BY ADAM ROBERT GREEN
The defence barrister to Charles Taylor says that the former Liberian leader's trial for war crimes was deeply flawed
On Wednesday 30 May, former Liberian president Charles Taylor will be sentenced to 80 years for 11 counts of murder, rape, conscription of child soldiers, and sexual slavery that took place during Sierra Leone's civil war between 1996 and 2002.
At a cost of $50 million, the Charles Taylor trial is a landmark case in the fight against impunity for grave crimes. Taylor, aged 64, is the first African leader to be found guilty of war crimes by an international tribunal and his sentence comes weeks before the tenth anniversary of the International Criminal Court (ICC), the first institution of its kind.
Yet the procedural and evidentiary basis of the case was deeply flawed, argues Taylor's defence barrister, Courtenay Griffiths QC. In an interview with This is Africa, Mr Griffiths expresses his dismay. "I am a newcomer to international criminal law," says the Jamaican-born barrister. "Until the Charles Taylor case I had never practiced in that field, I'd never studied it, and I was asked to take on the Charles Taylor case based solely on my background as a criminal defence advocate.
"One of the things that I discovered much to my alarm soon after dipping a toe into this area is that - and I will say it bluntly - international criminal law is not about law at all. It's all about the politics of power. If you examine all the cases before the ICC and indeed the particular case that I was involved in with Charles Taylor, you see - behind the scenes - a hidden hand or hands manipulating the legal process for their own benefit".
Mr Griffiths' worries are shared by others. The Special Court's reserve judge Justice El Hadji Malick Sow from Senegal even interrupted the hearing to voice opposition, but his microphone was cut off as he spoke. Sow warned that the international justice system was "in grave danger of losing all credibility".
Mr Griffiths believes geostrategic interests have soiled both ad hoc war crimes tribunals such as the Special Court for Sierra Leone and the now de facto permanent institution for prosecuting such crimes, the International Criminal Court .
"What people do not highlight are the economic and strategic reasons as to why some people are investigated and arrest warrants are issued and not others. Take Darfur, for example. What's never mentioned is that, surprisingly, Darfur just happens to sit on a sea of oil and many Western oil companies would like to exploit that resource, and [there is] concern about Omar al-Bashir's relationship with China. Likewise you look at the Democratic Republic of Congo, perhaps the most minerally rich country on the planet, the sole producer of some of the rarest minerals required by Western industries, and it just so happens that by the indictment of various factional leaders within that country you keep in power a very corrupt government who is then willing to allow you to exploit the valuable resources in that country."
In the context of the Special Court for Sierra Leone, Mr Griffiths believes a Western oil corporation indicated it was able to influence the authorities' pursuit of Liberia's former president. "Charles Taylor told me he was playing tennis at his home in Liberia towards the end of his tenure and he had been negotiating a deal with an oil company for Liberia's offshore oil concessions. [They] weren't offering Liberia what he felt was a fair deal, and Taylor wanted to sell those oil concessions to the Chinese. Taylor tells me he received a telephone call from a very senior executive, who told him bluntly, 'Mr President, if you can't do a deal then I'm sorry, I can't protect you any more'. That's the argument which I've not heard anybody express today. Nobody is expressing how it is that in all these instances you see Western economic and strategic interests at work."
Mr Griffiths does not argue that Charles Taylor should not have been tried. His concerns relate to the manner in which the trial unfolded. "In principle, I would have no difficulty with Charles Taylor being tried for crimes in Liberia. There's no doubt that unlawful killings took place, the pillaging of people's homes and properties took place. Rape was committed. Child soldiers were used. And I think then, he would have direct responsibility. He was the president of the country. He was the leader of the largest warring faction during the civil war."
But, he claims, the West "could not afford to try Taylor in Liberia". US interests were keen to protect current incumbent President Ellen Johnson Sirleaf from being drawn into a Liberia-focused trial for political and commercial reasons, he believes. When pressed for details on how this interference played out, Mr Griffiths seconds Charles Taylor's claims made in the pre-trial hearing about the 'buying' of evidence and coercion.
Money, argued Taylor in his presentation to the court, played a "corrupting, influential, significant and dominant role in this trial. Money in this case cumulatively prejudiced my rights and interests in an irreparable way."
Mr Griffiths elaborates on Taylor's argument. "The prosecution was given a secret fund of millions of dollars by the US government and despite repeated attempts by us, they have never been prepared to disclose who gave it to them, how much it was, or what they used it for. But we know what it was used for. The court [already] has a victim and witness service which is funded to provide travel expenses for witnesses to come to Freetown or wherever. This fund is over and above that. "Taylor made the point that much of the evidence against him was bought. People were paid to give evidence against him. Who was paying that money? The US [was]. They also provided 80 percent of the funding of the court."
In the trial proceedings, the prosecution denied receipt of such funds and the judges did not evidently see fit to discharge evidence on the basis of the bribery allegations, as the case proceeded to its conclusion.
The level of interference seems somewhat far-fetched given Liberia's fairly modest resource base, especially in past years where the oil and gas reserves of the West African coast were not a major draw, I say.
"I'm not sure I agree with you," Mr Griffiths responds. "From the US point of view, given their concerns about Iran, if I was an American president, what would I rather control? The Gulf of Guinea, right across the Atlantic from my oil refineries in Virginia, no atomic nuclear armed Iran to interfere with my supplies, or continued reliance on Middle Eastern oil which have to travel through the Straits of Hormuz? Which would make more economic and strategic sense?"
His claim about US interests wishing to protect Johnson Sirleaf is also debatable since Sirleaf took office in 2006, four years after the court was established and three years after Taylor has been indicted. Secondly, the Special Court for Sierra Leone was set up through an agreement between then-President of Sierra Leone Ahmad Tejan Kabbah and the United Nations, and not the US. Liberia's government, meanwhile, has never sought a special court, says Peter C. Andersen, chief of outreach and public affairs at the Special Court for Sierra Leone, explaining why no trial has been pursued for crimes committed there.
But Mr Griffiths believes the evidence tying Taylor to Sierra Leone was too tenuous for a conviction to be made. "My argument is that he didn't get a fair trial. My argument is he wasn't tried for the right crimes. My argument has never been that he should not be tried. Because it seems to me that during the civil war which began in Liberia and spread over the border into Sierra Leone, so many heinous crimes were committed, it needed to be examined in a court of law. And I think culpability needed to be assigned. I just don't like the way it's been gone about."
Firstly, the prosecution's narrative overstated Taylor's regional power. Prosecutors described Taylor as part of a "joint criminal enterprise" to take over West Africa, including the likes of Muammar Gaddafi, Blaise Compaoré of Burkina Faso, and Foday Sankoh [leader and founder of the RUF]. The judges rejected that narrative, with the eventual focus being on Taylor's culpability for atrocities committed in Sierra Leone.
Yet even here, Mr Griffiths describes as "extremely disturbing" the quality of evidence used to link Taylor to diamond trading and criminal acts neighbouring Sierra Leone. "The US and Britain deployed a lot of military hardware in and around that part of West Africa yet we didn't have one satellite picture of lorries going over the border carrying missiles. We didn't have one radio intercept even though the technology was available. I find that extremely surprising. In fact, apart from one witness who gave evidence of being in Taylor's presence when Taylor issued an order in relation to Sierra Leone, all the evidence relied on to link Taylor with Sierra Leone was hearsay".
While the prosecution claimed that Taylor was in command and control of the RUF and the FRC, with a guiding hand in their activities, Mr Griffiths argued in court that Taylor aiding rebels, but not leading them. He was, says the barrister, "sending for the most part small amounts of arms and ammunition across the border. He did send two large shipments, one of which was used for the Freetown invasion, but that was the extent of his involvement. He was involved in that raid knowing that atrocities were being committed."
Having acknowledged Taylor's involvement - albeit at a lesser scale than the prosecutor's claimed - Mr Griffiths says that if funding rebel groups in other countries is now established as an international crime, the US ought to be brought into the dock for actions funding 'contras' in Nicaragua, the Resistência Nacional Moçambicana (RENAMO) in Mozambique and the Mujahedeen against the Soviet Union in Afghanistan. "I would like to see Taylor's conviction on that basis now being used as a precedent to say to powerful countries like the US: 'You shouldn't be engaging in what is now stated to be an international crime'."
The ICC at 10
In July, the ICC celebrates its tenth birthday. The Hague-based body emerged to consolidate and institutionalise the scattered experiences of ad hoc war crimes tribunals in Yugoslavia and Rwanda. The ICC did not take on the Taylor case, since the events had already occurred before the ICC was formed. However, it is the institution in which future such crimes may well be prosecuted. Yet after ten years in existence, it has been criticised for everything from incompetence and tardiness to racism and neo-colonialism.
"The ICC's biggest flaw is that there is no system of accountability to the people over whom they exercise jurisdiction," says Mr Griffiths. "In a national court system, if you don't like the way the law is being imposed or operated, you can always demonstrate against it - as black people did in the United Kingdom against the SUS [suspected person] laws in the 1970s - and seek change through the political process. The people of Africa really don't have any control in that sense over the ICC. In the absence of that democratic accountability you have the kind of criticisms that people like myself have voiced, that it is being used as a tool for Western neo-colonialism. It leaves itself open to that because there is no democratic way in which people can influence the way in which it operates."
Mr Griffiths speaks positively about earlier ad hoc tribunal models. "They concentrate on one conflict. They tend to be based close to the seat of the conflict, so that those for whom the verdicts are most important are in a position to follow the proceedings and take ownership of the proceedings, whereas the ICC is a bit remote."
The dominance of African defendants in the ICC has also opened it up to criticism of racism, not helped by its distant locale in the Netherlands. "Don't you think it would have been better, given the number of indictees at the ICC from Africa, to try those people somewhere in Africa? What about South Africa? It has got the infrastructure. What about Nigeria? Parts of it have the infrastructure. Nairobi certainly has. There were many ways in which, with a bit of flexibility and imagination, the ICC could have avoided accusations of providing distant 'white man's justice'. And I just don't think enough thought and imagination was applied.
"I do not support the immunity of African leaders. If you go back as far as [Hendrik] Verwoerd in South Africa or [Jean-Bédel] Bokassa of the Central African Republic - I would like to see those people prosecuted. The problem I have got with the contemporary system is that it is unfair. It applies to some and not others. And as far as I am concerned, that is not justice. That is not law".