Immunity from Prosecution
for International Crimes: The Case of Charles Taylor at
the Special Court for Sierra Leone
By C. Jalloh
October 2004
On May 31, 2004, the Appeals Chamber of the Special Court
for Sierra Leone ("the Court"), a UN-backed hybrid criminal
tribunal sitting in Freetown, Sierra Leone, ruled unanimously [1] that Charles Taylor does not enjoy
any immunity from prosecution by the Court though he was
the serving Head of State of Liberia at the time criminal
proceedings were initiated. This historic ruling by the
Court is a significant contribution to the modern international
law norm asserting that Heads of State and other high-ranking
governmental officials are not absolved of criminal responsibility
for serious international crimes.
[2]
I. Background to the Indictment
of Charles Taylor
On March 7, 2003, David Crane, the Prosecutor of the Court,
issued an indictment
[3] against President Charles Ghankay Taylor of Liberia.
The indictment alleged that Mr. Taylor had committed serious
international crimes in Sierra Leone including crimes against
humanity, war crimes and other serious violations of international
humanitarian law. The seventeen-count indictment accused
President Taylor of responsibility for terrorizing the civilian
population of Sierra Leone, unlawful killings, sexual and
physical violence, use of child soldiers, abductions, forced
labor, looting, burning, and attacks on peacekeepers and
humanitarian assistance workers.
However, the indictment was sealed until a warrant [4] for President Taylor's arrest was issued on June 4, 2003
following his arrival in Accra, Ghana, to attend peace talks
that had been convened by other West African leaders. The
talks were aimed at ending bitter fighting between Taylor's
forces and various rebel factions that had led to the deaths
of many civilians on the outskirts of Monrovia, Liberia's
capital. Because of procedural mistakes by the Office of
the Prosecutor, including an apparent lack of prior consultation
and coordination with Ghanaian and other West African authorities,
Mr. Taylor returned to Monrovia unmolested.
II. Procedural and Factual
History of the Case (paras. 1-5 [5] )
On July 23, 2003, counsel for President Taylor and Liberia
filed a motion before the Trial Chambers of the Court seeking
an order 1) to quash the Indictment; 2) to nullify the warrant
of arrest; and 3) for provisional measures restraining service
of the indictment and arrest warrant on Mr. Taylor. [6] The ground for the motion was that Mr. Taylor
should enjoy absolute immunity from criminal proceedings
under customary international law as the sitting Head of
State of Liberia at the time of his indictment.
As the Prosecution and Defence exchanged briefs before
the Court, Mr. Taylor announced that he would resign from
the Presidency of Liberia in August of 2003.
[7] In return for his resignation, he accepted an offer
of sanctuary extended to him by President Olusegun Obasanjo
of Nigeria who promised not to hand him over to the Court. [8]
Approximately one month after Taylor's departure from Liberia,
the Trial Chamber referred the motion challenging the Court's
jurisdiction to the Appeals Chamber on the basis that it
raised a fundamental issue of jurisdiction. The Appeals
Chamber heard oral arguments on the motion in late fall
of 2003. [9]
III. Submissions of the Parties
(paras. 6-16)
The parties' submissions to the Court fall into two categories.
The first category corresponds to arguments by the Defence
and counterarguments by the Prosecution that the Court,
by issuing an indictment and a warrant of arrest for President
Taylor, had violated various rules governing jurisdiction,
immunity, and sovereign equality under international
law. The second category hinges on the national
law of Sierra Leone and on the legality, or illegality,
of the actions taken by the Prosecutor and the Court in
respect of the case against Taylor, with particular reference
to the consistency of those actions with various provisions
of the Sierra Leone Constitution of 1991. This Insight discusses
only the international law aspects of the case.
A. Defence
Submissions on the Preliminary Motion
The key submission of the Defence was that Mr. Taylor was
entitled to absolute personal immunity from criminal prosecution
as Liberia's incumbent Head of State at the time of his
indictment. The Defence claimed that the immunity which
attaches to Taylor shields him from prosecution whether
he is on official business in a foreign State (Ghana) or
in office in Liberia. Further, the Defence argued that immunity
is not nullified by any exceptions arising under other international
law rules, such as resolutions enacted by the Security Council
pursuant to its Chapter VII powers permitting international
criminal tribunals to indict incumbent Heads of State for
egregious international crimes. In any event, because the
Court was a Sierra Leonean tribunal that lacked Chapter
VII powers, in contrast to the International Criminal Tribunals
for Yugoslavia and Rwanda ("ICTY" and "ICTR" respectively),
it had no authority to assert jurisdiction over President
Taylor since its judicial orders had the same (limited)
force as those of a national court.
In addition, according to the Defence, by purporting to
indict the President of Liberia, and by issuing and communicating
a warrant for his arrest to Ghanaian authorities at a time
when he was performing peace-making functions as Head of
State, the Court had violated the sovereignty of Liberia
and Ghana as well as the international law rule exempting
incumbent Heads of State from criminal prosecution in foreign
jurisdictions. Furthermore, it was argued, the Court's approval
of both the indictment and the arrest warrant failed to
account for the ruling of the International Court of Justice
("ICJ") in Arrest Warrant of 11 April 2000(Democratic
Republic of Congo v. Belgium) ("Yerodia").
[10]
B. Prosecution's
Response
The Prosecution's response focused primarily on procedural
matters, and in respect of the bulk of substantive issues,
wholly on international law. In sum, the Prosecution pleaded
that under the Court's Rules, the motion by the Defence
should be dismissed because 1) it improperly raised an issue
of immunity rather than one of jurisdiction;
2) it was "premature" because Mr. Taylor had not made the
mandatory initial appearance before the Court; and 3) Mr.
Taylor lacked standing to bring the motion since he was
not before the Court. [11]
In response to the substantive issues raised by the Defence,
the Prosecution submitted, inter alia, that 1) Yerodia
concerned "the immunities of an incumbent Head of State
from the jurisdiction of the Courts of another state" (which
is not the case here); [12] 2) customary international law permits
international criminal tribunals, of which the Court is
an example, to indict serving Heads of State; 3) the lack
of Chapter VII powers does not encumber the Court's jurisdiction
over Heads of States because the International Criminal
Court, which does not posses Chapter VII powers, similarly
denies immunity to Heads of States in respect of international
crimes; 4) Taylor's indictment is for crimes committed within
Sierra Leone rather than elsewhere; and finally, 5) the
mere transmission of the relevant documents to Ghanaian
authorities could not violate that country's sovereignty.
IV. The Legal Basis of the Special Court for Sierra
Leone (paras. 34-36)
After disposing of the procedural issues, the Appeals Chamber
turned to the merits. It explained that the Court is a unique
treaty-based criminal tribunal authorized by UN Security
Council Resolution 1315 (2000). The various reports, correspondence,
briefings and other documents between the Secretary-General
and the President of the Security Council, taken together,
"demonstrate the high level of involvement of the Security
Council in the establishment of the Court including, but
not limited to, approving the Statute of the Special Court
and initiating and facilitating arrangements" for its funding. [13]
V. Is the Special Court an
International Criminal Tribunal? (paras. 37-42)
In addressing the above question, the Appeals Chamber noted
that the Court's novelty lay in the fact that it was established
jointly by agreement between the UN and the government of
Sierra Leone. This is in contrast to the ICTY and ICTR,
which were established as subsidiary organs of the UN by
the Security Council acting pursuant to its Chapter VII
powers. According to the Appeals Chamber, the immediate
source of authority for the Security Council to participate
in creating the Court emanates from Resolution 1315, but
more fundamentally, is "derived from the Charter of the
United Nations both in regard to the general purposes of
the United Nations as expressed in Article 1 of the Charter
and the specific powers of the Security Council in Articles
39 and 41." [14] The Security Council's powers under Article
39 were sufficiently broad for it to establish the Court
in agreement with Sierra Leone, since it had reiterated
in Resolution 1315 that the situation in Sierra Leone "continued
to constitute an ongoing threat to international peace and
security in the region."
[15]
Second, the Appeals Chamber asserted that while much has
been read into the lack of a Chapter VII mandate for the
Court, such an omission by the Security Council is not determinative
of the legal status of the Court. For on a disjunctive reading
of the first sentence of Article 41 [16] of the UN Charter, it is manifest that the Security
Council is empowered to 1) decide what measures not involving
the use of armed force should be taken to implement its
decisions and 2) whether or not to call upon UN Members
to apply such measures in order to maintain or restore international
peace and security. Thus, the Court concluded,
Where
the Security Council decides to establish a court as a measure
to maintain or restore international peace and security
it may or may not, at the same time, contemporaneously,
call upon the members of the United Nations to lend their
cooperation to such court as a matter of obligation. Its
decision to do so in furtherance of Article 41 or Article
48, should subsequent events make that course prudent may
be made subsequently to the establishment of the court. [17]
In addition, in executing its duties under Article 39,
the Security Council acts on behalf of all UN Members as
per Article 24(1) of the UN Charter, and to that extent,
the agreement that it entered into with Sierra Leone to
create the Court is an Agreement that is "an expression
of the will of the international community" as a whole. [18] The Court is therefore "truly
international."
[19]
In the result, the Appeals Chamber held that the Court
is an international criminal tribunal with an international
mandate exercising jurisdiction over international crimes.
In so holding, the Appeals Chamber observed that the "constitutive
instruments of the court contain indicia too numerous to
enumerate to justify that conclusion. To enumerate those
indicia will involve virtually quoting the entire provisions
of those instruments. It suffices that having adverted to
those provisions, the conclusion we have arrived at is inescapable."
[20]
VI. The Special Court and
Jurisdictional Immunity (paras. 43-59)
The Appeals Chamber explained that pursuant to Article
6(2) of the Court's Statute, the position of any accused
as Head of State does not relieve that person of criminal
responsibility nor does it mitigate punishment. It noted
the similarity of that provision to ICTY Article 7(2), ICTR
Article 6(2) and ICC Article 27(2), all of which are traceable
to Article 7 of the Charter of the International Military
Tribunal for Nuremberg which had become a part of customary
international law. Moreover, Article 6(2) of the Court's
Statute is consonant with other (including peremptory) norms
of international law.
Related to this point, the Court reasoned that the nature
of the offences and the character of the tribunal asserting
jurisdiction assist in determining the circumstances in
which exceptions to immunity would be extended or denied.
Thus, in the Yerodia case, the ICJ could not discern
a rule denying incumbent foreign ministers immunity from
criminal jurisdiction before national courts. On the other
hand, the ICJ concluded that under customary international
law, incumbent or former foreign ministers may be subject
to proceedings before certain international criminal courts,
assuming those courts have jurisdiction.
Noting the apparent differences in the treatment of immunities
in national and international courts, the Appeals Chamber
postulated that this may be because of "the principle that
one sovereign state does not adjudicate on the conduct of
another state; the principle of state immunity derives from
the equality of sovereign states and therefore has no relevance
to international criminal tribunals which are not organs
of a state but derive their mandate from the international
community." [21]
The Appeals Chamber concluded that "the principle seems
now established that the sovereign equality of states does
not prevent a Head of State from being prosecuted before
an international criminal tribunal or court." [22] Thus, according to the Appeals Chamber,
the official position of Taylor as serving Head of State
of Liberia at the time of his indictment is not a bar to
his prosecution. Taylor was and still is subject to criminal
proceedings before the Court. In view of this conclusion,
the Court declined to discuss the cases in which immunity
was claimed before national courts. [23]
As to whether the issuance and transmission of the arrest
warrant for President Taylor infringed the sovereignty of
Ghana, the Court ruled that to the extent such a claim could
be said to exist, vindication of it rests with Ghana rather
than with Mr. Taylor. That said, the Court nevertheless
observed that with two exceptions,
[24] warrants of arrest are not self- executing; consequently,
their implementation would require the cooperation of the
receiving state. Therefore, "merely requesting assistance,
far from being an infringement of sovereignty of the receiving
state is in fact a recognition of sovereignty."
[25]
Finally, the Court noted that Taylor had ceased to be Head
of State at the time of its decision. Thus, whatever personal
immunity he would have been entitled to is already spent.
Accordingly, even if his motion had succeeded, the Prosecutor
could have validly re-issued a new warrant. The motion was
therefore dismissed.
VII. Conclusion
Prosecutor v Charles Ghankay Taylor is an addition
to the small but growing body of jurisprudence from national
and international tribunals delineating the contours of
the immunity accruing to Heads of State and other senior
governmental officials. While the trend in the jurisprudence
suggests that the scope of immunity is highly contested
and will therefore continue to evolve,
[26] this decision is significant because it is the
first application of the ICJ's decision in Yerodia to
a former Head of State.
Though Taylor is not in the custody of the Court, the decision
reaffirms the idea that the long arm of international criminal
law would extend to reach the most powerful state official,
so long as that person commits crimes that shock the conscience
of the international community.
Regarding the Court's status as an international criminal
tribunal, the Court focused on the UN's involvement with
the creation of the tribunal, and in particular, the Security
Council's authority to enter into an agreement with Sierra
Leone to establish the Court. According to the Appeal's
Chamber, that authority could emanate from 1) the general
purposes of the UN as expressed in Article 1 of the Charter
as well as 2) the specific powers under Article 39 and 41
to undertake appropriate measures to maintain or restore
international peace and security. The Court examined the
latter aspect of the Security Council's authority focusing
on Resolution 1315. That resolution authorized the UN Secretary-General
to negotiate the creation of the Court, while reaffirming
that the situation in Sierra Leone continued to constitute
a threat to international peace and security.
The Court
did not elaborate on how the general powers of the Security
Council applied to its establishment. Unlike the resolutions [27] creating the ICTY and the ICTR which
specifically invoked Article Chapter VII of the UN Charter,
the Security Council did not expressly state that it was
acting under Chapter VII when it authorized the Secretary-General
to conclude a treaty to create the Special Court for Sierra
Leone. The Appeals Chamber noted that the lack of a Chapter
VII mandate "does not by itself define the legal status
of the Special Court," [28] but a question remains whether mere reiteration in the
preamble to Resolution 1315 that the situation in Sierra
Leone continued to constitute a threat to the peace carries
the same weight as the unequivocal language contained in
the resolutions establishing the ICTY and ICTR. If the Security
Council does not clearly state the nature and the scope
of the authority under which it is acting, [29] states may question, or perhaps even challenge, its
authority to create criminal tribunals that were not contemplated
by the framers of the UN Charter. [30] This is particularly so given
the active role that the Security Council has assumed since
the end of the Cold War to formulate and enforce decisions
with serious ramifications for States and individuals as
well as for the coherent development of international criminal
law. Clearly, fundamental interests of States are at stake
in situations wherein the Security Council purports to abrogate,
through the creation of a tribunal, the immunity of a serving
Head of State.
There is
the additional question of the nature and status of the
Court. The Court concluded that it is an international court
and that there are numerous indicia to support that conclusion.
However, an examination of the Court's constitutive instruments
reveals that the Court also has the trappings of a national
court. As the Court is distinct in its national and international
character, the Secretary-General of the UN described it
as a unique Court "of mixed jurisdiction and composition." [31] By focusing purely on the factors that make the Court
international,
[32] the Appeals Chamber may have missed an important
opportunity to contribute to the jurisprudence defining
the unique place of hybrid criminal tribunals in the machinery
of international criminal justice.
About the Author
C. Jalloh, B.A. (Guelph), LL.B. (McGill), B.C.L. (McGill),
is Legal Counsel at the Trade Law Bureau, Department of
Justice Canada. His experience at Justice includes work
for the Crimes Against Humanity and War Crimes Section.
The opinions expressed in this Insight are his own and do
not represent any policies or opinions of the Government
of Canada. Mr. Jalloh wishes to thank Julia Osei-Tutu, René
Robert and Alhaji Marong for helpful comments on an earlier
draft. All remaining errors are his own. His email address
is jallohc@yahoo.com.
Endnotes
[1] Prosecutorv Charles Ghankay Taylor,
Case Number SCSL-2003-01-I, Decision on Immunity from
Jurisdiction, 31 May 2004. The motion was heard in the
Appeals Chamber by Justices Emmanuel Ayoola, George Gelaga
King, and Renate Winter. The Decision is available at
<http://www.sc-sl.org/SCSL-03-01-I-059.pdf>
[2] For an excellent summary of the law of immunities
in the context of international criminal proceedings,
see Dapo Akande, International Law Immunities and the
International Criminal Court (2004) 98 A.J.I.L. 407.
[4] The arrest warrant for Charles Taylor has been
the object of another ASIL Insight. SeeThe Arrest Warrant
Against The Liberian President, Charles Taylor by
Cesare P.R. Romano and André Nollkaemper (June 2003) <http://www.asil.org/insights/insigh110.htm>
An earlier Insight examined the legal basis of the Special
Court for Sierra Leone, see The Special Court for Sierra
Leone by Michael P. Scharf <http://www.asil.org/insights/insigh53.htm>
[5] All paragraph references are to the Decision
on Immunity from Jurisdiction.
[6] SeeThe Arrest Warrant Against The Liberian
President, Charles Taylor, supra note 4.
[8] For a seminal study of the link between "blood"
diamonds and the Sierra Leonean conflict, see Ian Similie,
Ralph Hazelton, and Lans Gberie, The Heart of the Matter:
Sierra Leone, Diamonds, and Human Security (Ottawa:
Partnership Africa Canada, 2000) Available online at <http://www.pacweb.org>
[9] By the time of this decision, Liberia was no
longer a party to the proceedings before the Court.
[10]
ICJ Reports, 14 February 2002. For a summary of Yerodia,
see ASIL Insight World Court Orders Belgium to Cancel
an Arrest Warrant Issued Against the Congolese Foreign
Minister by Pieter H.F. Bekker (February 2002) <http://www.asil.org/insights/insigh82.htm>
[16] Article 41 states that "The Security
Council may decide what measures not involving the use
of armed force are to be employed to give effect to its
decisions, and it may call upon the Members of the United
Nations to apply such measures. These may include complete
or partial interruption of economic relations and of rail,
sea, air, postal, telegraphic, radio, and other means
of communication, and the severance of diplomatic relations."
[23] Interestingly, even as the Appeals Chamber decided
not to discuss cases in which immunity was invoked before
national courts, it relied on a statement by Lord Slynn
of Hadley in the famous case of R v. Bartle
and the Commissioner of Police for the Metropolis and
others, Ex Parte Pinochet, House of Lords, 25 November
1998 to buttress its conclusions at para. 52.
[24] The Court states that there are two situations
where a state may have an obligation to enforce a warrant
1) where it is required to do so under Chapter VII of
the UN Charter or 2) where it has entered into a treaty
with the requesting state.
[26] Indeed, even the ICJ will have an opportunity
to revisit the immunity issue in the near future. For
on December 9, 2002, the Republic of Congo initiated proceedings
against France challenging the issuance by a French Court
of a warrant for the arrest of Pierre Oba, the Congolese
Minister of the Interior, on allegations of war crimes
and torture, as well as for issuing a subpoena for Congolese
President Denis Sassou Nguesso. It will be interesting
to see whether the ICJ will reconsider the aspects of
its conclusions in Yerodia that have been criticized
by the human rights community.
[27] UN Security Council Resolutions 808, 827 (1993)
and 955 (1994).
[29] While there is general consensus among international
lawyers that the most robust of the Security Council's
powers are grounded in Chapter VII, the ICJ has held that
the binding force of Council resolutions is not limited
to measures taken pursuant to Chapter VII, see Legal
Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970), 1971 I.C.J.
16 (Advisory Opinion of June 21). For the implications
of that decision in relation to Article 25 of the UN Charter,
see Rosalyn Higgins, The Advisory Opinion on Namibia:
Which UN Resolutions Are Binding Under Article 25 of the
Charter? (1972) 21 INT'L & COMP. L.Q. 270.
[30] Indeed, by clarifying whether it is acting under
its general powers to create criminal tribunals such as
the one for Sierra Leone, the Security Council may at
a later point in time more effectively invoke Chapter
VII to oblige all UN Members to cooperate with those tribunals.
In this case, using its extraordinary Chapter VII powers,
the Security Council could require Nigeria to hand over
Mr. Taylor to the Court because he is an alleged war criminal.
[31] Report of the Secretary-General on the establishment
of a Special Court for Sierra Leone, 4 October 2000,
UN Doc. S/2000/915, 4 October 2000, para. 3; available
online at <http://www.un.org/Docs/sc/reports/2000/sgrep00.htm>
[32] Another crucial consideration that appears to
be a function of the Court's nature and legal status is
the source of its funding. The ICTY and ICTR, as subsidiary
organs of the UN, receive allocations from the UN Budget.
On the other hand, the Security Council chose to rely
on voluntary contributions by States to fund the Court
despite a warning by the Secretary-General that "A special
court based on voluntary contributions would be neither
viable nor sustainable", ibid, at para. 70. Today,
funding is the biggest challenge facing the Court.
_________________________________________________________________________
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Copyright 2004 by The American Society
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