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Thursday, September 26, 2013

First thoughts on the Taylor Appeal Judgment: Sentence upheld and Perisic blasted

As I logged on to the livestream of the SCSL this morning at 10.30, there was a song playing on a loop with the most extraordinary lyrics: "i just can't stand to see you go, i don't understand where we went wrong" (it's a song by Bonnie James called Happy Home). For a second I thought this was a subliminal way for the Court to announce an acquittal... But it turned out not to be the case, as the Appeals Chamber of the Special Court for Sierra Leone has confirmed the 50 year sentence against Charles Taylor. Having followed the reading out of the summary, there is mostly nothing very surprising about the Appeals Judgment. They confirm that crimes against the civilian population were committed by the RUF-AFRC and that Taylor had some role in the events. There are a few points that deserve some comments in my view, until we actually get the judgement.

First of all, the AC discussed the question of evidence. It essentially approved of the Trial Chamber's approach to evidence, specifically rejecting the claim from the defense that uncorroborated hearsay evidence as a sole basis for conviction should not be allowed. I find that quite appalling frankly, but thus is the nature of the international criminal procedure. 

Of course, everybody was waiting for the discussion on aiding and abetting after the Perisic appeal judgement at the ICTY on the question of "specific direction". As discussed by Manuel Ventura here, there could have been an impact on the Taylor appeal judgement. It turns out that there wasn't because the Appeals Chamber upheld the Trial Judgment on the fact that you need a "substantial contribution" to the crime for the actus reus of aiding and abetting to be constituted, and that knowledge is sufficient mens rea. The Appeals Chamber seems to have gone out of its way to not just ignore Perisic, but actually blast it. In a separate development of the summary, the judge said that the AC was not convinced by the Perisic judgment which "does not contain a clear and detailed analysis". I'm not sure I see the point of doing that. This little ego contest between international judges has no place in what is arguably one of the most important judgements in ICL. The SCSL is not bound by ICTY case law. If you're not going to use it, just don't use it. Judges should keep this kind of ultimately irrelevant discussion for the cafeterias of their respective tribunals, the problem being of course, that they wouldn't get as much attention if they did... In any case, given the historically low quality of legal reasoning in the SCSL case law, if I were a supporter of the Perisic approach, I would be happy for the SCSL to disagree with me, rather than the opposite...

While we're on modes of liability, I found the way the judge discussed the distinction between the various modes (ordering, planning, instigating, aiding and abetting...) indicative of a certain sloppiness in the way these modes have been approached. Indeed, in rejecting the Prosecution ground of appeal relating to the fact that Taylor was not found guilty under ordering and instigating, the AC found that aiding and abetting and planning were more "fitting" in relation to the conduct of Taylor. However, it's not a question of more "fitting" or not, it's a question of satisfying a legal definition or not. The mode of liability should not depend on the judges' impression of the narrative of the case. It should depend on whether the Prosecutor has proven beyond reasonable doubt that certain necessary criteria are met.

The AC also addressed the question raised by alternate Judge Sow at the end of the Trial Judgment on whether there were adequate deliberations. The judges, taking the opportunity to remind the world that Sow should never have spoken, found that there had in fact been adequate deliberations. I also seem to have understood that the defense claimed that the absence of Sow's name on the cover page of the Trial Judgment is a violation of the rights of the defense... Not their strongest point.

Finally, on sentencing, the Appeals Chamber found that the Trial Chamber had erred in considering that aiding and abetting should carry a lower sentence. The reasoning was a little circumvoluted, but it seemed to have several dimensions, 2 of them striking me as unconvincing. One of them is that the Statute does not distinguish the different levels of commission. That's true, but the statute does not distinguish much of anything. It does not contain Joint Criminal Entreprise, nor does it discuss the criteria for aiding and abetting, so it's not in my view a real argument. The second argument that struck me, is that creating a hierarchy between modes of liability would somewhat be unfair for the defense. I can't even start imagining how that argument works, so I'll just leave it at that.

More generally on sentencing, this confirms my impressions from the Trial Judgment: I really don't see the point of all those discussions on sentencing in international law, when all the practice shows that it is essentially a random guessing game. There is no indication of what crime or count carries what sentence, so we are left with a lump sum assessment that cannot be analyzed. For example, some municipalities were removed from the conviction in Taylor, without any impact on his sentence. I think this is probably contrary to the nulla poena sine lege principle, but in any case, we should stop commenting on sentencing criteria in the abstract until judges are required to specifically explain what sentence is given for what crime and what reduction or increase comes from mitigating and aggravating circumstances.

Possibly more to come when I see the actual judgment. Stay tuned...

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