International Criminal Law - Accessory Liability - Special Court for Sierra Leone Rejects "Specific Direction" Requirement for Aiding and Abetting Violations of International Law

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INTERNATIONAL CRIMINAL LAW--ACCESSORY LIABILITY--SPECIAL COURT FOR SIERRA LEONE REJECTS "SPECIFIC DIRECTION" REQUIREMENT FOR AIDING AND ABETTING VIOLATIONS OF INTERNATIONAL LAW--Prosecutor V. Taylor, Case No. SCSL-03-01-A, Judgment (Spec. Ct. For Sierra Leone Sept. 26, 2013)

Individual criminal liability for aiding and abetting violations of the laws of nations is "firmly established" (1) as "one of the core principles" (2) of customary international law. (3) Less clear is what conduct aiding-and-abetting liability reaches. (4) Recently, in Prosecutor v. Taylor, (5) the Appeals Chamber of the Special Court for Sierra Leone (SCSL) upheld the conviction of former Liberian President Charles Taylor for aiding and abetting eleven violations of international law perpetrated by armed rebels during the Sierra Leone Civil War. (6) In affirming Taylor's conviction, the Appeals Chamber declined to adopt the more exacting actus reus requirement for aiding-and-abetting liability endorsed by the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Prosecutor v. Perisi. (7) Whereas the Perisi Appeals Chamber held that aiding-and-abetting liability is appropriate only where a defendant has "specifically directed" aid toward a particular crime, (8) the SCSL Appeals Chamber allowed liability to attach upon a showing that Taylor's provision of assistance to Sierra Leonean rebels had a "substantial effect" on the latter's commission of violations of international law. (9) While the Taylor chamber properly concluded that "specific direction" is not an actus reus element of aiding and abetting under customary international law, (10) the vague nature of the "substantial effect" test remains a troublesome feature of the Taylor formulation.

In March 1991, Foday Sankoh's Revolutionary United Front (RUF) launched an insurgency in Sierra Leone, seeking to overthrow the government of then-President Joseph Momoh. (11) For eleven years, RUF fighters brutalized the country, using forced labor and child abduction to fuel their military objectives while terrorizing the civilian population with mass amputations, sexual violence, and indiscriminate murder. (12) During the closing years of the Sierra Leone Civil War, the RUF relied "heavily and frequently" on shipments of weapons and ammunition furnished or orchestrated by Taylor, (13) who had provided the RUF with operational and logistical support throughout the war. (14)

The RUF was defeated by a British military intervention in 2000. (15) In response to a request by Sierra Leonean President Ahmed Kabbah, (16) the U.N. Security Council endorsed the establishment of a special court to try those who had perpetrated war crimes during the Sierra Leone Civil War. (17) In March 2003, the resulting SCSL, authorized to prosecute serious violations of international law committed in Sierra Leone after November 1996, (18) approved Taylor's indictment on a number of war crimes. (19) The indictment helped to destabilize the Taylor regime. (20) In August 2003, an embattled Taylor abdicated as President of Liberia and departed for Nigeria, (21) where he lived in exile until delivered into the custody of the SCSL in March 2006. (22)

Taylor's trial opened in June 2007 in The Hague, (23) where he faced charges of five war crimes, (24) five crimes against humanity, (25) and one serious violation of international humanitarian law (26) pursuant to article 6(1) of the Statute of the Special Court for Sierra Leone. (27) Prosecutors argued Taylor's responsibility for the eleven substantive violations on several distinct theories of liability. (28)

In May 2012, a unanimous three-judge SCSL Trial Chamber convicted Taylor for all eleven violations on an aiding-and-abetting theory. (29) Writing jointly, Justices Lussick, Doherty, and Sebutinde found that Taylor supplied the RUF with weapons, ammunition, personnel, and operational and moral support, without which the RUF could not have sustained its military operations. …