By Christine Cheng
After a long and expensive trial, the Special Court for Sierra Leone finally pronounced that former Liberian president Charles Taylor is guilty of aiding and abetting war crimes.
While there has been little doubt that Taylor commanded militia that were responsible for some horrific acts of violence in Liberia, his home country, this judgment considered the extent to which he should be held responsible for ordering and condoning various war crimes (including murder, sexual violence, and enslavement) which were committed in neighbouring Sierra Leone. He has been acquitted of ordering these crimes and atrocities with the court finding that he did not hold direct command and control responsibility, but he has been found guilty of aiding and abetting these crimes.
Among Western governments and their publics, there is widespread agreement that prosecuting Taylor has been the right and proper thing to do. The West considers the Special Court for Sierra Leone as upholding human rights and bringing justice to bear on a brutal dictator. Yet even though these claims undoubtedly have merit, it would be naïve to think that international justice is being pursued purely for its own sake.
It seems particularly important to acknowledge that justice, especially international justice in the context of war crimes, can never be completely isolated from its broader social and political context - no matter how hard we try to separate the two. The prosecution of Charles Taylor is no exception.
Those who are cynical about prosecuting war crimes at the international level will first point out that the Special Court for Sierra Leone has been backed and financed by the West (primarily the US, UK, Netherlands, and Canada). For Westerners who are accustomed to impartial judicial systems, this is an irrelevant fact: Justice is justice no matter who is paying for it.
To the rest of the world, however, there is much greater variation in judicial norms, and the fact that the trial has been funded by Western powers is significant. It will also not escape unnoticed that this trial conveniently helped the US and UK achieve an important geopolitical goal: the removal of Charles Taylor from West African soil at a fragile moment in Liberia's post-conflict recovery in 2006.
Destabilising force
In 2003, when the indictment was first announced, Charles Taylor was a major destabilising force in West Africa. Aside from instigating civil war in Liberia and financing the war in neighbouring Sierra Leone, Taylor had also managed to draw Guinea and Ivory Coast into border wars. Removing him from Liberia was the first of many steps towards restoring peace in the country and establishing peaceful relations with neighbouring countries. For the West, it was clear that Taylor had to go and he should not be allowed to return.
Indeed, Taylor's lawyers have pointed to a 2009 US diplomatic cable from former US Ambassador to Liberia Linda Thomas-Greenfield which stated that if the Special Court were to acquit Charles Taylor, or even to hand him a light sentence, he would be in a position to jeopardise Liberia's stability.
Thomas-Greenfield states: "The best we can do for Liberia is to see to it that Taylor is put away for a long time." She goes on to argue that the US should not wait for the Special Court's verdict and that "all legal options should be studied to ensure that Taylor cannot return to destabilise Liberia". In all likelihood then, even if Taylor were acquitted, it seems likely that the US would have been be set to charge him with financial crimes.
Clearly, the US wants to see Taylor locked up for as long as possible. But the wording of the cable is equally clear that the Special Court's verdict remained uncertain at that time. While the outcome was far from pre-ordained, it does lead one to worry about how this strength of sentiment from the court's most important financial backer might indirectly affect the case.
Fundamentally though, the core concern is not with judges' independence. The intensity of public scrutiny and the reputational risks to those who compromise their integrity provide strong incentives for judges to guard their independence. No, the greater worry concerns the choice of cases that international prosecutors decide to pursue in the first place.
The role of the ICC
Turning to the International Criminal Court, a brief look at those who have been indicted reveals that to date, the vast majority have been from sub-Saharan Africa, and the remaining few are from Libya, also on the African continent. While armed conflict has been more prevalent in Africa than in other parts of the world over the past decade, African leaders certainly do not hold a monopoly on the commission of war crimes.
Courts build their legitimacy partly based on the cases that they choose to hear. By focusing predominantly on Africans, there is a real worry that the ICC will be perceived by non-Western countries as providing a cloak of legitimacy for the US and other Western nations to achieve their political aims - despite the fact that the ICC's chief prosecutor Luis Moreno Ocampo has explicitly stated that the ICC is not a court "just for the Third World".
What the international community needs to guard against is allowing the ICC to become a tool that Western liberal democracies can impose on developing country leaders who have fallen out of political favour. For the ICC to remain viable, it also cannot be perceived as the backdoor by which Western powers target their political enemies.
All of this takes us back to Charles Taylor. Make no mistake: few will be sorry to see him locked up. But Taylor's case does highlight concerns about the political expediency factor and the degree to which it can be exploited. For countries such as the US, China, and India who worry about the politicisation of the Office of the Prosecutor, and, by extension, the politicisation of the ICC, this case will only confirm that their misgivings were justified.
For the rest of us though, the conclusion of the Taylor's trial represents a major milestone in the pursuit of international justice.
