By Geraldine Coughlan
September 27, 2011
Brenda Hollis is the Prosecutor of the SCSL.
As lead prosecutor in the Taylor trial, what is your main task in prosecuting a former head of state?
“First of all, one of the fundamental challenges is - just how do you prepare an indictment? An indictment that is both efficient and reflective of the crimes that you allege the accused is involved in. This has to be done within a reasonable period of time. So that’s the first challenge – how do you actually fashion the indictment?”
How do you make sure you get the accused into custody?
The second challenge is – if you have an indictment that’s been approved – how do you actually get physical custody of an accused? Especially if you’re talking about a senior-level accused, it may be very difficult because political agendas - concerns about impacts on states or regions - and security issues may be very significant factors as to whether a state or region will support turning someone over. It may be almost impossible to get someone.
Or it may be that a number of years pass before a person is turned over to the court. So these kinds of political and security issues that are totally beyond the ability of the court to control may actually preclude you from bringing a person to court physically to be given a fair trial.
How do you go about selecting the evidence in these large and complex cases so that you can prove your case efficiently?
These crimes usually extend over long periods of time, over many locations, with such a variety of victims and survivors. You may also have issues with insider witnesses who perhaps are still affiliated with a former head of state, and so will not come forward to give the information that they have. Or maybe they’re concerned about their own personal liability and won’t come forward.
You may also have resistance from regional, state or international actors who have interacted with the accused or the perpetrator groups. For various political or other reasons they may not want to give you access to the evidence within their possession - and don’t want to give evidence themselves. So you have real issues in selecting your evidence and making a manageable case.
Protecting witnesses is another big challenge. Former heads of state and their high-level former commanders and associates may have very organised means of interfering with witnesses - by bribing, threatening or harming them. So you have to be worried about their protection before, during and after trial.
Lawyers call it Just Convict Everyone, but is JCE (Joint Criminal Enterprise) the best way to prosecute former leaders like Charles Taylor?
Of course, there are different forms of liability that you may allege. And the issue that arises very often where an accused is involved over a long period of time is that the accused – especially a high-level accused, may engage in various forms of liability at various times.
For example, they may give orders to the perpetrator groups that are criminal in nature, resulting in heinous crimes being committed.They may aid and abet from the very beginning till the very end. And they may be part of a Joint Criminal Enterprise (JCE).
The challenge here is not so much the breadth of the JCE: the breadth of it simply means you have more evidence that you have to present. But the challenge of the JCE is to understand the concept and to clearly apply the law, both for the prosecution and the defence and also for the trial chamber in reaching its judgement. But I believe the JCE is a very appropriate form of liability for these cases.”
