Charles Taylor's right to a fair trial should remain a priority
In an unexpected moment of symmetry last week, on Tuesday, February 8, the defence lawyer for former Liberian president Charles Taylor . At a break, Taylor himself left the courtroom and did not return.
The gesture of dramatic defiance from the defence, the prosecution left to speak before an empty defendant's box - you would be forgiven for feeling you'd seen this before.
Almost four years ago, in June 2007, just as the trial was getting underway, Taylor's then lawyer, Karim Khan, disregarded a judges' order and , telling the judges he had Taylor's instructions to do so. He left then chief prosecutor, Stephen Rapp, to deliver his opening statement in the absence of Taylor and his defence team. An indefinite adjournment followed. It took another six months to get the case on track.
Similarly, the walk-out this time threatens to do more than offer a matching bookend to the case at the . The theatrics cast a pall of doubt over the proceedings against Taylor, who is on trial for his alleged responsibility for mass crimes during the bloody 11-year war in Sierra Leone, and raises crucial new questions about the future of the case.
The drama began with a decision by the judges on Monday, February 7, to reject the defence final trial brief. The reason given: the brief was filed 20 days after the January 14 due date. This was unfair, Taylor's team argued, because they were unable to finish their brief until the judges themselves had dealt with outstanding motions about —decisions that could impact their closing arguments. The judges were unmoved.
On Tuesday, when closing arguments were due to start, in front of a public gallery filled with international media, Taylor's defence lawyer, said to the judges,
Despite being cautioned by the special court judges, Griffiths maintained, "I have made a decision, so has my client that we intend to leave."
Griffiths eventually left the court room. Taylor, who was prevented from leaving with Griffiths by two security guards, disappeared after a morning recess.
In the interim since the last time the defence boycotted proceedings in 2007, the trial has , with 115 witnesses - 94 for the prosecution and 21 for the defence - testifying in court. During the trial, prosecutors have presented evidence that Taylor allegedly controlled and supported rebel forces in Sierra Leone, as they marauded through the country, hacking off the limbs of civilians, committing rape and murder, and laying waste to civilian property.
Taylor has denied the charges against him. During his initial appearance in April 2006, he told the court, "I did not and could not have committed these acts against the sister Republic of Sierra Leone…so most definitely I'm not guilty."
But the question of Taylor's guilt will have to wait. Last Friday, February 11, the day which had been set to hear rebuttal arguments from prosecution and defence lawyers, Taylor's lawyer, Griffiths, was instead ordered to turn up in court and apologise for his walk-out three days earlier.
Griffiths did appear, but he sat quietly and did not speak. He left the podium to his co-counsel, Terry Munyard, who argued that instead of being asked to apologiae, Griffiths should be granted a special disciplinary hearing, where he would be represented by an "experienced counsel." This hearing was set for February 25. Griffiths will sit as a defendant rather than as defence counsel.
The defence also sought leave to appeal the decision to reject their final brief. The judges granted the defence request by majority, with Justice Richard Lussick dissenting. This paves the way for defence lawyers to file an appeal before a different panel of five appeals chamber judges.
The decision of the appeals chamber judges will be important in shaping the future steps in the case. If the appeals chamber judges uphold the decision of the trial chamber to reject the defence final brief, then it means proceedings will continue with the closure of the case and judgment delivered without the involvement of the defence.
As Griffiths put it in a press conference after Friday's hearings, "I see no role for us to play in the process after that."
Such a path risks criticisms of the trial as a whole, with questions raised about whether it is within Taylor's fair trial rights not to have been allowed to take part in the closing of his case. Indeed, this possibility was foreshadowed by one of the trial judges, Justice Julia Sebutinde, who, in her dissenting opinion on the rejection of the defence final brief, noted: "To ultimately strike out on a procedural basis his [Taylor's] final trial brief that essentially contains his defence to the charges in the indictment is to deny him his fundamental right to defend himself."
If, on the other hand, the appeals chamber overturns the trial chamber's decision and orders that the defence final brief be accepted, then it becomes a matter of whether a new date will be scheduled for defence lawyers to make their own closing arguments.
Whatever the decision from the appeals chamber, it means that the drama that overshadowed proceedings last week has prolonged the process.
Such a delay probably would have been avoided if last week's events had not been allowed in the first place. While it is very important for all parties to respect deadlines ordered by the judges, it must be noted that other options were open to the court to resolve this issue. Justice Sebutinde, for example, said in her dissenting opinion that a degree of discretion could be exercised by the judges in admitting briefs submitted late, and that such a practice was consistent with how judges have handled other trials at the Special Court and other international criminal tribunals.
It is certainly hoped that this trial is not faced with a situation where Taylor's defence team cannot submit a final brief and present their closing arguments to the court. To date, the defence rights have been priority for the court. Taylor's team has been given a higher level of payment than defence teams in other international tribunals, it has received the necessary resources as confirmed by Taylor's defence counsel, and has been given additional time when needed to prepare its case.
The trial has also run smoothly, by and large. It would be a shame if the positive story the court could tell about its respect for Taylor's rights was overshadowed at this late stage.