On June 4, 2003, the
Special Court for Sierra Leone (SCSL) issued an arrest
warrant against Charles Taylor, the incumbent President
of Liberia. When the warrant was issued, Mr. Taylor
was traveling to Ghana for talks with Liberian rebel
groups to end a four-year civil war that has destabilized
West Africa.
The indictment against Mr. Taylor had
been issued on March 7, 2003, [1] but was kept sealed until the
Special Court Prosecutor saw in Mr. Taylor�s trip
an opportunity to apprehend him. [2] The warrant was served on the authorities of
Ghana, and transmitted to Interpol.
At the opening of the peace conference
in Accra, in the presence of numerous African leaders,
Mr. Taylor announced that he would step down by the
end of his mandate in January 2004. Just after being
applauded, he left the conference abruptly and boarded
a Ghanaian plane to fly back to Liberia. Ghanaian
authorities did not apprehend him.
On June 17, 2003, Liberia�s Defense
Minister and the rebels signed in Accra a peace agreement.
The agreement provides for an immediate ceasefire,
and within 30 days, the deployment of monitors to
the front lines. These monitors will facilitate the
subsequent deployment of peace-keepers, and a transitional
government to replace Mr. Taylor�s. As news of the
agreement was released, Mr. Taylor warned that there
will be no peace in Liberia unless the indictment
against him is dropped.
Mr. Taylor�s arrest warrant is the
most recent step in the trend towards securing international
criminal responsibility of (former) high-ranking officers
in a State � such as the Head of State, Head of Government
and the Minister of Foreign Affairs.
Recently, the International Court of
Justice dealt with the scope of immunity from criminal
jurisdiction in national courts for incumbent high-ranking
State officers. In the Arrest Warrant of 11 April
2000 case (Congo v. Belgium, 2002), the Court
found that the issue and circulation, by a Belgian
magistrate, of an arrest warrant against the incumbent
Minister of Foreign Affairs of the Democratic Republic
of Congo failed �to respect the immunity from criminal
jurisdiction and the inviolability [of] the incumbent
Minister�under international law.� [3] The Arrest Warrant case has been the
object of another ASIL Insight. [4]
What makes the arrest warrant for the
President of Liberia a special case is that it was
issued by the SCSL, a judicial body established by
a treaty concluded between the United Nations and
the Government of Sierra Leone. [5] �The question is whether the status
of the SCSL allows it to derogate from� the immunity
of incumbent heads of states. In other words, can
the SCSL do what Belgium was not allowed to do?
In the Arrest Warrant case,
the ICJ found that there are certain exceptions to
the principle of immunity of incumbent holders of
high-ranking State offices. One of these exceptions
is that an incumbent� �may be subject to criminal
proceedings before certain international criminal
courts, where they have jurisdiction. Examples include
the International Criminal Tribunal for the former
Yugoslavia, and the International Criminal Tribunal
for Rwanda . . . , and the future International Criminal
Court.� [6] The statute of each of these courts
indeed provides that the official position of any
accused person as Head of State or Government shall
not relieve such person of criminal responsibility
nor mitigate punishment.
[7]
One of the most intriguing questions
raised by the arrest warrant against Mr. Taylor is
whether the SCSL is such a �certain international
criminal court� and thus is capable of derogating
from the principle of immunity. Article 6 (2) of the
Statute of the SCSL contains a provision similar to
that of the ICTY and ICTR Statutes: �The official
position of any accused persons, whether as Head of
State or Government or as a responsible government
official, shall not relieve such person of criminal
responsibility nor mitigate punishment.�
However, there is one crucial difference
between the ICTY and ICTR and the SCSL. The UN Security
Council, acting under its Chapter VII powers, created
both the ICTY and ICTR.
[8] Thus, all members of the United Nations are
obliged to cooperate with these tribunals, which means,
amongst other things, arresting and surrendering any
indictees, including Heads of States who are within
their jurisdiction.
[9] The SCSL is not a creature of the Security
Council. Its powers derive from a treaty that binds
only the United Nations and the Government of Sierra
Leone. All other states, including Ghana and Liberia,
are third parties to the treaty, and as such are not
bound by it.
In the relevant resolutions, the Security
Council never invoked its Chapter VII powers to call
upon all member States to cooperate with the SCSL. [10] In the preamble of the latest
resolution dedicated to the situation in Liberia,
[11] it does call on all states �in particular
the Government of Liberia, to cooperate fully with
the [SCSL].� However, the same demand does not appear
in the body of the resolution beginning �Acting under
Chapter VII of the Charter�. So far, the Security
Council has not gone as far as providing the SCSL
full Chapter VII backing for various political reasons,
including the concern that by doing so it might undercut
international efforts to reach a cease-fire in Liberia.
The absence of Security Council Chapter
VII backing makes the SCSL more like the International
Criminal Court than the ICTY in this respect: While
the Statute of the ICC denies immunity to Heads of
State, in principle it cannot affect the immunity
of Heads of States of non-parties. States that are
parties to the Statute would violate international
law if they hand over a Head of State of a non-party
to the ICC. The situation for the SCLS seems to be
the same.
Does this mean that the SCSL, and possibly
the two entities that created it (Sierra Leone and
the United Nations) have breached international law
just as Belgium breached international law when it
issued and circulated an arrest warrant against the
incumbent Minister of Foreign Affairs of the Democratic
Republic of Congo? If one considers the SCSL as an
international legal person (like some treaty-based
international organizations), it would arguably be
bound by customary law, including international law
on immunities. As to Sierra Leone, it might be argued
that what Sierra Leone could not have done unilaterally,
it cannot do by participating in the creation of an
international court. However, there is one relevant
difference between the facts of the Arrest Warrant
case and the indictment of Mr. Taylor. The Security
Council�s support for the Court and its express call
to Liberia to cooperate (even if not under Chapter
VII) give indictments by the SCSL a degree of legitimacy
that unilateral state action lacks.
The questions of the international
legal status of the SCSL, its obligations under international
law and any remaining obligations of the founding
entities are complicated by the hybrid nature of the
Court. The SCSL is one of a new brand of internationalized
criminal bodies, composed of both international and
national judges and applying international as well
as national law. It shares these features with the
Serious Crimes Panels in the District Court of Dili
(East-Timor), the Panels in the Courts of Kosovo,
and the Extraordinary Chambers in the Courts of Cambodia.
Each of these courts is located between the international
and national legal order and principles of international
law that were developed for an interstate context
may not apply automatically in regard of them.
If Charles Taylor steps down as president
of Sierra Leone, his blanket immunity from prosecution
would be terminated. However, under the ruling of
the ICJ in the Arrest Warrant case, immunity
would still cover acts committed while in office in
his official capacity. Nevertheless, he could be prosecuted
for acts committed in the almost eight months running
between� November 30, 1996 (the date on which the
SCSL�s jurisdiction became effective) and July 24,
1997 (the date on which Mr. Taylor was declared President).
The retention of the immunity of former
heads of states for acts committed in their official
capacity has been one of the most critiqued parts
of the ICJ judgment. The judgment also leaves open
some room for doubt as to what exactly are acts committed
in an official capacity. The indictment in the SCSL
notes that Mr. Taylor�s support of the rebels in Sierra
Leone was motivated by the desire to obtain access
to the mineral wealth (in particular the diamond wealth)
of Sierra Leone. The question can be asked whether
acts so motivated are, acts in an official capacity.
Currently pending before the ICJ is
the Certain Criminal Proceedings in France (Republic
of the Congo v. France) case.
[12] The facts are similar to those in the Arrest
Warrant case.� Congo seeks the annulment of the
investigation and prosecution measures taken by the
French judicial authorities against the President
of the Republic of the Congo, the Minister of the
Interior, and other individuals including the Inspector-General
of the Congolese Armed Forces and the Commander of
the Presidential Guard.
[13] . On June 18, 2003, the Court rejected the
request for the indication of provisional measures.
Considering the circumstances of the case, it seems
unlikely that, in the merits phase, it will answer
the questions raised by the SCSL�s proceedings against
Charles Taylor.
In sum, the practice of States and
courts in this area remains fluid and clear standards
have not yet emerged, but the immunity of high States�
officials is gradually being reduced.
______________________________________
About the Authors:
Cesare P.R. Romano: Assistant Director of the Project
on International Courts and Tribunals at the Center
on International Cooperation, New York University;
Adjunct Professor of International Law, Fordham
University.
Andr� Nollkaemper: Professor of Public International
Law and Director of the Amsterdam Center for International
Law, Faculty of Law, University of Amsterdam.
[1] Sierra Leone�s decade-long civil war actually
begun in neighboring Liberia. In 1989, the National
Patriotic Front of Liberia (NPFL) led by Charles
Taylor begun an uprising against the government
of the incumbent Liberian Samuel Doe. On March 23,
1991, mercenaries loyal to Charles Taylor, invaded
Sierra Leone. A group calling itself the Revolutionary
United Front (RUF), led by Foday Sankoh, soon took
credit for the invasion. The RUF has battled the
Sierra Leone Government and UN troops for the whole
of the 1990s. Foday Sankoh is currently awaiting
trial in custody of the SCSL..
[2] The timing and methods of unsealing the
indictment and issuing of the arrest warrant� is
questionable. The SCSL Prosecutor � gave the indictment
to the press while Taylor was traveling to Ghana,
but,� there are seemingly no instructions to lift
the non-disclosure order. The indictment was posted
on the SCSL website soon after the press conference,
but it has been removed subsequently ( as of this
date it is still not posted). The arrest warrant
was seemingly served on Ghana by the SCSL in the
morning of June 4, 2003.� However, Ghanaian authorities
deny having received it until Taylor had already
left. In the words of the Prosecutor, �the timing
of this announcement was carefully considered in
the light of the important peace process begun this
week. . .It is imperative that the attendees know
they are dealing with an indicted war criminal�.
BBC News, June 4 2003, �Arrest warrant of Liberian
Leader�
http://news.bbc.co.uk/1/hi/world/africa/2961390.stm.
[3] Arrest Warrant of April11th 2000
(Democratic Republic of the Congo v. Belgium),Judgment, Merits, para. 78.D.2, 41 ILM 536 (2002).
[9] Charles Taylor is not the first Head of
State to be indicted for war crimes. Slobodan Milosevic
was still the President of Yugoslavia when he was
indicted by the ICTY.
[13] Certain Criminal Proceedings in France
(Republic of the Congo v. France).
_________________________________________________________________________
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