31 May 2004
Summary of DECISION ON IMMUNITY FROM JURISDICTION

PROSECUTOR V CHARLES GHANKAY TAYLOR
Case Number SCSL-2003-01-I

Note: In accordance with the practice of the Special Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the announcement of the reasoned decision today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court's reasons is that contained in the published decision, which will be made available on the Court's website in due course, together with this summary.

1. This is an application by Mr. Charles Taylor, the former President of the Republic of Liberia, to quash his Indictment and to set aside the warrant for his arrest on the grounds that he is immune from any exercise of the jurisdiction of this court by virtue of the fact that he was, at the time of the issuing of the indictment and warrant of arrest against him, a Head of State.

2. As such, he claims entitlement to the benefit of any immunity asserted by that state against exercise of the jurisdiction of this Court. These bare facts raise the issue of law that we are called upon to decide, namely, whether it was lawful for the Special Court to issue an indictment and to circulate an arrest warrant in respect of a serving Head of State. If it was unlawful and the warrant is quashed, the question may then arise as to the extent of Mr. Taylor's immunity as a former Head of state.

3. Before embarking upon these substantive questions, however, we considered several Prosecution objections to entertaining this application before Mr. Taylor has surrendered to or otherwise been brought into the custody of the Court. First, the Prosecution held that as a matter of procedure, the Applicant could not file a motion before he has made an initial appearance before the Court. Although we recognise that this is ordinarily a procedural requirement, given the particular nature of a claim of sovereign immunity we have decided to exercise our discretion to treat these circumstances as an exception to that requirement. Second, the Prosecution claimed that this application raises a matter of immunity and not jurisdiction, however, we have found that the two issues are so related as to make the objection unsustainable. As a result, we have proceeded to a determination of the merits of the immunity claim.

4. As raised in the submissions of the parties and those of the amici curiae, the issues in this motion turn to a large extent on the legal status of the Special Court. We reaffirm, as we decided in the Constitutionality Decision that the Special Court is not a national court of Sierra Leone and is not part of the judicial system of Sierra Leone exercising judicial powers of Sierra Leone. An analysis of its constitutive instruments supports our conclusion that it is a truly international criminal court.

5. After a careful consideration of international jurisprudence, the principle seems now established that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court.

6. In this result the Appeals Chamber finds that Article 6(2) of the Special Court Statute is not in conflict with any peremptory norm of general international law and its provisions must be given effect by this court. We hold that the official position of the Applicant as an incumbent Head of State at the time when these criminal proceedings were initiated against him is not a bar to his prosecution by this court. The Applicant was and is subject to criminal proceedings before the Special Court for Sierra Leone.

7. One final matter raised by the Applicant was that the issue of the arrest warrant and its transmission to Ghana was an infringement of the sovereignty of Ghana. That issue should properly be raised by Ghana rather than the Applicant and the forum which Ghana has for raising the issue, if it so decides, is not the Special Court which is a court of criminal proceedings against individuals. While a successful claim of sovereign immunity may lead to a claim by Liberia of a violation of its sovereignty, as the immunity attaches to the state concerned, it cannot attach to a third state whose only role was to receive the warrant. However, Liberia is not before this court and in any event we have held that this court is an international court rather than the court of another sovereign state.

8. For the reasons we have given this Motion must be dismissed.