Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (11 page)

Especially where an amnesty regime exists, the operation of a truth commission or another truth‐seeking mechanism is crucial in order to promote acknowledgment of past violations. However, other mechanisms must also be established to ensure the restoration of justice. In Sierra Leone, the circumstances eventually brought about the nullification of the amnesty for certain leading perpetrators with respect to particular crimes, and the establishment of a distinctive prosecutorial process alongside the TRC and the amnesty regime that still applies to most ex‐combatants.

The roles of the TRC and Special Court in part overlap, as they both promote accountability and the preservation of a historical record. The TRC's process complements the Court's prosecutions by establishing, albeit in a non‐prosecutorial manner, the accountability of many of the “small fry” perpetrators, while the Court plays a necessary punitive role with respect to the accountability of the “big fish.” The TRC, moreover, was in a better position than the Court to address the accountability of the
child‐soldiers involved in the war.
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In addition, while the Special Court is mandated only to prosecute the atrocities which occurred after November 30, 1996, the TRC investigated and recorded atrocities which took place throughout the entire duration of the armed conflict, thereby facilitating a complete historical account of the war. On the other hand, the Court is better equipped to ascertain the truth in relation to certain events, given its greater capacity to obtain evidence, its larger financial resources, and the high standard of “proof beyond a reasonable doubt” required by the Court to allow the inclusion of evidence in the historical account it establishes.
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For example, given the reluctance of many Sierra Leoneans to voluntarily express opinions against the CDF, the Court, by trying
top‐echelon CDF members, may
be in a better position than the TRC to discover the truth about the CDF's involvement in the atrocities.

The coexistence of the Special Court and the TRC could in theory enhance the attainment of their respective, non‐shared goals, provided the means to achieve their ends are undertaken wisely. For example, the TRC's report could be introduced as evidence before the Special Court, thus facilitating the latter's judicial process. In a decision rendered by the Special Court's Appeals Chamber, Judge Geoffrey Robertson stated that “[j]udicial notice might be taken of [the TRC report], and it might provide considerable assistance to the Court and to all parties as an authoritative account of the background to the war.”
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Unfortunately the report was not available when the trials commenced, but it may be useful as trials continue.

Furthermore, information held by the TRC which exculpates individuals who are accused before the Special Court could perhaps be shared with their defense counsel to promote a fair trial. Such a course of action must, however, be considered in light of witness protection issues and the desirability of using information which was provided to the TRC in confidence. In addition, each of these institutions' statement‐taking process could prepare the society for the other's, since “training” the people to testify before a formal body may reduce their apprehension and encourage their involvement in transitional justice processes. Finally, it is worthwhile mentioning that while the TRC's report aims to identify the root causes of the war, the Special Court's process addresses some of these root causes by promoting accountability and respect for human rights.

If conducted unwisely, however, each entity's work towards different goals may undermine that of the other. The coexistence of the TRC and the Special Court in Sierra Leone was not planned in advance but was rather a result of circumstance. The TRC initially resisted the idea of establishing the Special Court. Such resistance was partially based on the TRC's above discussed opposition to the notion that the
Lomé Agreement's amnesty provision is inapplicable to international crimes. The TRC's attitude also emanated from the perception that the Court's existence would threaten its own process, a theory based on the assumption that perpetrators would refuse to cooperate with the TRC for fear of being subject to prosecution based on the information they provided.
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Nonetheless, the Special Court's Prosecutor, upon his arrival in Sierra Leone, publicly announced that he would refrain from using evidence obtained by the TRC for the Special Court's purposes. This relaxed the TRC's initial resistance to the Court, and in December 2002, the Special Court's Prosecutor and the Chairman of the TRC publicly announced mutual support between the institutions.
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Had these personalities
adopted a different approach, the work of both institutions would have been jeopardized, as a hostile relationship between them would have generated negative public opinion and deterred the population from participating in their respective processes.

As a result of the lack of advance planning in the contemporaneous establishment of the Special Court and the TRC, there was initially much confusion within the population with regards to their respective roles. In addition, some sectors felt the need to support one mechanism rather than the other.
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However, once mutual respect was publicly declared, such sentiments lessened considerably, although even after this public announcement there were incidents where mutual respect appeared to be lacking.
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To ensure the synergies between a truth and reconciliation commission and a transitional prosecution institution, both mechanisms must convey a strong message of mutual respect. Otherwise, they risk undermining each other's process. The success of their coexistence should not depend on the personalities leading their respective processes but rather on advance planning and consultation. Such advance planning should include a comprehensive sensitization program prior to the creation of the mechanisms to educate the public on their respective roles, demonstrate their mutual respect and promote a perception that the mechanisms are complementary rather than competing.

Perhaps a better way to promote the efficiency of truth commissions and prosecutorial processes is to prevent their contemporaneous existence, especially when their coexistence was not planned in advance. Concluding prosecutions before setting up a truth and reconciliation commission makes little sense because prosecutions are extremely time‐consuming, and reconciliation efforts must be initiated as soon as relative stability is achieved. The reverse order must therefore be considered.

In Sierra Leone, certain problems would have been eliminated, or at least mitigated, had the TRC concluded its operations prior to the commencement of the Special Court's process. Such sequencing would have eliminated public fragmentation, mitigated public confusion with regards to the respective roles of the two institutions, precluded hostile “press fights” between the entities, and perhaps enhanced public cooperation with the TRC.
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This sequencing could have also enabled the Special Court to benefit from the TRC's report by admitting it into evidence early on. Moreover, identification by the TRC of the main perpetrators prior to the establishment of the Special Court could have reduced negative public perception of the Court. Finally, with the passage of time, the security and political realities in Sierra Leone could have been more favorable to the Court's work.

On the other hand, had the Special Court been set up at a later stage, getting hold of suspects and evidence would have been much more difficult. The passage of time would have also increased witness fatigue and reluctance of victims to recount their distant painful past. In addition, the trials would have been less relevant to the local population and therefore less effective in terms of achieving transitional justice goals such as reconciliation and judicial reform. Furthermore, a delay of even a year or two could have eroded the political will to set up such a court. Hence, under the circumstances, the simultaneous establishment of both transitional justice mechanisms, albeit not envisaged, was not a poor
choice.

As an institution which sits at the locus of the crimes and encourages national involvement in its process, the Special Court has great potential to promote national judicial reform and restoration of the
rule of law. The employment of nationals by the Special Court facilitates the permeation of international standards into the domestic sphere,
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and ensures that once the Court completes its work Sierra Leone will be left with legal and law‐enforcement professionals. Currently, out of a total of 255 staff members, 149 are nationals.
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Furthermore, there is a legacy that the Court will leave behind: jurisprudence which could provide guidance to national courts, Special Court Rules which could stimulate the reform of Sierra Leone's
1965
Criminal Procedure Act
, a video record of its process which could be used as a future reference in judicial reform activities,
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and a double‐chambered courthouse which will be left to the government. This could provide the “building blocks” for a sustainable reformed national justice system. However, for these “building blocks” to be used by Sierra Leoneans, the Special Court must be considered locally as a role model for the administration of justice. To this end, Sierra Leoneans must deem the Court credible and relevant to their lives.

To allow the public to assess their relevance, the trials must be transparent. This means that the proceedings must be public, accessible, and easily understood. The majority of the population is too poor to travel to Freetown to observe trials. Even Freetown residents are hesitant to attend trials, not only due to financial constraints but also in light of the intimidating number of armed security guards and barbed wire surrounding the Court's site, which from the outside resembles a high security prison. Daily radio broadcasts of the trials would have best promoted transparency, as most Sierra Leoneans listen regularly to the
radio. Such broadcasts could have also advanced deterrence goals. However, undertaking this measure could enhance the security risk to certain witnesses as their testimonies often reveal identifying information. Redacting recorded testimonies prior to broadcasting them was considered but deemed too costly.
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Currently, 10–15 minute‐long summaries of the proceeding are broadcasted on a weekly basis,
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but the extent to which this promotes transparency is debatable.

Nonetheless, the Court's national relevance is enhanced through participation of Sierra Leoneans in its process – as witnesses, staff and receptive audiences. An emerging civil society engaged in a “bottom up” process of NGO formation and coalition‐building ensures future attention to criminal justice and human rights issues.
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In addition, the judges as well as the Defense Office engage in workshops, university seminars and other initiatives aimed at educating the next generation of Sierra Leonean lawyers on due process and rights of the accused.
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This process is further reinforced through various activities undertaken by the Court's Outreach Section (OS).

The outreach program started in the Office of the Prosecutor, but was moved to the Registry to maintain an appearance of neutrality. The OS became fully operational in early 2003, and initially pursued its aims through conducting workshops for special groups – such as ex‐combatants, victims, military representatives, policemen, and youth groups – with the intention of preparing them for the trials while taking into account their peculiar needs and roles in society.
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In mid‐2003, the OS began employing District Officers who are based in the provinces, to conduct community meetings updating the public on the Court's proceedings. These educative activities, conducted nationwide and in local languages, enhance the national relevance of the trials by rendering clear and understandable an otherwise incomprehensible process. The OS organizes public meetings where the Prosecutor and Principal Defender discuss their respective functions; conducts educational programs for school children; funds victims' journeys to the Court; promotes a book it has published about the Special Court in basic English; and encourages radio programs discussing the Court's process.
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Such initiatives could have been undertaken by other organizations which are less costly than an international criminal tribunal. However, it was felt that the Court was well‐positioned to educate on its mission, as it is able to explain its process while demonstrating it at the same time.
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Outreach activities go beyond informing the population of the Court's mandate, to ensure that the principles promoted by the Court remain in the country. To meet this objective the OS, after consultation with the government's “customary law” expert, began training “lay magistrates”
on issues such as the presumption of innocence and due process of law.
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These “lay magistrates” are traditional chiefs who engage in adjudication, and although too marginalized by the national legal institutions to receive formal training they still have a stronghold throughout the nation.
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To promote a sustainable respect for the law and human rights, the OS established the “Accountability Now Club” (ANC), which comprises representatives of thirteen higher education facilities throughout Sierra Leone. While the ANC's short‐term goal is to promote the participation of students in the Court's process, its long‐term goal is to ensure student involvement beyond the Court's tenure in advocating broader legal and social transformations.
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The Court does not intend to substitute for other judicial reform programs;
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nonetheless, Court officials felt that the institution was ideally placed to contribute to judicial reform goals, and that it would be dishonorable not to do so.
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Outreach initiatives are also in place to listen to public concerns and address them accordingly, not just to win the public's hearts and minds but also to improve the Court's processes. The OS established the “Special Court Interactive Forum” (SCIF) to provide a link between the public and the Court. SCIF members currently include representatives of 28 local organizations, who on the one hand inform people in remote areas of the Court's progress, and on the other hand direct public concerns to the Registrar's attention.
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Having learned that among other concerns, the public is anxious to be compensated for the past injustices, the OS initiated a consultation process concerning a victim commemoration scheme, which also addressed the issue of
reparations.
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An interesting suggestion made once by the Registrar, was that the diamond industry be approached and asked to assist in creating a trust fund for compensating victims, not as an admission of guilt but rather as an expression of the industry's concern for the victims of atrocities in a diamond producing country.
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