JURIST Guest Columnist Donna Arzt, Director of the Center for Global Law and Practice at Syracuse University College of Law, says that when the incoming president of Liberia takes office in January she should ask Nigeria to extradite former Liberian president Charles Taylor - indicted for war crimes by the Special Court for Sierra Leone but currently in exile - and the UN Security Council should urge Nigeria's recalcitrant president to turn him before the Special Court's funding runs out...
Created in January 2002 by a treaty between the United Nations and the government of Sierra Leone, the Special Court for Sierra Leone is charged with prosecuting "persons who bear the greatest responsibility for serious violations of international humanitarian lawâ¦ committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone." In March 2003, the SCSL Prosecutor indicted Charles Taylor for his role in arming and funding the Revolutionary United Front in the brutal decade-long conflict in Sierra Leone in which tens of thousands died and hundreds of thousands were violently abused and mutilated.
As the Prosecutor stated in June 2004, shortly after the Special Court's Appeals Chamber ruled that head-of-state immunity does not bar proceedings against Taylor in an international criminal tribunal:
Charles Taylor has been indicted for some of the worst criminal charges a human being can face, including terrorising the civilian population, unlawful killings, sexual violence, physical violence, forced conscription of child soldiers, abductions, forced labour, looting and burning, and attacks on peacekeeping personnel. The victims of this war, and all Sierra Leoneans who want a society governed by law, deserve to see Charles Taylor held to account... For the rule of law to take root around the world it must also apply to politically difficult and high profile cases.Since August 11, 2003, the day he resigned as President of Liberia, Taylor has been evading arrest in exile in Nigeria, where he was granted asylum by Nigeria's President and now lives in a villa on the southeastern coast. Although at the time, President Olusegun Obasanjo was acting in the interest of regional peace, in the view of observers such as Human Rights Watch, "Nigeria's ongoing harboring of an indicted war criminal undermines the [Special Court's] ability to achieve its mandate."
Developments in Liberia
After fourteen years of civil war and a two-year period of transition, as of November, Liberia has elected a new President: Ellen Johnson-Sirleaf, a Harvard-educated economist who has become the first woman elected head-of-state in Africa. Although she faces enormous challenges, her democratic election (guaranteed by UN peacekeepers) in early November has brought fresh hope to impoverished Liberia. One of her challenges is to move beyond the devastation and the shadow cast by Taylor, who had once jailed Johnson-Sirleaf when she ran against him. In July, Liberia's transitional President Gyude Bryant, President Ahmad Tejan Kabbah of Sierra Leone and Guinean Prime Minister Cellou Diallo jointly alleged that Taylor was still haunting West Africa, including by attempting earlier in the year to assassinate Guinean head-of-state Lansana Conté in revenge for backing the Liberian insurgency group, LURD. Indeed, the NGO Coalition for International Justice had reported that Taylor was spending some of the millions of dollars he had looted to interfere in Liberia's presidential election by backing some of the first-round candidates.
When asked about Taylor, Johnson-Sirleaf said this week: "Allow me to have consultations with West African leaders, whom I am visiting, to take guidance from them before we take a position on that."
Developments in the United States
In a phone call congratulating Johnson-Sirleaf on her election, President George W. Bush referred to the U.S. "commitment and support to help build a democratic, secure and prosperous Liberia" and conveyed his view of the importance of bringing former Liberian leader Charles Taylor to justice so that "he can no longer threaten the people of Liberia and the region of West Africa." This seems to reflect a change over previous Administration policy on Taylor, which had equivocated, at best, on hid surrender to the SCSL.
Meanwhile, U.S. Representative Ed Royce (R-CA-40), vice-chair (and former chair) of the House Subcommittee on Africa, also wrote President-Elect Johnson-Sirleaf, urging her to call for the Nigerian government to deliver Mr. Taylor immediately to the Special Court, "so that justice can be done and Liberia can enjoy better prospects for prosperity... as long as Mr. Taylor continues to enjoy safe harbor while remaining active in Liberian politics from a distance the livelihoods and democratic rights of millions of West Africans, and the post-war re-construction of Liberia and Sierra Leone, will remain at risk." In the spring of 2005, a bipartisan letter from eight Senators (Leahy, Gregg, Specter, Feingold, DeWine, Reed, Chafee and Durbin) to Secretary of State Condoleezza Rice called for the U.S. to seek the transfer of Charles Taylor from Nigeria to the Court "as soon as possible."
Shortly after the Liberian election, Congress adopted a foreign operations appropriations act, H.R. 3057, that contains language (section 590 on War Crimes in Africa) restricting certain foreign assistance to countries in which persons indicted by the SCSL, as well as the ICTR, are living but where the central government is not cooperating with the indictees' surrender. Moreover, it states that:
the United States shall use its voice and vote in the United Nations Security Council to fully support efforts by [the ICTR and the] SCSL to bring to justice individuals indicted by such tribunals in a timely manner;and
assistance may be made available for the central Government of Nigeria after 120 days following enactment of this Act only if the President submits a report to the Committees on Appropriations...on: (1) the steps taken...to obtain the cooperation of the Government of Nigeria in surrendering Charles Taylor to the SCSL; and (2) a strategy, including a timeline, for bringing Charles Taylor before the SCSL.The Act also contributes another $13 million to the budget of the Special Court.
Developments in Nigeria
Perhaps the most interesting developments have occurred in the Nigerian judicial system. In early November, a Nigerian federal court dismissed procedural and political objections by the government, which had tried to stop a review of Taylor's political asylum. Two Nigerian businessmen, whose hands had been amputated by the Taylor-supported Revolutionary United Front in Sierra Leone, had filed the case seeking to quash Taylor's asylum. The court held that the plaintiffs had suffered irreparable injury by their amputations and that the sanctuary granted Taylor in Nigeria constituted a continuing harm to them.
While the case is appealed, Taylor's future depends on Nigerian President Olusegun Obasanjo, who has repeatedly said he will consider an extradition request if made by an elected Liberian government.
Developments in the United Nations
On the same day in November as the Liberian elections, the UN Security Council, acting under Chapter VII, expanded the mandate of UNMIL, the United Nations Mission in Liberia, to include apprehending and detaining Charles Taylor in the event he returns to Liberia and to facilitate his transfer to Sierra Leone for prosecution before the Special Court. While determining that his return to Liberia would constitute an impediment to stability and a threat to the peace of Liberia and the region, Resolution 1638 expressed its appreciation to Nigeria and President Obasanjo for their contributions to restoring stability in Liberia and West Africa but pointedly referred to Taylor's asylum as a "temporary stay" in Nigeria. This followed on Security Council concerns in October 2003 that Taylor was continuing from exile to destabilize Liberia, and an August 2004 travel ban that it imposed on certain Liberian officials for their alleged roles as couriers for Taylor.
What Should Happen Now
The dots are easily connected. In mid-January, Johnson-Sirleaf will take office as President of Liberia. Her first official act should be a request to Nigeria to extradite Taylor. UNMIL, with the Security Council's blessing, could take custody of Taylor at the Monrovia Airport and immediately transfer him to the Special Court. The indicted warlord need never step foot again on Liberian soil.
The weak link in this short chain could be President Obasanjo of Nigeria, who so far has hesitated to surrender Taylor, despite international outreach to him. The Security Council should formally urge Nigeria to turn him over, emphasizing these points:
- International criminal law increasingly discourages impunity for indicted war criminals, including former heads of state;
- While President Obasanjo's 2003 peace-seeking gesture to accept Taylor was appreciated but temporary, and international refugee law prohibits the granting of asylum to indicted war criminals; and
- Allowing Charles Taylor to continue evading the jurisdiction of the SCSL would constitute impermissible impunity, would constitute a threat to the peace and security of West Africa, and undermine the new democratic government in Liberia.
Donna Arzt is Dean's Distinguished Research Scholar and Director of the Center for Global Law & Practice at Syracuse University College of Law