O 151500Z APR 09
FM AMEMBASSY THE HAGUE
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Wednesday, 15 April 2009, 15:00

C O N F I D E N T I A L THE HAGUE 000247 

DEPARTMENT FOR S/WCI - WILLIAMSON/DOHERTY, L - DONOGHUE, 

L/UNA - BUCHWALD, L/AN - OHAHS 

EO 12958 DECL: 04/15/2019 

TAGS PREL, PGOV, KAWC 

SUBJECT: SCSL’S TAYLOR TRIAL MEETS KEY MILESTONE, BUT SCSL 

STILL FACES SERIOUS HURDLES

REF: A. REF: A) 2008 THE HAGUE 00021  B. B) 2008 THE HAGUE 00226

Classified By: Legal Counselor Denise G. Manning per reasons 1.5(b, d).

-- SUMMARY: SCSL MEETS A KEY MILESTONE, BUT FACES UNCERTAINTY IN TERMS OF TIMING, FINANCES, AND COMPLETION ISSUES --

¶1. (SBU) On February 27, 2009, the Special Court for Sierra Leone (SCSL or Court) took another step toward completing its work when the Prosecution rested its case against former Liberian President Charles Taylor -- the last SCSL case at the trial stage. The Court could potentially complete its work before the end of 2010. A number of open issues, however, may affect timing, including the start date and length of the Taylor Defense case. Timing may be particularly important given expected funding shortfalls and the possible loss of courtroom space this coming September. Additionally, the current Registrar, Herman von Hebel (Netherlands), has resigned effective June 1, and his successor will inherit a host of difficult issues and a complex transition during the final days of the Court,s operations.

--BACKGROUND: A SMALL COURT WITH SEVERAL FIRSTS --

¶2. (U) A Trailblazing Court. The hybrid SCSL, created in 2002 through an agreement between the United Nations and the Government of Sierra Leone (GOSL) and funded entirely by voluntary contributions, has jurisdiction over those who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in Sierra Leone after November 30, 1996. Although established almost ten years after the creation of the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR), the SCSL is poised to complete its work before these tribunals. The SCSL has also been the first internationalized criminal tribunal to: 1) issue an indictment for an African head of state (Liberian President Charles Taylor); 2) enter convictions for the crime of recruiting and using child soldiers; and 3) successfully prosecute forced marriage as a crime against humanity and intentional attacks on U.N. peacekeepers as a serious violation of international humanitarian law.

¶3. (U) Last Trial Standing. In 2003, the SCSL indicted Charles Taylor, the leader of the National Patriotic Front of Liberia from 1989 to 1997 and the President of Liberia from 1997 until the 2003 indictment. The indictment alleges Taylor,s deep involvement in the Sierra Leone conflict including his role in arming, training and acting in concert with the RUF and in trafficking the Sierra Leonean &blood diamonds8 that fueled and financed the fighting. The SCSL charged Taylor with eleven counts, including, inter alia, terrorizing the civilian population, unlawful killings, sexual violence, abductions and forced labor, and conscripting child soldiers.

))TIMING: TAYLOR TRIAL’S LINK TO CLOSING SCSL))

¶4. (SBU) Status of Trial. As the only ongoing SCSL trial, the Taylor trial is the linchpin to the SCSL completing its work. From April 6-9, 2009, the Court held the &judgment of acquittal8 hearing, with Defense arguing for acquittal on all of the charges. (Comment: In the &judgment of acquittal8 hearing, the Court considers whether Prosecution Qacquittal8 hearing, the Court considers whether Prosecution has presented any evidence that could sustain conviction on the charges, acquitting only if Prosecution has presented &no evidence8 to sustain the charge. End Comment.) In this hearing, Defense acknowledged that crimes had occurred in Sierra Leone but argued that the Prosecution had failed to 1) present evidence linking Taylor to those crimes and 2)establish that Taylor had been part of a joint criminal enterprise (JCE) because, if a JCE existed, it existed before November 30, 1996, the date at which the temporal jurisdiction of the SCSL begins. The Prosecution responded to these arguments by summarizing Taylor,s responsibility for the crimes and pointing to Taylor,s liability for JCE crimes committed after November 30, 1996, even if the planning of the JCE took place before that date. (Comment: The Court will most likely not issue its Rule 98 decision in April, especially since the Judges may recess through May. An acquittal does not seem likely. End Comment.)

¶5. (SBU) Next Up: Defense Case. A contact in the Registry has indicated that Defense will likely request three months to prepare for trial and four months to present its case. If the Court grants this request, the Defense case may start at the end of August. However, the same Registry source predicts that the Trial Chamber may order Defense to begin its case as early as June, working through July and August with a possible recess in September. One wild-card factor, however, is the Defense,s pending interlocutory appeal arguing that the Prosecution failed to properly plead the JCE theory of liability. The Trial Chamber may not schedule the Defense case before the appeals decision so the Defense knows which mode(s) of liability it must defend against. (Comment:  Currently, the Registry,s budget milestone document projects an October 31 trial termination date, a March 2010 judgment, sentencing in April 2010, and the conclusion of appeals in October 2010. If, however, the Defense case starts in August, the timeline could be pushed back by approximately two months. End Comment.)

¶6. (U) Spill-Over Timing Effects. A delay in the timing for the Taylor trial may create additional challenges. First, the International Criminal Court (ICC), the location of the Taylor trial, has informed the SCSL that it will need its second courtroom as of September 2009. (The ICC scheduled its second trial to start September 24th, and will likely need the courtroom prior to September 24th for pre-trial work). Back-up options explored by the Registry include finding other space or working during gaps in the ICC schedule. Second, according to Registry sources, each additional month of trial time costs approximately one million dollars.

))THE JUDICIAL FACTOR))

¶7. (C) Judges Slowing Things Down? Further muddying timing predictions, Court employees have intimated that the Trial Chamber could work more expeditiously. The Taylor Chamber consists of three judges who take turns presiding: Justice Richard Lussick (Samoa), Justice Teresa Doherty (Northern Ireland) and Justice Julia Sebutinde (Uganda), along with an alternate judge, Justice El Hadji Malick Sow (Senegal). A couple of Court employees have grumbled that when the last Prosecution witness testified on January 30, 2009, the Court still had 11 outstanding motions, some over a year old. Additionally, one Chamber contact believes that the Trial Chamber could have accelerated the Court,s work by excluding  extraneous material and arguments. Moreover, contacts in Prosecution and Registry speculate that Justice Sebutinde may have a timing agenda. They think she, as the only African judge, wants to hold the gavel as presiding judge when the Trial Chamber announces the Taylor judgment. Reportedly, her next stint as presiding judge begins in January.

¶8. (SBU) Expedited Appeals? The Appeals Chamber, with one empty seat, consists of President Renate Winter (Austria); Vice President Jon Kamanda (Sierra Leone); Justice George Gelaga King (Sierra Leone); and Justice Emmanuel Ayoola (Nigeria). President Winter reportedly has indicated that the Appeals Chamber intends to expedite any Taylor trial Qthe Appeals Chamber intends to expedite any Taylor trial appeals. Up for election in May, Winter may not, however, preside over the Appeals Chamber for any Taylor trial appeals, reportedly she will step down after the RUF appeal if she is not re-elected President.

))DEFENSE STRATEGY: WHO ME?))

¶9. (SBU) Drama-Bound Defense Case. A British Queen,s Counsel, Courtenay Griffiths, heads Charles Taylor,s top-notch and quick-tongued defense team, which reportedly finds itself in the midst of identifying and proofing witnesses. All signs indicate that Taylor himself will take the stand as their first witness possibly staying in the box for 6 to 8 weeks, and based on Defense,s actions to date, the Defense team will likely argue that although the crimes may have occurred, Taylor has no link to the crimes.

))AN IMMINENT BUDGET CRISIS))

¶10. (C) Funding Shortfall. The Registry fears that the Court will run out of money as early as next month, although an expected Canadian USD 6 million contribution would keep the Court financed until early July 2009. In a marathon campaign, Registrar Von Hebel attended 250 meetings in 15 months to drum up funds from potential donor countries, but with, according Von Hebel, little traction, due to donor fatigue, the difficult economic situation, and contributions going to other tribunals (e.g., the Special Tribunal for Lebanon (STL) or the Extraordinary Chambers in the Courts of Cambodia). Von Hebel wants to make another run at the Arab countries of Saudi Arabia, Qatar, Kuwait, and the United Arab Emirates. He also believes that a letter from U.N. Secretary General Ban Ki-Moon asking countries to contribute might help open wallets. According to Von Hebel, when Ban sent out a similar letter in 2007, a number of countries made first-time donations. In addition, a couple of traditional donor countries have advised him they may need a similar letter in order to donate this year.

¶11. (U) Cost-cutting Measures: Concerned about the looming financial crisis, the Registry has undertaken cost-saving measures, reducing staffing costs by downsizing, incorporating liquidation clauses in contracts, and encouraging The Hague staff to use leave during the break between prosecution and defense cases. The Registry also plans to hand over the Freetown facilities to the GOSL in July 2010, reserving some space for its own continued use. Finally, Registry may look to consolidate the Appeals Chamber and the Taylor trial operations in The Hague, after the Appeals Chamber finalizes the RUF appeal.

¶12. (SBU) Help from Washington. The Registry may also seek USG,s assistance on financial issues. First, it may press the USG not to reduce its FY2009 contribution by 2 million, but to stay at last year,s level of 9 million USD. (Comment: The extra sum would not solve the Court,s immediate financial problem, since the USG generally contributes in the fall. End Comment.) Second, the Registry may ask for USG political support in the form of demarches to Arab countries, impressing upon the targeted Arab countries the critical nature of the SCSL,s financial situation.

))COMPLETION HICCUPS AND ISSUES))

¶13. (SBU) Registrar Musical Chairs. On April 8, 2009, the Court announced Registrar von Hebel,s resignation, effective as of June 1, 2009. Von Hebel will assume the Deputy Registrar position at the newly established Hague-based STL. (According to Embassy contacts, STL offered Von Hebel the position at the insistence of and to placate the Dutch, who believe the Dutch ICTY Registrar had been treated unfairly when the ICTY President unexpectedly declined to renew his contract). Given that the STL Registrar Robin Vincent (U.K.) recently resigned, Von Hebel may eventually step into Vincent,s shoes. Von Hebel is also tying up as many SCSL loose ends as possible, including signing a sentence-enforcement agreement with the Government of Rwanda.  In terms of a successor Registrar, a Registry contact believes that the current Deputy Registrar Binta Mansaray (Sierra Leone) will surface as a strong candidate.

))COMMENT: RESIDUAL ISSUES))

¶14. (SBU) A Larger Role for The Hague? Although currently headquartered in Freetown, Sierra Leone, the Registry has toyed with the possibility of locating any Residual Mechanism Qtoyed with the possibility of locating any Residual Mechanism ) or parts thereof ) in The Hague. For instance, Von Hebel believes that the Court may need to move its archives out of Sierra Leone in order to properly maintain and secure them. The City of The Hague has indicated its willingness to provide archiving facilities in connection with the ICTY,s closure. Some have also suggested combining some or part of the SCSL,s residual functions with those of The Hague-based ICTY and the Arusha-based ICTR. A combined residual mechanism might prevent duplication, but it would also face significant hurdles, given SCSL,s structural differences, e.g. funding, oversight mechanism and applicable legal framework. Furthermore, GOSL desires will be key, since a joint GOSL-UN agreement created the Court.

GALLAGHER