Global Policy Forum

By Katy Glassborow*

The former Liberian leader's defence team says the International Criminal Court hosting the trial is imposing its own detention rules when jurisdiction belongs to the Special Court for Sierra Leone.

Despite United Nations resolutions enshrining the exclusive jurisdiction of the Special Court for Sierra Leone over the trial of former Liberian president Charles Taylor in The Hague, defence lawyers say rules applied by the International Criminal Court are compromising the special court's autonomy. A turf war appears to be brewing over which of the two courts has the right to set rules governing Taylor's treatment. While other trials conducted by the United Nations-backed Special Court for Sierra Leone, SCSL, have taken place in Freetown, the court is trying Taylor at the premises of the International Criminal Court, ICC, in The Hague. The decision to locate the trial in The Hague was taken in the interests of keeping the peace in Sierra Leone and the wider region.

Avi Singh, a legal adviser on Taylor's defence team, told IWPR that as a result of the decision, the SCSL registry fluctuates between its own regulations and interpretations of the rules, and those of the host ICC. One hotly debated issue has been the ICC's placement of video surveillance cameras in the room set aside for confidential meetings between defence attorneys and their clients. In early March, Karim Khan, lead counsel for Taylor's defence, notified the Special Court that his team had suspended attorney-client consultations because all possible avenues for seeking the cameras' removal had been exhausted. The head of public information at the ICC, Sonia Robla, told IWPR that the presence of surveillance cameras is a rule of the court "based on security reasons". They are not there to monitor conversations, as defence lawyers fear, she said.

Although the SCSL registrar and president have backed defence initiatives to have the cameras removed from the consultation rooms, the ICC seemed loath to cede authority. Robla stressed that talks were taking place between The Hague and Freetown. On March 23, Singh told IWPR that the ICC had informed the SCSL that rules surrounding surveillance cameras would no longer apply to legal visits, in line with the treatment accorded to the ICC's only detainee, Thomas Lubanga from the Democratic Republic of Congo.

TAYLOR CASE SHIFTED IN THE INTERESTS OF STABILITY

The SCSL was established by the UN and Sierra Leone's government for atrocities committed in that country after 1996, based on the concept of a hybrid UN and national institution operating in Freetown. Taylor was initially indicted in 2003, while he was living in exile in Nigeria. The indictment was amended in March 2006, when he was taken into custody, to 11 counts of war crimes and crimes against humanity in Sierra Leone. In the same month, the then SCSL president asked the Netherlands government and the president of the ICC to allow the trial to take place in The Hague, citing concerns about stability in the region should Taylor be tried in Freetown. Singh told IWPR that "allegations that Mr Taylor poses a security risk to West Africa by his mere presence are unsubstantiated".

In June 2006, a UN Security Council resolution was passed giving a green light to the relocation. It said Taylor's presence in West Africa would be "an impediment to stability and a threat to the peace", and called on the Dutch government to facilitate the trial in the Netherlands. The then registrar of the SCSL, Lovemore Munlo, welcomed the resolution, and noted that although the trial would take place in ICC courtrooms, it would be conducted by the SCSL's judges and in accordance with its rules. "The resolution stresses that the Special Court will retain exclusive jurisdiction over Mr Taylor during his presence in the Netherlands," said Munlo. Taylor was transferred to The Hague later in June 2006.

CEDING JURISDICTION

In December last year, Taylor's attorneys requested that an April 2006 memorandum of understanding between the ICC and the SCSL be reviewed, and their client's conditions of detention modified to ensure that the Special Court retained exclusive jurisdiction. On March 19 this year, SCSL president Justice George Gelaga King dismissed the motion, saying that the memorandum of understanding, MoU, already states that "the Special Court shall retain full legal control and authority over the detainee and shall assume full legal responsibility for the custody of the detainee".

As Justice King pointed out, the MoU states that the SCSL will remain "fully responsible for all aspects arising out of the provision of the day-to-day detention services and facilities under this article, including the well-being of the detainee". But Singh is adamant that the MoU is flawed in that it "both cedes jurisdiction, without authority, and states that the Special Court retains jurisdiction". He said Justice King's decision "reaffirm[s] the court's unwillingness to grasp the nettle of responsibility, due to a turf war between the SCSL and the ICC". The defence team finds this doubly galling as it maintains that the ICC is not assisting in on logistical matters and is refusing to give it offices in its building. "It is clear on the one hand that we are outside the system, but on the other hand it [ICC] wants to apply its rules of detention," said Singh.

NO AVENUE FOR APPEAL

Taylor's defence team filed a request in February 2007 for the case to be tried in Freetown, stating that there had been a "significant change in circumstances", and that the security situation in Liberia and Sierra Leone no longer justified the original change in venue. On March 12, however, Justice King dismissed this request, saying that "the rules do not provide the applicant an avenue for reconsideration or review before the president". The fact that there is no avenue for appeal is the crux of the problem, in the view of Taylor's defence team. Singh argues that they have been "consistently refused the right to be heard on the issue".

Initial filings were rejected by the appeals chamber as premature, with judges holding that the then president's inquiry as to whether the ICC and Dutch government would be willing to host the trial in the Netherlands was part of his "diplomatic and administrative functions". The decision on transfer was conveyed to the defence simultaneously with the transfer of Taylor in June 2006, "so the defence were effectively denied an opportunity to contest transfer - it was a fait accompli", said Singh. When the defence tried to get the president to reconsider the issue of transfer, he rejected the motion on the grounds that there was no provision in the rules to allow him to reconsider an administrative decision. "He is saying he doesn't have jurisdiction to review his own decision, so who is finally responsible?" asked Singh.

SURVEILLANCE - THE EYE OF THE STORM

The UN Security Council resolution stressed that the Special Court would have exclusive jurisdiction over Taylor during his time in the Netherlands, but Singh argues that this does not seem to be extended to the conditions of his detention. Singh is unhappy that video surveillance cameras were installed in the room allocated as a meeting room for Taylor and his defence attorneys. This happened after cameras were put in the consultation room used by Lubanga. When Lubanga's defence counsel, Jean Flamme, objected in court, pre-trial judges agreed that the cameras should be removed and ordered the ICC's registrar to do so in late 2006. But Taylor's team does not have a trial chamber in The Hague.

Many defence lawyers feel that the right of privileged legal counsel is part of one's right to a fair defence, and that this cannot be afforded if there is a video camera - even one without a microphone attached - in the consultation room. Taylor 's team told the SCSL that "the mere presence of a live video camera has a chilling effect on confidential communications. and creates an atmosphere whereby an accused does not feel free to communicate with his counsel".

Speaking from Freetown, a spokesman for the SCSL registry, Peter Anderson, told IWPR that this was a matter of interpretation of the rules. "Our [rules] in Freetown say that during conferences between the accused and their lawyer, a member of the detention facility will be within visual contact but not within hearing distance," Anderson explained. He said the ICC had decided to put a camera in the room instead of an actual person, and that the SCSL registrar and president had agreed with the defence that the physical presence of a person differs from a camera.

The logistical and legal framework of the arrangement between the SCSL and the ICC arrangement has never been encountered before, "so we have to work it out as we go along", said Anderson, adding that the MoU "adopts the ICC's rules of detention as our rules in The Hague".

DEFENCE INSISTS SCSL SHOULD NOT CONCEDE ON RULES

Robla said that the MoU between the SCSL and the ICC clearly states that the latter institution is responsible for the detainees in The Hague, and therefore applies its own rule on having cameras present for security reasons. "These are our rules and if the camera is going to be removed we have to follow the appropriate channels" added Robla, stressing that the MoU includes provisions to "open up dialogue between the courts, and we are now in the process of consultations".

The defence feels that the ICC is imposing its authority and creating confusion over whose rules apply, but that ultimately Taylor is an SCSL accused and detainee, and therefore Freetown is responsible for the conditions of his detention. "Any concession of this [SCSL] authority should be avoided," said Singh. The SCSL president gave an order that the SCSL registry communicate its views on the surveillance cameras to the ICC, and that action should be taken. But even though the registry agreed that the video cameras should be removed, it apparently has no jurisdiction over ICC decisions.

Nor does the jurisprudence set by Lubanga's pre-trial judges seem to be binding or relevant for Taylor. The ICC's Robla explained that "in principle, our rules apply for all our detainees, but with Lubanga the chambers took a decision. It is a general rule that the ICC has, and we are open to changes." On March 23 Singh notified IWPR of an apparent U-turn on the matter, as the ICC told the SCSL that after internal consultation between judges and the presidency over surveillance cameras for Lubanga, a decision had been made that the rules would not apply to legal visits. This is consistent with the decision taken by Lubanga's pre-trial judges, and means that for the sake of maintaining a uniform regime at the detention centre, surveillance cameras will not used for Taylor's legal consultations either. Singh explained that it had also been made clear by the ICC that any changes to Lubanga's status in respect of the rules and regulations of the ICC could have an impact on Taylor, so consultation between the two courts would take place.

FURTHER DISPUTES POSSIBLE ONCE TRIAL STARTS

Even though the issue of the surveillance camera seems to have been resolved, it appears to have happened as a result of an internal debate, rather than consultations between the two courts. This therefore leaves open the question of what happens the next time there is an inconsistency between the rules of the SCSL and the ICC. The case exemplifies the unique problem of a Freetown-based, UN-backed hybrid court managing a trial in The Hague, and rings alarm bells for when Taylor's case reaches the trial stage. There could, for instance, be a battle over whether ICC or SCSL rules apply to the management of witnesses, the conduct of the courtroom, and the ability to access documents.

Taylor's trial is due to start in The Hague in June 2007.

About the Author: Katy Glassborow is an IWPR reporter in The Hague.