Australia/Israel & Jewish Affairs Council

Conviction of Charles Taylor - A warning for Assad and Bashir?

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The conviction of Charles Taylor, the former president of Liberia and once powerful warlord, was a landmark ruling by an international tribunal - the Special Court for Sierra Leone. It was the first guilty verdict for a head of state in the history of UN war crimes courts.

Taylor was found guilty on April 26 of aiding and abetting war crimes during Sierra Leone's brutal civil war in the 1990s. The verdict is being hailed as a lesson for the accountability of heads of state everywhere. As Prosecutor Brenda Hollis said:

"This judgment affirms that with leadership comes not just power and authority, but also responsibility and accountability... No person, no matter how powerful, is above the law."

Taylor's verdict could ostensibly be a warning for Syrian President Bashar al-Assad whose regime has been accused of committing atrocities in a brutal crackdown that began on March 2011. The UN estimates that over 9,000 people have been killed in Syria since the crackdown began. As William Hague, Britain's Foreign Minister, wrote on Twitter:

"Justice has been done. Remember his victims, & remind #Assad: there is no expiry date for crimes against the innocent".

Britain and France stepped up pressure on the Assad regime in March demanding that Assad and his officials face an international war crimes trial. British Prime Minister David Cameron said:

"We should do more to make sure that those who are responsible for atrocities are held to account. We need to document their crimes... I have a clear message for those in authority in Syria: make a choice, turn your back on this criminal regime or face justice for the blood that is on your hands."

Similarly, French President Nicolas Sarkozy said that "Dictators anywhere in the world should know that they will have to account for their crimes...Those who have committed crimes should be brought to trial."

However, bringing Assad and his officials to trial would be challenging on a number of fronts. Syria does not recognise the International Criminal Court (ICC), which means that prosecutors cannot intervene unless the UN Security Council requests them to do so, and Russia and China would likely veto any such move.

In addition, there is a lack of political will to bring war criminals to justice. As an editorial in the Wall Street Journal noted:

"...butchers like Syria's Bashar Assad and Sudan's Omar al-Bashar, who have been indicted by the ICC, have little to worry about as long as the outside world lack the will to stop the atrocities that they are ordering today."

The difficulty in bringing Assad to trial highlights the challenges in seeking international justice, and particularly the problems with the ICC, which was designed as a successor to the temporary UN courts, like the one that convicted Taylor. The ICC has been open for ten years and has made only one conviction - Congolese warlord Thomas Lubanda, who was jailed earlier this year for use of child soldiers.

Part of the problem may be that ICC is sidelined in the UN and in many conflicts which diminishes its role and importance. Christopher Stephen wrote in Foreign Policy Magazine:

"The ICC was originally designed by the UN to replace ad hoc courts that have brought justice to the former Yugoslavia, Rwanda, and Sierra Leone. But objections from the United States, China, and Russia, among others, saw it divorced from the UN apparatus. It exists, instead, as a curious free-standing organization, governed by its 121 member states. Its long-term aim is to win integration into the UN, but for the moment it is stuck halfway down the road. It can police its own members, but most states who commit war crimes do not join the ICC. Instead, it encourages the UN's Security Council to refer cases to it.

This has happened twice, with the Security Council ordering it to investigate Darfur in 2005, and last year, Libya. Both cases are stuck in the mire. In 2008, Ocampo indicted Sudan's president Omar Al Bashir for genocide. Bashir, not surprisingly, chose not to turn himself in and, to date, the Security Council has put little pressure on Sudan to change the policy. [See Daniel Meyerowitz-Katz's efforts on Bashir's current escalating violence against South Sudan and apparent open calls for genocide here and here.]

A similar impasse, for different reasons, is underway with Libya. The new government arrested Saif Al Islam Qaddafi, son of the late dictator, in November last year. Charged with war crimes by the ICC, the rules say Tripoli must hand him over to The Hague, but Libya's government insists it will try him at home. As with Sudan, the court itself is powerless to intervene. Only the UN can take action and, as with Sudan, there has thus far been a deafening silence."

Given that most of the world's war zones are in states that are not part of the ICC, and it's unlikely that the Security Council will refer cases due to the veto power of the permanent five who will protect their allies, the ICC has given its attention to Africa. All of the ICC's seven investigations are in Africa, which has drawn criticism from those who argue that Africa is being unfairly targeted while others are ignored. The African Union has declared that member states are not required to arrest ICC suspects and some nations are considering withdrawing from the court.

In addition, ICC investigations of current conflicts have also been criticised for contributing to perverse incentives that encourage leaders to stay and fight rather than flee and likely face trial. Some suggest this could be seen last year when the UN Security Council called on the ICC to investigate the Gaddafi regime attacks "against civilian population [which] may amount to crimes against humanity." As Tzvi Fleischer wrote in the Australia/Israel Review:

"The ICC may investigate Gaddafi, but has no means to arrest and try him as long as he rules Libya. So his incentive was not to stop doing things which might lead to his prosecution - such as killing his political opponents - but to keep doing so as a means to avoid being deposed and thus subject to arrest."

Fleischer notes that international law remains useful, but that in the case of laws of armed conflict perhaps this means, "re-writing them to recognise the perverse incentives they create for terrorist and insurgent groups, or dictators like Gaddafi."

International justice remains imperfect and the future usefulness of the ICC remains unclear. Nevertheless, many see Taylor's verdict as significant in sending a strong message to heads of state that they are not immune from prosecution. As David Crane, former prosecutor who indicted Taylor in 2003 and now Professor of International Law at Syracuse University, said:

"[Taylor's verdict] permanently locks in and solidifies the idea that heads of state are now accountable for what they do to their own people...This is a bell that has been rung and clearly rings throughout the world. If you are a head of state and you are killing your own people, you could be next."

Perhaps so, and there is not doubt that the conviction of Taylor is a step forward for justice. However, until the ICC can prove it can actually act against a sitting head of state, rather than against only those who have been deposed or otherwise de-fanged anyway, the Court's promise and core mission will remain partly unfulfilled.

Sharyn Mittelman

 

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