Professor William Schabas on AFRC Decision
Special Court for Sierra Leone Rejects Joint Criminal Enterprise
Charles Taylor’s chances of an acquittal just increased significantly, a consequence of the first verdict of the Special Court for Sierra Leone. In the ‘AFRC Trial’ (Prosecutor v. Brima, Kamara and Kanu), Trial Chamber II ruled that the joint criminal enterprise (known to insiders as JCE) alleged by the Prosecutor was not one involving a crime within the jurisdiction of the Court, dismissing many charges that depended upon such a theory. Similar allegations underpin the indictment of Charles Taylor.
The indictment in Brima, Kamara and Kanu had alleged that they ‘shared a common plan, purpose or design (joint criminal enterprise) which was to take any actions necessary to gain and exercise political power and control over the territory of Sierra Leone, in particular the diamond mining areas. The natural resources of Sierra Leone, in particular the diamonds, were to be provided to persons outside Sierra Leone in return for assistance in carrying out the joint criminal enterprise.’ The indictment also said that the joint criminal enterprise involved gaining and exercising control over the population of Sierra Leone in order to prevent or minimize resistance to their geographic control, and to use members of the population to provide support to the members of the joint criminal enterprise.’
But, said the Trial Chamber, the ‘common purpose’ pleaded in the indictment is not a crime within the Special Court’s jurisdiction. The Trial Chamber referred to an earlier ruling of the Appeals Chamber, which held that ‘there is no rule against rebellion in international law’. (The Prosecutor can’t say he wasn’t warned. The same criticism of his approach to JCE appeared in my book, The UN International Criminal Tribunals, published more than a year ago by Cambridge University Press.)
The joint criminal enterprise theory of liability is not set out explicitly in the Statute of the Special Court. Its existence is the result of a rather liberal interpretation of the text. The theory originates in a judgment of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia. It is not without controversy, especially because the so-called third category of joint criminal enterprise, or JCE 3, allows the conviction of an individual for crimes committed by those who shared the common illegal purpose, even crimes that the individual did not intend.
Some critics have said that JCE means ‘just convict everyone’. Recent judgments of the ICTY Appeals Chamber reveal a lingering unease with the theory, at least among some of the judges.
JCE has certainly proven to be a very potent tool of the prosecution at the International Criminal Tribunal for the former Yugoslavia, and promised to do the same at the Special Court for Sierra Leone. But at the Yugoslavia Tribunal, prosecutors took care to allege a common purpose or joint criminal enterprise to commit ethnic cleansing, which is a form of crime against humanity and clearly a crime within the jurisdiction of the institution. Not so for the Special Court, whose prosecution team rather inexpertly alleged a joint criminal enterprise to commit something which is not a crime.
In the AFRC case, this was not fatal to the prosecution case, because it was not difficult to prove that the accused had actually committed or ordered the commission of atrocities in the capital Freetown, and in the Bombali region. They were field commanders who personally engaged in violent acts. But much of the prosecution case was rejected because with respect to atrocities committed elsewhere in the country, the charges relied upon the theory of joint criminal enterprise.
Unlike the AFRC accused, Taylor never actually set foot in Sierra Leone during the conflict and did not appear to have troops there directly under his command when the worst atrocities were committed. His involvement was much less direct than that of the AFRC leaders. Thus, the joint criminal enterprise theory is quite central to the prosecution theory in the case against Taylor. Its rejection in this first judgment potentially has devastating consequences for the prosecution.
Prof. William Schabas
National University of Ireland, Galway
June 25, 2007 at 7:49 pm
[...] Council. Professor William Schabas of the National University of Ireland, Galway, thinks it may contain good news for Charles Taylor. This is the first of many outside expert commentaries to come on the [...]
June 26, 2007 at 7:03 am
Could one of your experts kindly comment on the fact that none of the convicted persons in the AFRC trial implicated Mr. Taylor.
Does this also damage the prosecution’s case against Charles Taylor ?
June 28, 2007 at 6:11 pm
In as much as Mr Taylor is responsible for the attrocities of Liberia, I have not seen anything with in the opening arguements of the prosecutor that would convict Mr. Taylor. Often there are comments tht Mr Taylor did not give his victims a fair trail. True as this may be. The courts can not use the logic in dispensing justice. Mr. Taylor was not a “court”. Therefore, the standards to which a court upholds cannot be compared to that of a person.
July 12, 2007 at 8:48 pm
Professor,
Just to clarify, you are saying that the JCE mode of liability was excluded in this case because the common purpose, “to take any actions necessary to gain and exercise political power and control over the territory of Sierra Leone,” was not a crime within the jurisdiction of the SCSL. Is this correct? At first read it seemed you were claiming that the JCE mode of liability itself was not within the SCSL jurisdiction, which I don’t believe is the case. Is my interpretation correct? Thanks.
January 11, 2008 at 5:38 pm
[...] Richterspruch habe potenziell „verheerende Folgen für die Anklage im Taylor-Prozess“, sagt William Schabas, einer der führenden Experten des Völkerstrafrechts. Bei den Anklageschriften des [...]
February 22, 2008 at 5:19 pm
[...] commission of a crime if the defendant participates with others in the common design. (see past commentary by Professor Schabas on the Trial Chamber’s June 2007 decision, and a 2005 law review article regarding the [...]
May 23, 2008 at 10:34 am
Taylor is obviously guilty of being involved in Sierra Leone. I think the only thing that needs to be established, as in a murder case is only whether this is first or second degree or manslaughter ( Third Degree) In my opinion people like taylor should not be allowed to move freely among normal human beings. That guy messed up so many good things and defiled too many sacred things. It is nonesense for some Liberians to still support him. Two wrongs can never make a right!.
June 8, 2008 at 11:58 am
Lorpu,
I don’t think those of us who are asking where are the EVIDENCES are supporting Mr. Taylor but rather watching and reading the case as presented by the prosecutors and WONDERING when will we see HARDCORE EVIDENCES?? For five years we’re told SLAM DUNK are the EVIDENCES, an AIR TIGHT is the case but so far, in all honesty, this case is a GREAT LET DOWN to JUSTICE.
If this case was trial in any Western nation, it won’t even PASS a threhold of FAIRNESS. HEARSAY is ALL the prosecutors have to offer? WHY??? Like you, I don’t want him amongst us, but if he cannot be proven GUILTY, why find he GUILTY because you and I don’t want to see him amongst us???
I don’t know how depth are you in the case but totally a DISGRACE. It seems like this case has made the case why Liberia MUST have similar court to try her share of the destructions and when that time comes, I pray we’ll see ALL THE MAJOR PLAYERS on trial including the current Presidents of Liberia and Guinea.
Noko4