JURIST Guest Columnist Kenneth Gallant of the University of Arkansas at Little Rock William H. Bowen School of Law says that the sentencing of Charles Taylor should have included the provision of reparations for his victims, and that the prosecution ought to raise this issue on appeal…

The conviction of Charles Taylor, former president of Liberia, in the Special Court for Sierra Leone (SCSL) was historic and positive. His sentence, consisting solely of 50 years imprisonment, is disappointing. It is a missed opportunity to provide reparation to his victims and to use a financial penalty to deter crime.

Arms Dealing as a Crime

Taylor was not convicted of ordering, commanding or committing mass killings, rapes and mutilations in Sierra Leone. He was convicted of “aiding and abetting” these crimes, and of participating in the “planning” of many of them. Ironically, this may turn out to be one of the most historic points about his case.

Taylor was convicted because he sold weapons for diamonds, along with doing many other things. The SCSL found [PDF] beyond a reasonable doubt that:

[T]he Accused knew that his support to the [Sierra Leone rebels] would provide practical assistance, encouragement or moral support to them in the commission of crimes during the course of their military operations in Sierra Leone.

So, Taylor was convicted for sending into Sierra Leone weapons that he knew would be used in perpetrating the murders, rapes and mutilations that occurred.

Why is this significant?

In general, the international criminal courts and tribunals set up since 1993 (beginning with the International Criminal Tribunal for the Former Yugoslavia) have focused on prosecuting the perpetrators and commanders of these kinds of atrocities. Indeed, the SCSL has done so in several other cases as well, and this is appropriate. The Taylor verdict, however, says something more.

An arms dealer who sells weapons knowing (or intending) that they will be used to commit crimes against humanity and war crimes also commits a crime. Such persons are subject to prosecution and punishment as aiders and abettors of the killers, rapists and mutilators. Status as an outsider to a civil war does not grant immunity.

Taylor has made arguments that he never received any conflict diamonds, and that the witnesses who claim otherwise are not credible. He may raise this argument on appeal. However, the statement of law above is correct, and I believe it will be upheld on appeal regardless of the decision on the specific facts of the case.

To repeat the effect of the SCSL Trial Chamber judgment against Taylor: arms dealers are criminals if they sell into civil wars, knowing their weapons will be used for mass crimes against civilians in violation of international law. That is an historic ruling.

Failure to Forfeit Proceeds of Crime

According to the Statute of the Special Court of Sierra Leone [PDF], the SCSL has the authority to order the forfeiture of proceeds of crime:

In addition to imprisonment, the Trial Chamber may order the forfeiture of the property, proceeds and any assets acquired unlawfully or by criminal conduct, and their return to their rightful owner or to the State of Sierra Leone.

Unfortunately, at Taylor’s sentencing the Trial Chamber did not order forfeiture of the diamonds, the proceeds of the diamonds or any other proceeds of his crimes. Perhaps this is because the prosecution did not even ask for forfeiture in its sentencing brief [PDF].

This is an historic missed opportunity. Very few of those convicted of genocide, war crimes and crimes against humanity in the modern international criminal courts and tribunals have been wealthy people. Most convicts have had few or no resources to commit, even in some small way, to making good the harm they have caused.

Taylor might be different. The Trial Chamber found during sentencing [PDF] that:

[T]here was a continuous supply . . . of diamonds mined from areas in Sierra Leone to Mr. Taylor, often in exchange for arms and ammunition. Mr. Taylor repeatedly advised the AFRC/RUF [Armed Forces Revolutionary Council/Revolutionary United Front] to capture Kono, a diamondiferous area, and to hold Kono and to recapture Kono, so they would have access to diamonds which they could use to obtain from and through him the arms and ammunition that were used in military operations to target civilians in a campaign of widespread terror and destruction. Mr. Taylor benefited from this terror and destruction through a steady supply of diamonds from Sierra Leone. His exploitation of the conflict for financial gain is, in the view of the Trial Chamber, an aggravating factor.

In its sentencing judgment, the Trial Chamber also said, properly, that deterrence is a chief purpose of sentences in international criminal courts and tribunals. Taylor amassed personal wealth through his illegal trade. Forfeiture of all of these proceeds (not just the profit portion of them), as much as imprisonment, may help deter future arms dealers from selling into these conflicts.

For the first time in the history of modern international criminal prosecutions, we might also have seen a significant amount of ill-gotten gains being made available for reparations to victims of international crimes. The forfeiture of this property might have made it available to the slave laborers forced to mine the diamonds, and to the government of Sierra Leone to provide rehabilitation to those mutilated during the campaigns in which the diamond-bought weapons were used.

The reparation provisions of the SCSL statute, like those of the Rwanda and Yugoslav tribunals, are much less thorough than those of the International Criminal Court (ICC). Nonetheless, a sentence of forfeiture here could have provided a reasonable starting point for the ICC to consider when it sentences a person who has significant resources — especially resources gained from the proven criminal conduct.

I know of nothing in the public record that explains the prosecution’s failure to pursue forfeiture in its sentencing brief. I know of nothing in the public record (other than the prosecution’s failure, which is significant) to explain the Trial Chamber’s failure to use the forfeiture provisions in this case.

It would not have been easy to get money for reparations in this case. The proceeds are almost certainly hidden, converted into other property or otherwise made difficult to reach if, indeed, they still exist. And it would not have been easy to get the money used for making the victims whole. If it is given to the state of Sierra Leone, the court and the government might reach an agreement to use it for rehabilitation of survivors or education for the children of the murdered.

This error may or may not be correctable on appeal. According to the SCSL statute, the prosecution has the right to appeal on grounds of error of law or fact. However, it may be difficult to succeed on such an appeal because the Appeals Chamber may hold the issue waived by failure to raise it at the original sentencing hearing. If the appeal succeeds, it may result in a reduction of Taylor’s fifty-year sentence of imprisonment (which was computed without considering forfeiture, a real penalty).

I hope that the prosecution will make an argument that forfeiture should be part of the penalty, as it is clearly available pursuant to the SCSL statute. Even a court decision that the prosecution has waived the argument might carry a strong statement that forfeiture of ill-gotten gains should generally be part of the sentences of those who have made such gains from war crimes and crimes against humanity. It will strengthen the message to arms dealers already sent by the Taylor verdict.

The decision to appeal will require a brave prosecutor who is willing to be criticized by the Appeals Chamber for what appears (from the public record) to have been an error made at sentencing. Being willing to take that heat may, however, make the Taylor case even more important and progressive than it already is.

Kenneth Gallant is Professor of Law at University of Arkansas at Little Rock William H. Bowen School of Law, and is currently a Guest Researcher at the Max Planck Institute of Foreign and Comparative Criminal Law in Freiburg, Germany. He is a Member of the International Criminal Court’s Advisory Committee on Legal Texts and a Member of the Council of the International Criminal Bar. The views in this article are his own and not those of any organization with which he is associated.

Suggested citation: Kenneth Gallant, Charles Taylor, Arms Dealers and Reparations, JURIST – June 7, 2012, http://jurist.org/forum/2012/06/kenneth-gallant-taylor-reparations.php .