Sat, Jun 02, 2012 - Page 9 News List

Despite a rare African success, international law still struggling

By Geoffrey Robertson  /  The Guardian

International criminal justice grinds slowly, but it can grind exceedingly small. Former Liberian president and warlord Charles Taylor was first indicted in 2003 for crimes against humanity, in a UN court over which I presided. Then, he strutted the world stage as a head of state. Ghana refused our request to arrest him when he visited and Nigeria gave him refuge for several years. There was a general expectation that he would escape trial, but the whirligig of time brings its changes and revenges: on Wednesday Taylor was sentenced to 50 years imprisonment, for aiding and abetting 11 kinds of war crimes and crimes against humanity — ranging from terrorism, rape and murder of civilians, to recruiting child soldiers and child sex slaves.

The power to punish heads of state for crimes against humanity is a recent discovery: Oliver Cromwell’s lawyers managed it with King Charles I, but their judges were in due course executed for treason. Napoleon we exiled instead to St Helena, and not even F.E. Smith and Lloyd George could persuade their allies at Versailles to try the Kaiser for invading Belgium.

LEGAL PRECEDENT

Nuremberg created a precedent, but it was not until Augusto Pinochet came to London in 1998 to take tea with Mrs Thatcher that the idea of ending the impunity of political and military leaders seemed possible. In those days it was bitterly controversial: the pope, Henry Kissinger, George H.W. Bush, and even Fidel Castro wrote to then-UK home affairs minister Jack Straw demanding that he be freed. However, today there are no such efforts on behalf of Taylor: International justice is here to stay.

That does not mean it should be welcomed uncritically, or that its principal defect should be overlooked — namely it does not in practice apply to the “big five” powers in the UN Security Council, or to their close friends (hence Syrian President Bashar al-Assad has thus far escaped indictment because Russia supports him). However, justice has its own momentum and this will selectivity will change. The importance of the Taylor decision, for example, is that it creates a precedent for prosecuting those who “aid and abet” by sending assistance to brutal factions in a civil war. Former US president Ronald Reagan’s conduct in arming the Nicaraguan Contras, if it occurred again, would be seen as comparable to the conduct for which Taylor was convicted.

Taylor supplied arms, ammunition and money to the rebels (and even the herbs that child soldiers were told to rub on their bodies to protect them from bullets) in return for a share of their spoils. What fixed him with criminal liability was that he provided this assistance at the time he knew, from reading newspapers, that the rebels were committing widespread and systematic atrocities. On this basis, any political or military leader who sends arms or ammunition to the brutal forces in Syria is guilty of aiding and abetting what is clearly a crime against humanity.

IMPROVEMENTS

The Taylor proceedings are far from over: both prosecution and defense are appealing. The prosecution in fact suffered some serious defeats: It failed to prove beyond reasonable doubt that Taylor was “godfather” (in league with deposed Libyan leader Muammar Qaddafi) of the mass-murdering and mass-mutilating rebel factions, or even that he had joined in their blood-curdling conspiracy. However, according to the court, he knew and he approved and he assisted. Yet it remains open to question whether this is enough to convict him of aiding crimes which require “specific intent,” such as rape or terrorism, so his appeal may on these counts be upheld.

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