War crimes: Taylor now, Bashar al-Assad next

International criminal justice grinds slowly, but it can grind exceedingly small. Charles Taylor was first indicted in 2003 for crimes against humanity, in a UN court over which I presided.

Then, he strutted the world stage as a head of state. Ghana refused our request to arrest him when he visited, and Nigeria gave him refuge for several years.

There was a general expectation that he would escape trial, but the whirling of time brings its changes and revenges: Taylor was sentenced to 50 years imprisonment, for aiding and abetting 11 kinds of war crimes and crimes against humanity.

The power to punish heads of state for crimes against humanity is a recent discovery: Cromwell’s lawyers managed it with Charles I, but their judges were in due course executed for treason.

Principal defect

That does not mean the sentencing should be welcomed uncritically, or that its principal defect should be overlooked — namely it does not apply to the “big five” powers in the security council, or to their close friends (hence Syria’s Bashar al-Assad has thus far escaped indictment because Russia supports him).

But justice has its own momentum, and this selectivity will change.

The importance of the Taylor decision, for example, is that it creates a precedent for prosecuting those who “aid and abet” by sending assistance to brutal factions in a civil war.

Taylor supplied arms, ammunition and money to the rebels in return for a share of their spoils.

What fixed him with criminal liability was that he provided this assistance at the time he knew that the rebels were committing widespread and systematic atrocities.

On this basis, any political or military leader who sends arms or ammunition to the brutal forces in Syria is guilty of aiding and abetting what is clearly a crime against humanity.

The Taylor proceedings are far from over: both prosecution and defence are appealing.

The prosecution in fact suffered some serious defeats: it failed to prove beyond reasonable doubt that Taylor was “godfather”.

But, according to the court, he knew and he approved and he assisted.

The real problem for international justice is the diplomats and politicians — in the security council — who refuse to send those who ordered the bayoneting of Syrian children in their homes to the international criminal court.