are to the Decision on Immunity from Jurisdiction.
[6] SeeThe Arrest Warrant Against The Liberian President, Charles Taylor, supra note 4.
[7] Mr. Taylor agreed to resign after meeting with a delegation from the Economic Community of West African States in Monrovia, Liberia on August 2, 2003. See CNN, Taylor sets date to step downhttp://edition.cnn.com/2003/WORLD/africa/08/02/liberia.ecowas/>. <
[8] For a seminal study of the link between "blood" diamonds and the Sierra Leonean conflict, see Ian Similie, Ralph Hazelton, and Lans Gberie, The Heart of the Matter: Sierra Leone, Diamonds, and Human Security (Ottawa: Partnership Africa Canada, 2000) Available online at
[9] By the time of this decision, Liberia was no longer a party to the proceedings before the Court.
[10] ICJ Reports, 14 February 2002. For a summary of Yerodia, see ASIL Insight World Court Orders Belgium to Cancel an Arrest Warrant Issued Against the Congolese Foreign Minister by Pieter H.F. Bekker (February 2002) <http://www.asil.org/insights/insigh82.htm>
[11] Para. 20.
[12] Para. 9(d).
[13] Para.36.
[14] Para. 37.
[15] Ibid.
[16] Article 41 states that "The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations."
[17] Para. 38.
[18] Ibid.
[19] Ibid.
[20] Para. 42.
[21] Para. 51.
[22] Para. 52.
[23] Interestingly, even as the Appeals Chamber decided not to discuss cases in which immunity was invoked before national courts, it relied on a statement by Lord Slynn of Hadley in the famous case of R v. Bartle and the Commissioner of Police for the Metropolis and others, Ex Parte Pinochet, House of Lords, 25 November 1998 to buttress its conclusions at para. 52.
[24] The Court states that there are two situations where a state may have an obligation to enforce a warrant 1) where it is required to do so under Chapter VII of the UN Charter or 2) where it has entered into a treaty with the requesting state.
[25] Para. 57.
[26] Indeed, even the ICJ will have an opportunity to revisit the immunity issue in the near future. For on December 9, 2002, the Republic of Congo initiated proceedings against France challenging the issuance by a French Court of a warrant for the arrest of Pierre Oba, the Congolese Minister of the Interior, on allegations of war crimes and torture, as well as for issuing a subpoena for Congolese President Denis Sassou Nguesso. It will be interesting to see whether the ICJ will reconsider the aspects of its conclusions in Yerodia that have been criticized by the human rights community.
[27] UN Security Council Resolutions 808, 827 (1993) and 955 (1994).
[28] Para. 38.
[29] While there is general consensus among international lawyers that the most robust of the Security Council's powers are grounded in Chapter VII, the ICJ has held that the binding force of Council resolutions is not limited to measures taken pursuant to Chapter VII, see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 16 (Advisory Opinion of June 21). For the implications of that decision in relation to Article 25 of the UN Charter, see Rosalyn Higgins, The Advisory Opinion on Namibia: Which UN Resolutions Are Binding Under Article 25 of the Charter? (1972) 21 INT'L & COMP. L.Q. 270.
[30] Indeed, by clarifying whether it is acting under its general powers to create criminal tribunals such as the one for Sierra Leone, the Security Council may at a later point in time more effectively invoke Chapter VII to oblige all UN Members to cooperate with those tribunals. In this case, using its extraordinary Chapter VII powers, the Security Council could require Nigeria to hand over Mr. Taylor to the Court because he is an alleged war criminal.
[31] Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, 4 October 2000, UN Doc. S/2000/915, 4 October 2000, para. 3; available online at <http://www.un.org/Docs/sc/reports/2000/sgrep00.htm>
[32] Another crucial consideration that appears to be a function of the Court's nature and legal status is the source of its funding. The ICTY and ICTR, as subsidiary organs of the UN, receive allocations from the UN Budget. On the other hand, the Security Council chose to rely on voluntary contributions by States to fund the Court despite a warning by the Secretary-General that "A special court based on voluntary contributions would be neither viable nor sustainable", ibid, at para. 70. Today, funding is the biggest challenge facing the Court.