The trial of former Liberian leader Charles Taylor is expected to resume next month. Taylor is accused of war crimes and crimes against humanity stemming from the long civil war in Liberia’s neighbor, Sierra Leone. However, if it weren’t for a legal opinion written by American professors and students, the trial might have never taken place.
Case Western Reserve University in the mid-western city of Cleveland is home to the Cox Center War Crimes Research Office. Office. It provides legal advice and opinions, not just to the Special Court for Sierra Leone, which is trying Charles Taylor, but also to five other international tribunals. These are the new Cambodia Tribunal, the International Criminal Court, the Rwanda and Yugoslavia tribunals and the Iraqi High Tribunal.
Law Professor Michael Scharf is the center’s director.
“We get requests for legal analysis and research on discreet issues from the different prosecutors’ offices. And every semester we have 20 students, who are working under the supervision of myself and two other faculty members, and we spend countless hours preparing very lengthy, usually 50- to 60-page legal memorandum; and we attach all the supporting documents. And those go to the tribunals,” he says.
Before then-special court chief prosecutor David Crane signed the indictment against Charles Taylor in March 2003, he asked for a legal opinion in the case. The question being considered was whether Taylor had legal immunity from indictment as a head of state.
“We prepared very a lengthy memorandum on it indicating that the Special Court for Sierra Leone was international enough that head of state immunity should not apply. And that was a very controversial question because the Special Court is actually a hybrid court. It’s part domestic and part international. So the question of how international must a court be for there not to be head of state immunity was novel and cutting edge and difficult,” he says.
Crane later used the center’s memo to write his indictment, which then stood up to legal challenges and appeals.
“If the ruling had gone the other way then Charles Taylor would still be a free man, presumably causing mischief and problems for the Africa region to this day,” he says.
Precedents for war crimes trials date back to the Nuremburg and Tokyo tribunals following World War Two. They were added to with legal rulings from the Yugoslav and Rwandan tribunals in the early 1990’s, and the more recent International Criminal Court.
Scharf says, “The body of precedent in this area has grown at an exponential pace, such that it is the fastest growing area of international law - and probably one of the fastest growing areas of law anywhere on the planet.”
A former student of the Cox Center War Crimes Research Office is now a legal adviser to the Rwanda Tribunal judges and another is on the prosecutor’s staff in the Charles Taylor case.
"Going all the way back to Nuremburg, the idea of international justice has become one of the values that Americans hold most dear. It is very American to want to see people prosecuted for war crimes around the globe,"says Scharf.
Scharf and his team at Case Western Reserve University will now turn their attention to the new Cambodia war crimes tribunal. It will deal with cases involving the infamous killing fields of the 1970’s.
Professor Scharf says that the rule of law must be upheld, even when it appears a quicker and easier solution may be at hand.
"From time to time, trading justice for peace seems to be worthwhile. But I think what we’re learning is that when you make those kinds of trades the people who used to be in power become recidivists. They continue to cause trouble. You can’t trust them to be good world citizens. And it also sends the wrong message. It sends the message that if you are committing atrocities against your population you can trade accountability simply by agreeing to a golden parachute (favorable settlement) and going off into exile somewhere," he says.
That would create a culture of impunity, he says, that could cause people to forget what happened in Sierra Leone, Rwanda, Bosnia or Cambodia.