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.