The transcripts of the trial of Charles Taylor, former President of Liberia. More…

Thank you, Madam President. Unless your Honours have questions about similarities and differences of the three modes of liability, I will now move on to your next question? Thank you. Your next question, under paragraph 2(i), was whether customary international law recognises that certain forms of liability set forth in Article 6(1) are more or less serious than other forms of liability for sentencing or other purposes. And the Prosecution's response to that question is, no, that there is no such hierarchy of seriousness, or, if you will, blameworthiness, for these modes of liability set out in Article 6(1). And we suggest that, in looking at this question, it's helpful to look at the Statute, Agreement and Rules of this Court, and when we look at the Statute, Article 6(1), we see there is no hierarchy established in the plain language of that part of the Statute. We also think it's helpful when thinking about this question to consider the situation of the Yugoslav Tribunal. And the Secretary-General of the United Nations, pursuant to United Nations Security Council Resolution 808, made a report about the creation of that tribunal. And in that report, at paragraph 34, the Secretary-General said that, "The Yugoslav Court would be mandated to apply what without doubt was accepted as part of international customary law." Now, in paragraph 36 of that report, the Secretary-General went on to make remarks we suggest are very important in considering this question. And in paragraph 36 the Secretary-General said, "While International Humanitarian Law, as outlined above, provides a sufficient basis for subject matter jurisdiction ..." -- and we would suggest that is the substantive law of the crimes and the forms of liability. "While IHL, as outlined above, provides a sufficient basis for this subject matter jurisdiction, there is one related issue which would require reference to domestic practice; namely penalties." And then the Secretary-General makes reference to paragraph 111 of his report, and in paragraph 111 it is indicated that, "In determining the term of imprisonment, the Trial Chamber should have recourse to the general practice of prison sentences applicable in the courts of the Former Yugoslavia." We suggest that the Secretary-General took this approach, because when we're speaking of a hierarchy of forms of 6(1), in particular for purposes of sentencing, there is no international customary law that speaks to this. There is no uniformity of practice regarding the existence of such a hierarchy, or the sentencing consequences of such a hierarchy. Without consistency of practice, we suggest there is no customary law regarding sentencing, and in this regard we note your Honours' decision in the Norman case, the Decision on Preliminary Motion based on Lack of Jurisdiction, where at paragraph 17 you state that, "The formation of custom requires both State practice and a sense of pre-existing obligation." And, as you noted in your Appeal Judgement in the CDF case, at paragraph 405, "In determining customary international law with reference to State practice, State practice should be both extensive and virtually uniform in the sense of the provision invoked and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved." We suggest to you there is no such uniformity of practice in relation to a hierarchy of seriousness, or, if you will, blameworthiness, of the forms of liability set forth in Article 6(1). As we look even in the international arena at Nuremberg, aiders and abettors were sentenced to death in the Zyklon B case. Others were not. If we look at judicial systems at the national level, there's a great disparity as to how you would treat various forms of liability. In some jurisdictions you would charge and sentence them all the same. In others, you would differentiate between principals and accessories. Now, specifically relating to sentencing, our Statute very clearly mandates at Article 19(1) that, "In determining terms of imprisonment, the Trial Chamber, as appropriate, shall have recourse to the sentencing practice of the national courts of Sierra Leone," and there are similar provisions in the Statutes of the Yugoslav court and the Rwanda court. Now, as the Taylor Trial Chamber in its Sentencing Judgement correctly noted, the law of the one State specifically referred to in our Statute, the law of Sierra Leone, provides for sentencing an accessory to a crime on the same basis as a principal, and the same is true of the law of England and Wales. The same is true of the law of the United States. The same is true of the law in many other jurisdictions. However, in some there would be a difference in sentencing based purely on legal characterisation. But absent uniformity in this practice, we suggest you cannot say that customary law creates a hierarchy of these forms of liability. Now, in referencing Sierra Leone law, we are mindful of paragraph 475 of your Honours' Judgement in the CDF case where you were discussing the Trial Chamber's decision not to have recourse to Sierra Leone's sentencing practices, and you noted that, "At the time the Special Court Statute took effect, Sierra Leone had not criminalised war crimes and crimes against humanity as such," but we suggest the issue here is different and renders the sentencing practice of Sierra Leone particularly significant. The issue here is not sentencing practices regarding international crimes, but rather the issue is whether as a matter of customary law there is a hierarchy of seriousness of the modes of liability under Article 6(1). And we believe Sierra Leone law indicates that there is not, because it takes one approach. Other States take a very different approach. Nor does the fact that the elements of proof would differ to a greater or lesser degree for the various forms of liability impose a hierarchy, no more than the difference in the elements of proof imposes a hierarchy of seriousness between crimes against humanity and war crimes. Different elements, but no hierarchy of seriousness. And we suggest the same is true when we're looking at the Article 6(1) modes of liability. We suggest that in order to find any principle that may be said to be a principle of customary law relating to sentencing for these international crimes, we must look to much broader principles, and we would suggest that to the extent you can say these are customary, these principles might apply. That is the accepted principle, that sentences must be based on the gravity of the offences and the totality of the criminal conduct of the accused. And, in order to determine that, you must look at the facts and circumstances of each case to determine an appropriate sentence. So to this extent we would say that if there is international custom it is this broad principle, and the principle is this: That, in order to determine a just and appropriate sentence, you must look at the crimes, the conduct of the accused and the consequences of the crimes and conduct, not to category or legal characterisation of the crimes. This approach is consistent with the Statute of this Court at Article 19(2), which mandates that for sentencing you must take into account factors such as the gravity of the offence and the individual circumstances of the convicted person, and again this is a similar mandate to that found in the Statutes of the ICTY and the ICTR. This approach is also consistent with this Chamber's Judgement in the CDF case at paragraph 466, where your Honours spoke of the obligation to individualise the penalties to fit the circumstances of the accused and the gravity of the crime. It is consistent with Professor Cassese's statement that your Honours cite in the Norman decision, paragraph 48, to the effect that in regard to international crimes at the international level, tariffs relating to sentences for each crime do not exist, and indeed States have not yet agreed upon a scale of penalties due to widely differing views about the gravity of the crimes, the seriousness of guilt for each criminal offence and the consequent harshness of punishment. And when we're looking at this general principle, we agree with the Trial Chamber in the Celebici Judgement at paragraph 1225, that their Article 24(2) and their Rule 101(b), which are the equivalent of our Article 19(2) and Rule 101(b), that those two sources by themselves contain the indicia necessary for the determination of an appropriate sentence, and that by far the most important consideration - the litmus test - is the gravity of the offence. As your Honours stated at paragraph 546 in the CDF Appeals Judgement, "The final sentence must reflect the totality of the culpable conduct of the accused. It should reflect the gravity of the offences and the overall culpability of the offender," and you noted that this totality principle is firmly supported in the case law of the international criminal tribunals, and you noted further that, "The totality principle requires that a sentence must reflect the inherent gravity of the totality of the criminal conduct of the accused, giving due consideration to the particular circumstances of the case and to the form and degree of participation of the accused." So what we suggest to you is that if the form or category, the legal characterisation of the conduct, is anything at all, it is but one factor and a minor factor to be considered in sentencing. It is not a hierarchical imperative, because to put such a hierarchical imperative in place would be contrary to what we suggest is the fundamental principle that sentences be individualised to the circumstances of the case, to the gravity of the crimes in that case, to the totality of the criminal conduct of the accused in that case. And most certainly we suggest to you that in the crimes that you have to deal with here, international crimes, crimes against humanity, war crimes, to rely on a supposed hierarchy of forms of liability based on category not crimes, not conduct, not consequence, would be contrary to what we suggest is this fundamental principle, and would lead to sentences that are not reflective of the totality of the conduct of the accused, sentences that are not individualised to the facts and circumstances of the case, sentences that are not just. Indeed, when we look at the cases that you have to judge, we see that very often the conduct of a direct perpetrator in terms of totality of conduct, in terms of liability for crimes, in terms of consequence, the liability for sentencing for a direct perpetrator would be much less than for one who is found guilty of other forms of liability such as planning and aiding and abetting. We suggest that that is true in this case. If we were to look at a hierarchy, many people would say, "Well, direct commission has to be at the top," but how can we say that direct commission of the killing of 100 people is automatically more serious than planning which results in the killing, the mutilation, the enslavement of thousands or tens of thousands of people? Or the aiding and abetting that results in these crimes on a scale much broader than an individual perpetrator? Now, perhaps if we were dealing with what is often the case in domestic courts, a singularity if you will, we have one direct perpetrator, we have one aider and abettor, we have one crime, perhaps there you might argue some relative scale of seriousness. We suggest not, but perhaps there it would be more appropriate, but here, where an aider and abettor can be responsible for a magnitude, for a qualitatively larger number of crimes over a longer period of time, over a broader geographic area, than any individual direct perpetrator, we suggest that the hierarchy simply doesn't exist, properly should not exist, and cannot be the basis for sentencing. And what we suggest, your Honours, is there is no customary law in relation to this, but rather you must look to the individual facts and circumstances of each case, the circumstances of each accused and in particular in relation to sentencing. This is the only way that you can apply the principle that a sentence must be appropriate, proportionate to the seriousness of the crimes, to the totality of the criminal conduct of the accused, however you characterise it. There is no hierarchy. There is just look at the individual facts and circumstances of the case. Do your Honours have any question on my submissions on that particular issue?

Keyboard shortcuts

j previous speech k next speech