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Proxy-War Responsibility and the ‘Taylor Doctrine’

The most important of the secondary effects of the guilty verdict against Charles Taylor will be the notion that those who support the wars of others can be found culpable of the crimes committed by those they support. That should be a warning to many state officials who relate to irregular armed groups at war.

Mark Taylor
6 May 2012

The guilty verdict against Charles Taylor is going to be carefully picked over by international jurists, not least those at the ICC who must plan future prosecutions of political and military leaders and those who support them. At the centre of the judgement is the court’s handling of the question of individual criminal responsibility of Taylor for the support he gave to crimes committed by the RUF and other Sierra Leone factions.

The judges of the Special Court for Sierra Leone rejected the prosecution’s claim that Taylor was a political or military commander who controlled the fighting organisations which committed atrocities in neighbouring Sierra Leone. The court found that Taylor wielded “substantial influence” over those armed groups, including the RUF, but that that his influence “fell short of effective command and control”.

The court found Taylor guilty of aiding and abetting the crimes against humanity and war crimes of the RUF and other factions. Taylor was also found guilty of participating in the planning of certain crimes, including those which occurred during operation “No Living Thing” which resulted in thousands of deaths during an RUF attack on Freetown in January 1999. However, the court found that the prosecution had failed to provide sufficient evidence that the support provided by Taylor, and the planning he participated in with the leaders of the RUF, constituted his participation in a common plan to commit the crimes alleged. In short, while the court found he assisted in the crimes alleged, the lack of evidence of Taylor’s participation in a common plan led the judges to reject responsibility based on a theory of Joint Criminal Enterprise (JCE).

A conviction of a political-military leader using theories of responsibility like 'aiding and abetting' sets an important marker for the potential liability of superiors in armed conflicts, especially in so-called proxy wars. Aiding and abetting requires that there be practical assistance and that this have a substantial effect on the crime. Much of the evidence against Taylor was made up of the extensive support he provided to the RUF, everything from arms, to tactical and strategic advice (like what towns to take first, what diamond fields to control), to transport, to communications, to food, to clothing, as well as financial assistance and the facilitation of diamond deals. The prosecution made a solid case regarding the practical forms of assistance provided by Taylor. But by opting to convict Taylor for aiding and abetting, and rejecting command responsibility and JCE as theories of responsibility, the court in effect rejected the argument that the war in Sierra Leone was Charles Taylor’s doing.

One effect of this was that the court was able to strike a balance in its rulings on the diamonds-for-guns trade. The court accepted that enslavement and forced labour played a role in production at mine sites, and that this trade was used to finance both the RUF and Taylor’s activities. But at the same time its reasoning placed the diamond trade in the context of the political and other forms of economic support that the RUF received from various sources, including that which Taylor provided both as part of – but also separately from – the illicit diamond trade. The court’s depiction of the conflict was more balanced than many mythical depictions of the archetypal diamond-war as portrayed in the movies.

It was interesting to hear the court’s use of Taylor’s participation in regional African peace-making efforts – and therefore his exposure to reliable ECOWAS and UN reports about the violence of the conflict in Sierra Leone – as evidence that he knew that crimes were being committed. His secretive military support to the fighting factions throughout his public diplomacy for peace was also viewed as evidence of his intention to continue providing support to the RUF in full knowledge of their crimes. In one practical example, the provision of a guest house in Monrovia for use of the RUF during the peace talks was also used as a base to run guns and diamonds. The court accepted that Taylor had positive effects on the peace process at times, but pointed to prosecution evidence of his duplicity as the basis for rejecting defense arguments that Taylor was a peace-maker rather than a warlord.

Similarly, the Taylor decision implies that political and diplomatic engagement with irregular armed groups is permissible, as long as you are not arming or financing them on the side. This runs in direct contradiction to the received wisdom of the past decade, during which authorities have criminalized and black-listed non-state armed groups to such an extent that they have discouraged and even prevented constructive contacts aimed at peace-making, or at least reducing the violence.

Perhaps the most important of the secondary effects of the ruling will be the notion that those who support the wars of others can be found culpable of the crimes committed by those they support. That should be a warning to any state officials invovled in relations with irregular armed groups at war, especially where that relationship involves any kind of practical support to groups that have a record of abuse that may rise to the level of international crimes (Afghan warlords anyone?).

There is a lesson here for the brokers and businessmen who facilitate the kinds of assistance that Charles Taylor and his people provided for the RUF. If an international court can take down a former President for assisting the crimes of others – and a national court can do the same to his principle business associate – the day when similar legal actions will be brought against the many private and public middlemen involved in similar activities elsewhere may just have drawn a bit closer.

 

Article first published on Laws of Rule on April 26, 2012 

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