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Tuesday, May 1, 2012

The Taylor Takeaway: Differentiation

The Special Court for Sierra Leone found former Liberian President Charles Taylor guilty last week, and his sentencing is scheduled for May 30th.  Commentators have rightly noted that the verdict is a historic -- though perhaps not the first -- case of international criminal responsibility for a head of state.

My takeaway from the verdict is slightly different than what I have been reading in the blogs and the newspapers.  For me, the Charles Taylor guilty verdict is a major victory for differentiation, or the idea that international tribunals need to distinguish levels of participation, and hence levels of culpability, by criminal defendants.  (Readers might be interested in my exchange with James Stewart on differentiation, available here and here).

The Special Court went out of its way to find that there was insufficient evidence of Taylor’s participation in a Joint Criminal Enterprise.  It also ruled that there was insufficient evidence of command responsibility.  In both cases, what was at issue was Taylor’s relationship to the military forces in Sierra Leone that carried out the atrocities that are within the Court’s jurisdiction.

Consequently, the court convicted Taylor as an accomplice to these crimes, and explicitly declined to hold him responsible as a principal perpetrator.  For me, that’s the real takeaway here: the court’s unwillingness to apply a mode of liability that would have yielded a conviction as a principal.  Indeed, one of the rationales for JCE and command responsibility is that both are tailor-made to establish individual criminal liability for those at the top of the political or organizational hierarchy.  The fact that the court used a more common criminal law category – aiding and abetting – indicates that the court wanted to find Taylor guilty but also differentiate him from other perpetrators of these atrocities who bore more direct responsibility.

Along the same lines, it is also interesting to me that Charles Taylor was not convicted as an indirect co-perpetrator of the crimes.  If this case had been tried at the ICC, he would have almost certainly been prosecuted under this mode of liability.  Indirect co-perpetration provides criminal liability for individuals who cooperate with other individuals who indirectly perpetrate the crime through a hierarchical organization.  That almost perfectly describes Taylor’s situation: he was vertically and horizontally removed from the atrocities committed in Sierra Leone.

Of course, the Taylor case wasn’t framed in terms of indirect co-perpetration (though that didn’t stop the ICTY from convicting Tadic with JCE, a doctrine that was not briefed by the parties in the case).  But the point remains: the Taylor verdict stands as a historic example of a court saying that a head of state was guilty of international crimes, though his culpability ought to be differentiated – rather than conflated – with more culpable parties.  A subtle and nuanced result.


Kevin Jon Heller said...

I completely agree. I'd love to hear your thoughts on what this means for sentencing; I've been debating with Diane Amann at IntLawGrrls about whether the SCSL would be justified in punishing Taylor as if he were a principal, based on the common-law approach to the principal/accessory distinction. My argument is that the SCSL should follow (in a soft way, as you have pointed out) the jurisprudence of previous tribunals, which have uniformly sentenced accessories more leniently than principals, given that the common-law approach conflicts with (most) civilian systems, some Islamic systems, and Chinese law.

Jens David Ohlin said...

Kevin, my thoughts on this are a bit complex.

On theoretical grounds, I completely agree that accomplices are less culpable than principal perpetrators; furthermore, the differentiation ought to be expressed in the substantive doctrine, not just in punishment. In theory, the accomplices are less guilty than the principal perpetrators and therefore ought to receive a lower punishment. This is clearly the civil law view, and to a certain extent the common law view too insofar as the latter incorporates this reality within the discretion of the judge in the sentencing phase.

That being said, I don't think it is necessarily the case that accomplices ought to always received less than a life sentence, simply because they are accomplices. But my rationale here is different than the common law view that the distinction between accomplices and principals is irrelevant.

In short, the principal perpetrator's culpability might be so large that even the reduced culpability of the accomplice should yield a life sentence too. So I reject a methodology that starts with the principal perpetrator, grants a life sentence, and then scales down the punishment for the accomplices, in form of x(life sentence) - y(accomplice reduction) = shorter sentence. That seems wrong to me.

One way of expressing the point is to dispense with the grammar of life sentences and express everything with a determinate sentence. So the principal gets 200 years and the accomplice gets 100 years, though in reality both will spend their natural lives incarcerated.

I've written about this in the ICTY Legacy volume published by OUP.

Kevin Jon Heller said...


Great point -- with which I am in complete agreement. It's reminiscent of Mark Drumbl's argument, following Arendt, that retributivism is impossible in the context of mass atrocity, because any retributively-proportionate punishment for the perpetrators of crimes like genocide would require not only the death penalty, but years of torture as well!

Jens David Ohlin said...

Yes, although I don't conclude that retributivism ought to be rejected because of this tension. Rather, I argue that offense-gravity proportionality ought to be prioritized over defendant-relative proportionality, if there is a conflict between the two.

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