Monrovia — The Residual Special Court for Sierra Leone (RSCSL) has vehemently denied a request from convicted war criminal, former Liberian Charles Ghankay Taylor, to serve his remaining jail-term in a "safe third country" over fear of losing his life as a result of the "massive outbreak" of the Coronavirus in the United Kingdom.
Mr. Taylor is serving a 50-year jail sentence at HMP Frankland Prison near Durham in northeastern England.
In 2012, the former rebel leader of the notorious National Patriotic Front of Liberia (NPFL)-turned President was convicted of aiding and abetting civil conflict in Sierra Leone in by a court sitting in The Hague, Netherlands.
Mr. Taylor's Request for Temporary Transfer to a Safe Third Country to Continue His Imprisonment Due to Massive Outbreak of Covid-19 in the UK" was filed before the court on June 15, 2020.
On July 1, 2020, the Principal Defender in the matter dubbed: "THE APPLICATION OF CHARLES GHANKAY TAYLOR Case No. RSCSL-03-01-ES-1442" sought the withdrawal or recusal of the Designated Duty Judge Justice Teresa Doherty from deciding Mr. Taylor's Motion.
But on July 23, Justice Doherty issued a Statement and a Decision declining to recuse herself.
On August 4, the President of the Court issued an "Order Convening Chamber Pursuant to Article 13(1) of the Statute" to hear and determine the Recusal Application, and on August 24 declined to disqualify the Designated Duty Judge.
In his submission to the court, Mr. Taylor claimed that he risks dying from Covid-19 due to the increasing wave of the pandemic in the UK, and as such, the court should grant his request to discontinue his detention in a British cell and move him to a "safe third country".
He submits that while he is serving his sentence his "basic and fundamental human rights remain unaffected including his right to life and personal dignity" and the United Nations Standard Minimum
Rules for the Treatment of Prisoners ("the Mandela Rules").
The United Nations Standard Minimum Rules for the Treatment of Prisoners or "the Mandela Rules" provide "that no one in prison should fear for his or her physical safety."
Mr. Taylor further submits that since the World Health Organization ("WHO") declared the COVID-19 pandemic on 11 March 2020, "a substantial number of inmates in prisons and detention centers across the United Kingdom are reported to have contracted the disease" and people in overcrowded areas and older persons are "among the highest and most vulnerable categories to the disease."
He claims to be "extremely concerned about his physical safety and his health in general in light of the current widespread nature of the Coronavirus situation in the UK" and notes that his fears of contracting the virus have been "aggravated after it was confirmed that two of the prison inmates in HM Franklands Prison have been infected" and there have been "reports of deaths of prison inmates in prison/detention centers across the UK.
He justifies that "given his age (72 years) there is an urgent need to take appropriate measures to save him from any possible contact with the virus".
According to Mr. Taylor, the Residual Special Court for Sierra Leone (RSCSL) "has not specifically developed a covid-19 policy for application at HM Franklands Prisons" but has "transmitted the guidelines for the United States Center for Disease Control (CDC) and advised him to follow these guidelines."
He maintains that though he "appreciates the steps taken by the Court," those "measures do not go far enough" since HM Franklands Prison "is overcrowded with over 900 inmates" and "no amount of social distancing would save him from contracting the virus given that most facilities are shared by a number of inmates, which exposes him at his advanced age.
The ex-Liberian leader also adds that he "has not been provided with adequate Personal Protective Equipment (PPE) and masks, and has no statistics on whether that prison facility has sufficient hand washing areas and isolation rooms for all its 900 inmates."
Mr. Taylor claims that "authorities of HM Franklands Prison" are not "sufficiently trained in the field of medicine to handle an outbreak of the magnitude of covid-19, while "the existing state of affairs at HM Franklands Prison portrays a grimmer picture of the dangers that underlie his continued incarceration in the United Kingdom and may not be conducive to the proper application and observance of the guidelines set by the CDC".
"The Plaintiff submits that even though his "detention in the UK is governed by UK law," under the terms of its Statute and the Enforcement Agreement, the Residual Special Court for Sierra Leone (RSCSL) is vested with sufficient authority to supervise the enforcement of his sentence and to order his transfer. He also submits that jurisprudence from other international criminal tribunals support this Court's authority to order a transfer", the document from the court reveals.
He further submits that his request for a transfer "is not in any way intended to circumvent the court's decision on his Motion for Termination of Enforcement of Sentence" and that it "is purely borne out of the need to avert a looming disaster on his life if he were to contract the Coronavirus due to his continued presence at HM Franklands Prison in the United Kingdom.
Mr. Taylor, in his submission, promised that "he could be returned back to the UK to continue serving his imprisonment when the UK and its prisons are free from the virus."
In response to Mr. Taylor's submissions, the Prosecutor on July 1, 2020 submitted that the Plaintiff's request for a transfer lacks factual and legal basis, and it is an attempt to circumvent the Court's decision on his last application for a transfer.
The Prosecutor adds that Mr. Taylor's request is "ill-timed and at odds with reality" and it should be dismissed for a lack of merit.
The Prosecutor submits that Mr. Taylor's "request for a transfer to an unnamed 'safe third country' demonstrates a woeful lack of grasp of the reality the world community faces from the threat of the COVID-19 Pandemic.
The Prosecutor states that the UK has "addressed prison overcrowding by transferring some lower category prisoners from highly populated prisoners and processed the release of up to 4,000 prisoners", while prison authorities have imposed "a temporary suspension on prison visits by the public" and enforced "standard COVID-19 preventive measures - social distancing and washing hands."
Prosecutor maintains that "by 28 April, 2020 - more than six weeks before Prisoner Taylor filed his motion, the cumulative effect of these measures had resulted in extremely great success in containing the spread", and as a Category A prisoner, the Plaintiff (Mr. Taylor) "enjoys something of a privileged prison life that puts him in extremely lower risk than the average prisoner".
For being genuinely concerned about his health and well-being, Prosecutor notes, that Mr. Taylor is rather trying to capitalize on the moment basing his strategy on highly speculative non-fact scenarios and an over-stretched notion of right to protection of life obligations on authorities, to explore possibilities for a selfish gain."
"The Plaintiff's age, 72, in itself is not an automatic license for early release of prisoners from jail or 'out of harm's way' through a transfer".
The Prosecutor notes that in countries where prisoners have been released, including the UK, these decisions "have not been made blanket to benefit all vulnerable inmates, but rather are guided by set principles," among which the number of years of imprisonment and the serious nature of the crime committed", citing the imprisonment of "well-known" persons who were convicted of serious offenses in the United States and were denied Covid-19 release.
"Prisoner Taylor makes wild assertions that the threat to his health and wellbeing from COVID-19 amount to a violation of his right to life and personal dignity. Correct that a positive legal duty under Article 2 of the European Convention - (the right to life) is imposed upon any authority that takes a person into custody to ensure that they protect that person's life, and this includes ensuring that the person under their charge does not come to any harm, actual or foreseeable, that may result in their death".
"It would be inaccurate and unfair, given the highlighted conditions of his incarceration and the efforts so far taken by the authorities within the scope of the state's resources to prevent the spread of the virus, for Prisoner Taylor to say that the HMP Frankland authorities, being aware of the risk of COVID-19 infection to its prisoners, failed to take reasonable measures within the scope of their powers."
The Prosecutor further submits that while "prisoners are entitled to the enjoyment of certain fundamental rights and freedoms while in jail," the enjoyment of such rights and freedoms can be curtailed "and where applicable, should be subject to a fair balance that ensures society's interests in seeing prison sentences served, is not trumped."
The Prosecutor also asserts that the Court should not rely on the precedents set by the International Criminal Court concerning the transfer of Thomas Lubanga Dyilo and Germaine Katanga from the Hague Detention Centre to their home country, the Democratic Republic of Congo, because Mr. Taylor himself acknowledges that those transfers were not for reasons similar to those presented in his Motion.
"What Prisoner Taylor refers to as a transfer, is in essence the designation of a state of enforcement of sentence for these two convicted prisoners" and "not a transfer of a convicted prisoner from the designated state of enforcement to another state, as in the present case."
In dismissing the application of Laurent Semanza, 76, for provisional release due to the current COVID-19 situation, Prosecutor recalls, that the President of the International Residual Mechanism for Criminal Tribunals (IRMCT), took into valid consideration and was assured from information received, that the prison authorities in the state of enforcement (Benin) were taking appropriate measures in relation to the management of the coronavirus pandemic.
"Assuming arguendo, that the request for transfer had some merit to it and was worthy of consideration, Prisoner Taylor makes it impossible to still grant the same by his failure to name the particular 'safe third country' he wishes to be transferred to. In a situation as this, where he remains a prisoner and his health, safety and wellbeing are all issues at play, the specific location he intends to be transferred to should be among the key facts before the President for his consideration. The request is thus vague and should merit no consideration."
In her ruling dated September 4, 2020, a copy which is in the possession of FrontPage Africa, the Designated Duty Judge at the Residual Special Court for Sierra Leone, Justice Teresa Doherty, stated that Mr. Taylor failed to clearly define or state the name of the "third" or "safe" country, or clarify which countries are 'first' or 'second' countries for the purposes of his application.
She clarified that the term 'a third country' is used in Article 22(2) of the Statute of the SCSL and in Article 23(2) of the Statute of the RSCSL, but it is not defined in either the Statutes or the Rules.
"Both Statutes provide that imprisonment shall (SCSL Statute) or may (RSCSL Statute) be served in Sierra Leone. Both Statutes then provide an alternative place of imprisonment in countries which have concluded an agreement for enforcement of sentences. From the wording of both these Statutes I conclude that Sierra Leone is the 'first country' and those countries with which the Court has concluded enforcement agreements are 'third countries'.
She further ruled that the "WHO has not declared any place in the world safe from COVID-19," and as such, "the relief sought by the Plaintiff (Mr. Taylor) is vague.
Judge Doherty added that Mr. Taylor has not responded to the direction to inform the Court of his nationality or nationalities.
"The Plaintiff also submits that jurisprudence from other international criminal tribunals support this Court's authority to order a transfer and cites the cases of Thomas Lubanga and Germain Katanga who were sent to the Democratic Republic of Congo by the International Criminal Court (ICC). The records of the ICC show that both Lubanga and Katanga are nationals of the Democratic Republic of Congo. Hence, the restrictions of such conventions as the Convention on the Transfer of Sentenced Persons do not apply in their cases".
She indicated that Mr. Taylor failed to also direct evidence to support his statement that HMP Frankland is overcrowded with an excess of 900 inmates, and no social distancing is being observed.
She endorsed the Registrar's submission that "HMP Frankland has an operational capacity of 854 cells designed for single occupancy and is currently at a capacity of 840 with no plans or necessity to make prisoners share a single cell.
She added that "the Plaintiff does not rebut the information to this court that he is the sole occupant of a single cell and is not otherwise obliged to endure a restricted living space that has "caused him suffering that exceeded the unavoidable level of suffering inherent in detention."
She pointed out that authorities at HMP Frankland have taken measures within the scope of their powers, including stopping prison visits, informing inmates of hygiene regimes in accordance with the advice and directions given by the government authorities and their medical experts due to the potential risk of the Coronavirus outbreak.
She stated that in asking the RSCSL to identify another country where Mr. Taylor will be safe from Covid-19 pandemic and then oblige the RSCSL to negotiate an enforcement agreement with that country, which may have no international obligation to accept him as a national, will involve considerable and lengthy negotiations.
"Given that the Plaintiff expects this to be a temporary arrangement I consider such extensive work will "impose an impossible or disproportionate burden on the authorities, bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources. The Plaintiff has stated that if he needed to be taken from the prison to a local health facility it would require "such heavy security that it may be next to impossible to be provided during the situation of the pandemic. Despite this observation and worry on his part he seeks to go to another country".
"The locations identified by the Registrar as possible 'safe' countries (which were not rebutted by the Plaintiff ) will involve even greater travel and security. This is coupled with the health dangers when such travel is not recommended. In particular travel to the countries without coronavirus in the Asia Pacific region are difficult and involves extended travel and flight transfers in countries that may restrict entry to non-nationals. This may increase the exposure and risk of infection. In this regard too I find that the Plaintiff is seeking to impose an impossible or disproportionate burden on the authorities when the conditions of his detention already conform to all which are "judged reasonably".
Judge Doherty ruled: "For these several reasons I do not consider that there has been any breach of the. Plaintiff's human rights that he has not made a case which, for the several reasons detailed above, warrants this court directing his transfer and, accordingly, his application is dismissed".
Article 23(3) of the RSCSL Statute establishes that: "The Residual Special Court shall have the power to supervise the enforcement of sentences, including the implementation of the sentence enforcement agreements".
Rule 103 of the Rules of Procedure and Evidence ("Rules") provides that: (A) Pursuant to Article 23 of the RSCSL Statute, imprisonment may be served in Sierra Leone or another State that has concluded an agreement to that effect with the Special Court or the Residual Special Court. The Residual Special Court may conclude agreements with other countries willing to accept and imprison convicted persons.
(B) The place of imprisonment for each convicted person shall be designated by the President.
Paragraph 5 of the SCSL Practice Direction for Designation of State of Enforcement100 provides as follows: "After the sentencing of a convicted person has become final, the President of the Special Court will on the basis of the submitted information and on any other inquiries he/she chooses to make, designate the State in which imprisonment shall be served. In his/her designation, the President will take into account the desirability of serving sentences in States that are within close proximity or accessibility of the relatives of the convicted person. Before making the designation, the President may consult with the Sentencing Chamber or its Presiding Judge and/or the Registrar and shall notify the Government of Sierra Leone. The President may also request the submissions of the convicted person and/or the Office of the Prosecutor.
Article 2(1) of the Enforcement Agreement states: "A request to the United Kingdom to enforce a sentence shall be made by the Registrar of the Special Court (hereinafter "Registrar"), with the approval of the President of the Special Court.
Article 9(2) of the Enforcement Agreement provides: "The Special Court may at any time decide to request the termination of the enforcement of the sentence in the United Kingdom and transfer the sentenced person to another State or to the Special Court".
The latest ruling creates another legal setback for Mr. Taylor who remains behind bars for fueling war crimes and atrocities committed in Sierra Leone.