Why Charles Taylor shouldn’t be on trial
Last week I was about to post a piece here expressing concern about the breach of faith involved in the arrest in Nigeria of Charles Taylor, the former President of Liberia, to be tried for war crimes. Before I had time to write anything, Professor Tom Lodge of the University of Limerick thoughtfully wrote it for me, in a letter in The Guardian published on 6 April 2006:
Am I alone in feeling a little uneasy about Charles Taylor’s arrest and indictment for war crimes (Report, April 4)?
To be sure, there can be few people to have ever been tried for more serious offences. But that is not the point. Taylor abdicated office in return for promises that he would be allowed a protected exile. If he had not been given this, he would quite likely still be in power. Allowing him immunity seemed a pragmatic solution. Against its own inclinations the Nigerian government has now been persuaded to withdraw its protection.
If there were no more tyrants this might be viewed as desirable – perhaps cruel dictators do not deserve to be treated with good faith. But harsh rulers remain in authority in Africa and elsewhere, and it is less likely now that they will believe any guarantees that might be offered in future to induce them to give up power.
Tom Lodge
Professor of Peace and Conflict Studies, University of Limerick
So the answer to Professor Lodge’s opening question is: No, you are not alone in feeling uneasy about the way this has been done. Breaking promises, even if they have been made to war criminals, is almost always counter-productive; it destroys the credibility and perceived 
trustworthiness of those who made the original promise, and thus the ability of future such promises to achieve the desired result. Anyway, it’s dishonest. The Nigerian President Obasanjo was absolutely right to be deeply reluctant to allow Taylor to be arrested in and removed from Nigeria; it’s just a pity that overwhelming international pressure virtually forced him to allow it to happen. Other comparable criminals such as Mengistu and Idi Amin, and lesser reprobates such as Ian Smith, Ojukwu and South Africa’s apartheid leaders, have been allowed to live out their lives either in exile or even in their own countries; Charles Taylor, wicked though he is, should have been allowed to do the same. That was the basis on which he left office; the bargain should have been respected. And let’s face it: the right solution to the problem of what to do about Saddam Hussein was to send him, too, into exile in whichever country would have him. Ditto Milosevic. Does anyone really feel completely happy with these international show trials whose outcomes are universally known in advance and which inescapably smell of victors’ justice?
Brian
Brian- Did he fall or was he pushed? Taylor did try to escape Nigeria, and by doing so he broke his bargain. And if that is the case Obasanjo felt this released him from his undertakings.Very convenient though as Obasanjo was about to visit Washington. Having said that, I’m not going to waste much sympathy on the old sod! Taylor.
Brian replies: Tony, my impression, perhaps mistaken, is that Taylor tried to escape from Nigeria only after it had become clear that he was about to be arrested. Perhaps someone can come up with the time sequence. In any case it seems that there has been mounting pressure from western capitals (especially Washington) for CT to be arrested and put on trial, contrary to the undertakings he had been given, and he must have realised that after a certain point it would be more dangerous for him to stay than to try to get away while that remained an option. Like you, I have no sympathy for him as a person and a mass murderer, but I don’t like the odour of what has happened.
This is a classic problem of time-inconsistent incentives:
– we want the threat of future trials to make it less attractive for political leaders to behave badly;
– but when they have behaved badly, we want them to go quietly, if necessary by letting them live out their lives in exile.
When did Obasanjo first say that he would hand Taylor over if he was asked to do so by a democratically elected government in Liberia? It was a few years ago, I think. I am not sure if he said it at the time Taylor went into exile. But if Obasanjo did move the goalposts, it was a couple of years ago.
Brian comments: Thank you for that useful distinction. Personally I doubt whether the threat of a future trial and imprisonment (or worse) is ever likely to be an effective deterrent against tyrannical behaviour or the commission of war crimes and other crimes against humanity: powerful and unscrupulous leaders don’t stop to calculate the pros and possible cons of their actions, and their possible consequences in the distant future, before crossing the line into criminality, any more than a would-be burglar will risk carrying out his break-in if the penalty on conviction for it is just a few years in the slammer, but will drop the whole thing if the sentence is jail for life. Criminals are deterred more by the likelihood of being caught than by the severity or leniency of the probable penalty; and my guess is that people like Charles Taylor are too intoxicated by power and the scope for sadism to worry about any remote risk of being held to account later. By contrast, the possibility of offering sanctuary and immunity in exile may clinch a settlement and get rid of a dictator who would otherwise cling to power, perhaps indeed for fear of being put on trial and punished if he rejects the offer of exile. I have already also suggested earlier that these show trials of former dictators, however culpable, are liable to do more harm than good, especially if the ex-dictator still enjoys perceptible support (as e.g. Saddam probably does and Charles Taylor is said to do). The balance of advantage seems to me to point very clearly towards the value of the exile option rather than preserving the trial deterrent, which probably doesn’t actually deter. But the exile option will cease to work if the promise of immunity that it embodies keeps on being broken, whether at the time or later.
The appeal here is two-fold, firstly, to the idea that we ought to keep our promises, regardless, and secondly, to a consequentialist principle that it is generally a good idea to keep promises because not doing so would undermine various useful institutions of trust. The first, it strikes me, is incredibly weak in Charles Taylor’s case, because any promises made to Taylor were extracted under the threat of extreme violence, which is usually and correctly regarded as dissolving promise-related obligations. If someone held a knife to your throat and demanded that you promise to go and rob the nearest bank, you wouldn’t feel obliged to do it. Neither should anyone feel obliged to keep promises made to encourage Charles Taylor to leave a country he had already ravaged without doing so further qua promises.
That leaves the second claim, that breaking the promise not to interfere with Taylor after he had left will make other dictators less likely to slip quietly into exile. Maybe that’s true. I don’t know. On the other hand, dictators only tend to do this when already under serious threat. As I understand it, Taylor left because he was losing a guerilla war, which was probably going to either force him to leave the country or end in his violent death. There were good reasons for him to go to Nigeria without a promise of anything.
Brian writes: Rob, that’s clearly a perfectly tenable view. But it seems to me to be stretching to breaking-point the concept of the promise made under duress, and therefore not binding, applied to a situation where a mediator is seeking agreement on the settlement of a conflict or other crisis as part of which one of the protagonists (i.e. usually the person wielding power in the relevant area and responsible for the violence, genocide, repression or whatever) agrees to go into exile with a promise of immunity to open the way for an international presence or elections or a new regime. I agree that this option is likely to be attractive only if the person concerned is in a weak position and can be persuaded that any other option available will probably be worse for him; but if the offer is accepted and the promise of immunity given, it can hardly be said to have been extracted under duress. It is likelier to have seemed to the mediator the least objectionable course of action for ending the crisis, with other possible courses of action nevertheless available (such as pushing on to eventual military defeat of the offending leader, or killing him by a missile fired from a helicopter gunship). In my view the promise is morally binding and the consequences of breaking it likely to be harmful both at the time and for future occasions.
Another (pragmatic) reason for honouring a promise of immunity in these circumstances is that withdrawing immunity will normally involve arresting the individual and putting him on trial in a court, national (Saddam) or international (Taylor, Milosevic). Such trials seem to me almost invariably to do more harm than good. They are seriously divisive, especially if the person on trial still has fairly extensive support in the country concerned. They generally entail a denial of justice because the outcome is already known before the trial begins, and it will anyway be seen, correctly, as ‘victors’ justice’. The accused will generally have been demonised by his captors to such an extent that there is no possibility of a fair and unprejudiced trial. The trial will give great opportunities to the accused to win sympathy, admiration and respect, however reluctant, by a display in the dock of courage and defiance in the face of impending execution (Saddam) or life imprisonment (Milosevic) — and it’s a bad idea to evoke admiration and respect for monsters. Above all, whatever penalty is imposed after the inevitable conviction is bound to be deeply objectionable to the accused’s supporters (a sentence of life imprisonment on Milosevic, had he lived to receive it, would probably have prevented any Serbian agreement to a settlement of Kosovo’s future status) and, again, to evoke sympathy. When Saddam has been executed he will be seen by the Sunnis as a martyred hero and a major obstacle to any reconciliation or compromise with the Shias. In obscure exile in some disagreeable and remote country, he would be quickly forgotten: think Mengistu and Idi Amin. That’s a far better option. We should re-think these big international show trials — and honour our promises.
Brian,
thanks for the reply, which is interesting. I have a couple of things to say in response. The first is that, as a general point, I think there should be a note of skepticism when offering consequentialist style claims about these kinds of things, because of the way that such claims can tend to obscure questions of responsibility. It’s not obvious to me, for example, that it would be proper to hold the ICJ responsible to any degree for Serbian backlashes against Milosevic’s trial, and thus it is not obvious the extent to which the effects of such backlashes should weigh with them. At least some of the alleged problems of victor’s justice fall under this doubt, and I think most of the others – the difficulty of obvious guilt, most clearly – are dealt with by having a transparently fair trial (which I think the ICJ provides, which I why I think it would have been manifestly better for Saddam to have been tried there).
On the promises and threats thing, I do want to try and separate, as far as possible, the deontological and consequentialist reasons for honouring promises, because, although I have a degree of skepticism about any consequentialist reasons, any there are will depend on the consequences, which I’m not entirely sure of. The deontological reasons don’t. They depend on the character of the promise. Your point on this seems to be that because Charles Taylor’s exile was the best possible outcome, no promise can be said to have been extracted under duress. This seems to me an odd sense of possible: the best possible outcome was presumably that Charles Taylor peacefully gave himself up, publicly admitted his crimes, placated any followers, and cooperated at an internationally respectable trial. It was possible for Taylor to do these things: he chose not to. He created a situation in which the best available outcome was that rather than stand trial for his undoubted crimes, he be allowed to flee to another country and live out his days in luxury with his ill-gotten gains, because unless he was allowed to do that, he would continue the bloodshed. That’s coercion, in the same sense that holding a gun to someone’s head and demanding their money is. Both share the feature that giving the wrongdoer what they want is the least bad available option, although in the latter we typically don’t regard that as legitimating. I would suggest that we ought not to in the former either.
Brian replies: Many thanks. I don’t want to prolong this unnecessarily, but I have just two points on what you say. The offer of asylum and immunity was probably the least objectionable available key to a settlement, not the only one and not the best conceivable one; as you say, the best conceivable solution would probably have been Taylor’s unconditional surrender (although for reasons already described I don’t think that show trials in such situations do any good, and tend to do harm): but that wasn’t on offer. There would certainly have been other feasible options, though, such as waiting for Taylor to be militarily and/or politically defeated, with or without western military and other assistance to his adversaries; western military intervention against him; a focused assassination attempt on him; encouraging the Africans in ECOMOG or its successor to step up their efforts, and providing them with the wherewithal for doing so; and simple inaction, allowing the situation to develop naturally. Of these, the offer of exile and immunity evidently seemed the least damaging. Such a calculation of the cost-effectiveness of the various options doesn’t, with respect, seem to me to amount to a promise extracted under duress. Secondly, I have not suggested that the ICJ should be held responsible for the consequences of a Serbian backlash against any sentence it might have passed on Milosevic, or that the court should have taken such consequences into account in its decisions; nor do I suggest that the court trying Saddam ought to take into account the consequences for a Sunni-Shia accommodation of sentencing Saddam to death. But I do maintain that such likely consequences ought to be taken into account in deciding whether to mount trials of this kind at all. In my view they show that exile with immunity is usually the better and less harmful option and that these highly unsatisfactory trials generally do more harm than good.
On Peter’s interesting comment (below), I don’t know either whether the promise of immunity was originally limited geographically in the way suggested. If it was explicitly limited in that way, I doubt if Taylor would have accepted it. In any case, my own view would be that the implication of an offer of immunity is that it is all-embracing, if only because any geographical limit placed on it renders it worthless. President Obasanjo agreed to offer him asylum in Nigeria, and he was absolutely right to be extremely reluctant to withdraw the offer, as he did by agreeing to the arrest and deportation of Taylor from Nigeria.
I may have this wrong, but I thought that the argument was that immunity applied to Liberia only, while the extradition is solely in relation to crimes committed in Sierra Leone.
Brian,
I think we may have to agree to disagree, although I do think you’re missing the point slightly. Thanks for the discussion though: it’s been interesting.
Brian replies: Thanks, Rob. I agree that it’s been an interesting and even illuminating exchange, and that each of us can rest in peace in the knowledge that the other has (just slightly) missed the point. I look forward to reading a meaty post on your own distinguished blog analysing the pros and cons of these highly political international show trials!
The Charles Taylor case raises the specific question about the moving of the goalposts – the withdrawal of immunity after it had earlier been promised. It is hard to see how that can be justified in any circumstances. That aside, can trials of this kind, however properly conducted and however manifest the crimes of the accused, ever wholly escape the taint of "victors’ justice"? The trial of the late and unlamented Slobo and the ongoing one of Saddam H, for all their legal trappings, had and have an unimstakeable whiff of the kangaroo court about them. Even Nuremberg, perhaps the best of its kind and generally judged by posterity to have been fairly conducted and to have set a beneficial precedent, is far from proof against such criticisms. A truly impartial court would surely in theory have had at least to consider whether British and American bombing policy at the end of WWII amounted to prima facie evidence of war crimes – not to mention the manifold horrors and atrocities committed by Stalin (the Katyn massacre to cite but one) and by Soviet troops as they rampaged across eastern Europe. But to have expected Nuremberg to have shown that degree of impartiality would have been quite unrealistic. I suppose a truly independent war crimes court might one day be established under the auspices of the UN – but not in ours or, I suspect, our children’s lifetimes. It is surely inconceivable so long as all but a small percentage of the UN’s members show scant respect for human rights, political and religious liberty, free speech etc within their own borders. As an interim solution – perhaps, as you imply, our 19th century forefathers had the right idea when they exiled Boney to Elba. Why not designate some remote island as a place of UN-administered banishment? Deposed tyrants could then be dispatched there to live out the rest of their days pondering on the consequences of their crimes with only themselves, their gaolers and the seabirds for company. It might be a more condign punishment than the legal farce of a political show trial which almost all war crimes courts in current circumstances degenerate into.
They are difficult, because of the balance that has to be struck between punishing the guilty and discrediting justice by appearing both to further persecute the losers of political disagreements and to prejudice trials by announcing guilt beforehand. I suppose what I was really exercised about was the promises thing, rather than the wisdom of the trials per se.
Brian,
I did eventually get round to it. I also tried to email you, but either the clever spam filter totally defeats me, or something funny is going on.
Brian writes: Thanks, Rob. Sorry you had a problem with emailing from the Contact page of my website. I have just tried it out and it seems to work all right; but it’s temperamental. The filter is of course there to defeat the abominable spammers, which it inexplicably fails to do: in the last 24 hours I have had to delete more than a hundred spam messages purporting to have been sent from that Contact page (and that’s in addition to around 80 or 90 sent to one of my handsome collection of e-mail addresses and about 20 more spams masquerading as ‘Comments’ on blog posts). What ghastly people there are out there, not caring about the implications of what they do for the survival and health of the internet, that glorious newcomer in our lives, so long as they can make a fast buck by defrauding the innocent!