Elizabeth Wilmhurst
Distinguished Fellow, International Law

The unanimous finding by the Special Court for Sierra Leone that Liberia’s former President Charles Taylor is guilty of aiding and abetting and planning war crimes and crimes against humanity during the civil war in Sierra Leone, constitutes the first conviction of a former head of state before an international tribunal since the conviction of Karl Doenitz (the 23-day day President following Hitler’s suicide) at the Nuremberg Tribunal in 1946. This is a significant achievement for international criminal justice. 

The brutal conflict in Sierra Leone in the 1990s was notorious for the commission of acts of international criminality on a massive scale. The Court found that during the conflict the Revolutionary United Front, the Armed Forces Revolutionary Council and other armed groups terrorized civilians by the amputation of limbs and other atrocities, by committing murder, rape, sexual slavery and other forms of sexual violence, using child soldiers as well as committing other war crimes and crimes against humanity. The major issue before the Court was whether Taylor was himself criminally responsible for these crimes. 

The defence argued that although the crimes undoubtedly took place, Taylor was not implicated; in fact, it was argued, he facilitated peace negotiations. The Court found, however, that Taylor was criminally responsible both by aiding and abetting the crimes - through the provision of material support and assistance to the armed groups responsible for directly committing the acts - and for planning the commission of the crimes during the attacks on Kono and Makeni in December 1998, and in the invasion of and retreat from Freetown between December 1998 and February 1999.

The fact that the prosecution was able to establish a nexus between Taylor and the conduct of the armed groups will be valuable for future prosecutions before different courts that seek to determine the responsibility of high-level officials and Ministers (for example, if the Darfur indictees ever get before the International Criminal Court).

But in a rejection of a major part of the prosecution case, the Court found that Taylor did not have a position of ‘superior responsibility’ over the armed groups, or over Liberian fighters sent to Sierra Leone, and so he was not responsible for their criminal acts by reason of a superior/subordinate relationship.

The prosecution failed to establish beyond reasonable doubt that Taylor exercised ‘effective command and control’ over the armed groups, which the Court identified as the ‘material ability to prevent or punish the commission of the offence’. It was always accepted that despite the reports of links between Taylor and the armed groups, it would be challenging for the prosecution to prove in a court of law. 

The Court was also unable to find that Taylor was part of ‘a joint criminal enterprise’ (a controversial concept in both international and domestic criminal law). These findings will be a disappointment to many and may well be challenged on appeal by the prosecution.

Another point raised by the defence was that the prosecution was illegitimate since it was politically motivated and the result of biased selectivity. The Court’s rejection of this point is an important feature of its judgment. The question of selectivity in the enforcement of international criminal law has been, and will continue to be, a fundamental challenge to the system. 

This will be the last case to be heard by the Special Court for Sierra Leone. The Court was established by agreement between the UN and the government of Sierra Leone, and a ‘Residual Court’ to deal with final matters has been agreed upon. However, today’s judgment will not be the Court’s last; it is likely that one or both of the parties will appeal the trial judgment, and the Trial Chamber is yet to deliver its sentence (the hearing for which has been scheduled for 16 May with the decision planned for 30 May). The UK has offered its prison facilities for the serving of the sentence.

It was once doubted whether the prosecution was wise to bring charges against Charles Taylor at all: his links with the atrocities in Sierra Leone’s civil war would be too difficult to prove. Has the judgment vindicated the decision to launch the case? A positive answer can be found in the verdict of guilty against him, even though he has not been found criminally responsible to the full extent of the charges made against him.

Hemi Mistry co-wrote this Expert Comment.

Also read:

The Importance of the Charles Taylor Verdict for Africa
Expert Comment, Alex Vines, 26 April 2012