By Dr Obote Odora

30^th April 2012: On April 26, 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 still the sitting President of Liberia.

Taylor was acquitted of ordering the commission of the crimes – a more serious mode of participation than aiding and abetting. He 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 himself will probably appeal against his conviction. It may therefore take another year before the Appeals Chamber delivers a final judgement. This preliminary observation takes into account the fact that this judgement 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 emphasise that the terms “aiding” and “abetting” are not synonymous.  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 of the two 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 equipments, financial support and accommodation to proxy forces in Sierra Leone. The support provided by Taylor to proxy forces in Sierra Leone, according to the judgement “was sustained and significant”.

The Taylor judgement provides guidelines and thresholds, among other things, for assessing the participation of the Uganda People Defence Forces (UPDF) and its military and civilian leadership in the conduct of armed conflicts in northern 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 Lord’s 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 judgement, while it reinforces the theory that Heads of State are held accountable for war crimes and other serious international crimes, such hopes will remain a pipe dream.

Taylor’s judgement 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 northern Uganda and the DRC are investigated, indicted and prosecuted.  END.  Please login to www.ugandacorrespondent.com every Monday to read our top stories and anytime mid-week for our news updates.

Dr Obote Odora is a consultant in international criminal and humanitarian law