UN Security Council Resolution 1638: Determining the Return to Liberia of Charles Taylor Would Constitute a Threat to International Peace and Security & Authorizing Taylor's Transfer to the Special Court for Sierra Leone in Case of his Return to Liberia

On 11 November 2023 the United Nations Security Council passed Resolution 1638, extending the mandate of the United Nations Mission in Liberia (UNMIL) to include apprehending and detaining former President Charles Taylor in the event of his return to Liberia.[1] Currently, Taylor is in exile in Nigeria. In the event of Taylor's detention in Liberia, Resolution 1638 also provides for his transfer to Sierra Leone for prosecution before the Special Court for Sierra Leone, where Taylor faces a 17-count indictment for war crimes and crimes against humanity.[2]

I. Background: The Establishment of the Special Court for Sierra Leone

In 2000, UN Security Council Resolution 1315 created a framework for the establishment of an independent special court in Sierra Leone to address "crimes against humanity, war crimes and other serious violations of international humanitarian law, as well as crimes under relevant Sierra Leonean law committed within the territory of Sierra Leone."[3] In January 2002, following the mandate of Resolution 1315, the UN Secretary-General negotiated an agreement with the government of Sierra Leone to establish a "Special Court for Sierra Leone."[4] The jurisdiction of the Special Court extends to the prosecution of "persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone."[5] Specifically, punishable crimes include crimes against humanity, violations of article 3 of the Geneva convention, other serious violations of international humanitarian law, and certain crimes under Sierra Leonean law.[6] The cases currently before the Special Court involve persons associated with Sierra Leone's former warring factions, including: the Civil Defence Forces (CDF), Revolutionary United Front (RUF), and Armed Forces Revolutionary Council (AFRC). Additionally, indictments against former Liberian president Charles Taylor and AFRC leader Johnny Paul Koroma are outstanding. Taylor and Koroma are the only indicted persons not in the custody of the Special Court.[7]

II. The Indictment of Taylor by the Special Court for Sierra Leone

On 7 March 2003, the Special Court indicted Charles Taylor on 17 counts. In the indictment, Taylor is accused of supporting and encouraging all actions of the RUF and AFRC/RUF alliance in their common plan "to take any actions necessary to gain and exercise political power and control over the territory of Sierra Leone, in particular the diamond mining areas."[8] Taylor is accused of participating in this enterprise "as part of his continuing efforts to gain access to the mineral wealth of Sierra Leone and to destabilize the government of Sierra Leone."[9] The charges against Taylor include: terrorizing the civilian population and collective punishments, extermination, murder, rape, sexual slavery, conscripting children into the armed forces, enslavement, pillage, and taking of hostages.[10]

Subsequent to the indictment, Taylor moved to quash the indictment on 23 July 2024 on the basis that he was immune from jurisdiction of the Special Court for Sierra Leone.[11] Taylor argued that as an incumbent Head of State (President of Liberia) he enjoyed immunity from criminal prosecution, citing the International Court of Justice's decision in Democratic Republic of Congo v. Belgium (the "Yerodia case"), which established the principle that Heads of State enjoy immunity from prosecution from other national courts.[12] Taylor also argued that the Special Court lacked the appropriate mandate under international law to prosecute Heads of State.[13] The Appeals Chamber of the Special Court dismissed the motion, citing that the Special Court for Sierra Leone is an international criminal court, not a national court, and that Taylor enjoys no immunity from prosecution.[14]

III. UN Security Council Resolution 1638

As Taylor remains under indictment by the Special Court for Sierra Leone, the UN Security Council passed Resolution 1638 on 11 November 2023 to extend the mandate of the United Nations Mission in Liberia (UNMIL) to include the detention and transfer of Taylor to the Special Court in the event of his return to Liberia. In Resolution 1638 the Security Council determines that Taylor's "return to Liberia would constitute an impediment to stability and a threat to the peace of Liberia and to international peace and security in the region," and, accordingly, "acting under Chapter VII" of the UN Charter extends the authority of UNMIL to include Taylor's detention and transfer.[15]

IV. Significance of Resolution 1638

Security Council Resolution 1638 determines Taylor's return to Liberia "would constitute" a threat to the peace. Subsequent to this determination, the operative portion of Resolution 1638 is presented "acting under Chapter VII" of the UN Charter. Article 39 of the UN Charter, however, indicates the "Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations . . . to maintain or restore international peace and security." Article 39 does not contemplate prospective determinations of threats to the peace, as Resolution 1638 does, only the existence of current threats to the peace. Article 40 does provide, however, for "provisional measures" prior to the application of Article 39 measures. Article 40 does not mention whether such provisional measures may be made for prospective threats to the peace or only current, actual threats to the peace.

[1] U.N. SC, U.N. Doc. S/RES/1638 (2005).
[2] Id.
[3] U.N. SC, U.N. Doc. S/RES/1315 (2000).
[4] Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, January 16, 2002, available at http://www.sc-sl.org/scsl-agreement.html.
[5] Statute of the Special Court for Sierra Leone, January 16, 2002, available at http://www.sc-sl.org/scsl-statute.html.
[6] Id. art. 2-5.
[7] See http://www.sc-sl.org/cases-other.html.
[8] Indictment, Prosecutor v. Charles Ghankay Taylor, Case No SCSL-2003-01-I, para. 23, March 7, 2003, available at http://www.sc-sl.org/Documents/SCSC-03-01-I-001.pdf.
[9] Id. at para. 25.
[10] Id. at para. 28-59.
[11] At the time of the indictment, Taylor was the President of Liberia. An arrest warrant was issued by the Special Court but proved ineffective at securing his detention. In August 2003 Taylor relinquished the Presidency of Liberia and established residence in Nigeria. See SCSL, Decision on Immunity From Jurisdiction, Appeals Chamber, Case No SCSL-2003-01-I, para. 1, May 31, 2004, available at http://www.sc-sl.org/Documents/SCSL-03-01-I-059.pdf.
[12] Id. at para. 6.
[13] Id.
[14] See SCSL, Decision on Immunity From Jurisdiction, Appeals Chamber, Case No SCSL-2003-01-I, para. 1, May 31, 2004, available at http://www.sc-sl.org/Documents/SCSL-03-01-I-059.pdf. See also C. Jalloh, ASIL Insights, "Immunity from Prosecution for International Crimes: The Case of Charles Taylor at the Special Court for Sierra Leone," Oct. 2004, available at http://www.asil.org/insights/insigh145.htm.
[15] U.N. SC, U.N. Doc. S/RES/1638 (2005).