Charles Taylor—Transfer of Procedural Rules

On June 20, 2006, former Liberian President Charles Taylor was transferred from his jail cell at the Special Court for Sierra Leone to the International Criminal Court (ICC) Detention Centre in The Hague for the duration of his international criminal trial process. The physical change of venue does not purport to shift jurisdiction over Mr. Taylor or the case away from the Special Court for Sierra Leone.

However, a recent order regarding the conditions of Mr. Taylor’s detention at the ICC Detention Centre, the Trial Chamber II at the Special Court for Sierra Leone, Justice Richard Lussick presiding, applied a mix of ICC and Special Court procedural rules regarding Mr. Taylor’s rights in detention and his statutory right to a fair trial. ^[1]

In a status conference held last Wednesday in The Hague, counsel for Mr. Taylor alleged that they had been denied the opportunity to speak with their client since the transfer. The defense attorneys entered an oral motion asking that the Court direct the Registrar to:

• Ensure that Mr. Taylor have the same right to communicate with counsel and with family members that he had while he was in held in the custody of the Special Court in Freetown;
  
• Ensure that travel visas for Mr. Taylor’s family members are facilitated; and
  
• Schedule another status conference to address substantive matters with regard to the case.^[2]

The Trial Chamber granted the motion in part and denied in part, reasoning that it had jurisdiction to direct the Registrar only with regard to matters affecting Mr. Taylor’s right to a fair trial and not with regard to “administrative” matters.^[3]

The Trial Chamber cited an order of the Registry issued pursuant to the transfer, and endorsed by the Special Court President, which specified that “the rules of detention and standards of the ICC shall be applicable to the detention of the Accused mutatis mutandis and that the complaints procedure set out in Rule 59 of the Rules of Detention of the Special Court (“Rules of Detention”) shall be applicable.”^[4] The order also stated that “all detention officers of the ICC shall act as representatives of the Chief of Detention of the Special Court.”^[5]

Following this mandate, the Trial Chamber held that it had jurisdiction only over the issue of communication between detainee and counsel, but not over any issues involving the right to communicate with family members. It directed the Registrar to “ensure as a matter of urgency that facilities are in place to enable the Accused to communicate fully with his counsel.”^[6] It also directed the Registrar to schedule a status conference after Mr. Taylor has the opportunity to confer with counsel regarding his defense.^[7]

The Trial Chamber denied the requests for communication with family members without further direction. The presumption is that the Special Court Registrar will handle those concerns as administrative matters, with reference to the Special Court Rules of Detention and ICC Regulations of the Court. The Court specifically cited ICC Regulation 99(1)(i) (the right of a detainee to communicate “by letter or telephone with his or her family and other persons.”).^[8]

It is interesting that the Special Court, while maintaining jurisdiction in the case against Mr. Taylor, has chosen to defer to ICC procedural regulations concerning these “administrative” matters. Maybe it’s just a simple matter of practicality that permits the Court to supervise a subrogated custody situation. On the other hand, it could be an opening to a more expansive hybridization of this “hybrid” court.

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[1] Decision on Defence Oral Application for Orders Pertaining to the Transfer of the Accused to The Hague, SCSL‑03‑01‑PT (3351-3354), June 23, 2006 [hereinafter Decision]. See also Special Court for Sierra Leone Statue, Art. 17.
[2] Decision at 2.
[3] Decision at 3. See also ftnt. 3, citing
[4] Decision at 2. See also Rules Governing the Detention of Persons Awaiting Trial or Appeal Before the Special Court for Sierra Leone or Otherwise Detained under the Authority of the Special Court for Sierra Leone, Rule 59(A): “Each detainee or his counsel may make a complaint to the Chief of Detention or his representative at any time.”
[5] Decision at 3.
[6] Decision at 4.
[7] Decision at 4.
[8] Decision at 3, citing the ICC Regulations of the Court, Regulation 99(1)(i).