The Appeals Chamber of the Special Court for Sierra Leone (SCSL) today unanimously upheld the conviction and 50-year sentence of former Liberian President Charles Taylor for aiding and abetting and for planning attacks against civilians committed by rebel groups during Sierra Leone’s bloody civil war (1991-2002).  Culpable forms of support included the provision of arms, ammunition, personnel, and other materiel as well as operational assistance and encouragement to the rebels.  Importantly, the Appeals Chamber rejected a defense argument that customary international law requires the Prosecutor to prove that the defendant provided “specific direction” to the perpetrators with the intention that particular crimes be committed.  Instead, the Appeals Chamber ruled, customary international law finds liability when the defendant acted with the knowledge that his assistance would contribute to the commission of international crimes (or when the defendant was aware that there was a substantial likelihood that his or her conduct would provide such assistance).  In terms of actus reus, it is sufficient that the accused’s conduct had a substantial effect on the commission of the crimes charged; specific direction to the principal perpetrators need not be proven.

The judgment no doubt comes as an enormous relief for Chief Prosecutor Brenda Hollis (U.S.).  Recent jurisprudence emerging from the International Criminal Tribunal for the former Yugoslavia (ICTY), notably in the Gotovina and Perešić cases, had ostensibly raised the standard for proving accomplice liability.  In Perešić, for example, the ICTY required proof that the accomplice provided such specific direction to the direct perpetrators of the crime in question.  These rulings have prompted a firestorm of criticism and debate, which took a different turn when someone leaked a letter from ICTY Judge Frederik Harhoff (Denmark) alleging that President Ted Meron had bullied ICTY judges into adopting the new standards as a concession to American and Israeli military establishments.  (Harhoff was later disqualified in the Seselj case for his breach of judicial ethics in revealing internal deliberations and the suggestion that he would not follow precedent in subsequent cases.)  The U.S. government quickly denied that it played any role in shaping the outcome of those cases and affirmed that it respects the independence of the tribunals.

Hollis offered to specifically brief the SCSL on this line of cases, because Article 20(3) of the Statute of the SCSL indicates that the Appeals Chamber “shall be guided by the decisions of the Appeals Chamber of the International Tribunals for the former Yugoslavia and for Rwanda.” Her extra efforts clearly paid off.

The debate over the correct mens rea for accomplice liability has also played out in Alien Tort Statute litigation, including in the recently concluded Kiobel litigation.  It also has broad implications for efforts by governments to provide a range of forms of assistance to armed actors—including government forces and non-state actors, such as the Syrian rebels—who may have a history of committing war crimes and other abuses against civilians.  Stay tuned for a more fulsome analysis of the judgment and its implications, which I will post soon on Just Security.