Worldview Commentary No. 242 on Chicago Public Radio, 91.5 FM WBEZ

Author: Susan Good

“Prosecuting Charles Taylor: The Hague as Safety Valve”

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If more evidence were needed to make the case for the International Criminal Court in The Hague, it can be found in current efforts to prosecute former Liberian leader Charles Taylor, accused of fomenting a bloody guerrilla war in the neighboring country of Sierra Leone.

When the international community attempts to put deposed tyrants on trial, a key question is where – at the scene of their crimes, in The Hague or elsewhere. Three recent cases give three different answers. Former Yugoslav leader Slobodan Milosevic was tried in The Hague, before the International Criminal Tribunal for the Former Yugoslavia (where he died of a heart attack during his trial). Iraqi strongman Saddam Hussein is on trial this week in his home capital of Baghdad.

This week also, Liberia’s Charles Taylor was arraigned before the Special Court for Sierra Leone. Unlike the international tribunal in The Hague, or the national court in Baghdad, the Sierra Leone Court is a mixed tribunal: its judges and prosecutors are both international and national. A majority are international, named by the United Nations.

These contrasting venues reflect an evolution of thinking – especially in Washington – about where best to conduct such trials. When the Yugoslavia tribunal was set up in 1993, the war in that country was still underway. Conducting international war crimes prosecutions in Sarajevo was not practical. The courthouse might have been blown up by one side or the other. There was no real debate about setting up the court in The Hague.

By the late 1990’s, regrets set in. Placing the court far from the scene of the crimes proved to be exceedingly expensive. Investigators, witnesses and lawyers all needed to be transported back and forth from Yugoslavia to The Netherlands. Most important, the trial was isolated from the very public which most needed to see and understand justice in action.

A broad if not universal consensus developed among governments and commentators that war crimes trials, whenever possible, ought to take place close to home.

The Special Court for Sierra Leone, championed (like the Yugoslav tribunal before it) by the United States, was a product of that consensus. The appalling atrocities in that country’s civil war would be put on trial within easy access of victims and the national public and press. Justice would have a fighting chance to teach and to heal.

The biggest fish indicted by the Court, however, turned out to be not someone from Sierra Leone, but the President of neighboring Liberia. Prosecutors accused Charles Taylor of funding and supplying the guerrillas, in hopes of gaining a piece of Sierra Leone’s lucrative diamond trade.

When Taylor fell from power in Liberia in 2003, he was induced to leave office by regional power Nigeria, which offered him safe haven from the international arrest warrant issued by the Sierra Leone Court.

Newly elected Liberian President Ellen Johnson Sirleaf this year called for Taylor to be surrendered for prosecution. But not to Liberia, where she feared his presence would reignite that country’s civil war, but rather to the Special Court for Sierra Leone.

Prodded by the US and Britain, Nigeria last week returned Taylor to Liberia, which immediately passed this hot potato to Sierra Leone.

Now, in the name of security, both the Sierra Leone Special Court and Liberia’s President have asked the Dutch government to take custody of Taylor in The Hague, where the Sierra Leone Court could sit in special session, perhaps in the courtroom of the International Criminal Court.

The Sierra Leone Court fears for the safety of its judges and personnel if a trial were held in Sierra Leone; the former UN peacekeeping force has recently left the country. Liberia’s President reportedly worries that a trial nearby could again unleash the forces that until recently tore her country apart.

Sensitive to these concerns, the Security Council is trying to facilitate a deal — which at this writing remains under discussion — to send Taylor to The Hague.

Some argue that Taylor’s trial need not be exported. Sierra Leone human rights lawyer Alpha Sesay, a graduate student here at Notre Dame, contends that the security concerns are overblown. Senior Sierra Leone figures have already been tried without incident in Sierra Leone, he argues, and whatever destabilizing impact a trial would have in Liberia would not turn on where it is held.

From this distance I am in no position to judge who is right in this debate. But it is hard not to take seriously the security concerns.

In any event the United States takes them seriously, and appears to believe that the better venue for Taylor’s trial is in The Hague. If so, Washington has come full circle, from favoring an international venue for the Yugoslav trials, a mixed but local venue for Sierra Leone and a national court for Iraq, and now back to an international venue for Taylor.

The lesson is that there is no one-size-fits-all answer. In some cases local trials before mixed or national courts make sense. In other cases – and Taylor’s may be an example – we need the option of international trials in The Hague. That is one reason why we need the International Criminal Court, not as a first option, but as a last option when necessary. The sooner Washington comes to recognize this reality, the better.

Doug Cassel’s commentaries are broadcast Wednesdays during the noon hour of the Worldview program on Chicago Public Radio, 91.5 FM. Views expressed are personal views of the author and not necessarily those of Notre Dame Law School, the Center for Civil and Human Rights or Chicago Public Radio.