Yesterday, the Special Court of Sierra Leone upheld Charles Taylor’s conviction for aiding and abetting war crimes in Sierra Leone’s civil war. The Appeals Chamber also rejected his request for a reduction in his 50 year sentence, pointing out that he had not shown “real and sincere remorse” for his actions. On the face of it, this decision appears to be another victory for transitional justice: the international community succeeded in locking up another brutal dictator, and now, it has also thrown away the key.
For those who follow international war crimes tribunals and the workings of the International Criminal Court, the Special Court’s decision would not have come as a surprise. On the one hand, it was certainly theoretically possible that the Appeals Chamber could have set Taylor free by adhering to the precedent in the Momcilo Perisic. Yet this outcome seems fantastical in light of the political context in which this seven-year trial has taken place. The conclusion was foregone before the ink was even dry on the appeal documents. The reason is simple and has nothing to do with the merits of the case: A free Charles Taylor would have entailed too many risks to the region.
After many years of civil wars and border skirmishes, Liberia, Sierra Leone and Cote d’Ivoire are finally stable. For the moment. As the driving force behind the region’s conflicts through the 1990s and early 2000s, setting Taylor free could have upset the fragile balance in West Africa. Even though Liberia’s civil war ended over a decade ago in August 2003, Charles Taylor remains a powerful force in the country- despite not having set foot on Liberian soil since 2006. The Special Court could not afford to let him go free, not without the possibility of risking Liberia’s security and undermining the integrity of the tribunal itself.
Still, it would be unfair to say that the Appeals Chamber is not impartial. There is no evidence that this is the case. The justices appear to be qualified and of international repute. Nevertheless, as independent as the judges themselves may be, they are appointed by political bodies with political interests. Valerie Oosterveld shows how deeply political considerations affected many critical aspects of the Special Court, from the drafting of the SCSL’s statute to its judgments to its decision to physically close the court. It would be naive to think that any shortlisting process of the Appeals Chamber justices would not have been shaped by these political dynamics, or that the justices themselves would be unaware and unaffected by the desires of those who appointed them.
In fact, we already know from the work of Ruth Mackenzie, Kate Malleson, and Philippe Sands that selecting judges to international tribunals is a fraught process. Ultimately, Sands has asserted that “the horse-trading and politicking is endemic”. He also claims that “vote-trading, campaigning, and regional politicking invariably play a great part in candidates” chance of being elected than considerations of individual merit’. While their study was conducted on the International Criminal Court and the International Court of Justice, there is no reason to think that the same political dynamics would not hold true of the Special Court for Sierra Leone.
Bear in mind too that the Special Court received most of its funding from the West (US, UK, Netherlands, and Canada), and Western countries have contributed billions of dollars in humanitarian aid and reconstruction to the region. In addition, the UK has offered Sierra Leone an “over-the-horizon” security guarantee. Effectively, this means that the UK is committed to responding to a national security incident within 72 hours. Given these considerations of national interest, it is hard to imagine how the desires of the UK and the US would not have influenced the environment of the court. Keeping larger political influences and geopolitical considerations at bay in a case like this would have been near impossible.
Westerners might wonder how any of these factors could affect the final decision of the justices. After all, justice should be blind. And yet, we can see that it is not. None of these revelations would surprise Sierra Leoneans and Liberians. In Africa certainly, war crimes tribunals are widely acknowledged to be deeply politicised institutions. In fact, the African Union has recently called a special summit to discuss a mass withdrawal from the ICC in October because international justice is seen as baldly biased against Africans.
I have argued elsewhere that the ICC is perceived by many as a tool of Western powers. Other UN-backed tribunals also suffer from this problem, including the Special Court of Sierra Leone. Others have made similar arguments. Guardian columnist Seumas Milne has asked why Western leaders have not been indicted for aiding and abetting war crimes when they too supplied arms and assistance to Libyan militias in the fight against Gaddafi – just like Charles Taylor did for Sierra Leone’s rebels. International legal scholar Richard Falk has questioned why American leaders have not been charged for the systematic abuses that have been widely documented at Guantanamo Bay and Abu Ghraib.
The facts are clear: justice is applied selectively depending on what country you are from and whether you are in favour with the West. By nudging, suggesting, and sometimes coercing international courts to serve political interests, Western powers manage to achieve desired political outcomes. But these tactics are putting delicate norms of transitional justice at risk.
If international war crimes trials are ever to achieve genuine global justice – for the weak as well as the powerful – there must be some acknowledgement that these tribunals are currently being used as political instruments of the powerful. Only when this premise is accepted by the West can the ICC evolve into an institution with real international legitimacy.
Dr Christine Cheng is Lecturer in War Studies at King’s College London. Her book on extralegal groups in Liberia will be published with Oxford University Press.
Follow her on twitter @cheng_christine.