Which Court has the Power to Try Mr. Taylor?
By Counsellor Frederick A.B. Jayweh, LL.M (Novermber 19, 2004)
....Mr. Chorphie Charlie needs to take notice of the uncontested fact that it was Mr. Taylor and his evil lieutenants that carried war to Sierra Leone in exchanged for blood diamonds, intentionally killed the people of Sierra Leone, and held a little over 500 UN peace keeping forces as hostages in Lofa County...
To accordingly discuss and determine whether Mr. Charles G. Taylor as a sitting and sovereign president of Liberia could be indicted and tried by the international and special court of Sierra Leone or not, it is necessary to recount and reflect on the purported jurisdictional issues consciously highlighted and raised by Mr. Chorphie Charlie in his article, “Does the Sierra Leone’s War crimes Court have Jurisdiction over Liberia”? In this light, Mr. Charlie in summary argues and concludes thus:
1. That the international special court sitting in Sierra Leone has no jurisdiction to indict and try Mr. Taylor because at the time the indictment was drawn and the writ of arrest issued out against Mr. Taylor, he, Mr. Taylor was the elected and sovereign sitting president of Liberia. That being the case, the indictment and writ of arrest issued out against Mr. Taylor as the sitting sovereign president of Liberia, were repugnant and violated the sovereign equality of Liberia.
2. That because Mr. Charles G. Taylor was the elected and sovereign president of Liberia, Liberia, as an equal and sovereign nation-state could not sue or be sued before a court of Sierra Leone, a similarly sovereign and equal nation-state. The indictment and writ of arrest being contrary to international law, the special court sitting in Sierra Leone, lacks jurisdiction to try Mr. Taylor.
3. That under customary international law, by the Special Court of Sierra Leone indicting and ordering arrested Mr. Taylor after he has been granted immunity by the international community for any massacres or atrocities that he might have committed during his regime as a rebel and later as the sovereign president of Liberia, amounts to double jerpoddy as well as collateral estoppel. Owing to this, the indictment of the sitting special court in Sierra Leone runs contrary to the intent of international law and therefore, this court lacks jurisdiction to try Mr. Taylor.
4. That because the special court sitting in Sierra Leone was specially created and limited territorially to the geographical metes and bonds of the Republic of Sierra, whether indicted for the commission of war crimes or crimes against humanity or not, this special court lacks territorial jurisdiction to try Mr. Taylor because he is a sovereign citizen of Liberia and not Sierra Leone.
5. That because the special international court sitting in Sierra Leone primarily comprises of local judges of Sierra Leone as well as international judges, any attempt to indict and try Mr. Taylor before this special court will work injustice and partiality against the legal interest of Mr. Taylor. Therefore, this court has no jurisdiction to try Mr. Taylor, because its indictment and writ of arrest violate the nature and character of customary international law. Are these contentions true?
In order to ascertain and determine whether Mr. Charlie has done justice and fair-play to the doctrine and concept of customary international law relative to where Mr. Taylor is to be tried or not, it is necessary and compelling to answer when may a court specially created under the authority of United Nations indict and try an elected and sitting sovereign president.
When May a Court created by the UN Indict and Try a Sovereign Sitting President?
To accordingly and appropriately discuss and pass on the foregoing issues raised in the above article, it is necessary and appropriate to determine what customary international law says or says not, when it comes to where Mr. Taylor needs to be tried for the intentional massacres and atrocities of grave and serious international concern committed by him against the nation and people of Sierra Leone, while he sat as the sovereign president of Liberia.
What International Law Says?
Specifically under international law, beginning with the Rome Statute and more so, articles 1, 4,5 , 6 (a-e), 7 (1)(a-j), 7 (2) (a–i), 8 (1) and (2) (i-viii) and also 8(b)(i-xxiv) as well as 8(c)(i-iv), customary international law holds and provides that the international criminal court or a specialized court created by the United Nations, like the special court sitting in Sierra Leone, shall have territorial and subject matter jurisdiction over any persons (s) who commits the most serious crimes of international concern, crimes that are universal in nature, such as willful murder, genocide, torture, intentionally launching direct circulated and conscious attacks against the civilian population and non-war- objects, amongst others.
In other words, the commission of any of the crimes named in the foregoing articles, when committed by any person (s), whether it be so committed within his/her own geographical locality or not, any court created under the United Nations shall have territorial as well as subject matter jurisdiction to try such offender; to include Mr. Charles G. Taylor, the then sovereign and sitting
President of Liberia.
This is so because, the crimes committed by Mr. Taylor, both in Liberia and Sierra Leone, vest universal jurisdiction territorially and subject matter-wise in any court created by the United Nations; that is, these crimes create universal jurisdiction in any nation-state, to include Sierra Leone, to indict, arrest and try Mr. Charles G. Taylor, whether he sat as an elected and sovereign president or not. In this case, what matters is, did Mr. Taylor intentionally commit crimes of grave and serious international concern in Sierra Leone? Without any doubt, the record of Mr. Taylor constitutes prime and probative evidence against him.
Mr. Charlie needs to take notice of the uncontested fact that it was Mr. Taylor and his evil lieutenants that carried war to Sierra Leone in exchanged for blood diamonds, intentionally killed the people of Sierra Leone, and held a little over 500 UN peace keeping forces as hostages in Lofa County, Liberia, against the will and taste of customary international law and later freed them after huge pressure from the international community. By the way, these UN forces were airlifted from Lofa County, by and through Monrovia by Mr. Taylor. Just hostage taking, standing alone, constitutes grave and serious international concern, and thus impermissible under customary international law. Was Liberia a party to these crimes?
In this vein and to be factually and legally clear and accurate, Mr. Taylor was and is the sole accused indicted criminal before the special court of Sierra Leone and not Liberia; a fact and law so cleverly distorted and twisted by Mr. Charlie by intentionally asking, does the Sierra Leone’s War Crimes court have jurisdiction over Liberia. The indictment to which Mr. Taylor is called upon to answer to, clearly and unequivocally names and designates Mr. Charles G. Taylor as a party defendant charged with the commission of war crimes and crimes against humanity and not the Republic Liberia. Much more, had Liberia been so charged, she would have been appropriately represented by the Minister of Justice & Attorney General of Liberia. But on the contrary, to-date, Mr. Taylor is represented by private attorneys and not by the Attorney General of Liberia.
What is Meant by Territorial or Subject Matter Jurisdiction?
To be specific and exact, territorial jurisdiction, is the power that a court has
to indict, arrest and try any accused for the serious and intentional commission of an offense in its territorial or geographical locality. Did Mr. Taylor commit war crimes and crimes against humanity that are of grave and serious international concern in Sierra Leone? The answer is a resounding YES.
Whereas, subject matter jurisdiction, is the power or authority that a court has to indict and try an offender for the commission of the actual offense; in this case, the power or authority that the special court sitting in Sierra Leone has to indict and try Mr. Charles G. Taylor for knowingly and intentionally committing war crimes and crimes against humanity in Sierra Leone; a universal SIN.
To clearly and succinctly put it, did Mr. Taylor, while sitting as the sovereign and elected president of Liberia, intentionally and willfully commit the crimes of genocide, murder, extermination, enslavement, torture, enforced disappearances, hostage taking and intentionally directing attacks against the civilian population and non-war objects in Sierra Leone? Again, Mr. Taylor’s record represents this fact and is a clear testimony against him.
By the way, were the writer of the above article and any other person wishing to defend Mr. Taylor on jurisdictional grounds, whether territorial or subject matter wise were to answer this question in the affirmative, then and in that case, the special court currently sitting in Sierra Leone, has jurisdictional power and authority to try Mr. Charles G. Taylor, along with any other person(s) who might have consciously and knowingly joined him in the commission of war crimes and crimes against humanity in Sierra Leone in contrast to the command and content of customary international law.
This is and has to be so, because the crimes that Mr. Taylor committed in Sierra Leone as listed and described above, under customary international law are
clearly impermissible under international law. In other words, the commission of any of the crimes as listed above, certainly entertains and creates universal jurisdiction in all nation-state to indict and try any offender (s); in this case, Mr. Taylor and his lieutenants that assisted him to carry war to Sierra Leone in desperate search and in exchanged for blood diamonds. Mr. Taylor must not have any place to hide, having knowingly and intentionally chapped of the hands, feet, opened up bellies of pregnant women and sent under age children of Liberia and Sierra Leone to war to kill and be killed.
Moreover under the Geneva Convention, specifically articles 27-34, and especially so convention 4, article 27, states that in the case of war, whether national or international, all protected persons are entitled, in all circumstances to the respect for their persons, honor, family rights, religious conviction and practices, and their manners and customs. Thus, this is the actual core of human existence and the prime demands of customary international law.
Well, did Mr. Taylor abide by this clear statement and provision of customary international law? The answer is an obvious and clear NO. Notwithstanding and to enrich himself and his family members with absolute blood diamonds coming out of Sierra Leone, Mr. Taylor and his associates tortured, murdered and committed genocide in Sierra Leone and against the peaceful people of Sierra Leone. Just for the commission of these crimes, Mr. Taylor needs to be arrested and tried.
That is under international law, any violation of any of the foregoing rights, vests universal territorial and subject matter jurisdiction in all members of the United Nations to indict, arrest and try any would-be offender; in this case, Mr. Taylor, and his supporters, whether sitting as an elected sovereign president or not. Again, there is a great need to clearly restate and reemphasize that it was and remains Mr. Charles G. Taylor and his lieutenants that knowingly and intentionally committed war crimes and crimes against humanity in Sierra Leone and not Liberia. The indictment and writ of arrest did not name Liberia.
Thus for this, customary international law demands that Mr. Taylor can be indicted by any member of the United Nations, arrested and tried standing alone, and not in association with the Republic of Liberia. So the question as to whether the special United Nations created court sitting in Sierra Leone has jurisdictional power and authority over Liberia as twisted and erroneously raised by Mr. Charlie is forever inaccurate and wrong. Thus, the issue of sovereign equality has no application and place at this stage.
Moreover and without over stating this point, any person, whether a head of state or a civilian official of a government who commits any act which constitutes war crimes or crimes against humanity, under international law is responsible therefor and liable to suffer the appropriate and proportionate punishment. The crimes committed by Mr. Taylor and his associates in Liberia and Sierra Leone are impermissible and offensive to customary international law. Therefore, he has to account for his inhumane acts and deeds. That is what customary international law stresses and demands.
In other words, under customary international law, the fact that a person who committed an act that constitutes war crimes or crimes against humanity acted as the head of state or as a responsible government official, does not relieve him from accounting; in this case, Mr. Charles G. Taylor is not relieved from accounting and from the responsibility for his action. International Human Rights Problems of Law, Policy, and Practice, 498-510, pp 851-853.
There is no place for Mr. Taylor to hide, because, General John Tarnue, Mr. Taylor’s own former commanding officer has started to testify against him relative to the crimes he committed in Sierra Leone while they all belonged to the same rebel army and later as members of the Armed Forces of Liberia. The Special court sitting in Sierra Leone has jurisdiction to try Mr. Taylor because the UN in no way violated the sovereign will and equality of Liberia.
So, Mr. Taylor, whether he sat as an elected and sovereign President or not, in no way grants him any sovereign immunity. In fact, under international law, for any sitting and sovereign president to claim sovereign equality and immunity from trial, he must not have committed war crimes and crimes against humanity as it was clearly done by Mr. Taylor, though he sat as the sovereign president of Liberia.
When pressured by the international community about his involvement and engagement with the Revolutionary United Forces of Sierra Leone, Mr. Taylor, confessed and told the world that he has effectively disengaged himself from this group, the Revolutionary United Forces. Actually, you must have been engaged in order to later disengage. Worst of all, under the rule of evidence, a failure to deny an offense constitutes admission. There is no sense in claiming territorial jurisdiction as a protective shield while at the same time admitting the commission of the same offense for which you are accused. Mr. Taylor was fully engaged with the Revolutionary United Forces of Sierra Leone, before he later thought to become disengaged. Mr. Taylor is without any luck to admit and at the same deny his actions.
This being the case and Mr. Taylor having knowingly and intentionally committed war crimes and crimes against humanity in Sierra Leone, counts 1,2,3 and 4 of Mr. Charlie’s contention relative to the jurisdictional grounds raised in his article, as to whether Mr. Taylor is to be indicted and tried by the special court of Sierra Leone are erroneous and run contrary to international law. In this context, Mr. Taylor having committed war crimes and impermissible offenses of international concern in Sierra Leone, he cant be indicted, arrested and tried by the special court sitting in Sierra Leone. There is no jurisdictional issue sufficient and enough to take Mr. Taylor across this muddy water.
The last and two would-be final issues raised and contained in Mr. Charlie’s article, “does the Sierra Leone’s War Crimes have jurisdiction over Liberia,” state and conclude that because in the 1990s, the international community purportedly granted Mr. Charles G. Taylor some kind of immunity from any massacres and atrocities that he might have committed as leader of his rebel army and later the elected and sovereign president of Liberia, the special court of Sierra Leone has no jurisdiction to attempt to indict, arrest and try Mr. Taylor, because Mr. Taylor has since been relieved from any further and future responsibility for the crimes that he is said to have committed.
This being the mind set of Mr. Charlie, he argues and says that any other court whether created by the United Nations has not jurisdiction thereafter to indict, arrest and try Mr. Taylor because to do so, will certainly amount to double jeopardy and collateral estoppel. Is this contention true or out-rightly erroneous? To determine this, we need to say what is double jeopardy and what is collateral estoppel and when might these concepts be applied to prevent the same and identical matter from been re-litigated by a party.
What is Double Jeopardy and When Might this concept apply?
Double Jeopardy, as provide for and contained under the Black’s Law Dictionary, is the fact of being prosecuted or sentenced twice for substantially committing the same and identical offense by a competent court having territorial and subject matter jurisdiction over an accused.
This goes without saying that for double jeopardy to ever exist and lie under any legal situation, a party defendant must have been indicted, arrested, tried and sentenced twice by a court for the same and identical crime. On the contrary, double jeopardy will never lie and cannot be invoked as a defense by an accused, if he/she were never indicted, arrested, tried and sentenced twice by a court for the commission of the same and identical offense. Thus, the international community referred to by Mr. Charlie, not having acted in the capacity and under the authority of a court created by the UN, double jeopardy cannot and will not lie because there is not statement of fact to sustain this contention.
That being the case, the attending and controlling question then is, was Mr.
Taylor ever indicted, arrested, tried and sentence twice by a court acting under the authority of the international community for the commission of the same and identical offense, (War Crimes and Crimes against humanity) referred to in Mr. Charlie’s article? Again and without over stating this point, Mr. Charlie and the rest of Mr. Taylor’s lieutenants answer in the affirmative, but customary international says no.
Since this is the first time that Mr. Charles G. Taylor is ever been indicted and ordered arrested by a court to be tried for the many massacres and atrocities that he committed against the nation and people of Sierra Leone, double jeopardy will and cannot lie. Trust me, a war crimes court, certainly and also awaits Mr. Taylor in Liberia, because he equally and also committed war crimes and crimes against humanity there. Black’s Law Dictionary, P 528.
So, if under national and international law, double jeopardy will not lie to save Mr. Taylor from prosecution, will collateral estoppel render him any further assistance as contemplated and argued by Mr. Charlie? Again, customary international law say no. What then is collateral estoppel?
What is Collateral Estoppel and When Might this Concept be invoked?
Collateral Estoppel, as also provided for and contained under Black’s Law Dictionary, is a concept of law that bars a party from re-litigating the same and identical issue determined against a party by a court in an earlier action, even if the second action differs significantly from the first. Black’s Law Dictionary,
The primary and controlling question is, by indicting and issuing out arrest orders for Mr. Taylor, is the special court sitting in Sierra Leone attempting to re-litigate or re-try Mr. Taylor for the same and identical issues already determined by a court that sat under the authority of the United Nations? Again, the answer to this question is no. A clear review and inspection of Mr. Taylor fails to uphold this contention. Jurisdiction is not any issue at this stage here.
This is so, because there is no trial record of primary or secondary nature from any court that is representative of this fact. Collateral Estoppel, as twisted and contemplated by Mr. Charlie will not and cannot lie, because the issue relative to Mr. Taylor having committed war crimes and crimes against humanity in Sierra Leone has never been raised and litigated before and in any court. That being the case, where else and to whom then, can Mr. Taylor turn for help? Nowhere else.
In light of the above and having effectively dealt with the faulty misrepresentation contained in Mr. Charlie’s article, does the Sierra Leone’s War Crimes Court have jurisdiction over Liberia, a matter that relates to whether Mr. Taylor is to be tried in Sierra Leone of not, my candidate advice to Mr. Taylor would be that he submits and surrenders himself to the authority of this Court to determine if he is guilty or not.
Just a reminder, a thousand years is liberally a day in the sight of God.
Other articles by Counsellor Frederick A.B. Jayweh, LL.M
About the Author
Counselor Frederick A.B. Jayweh holds a Bachelor of Arts (BA degree in Biblical Studies) from African Bible College, Bachelor of Laws, (LL.B degree in general Law)from the Louis Arthur Grimes School of Law, University of Liberia, and Master of Laws (LL.M degree in American And Comparative Law) from the University of Denver College of Law, Denver, Colorado.
Also, Counselor Jayweh is a member of the Grand Bassa County and the Supreme Courts Bars, Republic of Liberia, a registered member of the Liberian National Bar Association, and former Executive Director of the Civil Rights Association of Liberian Lawyers, Inc. Presently, Counselor Jayweh lives in Denver, Colorado and can be reached at: 303-884-2652 or firstname.lastname@example.org