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April 27, 2012

Charles Taylor Convicted of War Crimes and Crimes Against Humanity

The Special Court for Sierra Leone announced earlier today that Charles Taylor, the former President of Liberia, was convicted on all counts of an 11-count indictment, which alleged that he was responsible for crimes committed by rebel forces during Sierra Leone’s decade-long civil war. The Special Court’s Trial Chamber found unanimously that Mr. Taylor aided and abetted RUF and AFRC rebels in the commission of war crimes and crimes against humanity in Sierra Leone.  This conviction is significant and historic for many reasons, not the least of which is that Charles Taylor is the first head of state to be indicted, tried, and convicted by an international tribunal.

The Trial Chamber also released a judgment summary and stated that the full judgment will be released at a later date.  An item of particular interest in the judgment summary is how the trial chamber dealt with Taylor’s liability even though the evidence did not show that he personally committed the crimes charged in the indictment.  The trial chamber first considered Taylor’s liability under the well recognized doctrine of command responsibility.  Under Article 6(3) of the applicable statute a superior is criminally responsible if the superior knew or had reason to know that his or her subordinate was about to commit crimes prohibited by the Statute or had done so, and the superior failed to take the necessary and reasonable measures to prevent or punish the perpetrators.

The Trial Chamber found that Taylor knew or had reason to know that the forces operating in Sierra Leone were committing the crimes charged in the indictment.  However, the Trial Chamber noted that the prosecution must also demonstrate that the superior had effective “command and control” over his subordinates – i.e. the material ability to prevent or punish the commission of the offense.  Here the trial chamber found that the prosecution failed to prove Taylor’s command and control over these forces.  At most, the prosecution could only prove that Taylor had substantial influence over the leadership of the RUF and AFRC forces and that Taylor provided guidance, support, and advice to the RUF and AFRC leadership, but that did not rise to the level of command and control.  Accordingly, the Trial Chamber rejected Taylor’s liability under the doctrine of command responsibility.

Instead the Trial Chamber assessed Taylor’s liability as an aider and abettor.  The prosecution’s theory was that Taylor provided practical assistance, encouragement, or moral support, and these acts had a substantial effect on the perpetration of the crimes charged in the Indictment, and that Taylor had a clear intent to act in support of those crimes.  What is most interesting about this alternative theory is that, while the prosecution did not have to prove that Taylor had command and control over the forces, they had to prove that Taylor knew that his acts would assist the commission of the crime by the perpetrator, or that he was aware of the substantial likelihood that his acts would assist the commission of a crime by the perpetrator. In cases of specific intent crimes, such as acts of terrorism, Taylor must also be aware of the specific intent of the perpetrator.  This is a higher mens rea standard than the prosecution would have to prove under the command responsibility theory, under which the prosecution is only required to show that Taylor knew or had reason to know about the crimes being committed by the RUF and AFRC.

Interestingly, the Trial Chamber found that the prosecution established Taylor’s criminal liability under this aider and abettor theory.  The judgment summary does not provide specific facts that the Trial Chamber relied on to determine that the prosecution satisfied this heightened mens rea requirement. This will be something to pay attention to when the full judgment is released.

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