Taylor’s judgment tells us that with leadership come not just power and authority, but also responsibility and accountability. To reinforce the Taylor precedent, it would be helpful for the ICC to investigates and indict the UPDF Commander-in-Chief for crimes committed in northern Uganda and the DRC.
[Global: Africa]
On
26 April 2012, a Trial Chamber of the Special Court for Sierra Leone
(SCSL), with Justice Richard Lussick presiding, convicted former
Liberian President Charles Taylor for aiding and abetting war crimes and
crimes against humanity. Charles Taylor was indicted by the Prosecutor
in 2003 when he was a sitting president and Head of State of Liberia. Charles
Taylor was acquitted of ordering the commission of the crimes – a more
serious mode of participation than aiding and abetting. Taylor was also
acquitted of superior/command responsibility and joint criminal
enterprise (JCE). It is reasonable to expect the Prosecutor to appeal
against these two findings. Similarly, Charles Taylor will
probably appeal against his conviction. It may therefore take another
year before the Appeals Chamber delivers a final judgment. This
preliminary observation takes into account that this judgment is not the
final decision and also the fact that the full text of the Trial
Chamber decision is not yet posted on the SLSC’s official website.
Aiding
and abetting, a mode of participation on which Charles Taylor was
convicted, is relatively easier to prove beyond reasonable doubt than,
for example, ordering the commission of a crime. The practice of the
International Criminal Tribunal for the Former Yugoslavia (ICTY) and
Rwanda (ICTR) demonstrate that many military and political leaders
appearing before the two ad hoc tribunals have been convicted for aiding
and abetting serious international crimes. The International Criminal
Court (ICC) is expected to follow the precedents set.
Back to
the issue of aiding and abetting, it is important to emphasize that the
terms “aiding” and “abetting” are not synonymous. Aiding means the
giving of assistance by an accused to someone or a number of different
persons. Abetting involves facilitating the commission of an act by
being sympathetic thereto. In other words, the terms ‘aiding’ and
‘abetting’ refer to distinct legal concepts. The term ‘aiding’ means
assisting or helping another to commit a crime, and the term ‘abetting’
means encouraging, advising, or instigating the commission of a crime.
In
law, either aiding or abetting alone is sufficient to render the
perpetrator criminally liable. The Prosecutor therefore has to prove,
beyond reasonable doubt, only one of the above acts to render the
accused guilty. The actual perpetrator need not be a subordinate of the
accused or even to be charged with that particular crime. Charles Taylor
was found guilty for aiding and abetting foot soldiers many of whom he
did not know and had never met. The central issue is that the support
Taylor extended to the proxy forces in Sierra Leone substantially
contributed to the commission of crimes as charged in the indictment.
That fact was sufficient to sustain a conviction.
According to
Judge Lussick, in convicting Taylor for aiding and abetting, he found
that Taylor provided arms, ammunitions, communication equipment,
financial support and accommodation to proxy forces in Sierra Leone. The
support provided by Taylor to proxy forces in Sierra Leone, according
to the judgment “was sustained and significant”.
The Taylor
judgment provides guidelines and thresholds, among other things, for
assessing the participation of the Uganda People Defense Forces (UPDF)
and its military and civilian leadership in the conduct of armed
conflicts in the northern part of Uganda and in the Democratic Republic
of Congo (DRC).
There are, for example, credible reports from
Amnesty International, Human Rights Watch, International Crisis Group,
Office of the United Nations Humanitarian Affairs, among others,
implicating the UPDF, its military and political leaders in serious
human rights abuses in northern Uganda and the DRC. The UPDF and its
leadership have committed atrocities in northern Uganda alongside the
Lords Resistance Army (LRA) and its leadership. The victims of the
massacres, of rape, other sexual violence and torture in northern Uganda
are deserving of justice.
The UPDF, on orders of the UPDF
command, for example, herded at least two million civilians, in
‘protected’ camps guarded by the UPDF. Within the confines of the camps,
women and girls were raped as well as sexually abused; young boys were
kidnapped by members of the LRA as the UPDF guarded the camps; children
died of malnutrition because of the UPDF deliberate policy of neglect
and denial of medicine to the sick. All these acts and omissions go
beyond mere aiding and abetting.
In the DRC, credible evidence
available in the public domain suggest that the UPDF and its leadership
provided to convicted war criminal Thomas Lubanga arms, ammunitions,
communication equipment and financial support. Senior UPDF officers,
with the knowledge and approval of the UPDF Commander-in-chief, assisted
and supported the recruitment and deployment of child soldiers for
Thomas Lubanga’s forces and also fought alongside Lubanga in the DRC.
Similar support was provided by the UPDF and its leadership to
Jean-Pierre Bemba, currently on trial before the ICC at The Hague.
Until
the leadership of the UPDF are investigated and prosecuted for war
crimes and crimes against humanity, Taylor’s judgment, while it
reinforces the theory that Heads of State are held accountable for war
crimes and other serious international crimes, such hopes will, for
victims of armed conflict in northern Uganda, remain a pipe dream.
Taylor’s judgment tells us that with leadership come not just power and
authority, but also responsibility and accountability. To reinforce the
Taylor precedent, it would be helpful for the ICC to investigates and
indict the UPDF Commander-in-Chief for crimes committed in northern
Uganda and the DRC.
Critics of the international criminal
justice, correctly, point out that international justice, personified in
many of the decisions taken by the ICC Prosecutor not to investigate
known perpetrators who are Heads of State or government, is blind to the
atrocities committed by these leaders, particularly the Western leaders
as well as non-western leaders who are allies of the west.
If the
Taylor precedent is to have a lasting impact, it is important that the
UPDF perpetrators in the northern part of Uganda and the DRC are investigated,
indicted and prosecuted.
Dr Obote Odora is a consultant in international criminal and humanitarian law.
Charles
