The Hague

June 25, 2007 

Following opening statements a few weeks ago, the trial of Charles Taylor was expected to resume today in the Hague with the Prosecution presenting its first witness.  But after Taylor himself failed to appear, the trial took a different turn as the Court wrestled with the question of who would represent Taylor in the proceedings.  The Court ultimately ruled that Taylor’s failure to appear was tantamount to a boycott of the proceedings and that Taylor, therefore, could not be permitted to represent himself.  The Principal Defender, Vincent O. Nmehielle, suggested to Taylor that he be assigned counsel and indicated that Taylor was open to this idea, but the Principal Defender disagreed with the Registry and the Prosecution about the composition of the defense team and the implications the new assignment should have on the timing of the trial.

The Court ruled that the Principal Defender is to immediately appoint new counsel to assume control of Taylor’s defense while the Registry is to ensure that by July 31, 2007, a defense team acceptable to the Court is in place.

The proceedings will resume on Tuesday, July 3 and continue through July 11.  The case will then be adjourned again until August 20, 2007.

Taylor’s Attempt to Represent Himself

Before the trial commenced on June 4, 2007, Taylor wrote a letter [posted here [pdf] taylor_l.pdf] to the Presiding Judge complaining that he was being denied his rights to a fair trial and advising the Court that he no longer wanted to be represented by his assigned counsel, Karim Khan, and his co-counsel.  When the trial opened on June 4, Khan explained that Taylor wanted to represent himself.

At that hearing, the Court directed the Registry to (i) facilitate a meeting between Taylor and the Principal Defender, and (ii) ensure that Taylor had adequate facilities to prepare his defense.  Those consultations took place between the Principal Defender and Taylor, and written submissions were separately filed by the Principal Defender, Registry and Prosecution concerning the Court’s order.

The Principal Defender’s submission, filed on June 12, stated that “[n]ew counsel should not be appointed; rather, Mr Khan should continue as [Mr Taylor’s] counsel to avoid the loss of more time than necessary.”  Two days later, though, the Principal Defender granted Mr Khan’s request for withdrawal and, on June 20, submitted an extensive report with its recommendations for representing Taylor and providing him with adequate facilities to conduct his defense.  The Principal Defender recommended the assignment of one new lead counsel at the rank of a Queen’s Counsel or its equivalent, one experienced senior counsel, two co-counsel, and two legal assistants. The Acting Registrar objected to this proposal arguing that it goes far beyond the number and standards provided by the Special Court for Sierra Leone. 

The applicable rules that govern the proceedings (Article 24(d) and Article 25 of the Directive on the Assignment of Counsel) require that, in the event counsel withdraws, “the Principal Defender shall immediately assign a new Counsel to the Suspect or Accused.”  And, “where the assignment of Counsel is withdrawn by the Principal Defender or where the services of assigned counsel are discontinued, duty counsel of the defense office, including the Principal Defender, shall give the Suspect or Accused legal assistance until a new counsel is assigned.”  Rule 45(c) also lists the following requirements for counsel: “(i) speak fluent English; (ii) be admitted to practice law in any State; (iii) have at least 7 years’ relevant experience; and (iv) have indicated their willingness and full-time availability to be assigned by the Special Court to suspects or accused.”

The Court’s Ruling on the Assignment of Counsel

The Court agreed with the Prosecution that Taylor’s absence, in conjunction with his stated intention to represent himself, amounts to a boycott of the trial.  According to the Trial Chamber, Taylor accepted that he must be assigned and be represented by counsel.  There was disagreement between the Principal Defender on the one hand and the Prosecution and the Registry on the other as to how this could be best accomplished.The Registry expressed concern that the funds requested to facilitate the new defense team were excessive and  proposed to appoint interim counsel drawing on the former defense team. However, both lead counsel and co-counsel from the former defense team have severed all ties with the Court.For the Prosecution, Brenda Hollis argued that the accused most certainly has a right to be represented by competent counsel.  The accused does not have a right to simultaneously represent himself and be absent from the proceedings.  Certainly, the Prosecutor urged, the accused should not have the right to come and go as he pleases.

After adjourning for an hour and a half, the Court issued its ruling, directing the Registrar and the Principal Defender to make both short and long-term arrangements for Taylor’s defense.

First, however, the Presiding Judge emphasized that since early March 2007 both the Acting Registrar and the Principal Defender had been aware of the issue of inadequate representation.  Presiding Judge Julia Sebutinde was displeased that the Registrar had primarily been occupied with budgetary constraints and had not focused on issues of fair trial.  If the Court is to respect the fair trial rights of the accused, she said, then resources must be provided. The Presiding Judge also recalled that the Trial Chamber had been warned previously about this concern and that “today, the Chamber’s worst fears were realized.”  The Court emphasized the importance of avoiding additional delays and was dismayed that the delays were caused by the Court’s own institutions.  In this respect, the Prosecution noted that it was in fact Taylor’s manipulative tactics that caused the delays of the proceedings, and that Taylor should not be allowed to profit from a situation of his own making.

The Presiding Judge stressed that the Statute, the Rules and the Directives do not envisage a “vacuum” in legal representation.  In this light, she ordered the following short-term measures. The Principal Defender is directed to comply immediately with the rules and requirements on the assignment of counsel and to assign new counsel either from the list or from the office of the Principal Defender.  In this respect, if possible, former members of the Taylor defense team are to be retained (we note again, however, that both the lead counsel and the co-counsel have severed ties with the Court, leaving only legal assistants).  Meanwhile, if there is no assigned counsel by then, duty counsel is directed to appear in court to represent Taylor when the trial recommences on July 3.

By July 31, the Acting Registrar is ordered to ensure that the Principal Defender assemble a defense team consisting of one lead counsel and two co-counsel in conformity with the qualifications set out in the rules, and one senior investigator.  These are to supplement the residual members of the defense team.

The Principal Defender stated that he did not envisage to be able to respond to all outstanding motions in time. The Presiding Judge noted that they were welcome to file motions for more time.

Schedule

The court will next sit from July 3 through 11.  It will resume again August 20, 2007.