Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (10 page)

It is widely accepted that the “selective prosecution” approach could, if adopted wisely, advance transitional justice goals. The challenges lie in establishing the selection criteria. This task is left to the Special Court's Prosecutor,
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who must decide on a strategy which on the one hand will satisfy international expectations of “cost effective” justice by efficiently establishing accountability, and on the other hand will advance national goals such as the promotion of a sustainable peace and the restoration of the rule of law. This is not a new strategy: the Argentine trial of the Juntas in the early 1980s followed a similar approach, as discussed in Chapter
12
. Despite starting with the trial of a “small fry”, Dusko Tadic,
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the International Criminal Tribunal for the former
Yugoslavia (ICTY) eventually adopted a similar selective approach in order to successfully complete its mission.
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Similarly, on trial before the Special Court are not only top echelon leaders but also mid‐level commanders whose position of authority, combined with the seriousness of the crimes they allegedly committed, encouraged the perpetration of grave atrocities by others. Nevertheless, there are victims throughout the country who feel that they are denied justice because the “small fry,” especially those involved in attacks against their area or their relatives, are not brought before the Court.
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Even some Sierra Leoneans who accept the need to follow the “selective prosecution” approach criticize the Prosecutor's exercise of discretion, believing that some of the mid‐level commanders who are testifying before the Court, themselves bear the “greatest responsibility” for some of the war's atrocities and should be prosecuted. This skepticism is exacerbated because important leaders and commanders are currently not facing trial before the Special Court as they are either dead or at large. Former RUF leader
Foday Sankoh was indicted by the Special
Court but died while in its custody; his deputy,
Sam Bockarie, was indicted by the Special Court but was murdered in Liberia; former AFRC leader,
Johnny Paul Koroma, was indicted but is either dead or at large; and, former Liberian president,
Charles Taylor, who allegedly supported and assisted the AFRC/RUF forces in carrying out their mission, was indicted by the Special Court but nonetheless long enjoyed the protection of political asylum in Nigeria. This diminishes the Court's relevance and credibility in the view of some Sierra Leoneans.
[46]
Recent indications, nonetheless, show that the Special Court is becoming accepted locally as part of the Sierra Leonean reality.
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The Special Court's treaty‐based nature removes it from subordination to the Sierra Leonean court system and thus renders it an international tribunal.
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Nonetheless, it is often referred to as a
“hybrid” tribunal since its jurisdiction extends over both domestic and international crimes; since its staff comprises about 60 percent nationals;
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since it was built on government‐owned land;
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and since it relies on national authorities to enforce many of its orders, including arrest warrants.
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In addition, the
Statute
authorizes the Special Court's judges to be guided by Sierra Leone's
1965
Criminal Procedure Act
when amending the Special Court's Rules of Procedure and Evidence (Special Court Rules).
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Furthermore, the Sierra Leonean government participates in the Court's Management Committee and is involved in the selection of the Court's judges, prosecutor and deputy prosecutor.
[53]

A hybrid, in‐country court raises delicate issues about the relationship between the government and the court. For some, there is no genuine partnership between the government and the international community, but rather an outside imposition. Such skeptics base their claim on the limited scope of government participation in the Special Court's process and on the lack of consultation with the Sierra Leonean public prior to the Court's establishment. However, this view misconstrues the nature and purpose of this joint venture. Deeper institutional involvement of the Sierra Leonean authorities could have resulted in an overburdened domestic court system, a depleted national treasury and a government deprived of experienced personnel; factors which inevitably interfere with other transitional justice goals such as institutional development and judicial reform. Furthermore, had the government been more involved in the Special Court's process, the Court's appearance of impartiality would have been compromised, especially with respect to the already problematic proceedings against the CDF leaders.

On the other hand, strong international involvement attracts greater funding resources and experienced international lawyers. Interestingly, the Court's staff includes numerous Sierra Leonean professionals who
have spent the last years living and working in western countries, who now provide an important cultural bridge between the Court's national and international personnel. In fact, the Court's hybrid staff represents a successful synthesis of diverse approaches that promotes the common causes shared by all its members. While allegations of prejudice exist, they seem to be marginal. Indeed, claims of bias attributed to one of the Court's international judges entailed his being percluded from sitting in one of the cases, but such claims could have equally been aimed at any Sierra Leonean judge.
[54]

The Special Court, in contrast to the International Criminal Tribunal for
Rwanda (ICTR) and the
ICTY (collectively: ad hoc tribunals), was not established by the Security Council under Chapter VII of the UN
Charter (Chapter VII). It therefore does not benefit from certain international enforcement measures that such a legal basis confers.
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Nonetheless, the Special Court is a product of a bilateral treaty under which the Sierra Leonean authorities are legally obligated to comply with its orders.
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Hence the Court's treaty‐based nature, to a certain extent, facilitates a greater enforcement capacity than that of the ad hoc tribunals; a point clearly demonstrated by the effective arrests made during 2003 by the local police force pursuant to orders of the Special Court. Furthermore, certain provisions in UN Security Council Resolutions 1470 and 1478 urge third states to cooperate with the Special Court.
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However, these provisions lack Chapter VII enforcement powers.
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Nonetheless, Liberia cooperated with the Special Court when a Liberian district court issued search warrants for Taylor's homes in Monrovia to Special Court officials in March 2004.
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The lack of Chapter VII powers explains in part the Court's long failure to obtain custody over
Charles Taylor, who at the time of writing this chapter resided in Nigeria where he was granted asylum.

There were other forms of pressure encouraging the surrender of Taylor to the Court. UN Security Council Resolution 1532, issued pursuant to
Chapter VII, calls on all states to freeze funds and assets owned or controlled by Taylor.
[60]
Interpol, pursuant to the Court's request, issued a Red Notice against Charles Taylor on December 4, 2003.
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The Special Court's Prosecutor frequently met with US, European and West African government officials in an effort to encourage, through diplomatic means, international pressure on Nigeria to surrender
Taylor to the Court.
[62]
In the meetings it was stressed that since Nigeria is party to the
Convention against Torture and the
Geneva
Conventions, it must pursuant to those treaties either extradite or prosecute suspects of war crimes and torture.

In accordance with Article 11 of the
Statute
, the Court's structure resembles the tripartite organization of the ad hoc tribunals and the
International Criminal Court (ICC), consisting of the Chambers, Registry and Office of the Prosecutor. However, in accordance with Rule 45 of the Special Court Rules, the Court also uniquely incorporates a Defense Office, which despite having been set up by the Registry, functions independently from the latter.
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Examination of the experience of defense counsel at the
ICTR, who complained about the lack of resources and the poor quality of assistance received from the Tribunal, brought about the creation of the Special Court's Defense Office.
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The Defense Office is headed by the Principal Defender and its functions include giving initial advice and assistance to suspects and accused persons, providing administrative and substantive support to defense counsel, and assigning defense counsel to suspects and accused persons who lack the financial means to secure legal representation.

The Court's Chambers comprise two Trial Chambers and an Appeals Chamber, the former consisting each of three judges (one nominated by the Government of Sierra Leone and two by the UN Secretary‐General), and the latter consisting of five judges (two nominated by the Government and three by the UN Secretary‐General). Almost half of the judges are African (five out of eleven), a characteristic that could mitigate public opposition based on a view that the Court is a “Western imposition.”
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The Special Court's jurisprudence contributes to the development of international criminal law. In establishing, for example, that a “forced marriage” constitutes a crime against humanity,
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and that the recruitment of children under fifteen to an armed force constitutes a serious violation of international humanitarian law,
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the universal prohibition of these acts is strengthened. This development, in turn, could have ramifications within Sierra Leone, since awareness of the Court's decisions regarding the international prohibition of such acts may help prevent their reoccurrence in Sierra Leone.

Two landmark decisions by the Special Court's Appeals Chamber which not only enrich the jurisprudence of international criminal law
but also bear the potential to promote deterrence in Sierra Leone, are those asserting that neither the position of an accused as a head of state nor the granting of a national amnesty to perpetrators, preclude prosecution for international crimes by international tribunals.
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These two decisions may operate to restrict “traditional methods” for averting penal consequences of international crimes; “traditional methods” which perpetuate impunity.

The Appeals Chamber's decision establishing that heads of states are not immune from prosecution by international tribunals was given in the case against
Charles Taylor, who was indicted for his alleged involvement in Sierra Leone's war, while still in office as Liberia's president.
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Taylor's defense counsel argued before the Special Court's Appeals Chamber that under customary international law, heads of states enjoy immunity from criminal prosecution in foreign or international courts. The Appeals Chamber rejected this argument, finding that under customary international law, “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.”
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This decision sends an important message to African and other leaders.
Taylor's surrender to the Special Court strengthens this message. Unfortunately, until the rule of law is reinforced throughout West Africa tyrants may continue evading justice, even after having been indicted by international criminal tribunals.

In its decision concerning the national amnesty, the Special Court's Appeals Chamber ruled that “[w]hatever effect the amnesty granted in the
Lomé Agreement may have on a prosecution for such crimes as are contained in Articles 2 to 4 [of the
Statute
] in the national courts of Sierra Leone, it is ineffective in removing the
universal jurisdiction to prosecute persons accused of such crimes that other states have by reason of the nature of the crimes. It is also ineffective in depriving an international court such as the Special Court of jurisdiction.”
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This view is consistent with the reservation appended to the
Lomé Agreement by the UN representative, as well as with the growing body of opinion which maintains that under international law such blanket amnesties cannot apply to international crimes. Referring to this trend, the Special Court acknowledged “that such a norm is developing under international law.”
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Indeed, the Special Court's Appeals Chamber affirmed that “[e]ven if the opinion is held that Sierra Leone may not have breached
customary law in granting an amnesty, this court is entitled in the exercise of its discretionary power, to attribute little or no weight to the grant of such amnesty which is contrary to the direction in which customary
international law is developing.”
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Finally, it is worthwhile stressing that the Special Court's decision does not abolish the institution of post‐conflict amnesties, but rather renders such amnesties inapplicable in international or third‐state proceedings to certain persons with respect to particular crimes.

In contrast to the Nuremberg Trials, most evidence before the Special Court is testimonial. Hence the success of trials before the Special Court depends on the ability and willingness of witnesses to testify. Since the security situation in Sierra Leone has still not completely stabilized, many witnesses feel that testifying before the Court will entail retaliation. The fact that
RUF supporters and CDF supporters live in mixed communities increases this apprehension.
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Fears of retraumatization and stigmatization may also prevent certain witnesses, especially victims of sexual violence, from testifying before the Court.

The war left Sierra Leone with a seriously damaged justice system, hardly capable of enforcing protection measures, and with army and police forces which are still identified with various parties to the conflict and considered unreliable.
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The Special Court must therefore afford protection to its witnesses. Psychological and psycho‐social support must also be accorded to witnesses who, by testifying and reliving painful experiences may become retraumatized. Moreover, if victims testify in a safe and protective environment, their testimony can be a positive and rehabilitating experience.
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The Court's Witnesses and Victims Section provides security arrangements as well as psychological and medical assistance to witnesses.
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The judges issue orders aimed at protecting witnesses by concealing their identities from the public;
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delaying the disclosure of their identities to the defense;
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and minimizing their confrontation with the accused.
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The Special Court Rules on victim participation are not nearly as extensive as those of the
Rome Statute
of the ICC,
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but Rule 75(C) of the Special Court Rules does provide that “[a] Judge or a Chamber shall control the manner of questioning to avoid any harassment or intimidation.” Still, there have been instances where cross‐examinations caused victim‐witnesses to feel as though they were accused themselves, or where extensive legal arguments were advanced by the parties “over the heads” of victim‐witnesses, making them feel dispensable and at times interrupting their testimony in a disrespectful manner. Finally, it is important to ensure that protective measures are available to witnesses after they testify, even after the Court completes its work. Resource limitations render this difficult. The Special Court
intends to leave the responsibility of protecting the physical well‐being of witnesses after they testify to the national police, despite the fact that it is unclear whether the police force has the capacity to carry out this assignment. Arrangements are being made to ensure that certain NGOs will afford psychological support to those who have already testified.
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With regard to the installment of witness relocation programs after testimony, especially for potential witnesses who are currently in foreign countries as a result of protective measures undertaken by the Court to secure their testimony, it is hoped that the state where they reside will fund their stay, or that they will be able to support themselves in those countries without financial assistance.