Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (9 page)

Sigall Horovitz

New York and Israeli Bars

 

I believe that crimes of the magnitude committed in this country are of concern to all persons in the world, as they greatly diminish respect for international law and for the most basic human rights. It is my hope that the United Nations and the international community can assist the people of Sierra Leone in bringing to justice those responsible for those grave crimes.

Letter sent by the President of Sierra Leone, Ahmad Tejan Kabbah, to the UN Secretary‐General, dated June 12, 2000
.

 

Receptive to Sierra Leone's cry for help, the United Nations concluded an agreement with the Government of Sierra Leone establishing the Special Court for Sierra Leone (Special Court), mandated to try persons bearing the greatest responsibility for international crimes and certain domestic crimes committed within the country since November 30, 1996. The Special Court is the first modern international criminal tribunal located within the country where the prosecuted crimes were committed. It is also the first such tribunal that was created by a bilateral treaty, coexisted with a truth and reconciliation commission, has a far‐reaching outreach program, and relies mostly on national staff.

The Court's geographical location and the national institutional support it receives facilitate the collection of physical evidence and the preparation of witnesses, increasing the efficiency of its process. These factors also provide the Court with an excellent opportunity to engage in local capacity‐building initiatives aimed at enhancing its ability to leave behind a legacy. The Court's reliance on national staff ensures that once it completes its work, Sierra Leone will be left with professionals capable of supporting a rule of law society.

The Special Court became operational in August 2002. Its two first trials commenced in mid‐2004, and a third trial started at the beginning of 2005. Although its mandate will result in only a few individuals being charged, the Court was created to “contribute to the process of national reconciliation and to the restoration and maintenance of peace.”
[1]
At first glance, it seems the Court is well positioned to promote these national
transitional justice goals: by bringing perpetrators to justice it could deter further violence and allow the population to break from a violent past and build a future
based on respect for human rights and equality before the law. Its process, moreover, could promote a sustainable peace by helping restore the rule of law and eradicate the culture of impunity in Sierra Leone. Nonetheless, the Court's ability to promote such goals could be curtailed by an array of elements including its own limited funding and jurisdiction, the volatile state of security in the country, and varying levels of local opposition. To help restore the rule of law, the Court must be seen as a role model for the administration of justice, and to promote deterrence it must be deemed credible. In light of these unique realities, this chapter examines the potential success of the Special Court as a cornerstone of transitional justice in Sierra Leone.

Sierra Leone gained independence from British rule on April 27, 1961. In March 1991, forces of the organized armed group known as the
Revolutionary United Front (RUF) led
by Foday Kankoh, with help from Liberian forces, entered Sierra Leone from Liberia, declaring their aim was to overthrow the government. International and local pressure led to democratic elections on February 26, 1996, in which
Ahmad Tejan Kabbah of the Sierra Leone People's Party (SLPP) was elected President. On election day, the RUF attacked central towns in Sierra Leone. In response, various civil militia forces, including organized groups of traditional hunters, united into a centralized force which became known as the
Civil Defense Forces (CDF). The CDF fought against the RUF, alongside the
Sierra Leone Army (SLA). The national coordinator of the CDF forces was
Sam Hinga Norman, who subsequently became Deputy Defense Minister in Kabbah's government. On November 30, 1996,
President Kabbah and RUF leader
Foday Sankoh signed a peace agreement in Abidjan (Abidjan Accord).
[2]
Shortly after, army elements calling themselves the
Armed Forces Revolutionary Council (AFRC) overthrew the government. The AFRC was led by
Johnny Paul Koroma, who immediately after the coup invited the RUF to join the government. Combined AFRC/RUF forces began attacking the CDF as well as civilians deemed to be collaborating or sympathetic to the CDF, while the CDF did the same with perceived AFRC/RUF collaborators. International efforts produced a cease‐fire agreement on May 18, 1999 between President
Kabbah, acting on behalf of the government, and Sankoh, acting on behalf of the AFRC/RUF.
[3]
Subsequently, a peace agreement was signed on July 7, 1999 in Lomé, Togo (Lomé
Agreement).
[4]
In October 1999, the UN established the United Nations Mission to Sierra Leone
(UNAMSIL).
[5]
The AFRC/RUF forces neither disarmed nor released abducted civilians, and despite the Lomé Agreement resumed attacks on the CDF and on the civilian population.
[6]
In May 2000 AFRC/RUF forces took hostage and abused about 500 UN peacekeepers.
Sankoh was arrested on May 17, 2000.
[7]
British troops were immediately deployed in Sierra Leone to deter violence and train the local army and police forces. A cease‐fire agreement was signed in November 2000 and
AFRC/RUF forces began surrendering their arms to UN peacekeepers.
[8]
Another cease‐fire agreement was signed in May 2001.
[9]
On January 18, 2002, Sierra Leone's civil war was officially declared over.
[10]

The war killed between 50,000 and 75,000 people. It rendered almost half of the country's population of 5 million either internally displaced persons or refugees.
[11]
The prevalence of rape and other sexual assaults during the war resulted in the widespread increase of sexually transmitted diseases, especially HIV/AIDS. The notorious amputation campaigns carried out by the rebels against the civilian population left many disabled. The impact on infrastructure and property was enormous – many hospitals, schools, community facilities and private houses were demolished; telephone and electric infrastructure was destroyed; roads and bridges were severely damaged. Around 45,000 ex‐combatants, including 5,600 child‐soldiers, were disarmed and demobilized. Efforts are presently being made to reintegrate refugees, internally displaced persons, ex‐combatants and victims into their communities. Despite instability in neighboring countries, Sierra Leone today seems internally stable for the first time in over a decade.

The Lomé Agreement, like previous unsuccessful peace agreements in Sierra Leone, granted a sweeping amnesty to all combatants for all crimes committed during the conflict.
[12]
It also accorded powerful political positions to AFRC/RUF leaders.
[13]
In lieu of prosecutions for the crimes committed during the war, the Lomé Agreement called for the creation of the Truth and Reconciliation Commission (TRC).
[14]
The
UN representative to the peace negotiations appended a reservation to the Lomé Agreement, stating that the amnesty cannot apply to international crimes.
[15]
The
UN High Commissioner for Human Rights insisted that peace was incompatible with impunity.
[16]
International NGOs also opposed the “blanket” amnesty and demanded
prosecutions.
[17]

Following the abduction of about 500 UN peacekeepers by rebels and
Sankoh's arrest in May 2000, the
UN Secretary‐General stated that
Sankoh should be held responsible for the recent crisis in Sierra Leone.
[18]
On May 26, 2000, touting the importance of establishing accountability for the attainment of a sustainable peace, Sierra Leone's president declared that Sankoh would face trial; the Finance Minister stated that the government would prefer to see Sankoh tried by an international tribunal, as a local court could not guarantee his safety.
[19]
Civil society requested the creation of an international tribunal.
[20]
US and UK officials demanded that those responsible for the atrocities be held accountable.
[21]

On June 12, 2000, almost a year after signing the Lomé Agreement,
President Kabbah wrote a letter to the UN Secretary‐General requesting the UN's assistance in bringing to justice RUF members responsible for the atrocities committed in Sierra Leone's war. In the letter, the president acknowledged that “Sierra Leone does not have the resources or expertise to conduct trials for such crimes” and that “there are gaps in Sierra Leonean criminal law as it does not encompass such heinous crimes.”
[22]
On August 14, 2000, the Security Council requested the
UN Secretary‐General to negotiate the establishment of the
Special Court with the Government of Sierra Leone.
[23]

International pressure demanding prosecutions for Sierra Leone's atrocities increased following the August 25, 2000 abduction of eleven British soldiers by the AFRC splinter group, the “West Side Boys”. However, it was not until January 16, 2002 that an agreement was concluded between the
UN and the Government of Sierra Leone on the establishment of the Special Court (Special Court Agreement).
[24]
Thus, the Court is a treaty‐based, international institution. In March 2002, in accordance with constitutional requirements, the Sierra Leone parliament enacted domestic legislation implementing the Special Court Agreement.
[25]
In concluding the Special Court Agreement and in enacting the implementing legislation, although allegations to the contrary exist, neither the UN nor the government reneged on the
Lomé Agreement's amnesty: the UN never considered it applicable to international crimes,
[26]
and the government considered it applicable only in national courts.
[27]

In August 2002 the Special Court became operational, and its work will extend at least into 2007. A trial against three former CDF leaders, including
Sam Hinga Norman, commenced on June 3, 2004.
[28]
Another trial, against three former RUF leaders, commenced on July 5, 2004.
[29]
A third trial, against three former AFRC leaders, commenced on March 7, 2005.
[30]
Additional trials may take place if or when the Special Court obtains custody over two further indictees,
[31]
former AFRC leader
Johnny Paul Koroma, and former Liberian president
Charles Taylor,
who allegedly assisted the AFRC/RUF. Theoretically, new indictments could be issued, although it is unlikely at this stage due to the limited funding and duration of the Court.

Article 1 of the
Statute of the Special Court for Sierra Leone
(
Statute
) limits the Court's temporal jurisdiction to violations that occurred after November 30, 1996, the date the Abidjan Accord was signed. The temporal jurisdiction is open‐ended. The signature date of the failed Abidjan Accord was chosen as it was considered a non‐politically biased date, which provided a time‐frame that ensures the Court would not be overburdened while it still addresses the most serious atrocities committed during the war, in all geographical areas and by all parties involved.
[32]

The Special Court's subject matter jurisdiction is limited to crimes against humanity and war crimes,
[33]
as well as to the domestic crimes of sexually assaulting young girls and setting fire to property.
[34]
Despite the Court's mandate to try domestic crimes, the indictments to date charge accused persons only with international crimes, consistent with the Court's view that the
Lomé Agreement's amnesty does not cover such crimes, at least insofar as they are prosecuted by a foreign or international tribunal.
[35]
The Special Court has primacy over national courts;
[36]
while the national courts exercise concurrent jurisdiction over post‐Lomé crimes, they have not yet chosen to exercise it.
[37]

Former RUF and AFRC members are charged with extermination, murder, rape, sexual slavery and other forms of sexual violence, enslavement, and inhumane acts as crimes against humanity; with acts of terrorism, collective punishment, murder, outrages upon personal dignity, mutilation, and pillage as violations of Common Article 3 to the
Geneva Conventions and of Additional Protocol II; and with the use of
child‐soldiers and attacks against peacekeepers as “other serious violations of international humanitarian law.”
[38]
The former CDF members are charged with murder and inhumane acts as crimes against humanity; with murder, cruel treatment, pillage, acts of terrorism, and collective punishment as violations of Common Article 3 and of Additional Protocol II; and with the use of
child‐soldiers as “other serious violations of international humanitarian law”.
[39]
The accused persons are charged with these crimes by virtue of having commanded the perpetrators, pursuant to the doctrine of command responsibility, as well as for having directly perpetrated the crimes. Direct perpetration under international law includes having planned, ordered, instigated, aided and abetted
the crimes, or having participated in a joint criminal enterprise which produced
them.
[40]

Article 1 of the Statute limits the Court's personal jurisdiction to those bearing “the greatest responsibility” for the atrocities.
[41]
This restriction is not only the result of resource limitations and urgency of legal action but also of the infeasibility of bringing to justice over 40,000 combatants. Furthermore, in Sierra Leone, many of the combatants were children who were abducted and manipulated by the commanders to commit atrocities; bringing them to justice does not reflect their limited volition and may adversely impact their rehabilitation and reintegration into society. Children between fifteen and eighteen years old are not excluded from the jurisdiction of the Court, but the Special Court's Prosecutor from the outset made clear that juvenile offenders would not be indicted or prosecuted.