By Chris Stephen
August 30, 2010
Crimes of War Project
The arrival of Naomi Campbell to give evidence at the war crimes trial of former Liberian President Charles Taylor in The Hague this month sounded like something from a movie script. Prosecutors announced that their key witness to prove Taylor was in possession of Blood Diamonds looted from Sierra Leone was an international fashion model who, they alleged, had been given some of the diamonds when the two met at a party thrown by Nelson Mandela.
Diamonds are at the centre of this, the first war crimes trial of an African leader, because prosecutors assert that Taylor supported Sierra Leone's rebel Revolutionary United Front (RUF) in return for shipments of plundered gems.
Campbell was called to testify at the Special Court for Sierra Leone (SCSL) after it emerged that she met Taylor at the famous party, and the drama was stoked up when she refused to come voluntarily, and was issued a subpoena.
Once on the stand, however, Ms Campbell departed from the script. Yes, she told the court, she had met Taylor at Mandela's party in South Africa in 1997. And yes, she was given a gift of rough diamonds, which she called "dirty looking stones," contained in a pouch delivered to her in her bedroom after midnight by two strange men. But no, she told the court, she had no idea if they came from Taylor.
Two other guests at the party, Mia Farrow and Campbell's former agent Carole White testified that the diamonds were indeed from Taylor. However, their evidence was based on their recollection that Campbell had told them so the following morning, with Farrow testifying that Campbell said Taylor sent men to her room to deliver a "huge diamond".
Stripped of the media-induced celebrity glitz, it is unclear what the prosecution has gained from this testimony. They have not proved that Taylor gave Campbell any diamonds, and their case was not assisted by the fact that each witness recollected a different number of diamonds in the famous pouch. Nor does it help prosecutors prove their contention that Taylor had brought diamonds to South Africa to trade for arms.
The episode has come at a bad time for the court, which is facing cost and time overruns, and which is trying to convince donors to continue funding for a process that has taken three times longer than originally planned.
It was not supposed to be this way. Charles Taylor was one of the most feared and reviled African leaders in the 1990s, blamed by rights groups for fomenting violence and corruption at home and supporting a vicious civil war in Sierra Leone.
He took power in Liberia in 1989 after helping oust and execute the former leader, Samuel Doe, and prosecutors say two years later he provided the support and power base to launch the RUF in its rebellion in neighbouring Sierra Leone. Certainly he had close connections with the RUF leaders: he befriended RUF chief Foday Sankoh when the two men trained together in guerrilla warfare in Libya in the 1980s.
Human rights groups say Taylor supported the RUF in order to enrich himself with the diamonds they plundered, using this wealth to build a powerful criminal empire that stretched across West Africa.
The trade in these illicit gems, which came to be known as Blood Diamonds, was on such a level that to combat it the world set up the Kimberly Process to make every diamond on the planet traceable.
Certainly the crimes of which he is accused of helping to make possible in Sierra Leone were atrocious. The RUF, along with Sierra Leone's other armed groups, butchered men, woman and children in a campaign of terror that spread across most of the country.
The RUF took control of the diamond bearing areas in the north, and to mine the diamonds, forced thousands of people to become slaves to pan for the gems. Women were gang raped and, at the notorious Superman Camp at Kissi, were herded together to become sex slaves for RUF soldiers. One of the RUF's most notorious terror tactics was to slice off the hands or arms of its captives, which it did by the thousands.
Reporting from Sierra Leone, I met several victims of the RUF, now condemned by their handicaps to a life of poverty. One man, a former mechanic, told me he was caught one day on a country road by the RUF while walking with his son. Machetes were produced and he was given a simple choice; they could cut off one of his hands, and one of those of his young son, or he could volunteer to lose both his hands and spare his child. "What else could I do?" he told me, displaying the stumps of his forearms.
Taylor, who was elected the President of Liberia in 1997, was indicted for war crimes and crimes against humanity by the Special Court for Sierra Leone which was formed after international forces brought peace to the country in 2000.
When Taylor fled Liberia amid civil war in 2003 for exile in Nigeria, an unprecedented campaign by African civil rights groups was launched to bring him back. Coordinated through the internet, this campaign included petitions to dozens of governments and the African Union, and attempts by lawyers in Nigeria to take the government to court to force it to hand him over. When the United States belatedly joined the campaign in 2006, Nigeria duly complied, and Taylor arrived at the court jail by helicopter. The population of Freetown took to the streets and roofs to cheer his arrest.
For rights groups across Africa, his arrest was proof of the power of public pressure, and they looked forward to a trial that would be a golden opportunity to show warlords across the continent that the era of impunity was over.
But that was four years ago, and the legal process has yet to finish, testing the patience of the court's financial donors and raising questions about why it has all taken so long.
The prosecution knew from the start that they faced an unusually complex task in seeking to convict Taylor.
One reason for the time taken was the decision, initiated at the request of the US, that the trial be moved from Freetown to premises rented from the International Criminal Court in The Hague, amid concerns that Taylor's allies would foment trouble if it was held at home.
Then came the complicated task of tying Taylor to the crimes of the RUF.
First, there were no documents showing the former president giving orders to the rebels to commit war crimes. This is the case in many war crimes trials, and it need not matter. Under the doctrine of Command Responsibility, a commander is responsible for the criminal acts of individuals under his control. If those forces commit war crimes, the commander can be convicted if judges decide he knew, or should have known, about those crimes, and did nothing to prevent or punish the perpetrators.
Proving command responsibility for Taylor is complicated because he was the president of Liberia, with no official command function over RUF forces in neighbouring Sierra Leone.
So, instead, prosecutors need to prove he had de facto command over those forces. In other words, although he had no official command position, his role in supplying weapons, men and cash to the rebels, and being paid with plundered diamonds in return, meant that he shared responsibility for the horrors they inflicted as part of a joint criminal enterprise.
Without documentary evidence, proving this link beyond reasonable doubt has been a formidable task. Thirty of the 91 witnesses called by prosecutors have been insider witnesses who gave evidence about his links with the RUF.
They included former Liberian soldier Joseph "Zigzag" Marzah, who testified that he was one of Taylor's go-betweens, arranging for guns to be delivered to the rebels and for diamonds to be brought out in return. Marzah also told the court that he, Taylor and Sankoh were part of a religious cult which practised the eating of the body parts of some of their victims.
Prosecutors were aware of how long all this was likely to take, having regard to the example of the only other UN-backed trial against a former world leader, that of former Yugoslav president Slobodan Milosevic at the International Criminal Tribunal for Former Yugoslavia.
Milosevic was originally charged with crimes in Kosovo, but prosecutors later added two fresh indictments, for Bosnia and Croatia. The result was a whale of a trial that ended in disarray in its fourth year when the defendant died of heart failure in his cell weeks before it was due to finish.
With this in mind, Taylor's prosecutors cut the charge sheet from 17 counts to 11. It remains a formidable indictment, including accusations of murder, terror, sexual violence, the use of child soldiers, abductions, forced labour and plunder.
Some will argue that in the interests of saving time and expense, the indictment could have been cut further: certainly removing the plunder and use of child soldiers counts would have cut back the time taken to run the case and still leave enough to jail Taylor, 62, for the rest of his life. But prosecutors are likely to argue that the time savings would not have been that great. All 30 insider witnesses would probably have been needed, whether Taylor was indicted for 11 counts or just one. A final verdict on whether cutting further counts would have been possible or would have saved much time and money will likely be possible only when the case is over and can be analysed in its entirety. What is certain however is that the length of time everything has taken has put the court under severe strain.
After the transfer of Taylor and much of the court apparatus to The Hague, the trial opened in the summer of 2007, and was promptly adjourned after he boycotted proceedings and fired his defence team.
The new defence team were given time to get up to speed and the case opened again in January 2008, with the prosecutors taking until February of the following year to get through their 91 witnesses.
Taylor's defence began their side of the case in July 2009. Prosecutors have repeatedly accused Taylor of deploying delaying tactics in the trial, including his demand for more than 200 defence witnesses.
The defence, which has denied these allegations, has focused not on disputing the crimes themselves, but on disputing whether the defendant had command responsibility for these crimes. Taylor has countered prosecution insider witnesses with insider witnesses of his own from among the ranks of the RUF to testify that he was not involved in their operations. Taylor's lawyers also assert that the prosecution has no proof that Taylor's secret bank accounts, showing hefty deposits, were the result of the sale of Blood Diamonds.
And the defence has suggested that some of the prosecution insider witnesses, complicit in crimes themselves, may be altering their evidence to shift the blame for those crimes onto Taylor.
Taylor himself has denied receiving uncut diamonds from the RUF, one reason why prosecutors wanted Campbell brought to the stand.
All of this has taken time and money, two commodities that are in desperately short supply owing to the unusual circumstances the court is forced to operate under.
Originally there were no plans to have a war crimes court for Sierra Leone. The 1999 Lomé Peace Accords, which were supposed to end the war, envisaged instead that Sierra Leone's armies would submit to a South Africa-style Truth and Reconciliation Commission. The commission would operate under a simple rule: there would be an amnesty for all the crimes that the participants admitted to, provided these crimes were made public and that the former warriors promised not to go back to war.
But soon after the Lomé Accords were signed, fighting flared up again, and international forces captured Sankoh. Sankoh had now broken the terms of the accords, but Sierra Leone complained to the UN that it lacked the legal infrastructure and resources to hold war crimes trials.
The UN Security Council decided to support the process, but added a proviso: alarmed by the spiralling costs of the two UN ad hoc tribunals for Former Yugoslavia and Rwanda, the Council decided that the court would be jointly controlled by the government and the UN, and would receive funding from donor nations, but not from UN coffers.
This was hardly an ideal situation in which to hold war crimes trials, given that the court would have to meet fixed costs by appeals to quixotic donors. As a study by the UK think tank Chatham House in 2007 remarked: "The system of voluntary contributions results in a very unstable financial basis for the court".
Nevertheless, this was the reality, and to encourage nervous donors, the architects of the court told them that the tribunal would take three years to finish its work. To do this, it would concentrate only on those who bore the "greatest responsibility" for war crimes. All the rest could go through the Truth and Reconciliation process. As such it was an evolution in war crimes justice, described at the time by Human Rights Watch as "leaner and meaner" than the existing UN tribunals.
A total of 13 men were indicted from the different warring factions, including Taylor, and the court ran its trials at a fraction of the cost of the other UN tribunals. It was found also that the combination of trials for the leaders and truth and reconciliation for everyone else produced a bonus for prosecutors as the subordinates of many of those on trial, having been forgiven their own crimes, were happy to give insider evidence against their former bosses.
The court proved innovative in other ways too. It set up a proper office to support defence lawyers, giving them a more level playing field to match the resources of prosecutors. And it ran a comprehensive outreach program to explain its workings to the population.
But where the court failed was in its timeline. Three years proved to be far too ambitious a timetable and by 2006 none of the trials were finished. Eight accused were on trial, three were dead, one was on the run, and Taylor had only just been arrested.
The court, which had already had to borrow from UN funds when donor cash dried up, was forced to go back to those donors, promising a second completion strategy that envisaged the court finishing work in 2009.
But this deadline was also missed. By 2009 the Freetown cases were over, and all eight defendants were jailed for between 15 and 50 years, but the Taylor trial was still going. And costs were mounting, as witnesses and lawyers were shuttled between Sierra Leone and The Hague and the bills for Taylor's defence team reached $100,000 a month.
Yet again, the court asked for more time, promising a third completion strategy, this time by the end of 2011. This will depend on a verdict for Taylor coming in November this year, and for any appeals to be finished in twelve months.
Supporters of war crimes justice insist these delays are inevitable Taylor's case is practically two trials in one: the first is to prove that the crimes took place and the second is to link Taylor to those crimes. Yet the fact that a court set up to last three years has taken nine, and at probably double the original $114 million price tag, has stretched the patience of donors. In April the court asked for an additional $24 million. So far it remains $18 million short.
All of this has raised questions about the wisdom of bringing Campbell to the stand. The prosecutors had to first get permission from the judges to open their side of the case, then subpoena her to force her to turn up, using up yet more precious time and resources.
Yet the tribulations of the trial will be forgotten if Taylor is convicted. He would be the first world leader ever convicted by a UN-backed war crimes court.
Such a verdict would be likely to strengthen international criminal justice where it needs it most- at the level of political support accorded to it by world powers.
Superficially, war crimes courts seem to enjoy widespread support. The International Criminal Court, the world's first permanent war crimes court, has 110 member states, more than half the nations of the world. But in its seven years of operation, with a staff of 580 and an annual budget well in excess of $100 million, it has yet to convict a single war criminal. One of many reasons for this is the problem in actually persuading world powers to deliver accused persons to court.
The ICC has indicted Sudan's president Omar al-Bashir for genocide, but there is little international pressure to bring him to trial. The world still buys Sudan's oil and the African Union has told its members they need not arrest al-Bashir if he sets foot on their soil.
Nor is there any rush to track down and arrest four members of Uganda's rebel Lord's Resistance Army, charged by the ICC with crimes including the mass abduction, rape and the murder of schoolgirls. The LRA soldiers are thought to be hiding in the northern regions of the Democratic Republic of Congo, yet there is no international effort to find them and deliver them to justice.
Possibly, a conviction of Taylor would change all that, providing a "poster boy" conviction that would show that international criminal justice can be delivered at the highest level.
The reaction in Sierra Leone should not be underestimated either. When the Special Court began work, many were sceptical that the warlords, which had inflicted such misery on the population, would be brought to justice. Now there is a very different mood. The hardships in this, one of the poorest nations on the planet, continue. But travelling in the country it is easy to find those relieved that the Big Men are in jail, and a judicial mechanism exists to deter such crimes from happening again.
Touring Sierra Leone soon after Taylor's arrest I met a man who had been one of the RUF's diamond slaves. He took me to the river where, under a bridge, he had been forced to pan for diamonds, existing on starvation rations and watching those around him beaten and killed. On the bridge above, he remembered seeing RUF commanders arriving to inspect the diamonds. I asked him whether it had ever occurred to him that one day he might be free, and these key leaders would be on trial. No, he told me with a smile, he would never have believed it possible.
