Human Rights Watch Report Assessing the Taylor Trial

Human Rights Watch recently released a report entitled Even a Big Man Must Face Justice: Lessons from the Trial of Charles Taylor. A copy of that report is available here: HRW Report on Taylor Trial.

Below is the announcement from Human Rights Watch about the report:

As you know, on April 26, 2012, former Liberian President Charles Taylor became the first former head of state since the Nuremberg trials of Nazi leaders after World War II to face a verdict before an international or hybrid international-national court on charges of genocide, war crimes, or crimes against humanity. It was a landmark moment for war victims in Sierra Leone and international efforts to ensure perpetrators of the gravest crimes are held to account.

The report seeks to draw lessons from practice and impact of the Taylor trial, which was conducted by the United Nations-backed Special Court for Sierra Leone, to promote the best possible future trials of highest-level suspects for the most serious crimes, including at the ICC. Notably, the Taylor trial progressed against a backdrop of concern over the viability of trying such individuals following the 2002-2006 trial of former Serbian president Slobodan Milosevic before the International Criminal Tribunal for the former Yugoslavia.

The report examines the conduct of Taylors trial, including issues related to efficiency, fairness, witnesses, and sources. It also examines the courts efforts to make its proceedings accessible to communities most affected by the crimes, and perceptions and initial impact of the trial in Sierra Leone and Liberia. The report is based on research in Sierra Leone, Liberia, The Hague, London, and New York from September 2011 to June 2012.

Our findings are that the trial was a largely well-run proceeding, benefitting from a high-quality defense, sound handling of witnesses, and dynamic outreach to communities affected by the crimes. At the same time, we identify areas in which practice should be improved for future trials of this nature to promote greater efficiency and impact.

The authors welcome any feedback you may be able to provide, and can be contacted directly at Human Rights Watch below:

Elise Keppler
Senior Counsel
kepplee@hrw.org

Annie Gell
Sandler Fellow
gella@hrw.org

Posted @ 2:01 PM | Experts Debate the Issues: The Charles Taylor Trial | Read Entry | 0 Trackbacks

Piracy Prosecutions in the Seychelles

By Cameron MacLeod

Since early 2010, the Seychelles has become the hub for prosecution of Somali pirates in the Indian Ocean. The Seychelles recently enacted a statute giving its courts universal jurisdiction to prosecute pirates brought to the Seychelles by other countries, and with financial support of the United Nations, the Seychelles has built a state of the art prison facility for pirate defendants and convicted pirates. The suspension of piracy prosecutions in Kenya means the Seychelles is now the primary regional player with the capacity and willingness to prosecute Somali pirates.

In the past few months, the Seychelles Supreme Court has completed six piracy cases, which are publicly available for the first time on the Grotian Moment website. While these piracy cases are not large in number, their impact on the law and prosecution of piracy is notable in two respects: First, they establish that universal jurisdiction for piracy is well recognized, and that the concept of hostis humanis creates a strong basis for exercising universal jurisdiction in piracy prosecutions, even in cases in which a third state initially apprehended the pirates. The Seychelles case law will constitute an important precedent if the international community eventually sets up a regional piracy court at the facilities of the International Criminal Tribunal for Rwanda, as proposed by the United Nations Secretariat.

Second, the Seychelles cases establish that pirate sentences must be appropriately severe. The international conventions relevant to piratical acts do not provide guidance on sentencing, and some domestic courts have given extremely light sentences to convicted Somali pirates. The decisions of the Seychelles courts clearly demonstrate the severity with which the crime of piracy should be viewed, even in cases where no victims were killed. In at least two cases, for attempting the crime of piracy, each pirate was sentenced to a period of more than twenty years. For completed acts of piracy, the maximum penalty under Seychelles law is up to thirty years of imprisonment and sizeable fines. The Supreme Court of the Seychelles telegraphs a plain message with these sentences: like those who commit war crimes and crimes against humanity, pirates are hostis humanis, and as such the offense against the international community warrants a significant sentence.

Below are brief summaries of each case, and the sentences handed out therein. These judgments were provided to Case Western Reserve University School of Law Professor Michael Scharf, who has been assisting the Seychelles in the prosecution of pirates.

Republic v. Mohamed Ahmed Dahir & Ten (10) Others, Judgment, Crim. Side No. 51 (2009) - "Topaz":
A surveillance aircraft observed a "whaler," a floating base of operations for pirates, towing two skiffs and radioed the location to the Topaz, a Seychelles Coast Guard war ship. When the Topaz arrived on the scene, it came under attack from the two skiffs, and subsequently subdued and apprehended both skiffs. The Topaz then pursued the whaler and apprehended three more men. This case is important for its analysis of the question of whether an act of piracy can also be prosecuted as an act of terrorism. The eleven accused were charged with five counts of committing terrorist acts, aiding or abetting terrorist acts, and conspiracy, as well as counts for piracy and aiding and abetting piracy. The government submitted that attacking the Topaz had a broader political goal than mere piracy, and that the incidental impacts on governmental function were sufficient to establish the attacks as acts of terrorism. The court rejected this argument, as it concluded that the attacks were both too attenuated and lacked the intent to impact governmental functions. The court similarly rejected the conspiracy claims, and focused instead on the piracy counts. The court found that the intent of the eight accused on the two skiffs was to commit piracy, and that their manifest intentions and actions constituted the complete crime, regardless of their ultimate lack of success. Furthermore, it found that the three men apprehended on the whaler were guilty of aiding and abetting in this endeavor. As such, the court found the eight men named in count three guilty of piracy, and the three named in count seven of aiding and abetting piracy.

Judgment - Topaz

Republic v. Abdi Ali et al., Judgment, Crim. Side No. 14 (2010) - "Intertuna II":
Eleven pirates attempted to seize the Intertuna II, a Spanish fishing vessel, on March 5, 2010. The pirates approached twice on skiffs and were turned away by security officers aboard the vessel. The pirates retreated to their "whaler" and were subsequently arrested by French naval authorities in conjunction with Spanish and Italian patrols. The case establishes accomplice liability under the laws of the Seychelles for piracy, as well as affirming the notion of criminal attempt in piracy. Each of the eleven accused were sentenced to six years imprisonment.

Judgment - Intertuna II
Sentence - Intertuna II

Republic v. Mohamed Aweys Sayid et al., Judgment, Crim. Side No. 19 (2010) - "Galate":
Over four days, the nine accused attacked three ships, seizing the Galate, and using it to launch attacks and seize an Iranian ship. The Topaz, a military patrol boat fired upon by the pirates, eventually arrested the nine accused after the Iranian vessel they seized caught fire and sank. Interestingly, while evidence showed that only two of the pirates fired upon the Topaz, all the pirates were convicted of the unlawful act under a theory of accomplice liability similar to Joint Criminal Enterprise in the domestic law of the Seychelles. Each of the pirates was sentenced to twenty-two years imprisonment.

Judgment - Galate
Sentence - Galate

Republic v. Mohamed Ahmed Ise & Four Others, Judgment, Crim. Side No. 75 (2010) - "Talenduic":
Over two days, the accused Somalis attacked two French ships in the Gulf, and failed. The accused were apprehended from their "whaler" by EU forces in the area of the attacks and brought to the Seychelles to stand trial. The conviction here, unlike the two above, was based solely on circumstantial evidence, as no direct evidence of the crime taking place was produced (para. 32). The court, however, found that the only reasonable inference to be drawn from the presence of the pirate vessel in the area was one of guilt -- even though no weapons, hooks, or other piratical equipment were found in the whaler -- and convicted all five accused.

Judgment - Talenduic

Republic v. Houssein Mohammed Osman & Ten Others, Judgment, Crim. Side No. 19 (2011) - "Draco":
The accused in this case approached the Draco at high speeds onboard a single skiff. Security officers onboard the Draco alleged that one of the accused had a bazooka pointed toward them, which prompted these officers to begin firing at the skiff. The accused turned back, and were later apprehended on board a whaler not far away. They had not manifested any overt act of piracy, nor were there any weapons or piratical tools found aboard their skiffs when arrested, similar to the Talenduic case. The government argued that merely having the intent was the completed act of piracy, but the court rejected this position. While it found insufficient evidence of an overt act of piracy, the court held the pirates had the manifest intent to commit piracy, and their preparatory actions constituted attempt under the Penal Code. They were convicted of attempted piracy and having the common intent to commit piracy. The accused were sentenced to ten years imprisonment.

Judgment - Draco
Sentence - Draco

Republic v. Abdukar Ahmed & Five Others, Judgment, Crim. Side No. 21 (2011) - "Gloria":
Seven men (the six accused and one other) attacked from skiffs and seized the Gloria on April 19, 2011, making for Somalia after seizing the ship. The captain of the Gloria had sent a distress call, and two Seychelles Coast Guard vessels responded. The pirates opened fire on the two vessels and threatened to kill the Glorias crew, and the Coast Guard returned fire from a safe position. One of the pirates was killed in the crossfire. The pirates were convicted of three counts of piracy, for attacking the Gloria, as well as acts of violence against the two Coast Guard vessels. It was the first case where there was a detailed analysis in the courts opinion of the defenses offered by the defendants. The accused were sentenced to terms of twenty-four years on the first count, and eighteen years on counts two and three, all running concurrently. Interestingly, the Court ordered the pirates property to be auctioned and the proceeds given as compensation to the victims of the acts, blending civil reparation with criminal liability.

Judgment - Gloria
Sentence - Gloria

Posted @ 8:00 PM | Piracy Trials | Read Entry | 0 Trackbacks

The Law's Long Arm and the Mighty Pen: Justice for Ratko Mladic

A former war crimes prosecution attorney and PILPG advisory board member reflects on the arrest of Ratko Mladic, alleged mastermind of the Srebrenica genocide.

It is not often when one man is able to unite officials on both sides of the Atlantic to work together with common cause and devotion, for years. But this past week, an example of the U.S.-European transatlantic relationship emerged along with a reminder of the just how long, the "long arm of the law" can stretch, when Ratko Mladic appeared in a courtroom in The Hague.

Mladic, the former commander of the Bosnian Serb Army, had been on the run for nearly sixteen years. And for nearly sixteen years, his name appeared on countless talking points, memos and speeches, used by U.S. and European officials, as well as three chief prosecutors of the U.N. war crimes tribunal in The Hague, all united in calling for the Government of Serbia to bring him to justice. His arrest was part of a global effort pushed largely by a handful of officials on both side of the Atlantic but an effort that was lead not by soldiers and sailors, using tanks and firepower, but by lawyers and bureaucrats, wielding pens and diplomacy.

And while his arrest and capture may have been justice delayed for some, for many visitors to the UN war crimes tribunals chambers last week, just seeing the once-powerful general in the dock, under the watchful eyes of U.N. guards, meant that justice would not be denied.

I must confess, I smiled when I heard the news of his capture and to be honest it made my day. Thats because as I smiled, I thought of all those people who, in some tragic way, this one man had brought together prosecutors, investigators, victims, witnesses, families, government officials, diplomats, activists, and even the press and who I knew would also pause and smile, as their collective belief in justice was renewed, and for some, even restored.

And if I am making confessions, I must also confess that, for a time, I had my doubts that he would ever see justice.

Doubting Justice

Ten years ago, I was serving as prosecution attorney at the U.N. war crimes tribunal in The Hague. And, while I had great respect for the seasoned prosecutors and investigators hard at work, I couldnt help but notice that it seemed incredibly challenging for the international community to capture its alleged war criminals. These were the relatively early days of international justice and international tribunals as we know it (indeed, even the International Criminal Court had not yet been established), and there were few senior-level defendants in the dock.

Conspicuously missing was General Ratko Mladic.

I had been hired to work on the U.N. team prosecuting Radislav Krstic, Mladics lieutenant general during the Srebrenica genocide. Krstic was, at the time, the most senior military officerand the first accusedto be tried for the crimes that took place after the fall of Srebrenica. But, as I learned more about the casealthough my family is from the Balkans, I was conducting U.S. Army training at Fort Bragg when the genocide occurred and, like many Americans, didnt know the extent of the slaughterI became convinced that Mladic was the mastermind of the genocide. He was the perpetrator who most needed to be tried.

Just consider the devastation he caused. Sixteen years ago this July, some 8,000 Bosnian Muslim men and boys at Srebrenica were slaughtered at the hands of Mladics Bosnian Serb Army and related forces. Most were killed in a full-scale military operation: blindfolded with their hands tied, they were lined up before freshly dug ma