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Conviction of a warlord, justice for his victims?

by Mark Drumbl
Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute
(Reprinted from the May 8, 2012, edition of the Richmond Times-Dispatch) 

Charles Taylor, former president of Liberia, has been convicted of 11 counts of crimes against humanity and war crimes. Although symbolic, imprisoning Taylor is a small step toward the arc of accountability. All the effort — time, resources and money — that went into convicting Taylor should not distract from the ongoing efforts that are required to deliver justice to the people of Sierra Leone.

Taylor, whose trial began in 2007, was prosecuted in The Hague by an international tribunal called the Special Court for Sierra Leone, which was set up to deliver justice for the atrocities committed in the war that plagued Sierra Leone, Liberia’s neighbor in West Africa, in the 1990s.

Atrocities included widespread killings, amputations, sexual slavery, rape and conscription of child soldiers — all fueled by blood diamonds and shadowy transfers of funds. Tens of thousands of people were killed. For the rebels, a “smile” meant cutting away victims’ lips. “Short” or “long sleeves” became euphemisms for where arms were to be hacked off. Rebel campaigns were called Operation No Living Thing and Operation Spare No Soul.

Taylor, who can appeal, will be sentenced at the end of May. He would do his time in a British prison.

That atrocities were committed in Sierra Leone is plain to see. The effects of those atrocities continue today. Survivors struggle in rehabilitation programs while the country gets back on track. The Special Court has already delivered eight convictions that implicate leaders in Sierra Leone of the factions that fought in the conflict.

But Taylor had never set foot in Sierra Leone during the war. How, then, to link him to the atrocities committed there?

Prosecutors floated a number of theories to establish a nexus between Taylor in Liberia and rebel groups in Sierra Leone. These theories grapple with international criminal law’s sore spots. The higher up the defendant, the more distant his hands, the cleaner his handiwork, and the harder it is to link him to the crimes. The more people are killed, and the more endemic the violence, the tougher it is to come up with forensic evidence and eyewitness testimony. Simply put, it isn’t easy to connect the victim to the killer and then the killer to superiors within a criminal state.

Prosecutors argued that Taylor had command responsibility over the rebel leaders and, hence, was individually responsible for their conduct. The Special Court rejected this theory. The evidence didn’t support it. Taylor had influence, but not command and control. Another theory was that Taylor participated in a joint criminal enterprise — in other words, a common plan — with the local leaders who committed the crimes. This, too, was rejected.

The third theory was that Taylor aided and abetted the crimes — namely, that he provided encouragement, equipment and practical assistance — and that he also helped plan some attacks. This third theory stuck and formed the basis of the convictions entered against him. Just like U.S. prosecutors nailed Al Capone with tax evasion, sometimes the highest-ups can be convicted only for the more anemic of reasons.

Nazi trials were facilitated by Nazi paper trails, to be sure. But in the annals of atrocity, they are the exception. The Taylor prosecutors worked with little connective evidence. They had to resort to radio intercepts. They showed how diamonds came into Liberia from Sierra Leone in exchange for weapons. Supermodel Naomi Campbell testified that, after a dinner she attended with Taylor present, someone sent “dirty little pebbles” — uncut diamonds — to her hotel room. The prosecution alleged it was Taylor.

The difficulty in linking the mastermind with the actual violence underscores how criminal trials should form only one element of post-conflict justice. Criminal law takes us only so far. It fails to deliver what most victims really want — reintegration, rehabilitation, skills training, restitution, and apologies.

Blood diamonds helped fund the rebel cause. Gems were traded for guns. These diamonds were exported illegally from Sierra Leone and, eventually, purchased — including in the West. They came to adorn wedding bands and sparkle in earrings. Symbols of love, those diamonds emerged from terror. The international community needs a better way to monitor trade in natural resources that are pillaged from war-torn countries.

Criminal convictions react to the past. More active measures, however, are needed to prevent mass atrocity from occurring in the present.

Mark A. Drumbl is a law professor at Washington and Lee University and author of “Reimagining Child Soldiers in International Law and Policy” (Oxford University Press, 2012).