Sierra Leone Special Court

The eight and one-half year armed conflict between the government of Sierra Leone and rebel groups (in effect a civil war), which officially ended on July 7, 1999, with the signing of the Lomè Peace Agreement, is unrivalled in its particularly mindless violence, directed mainly against the civilian population. The signature of the Revolutionary United Front (RUF) rebel group was the amputation of the hands, arms, and other body parts of civilians, including those of children and babies—a grimly ironic reference to the election slogan of the President of Sierra Leone, Ahmad Tejan Kabbah: "The future is in your hands." Other favored practices of the rebels included burning civilians alive; gouging out eyes; attacking civilians with machetes and/or shooting them; the forced recruitment of child soldiers; and the kidnapping of girls (who would be coerced into sexual slavery).

It would be difficult to be categoric about the war aims of the RUF and other armed opposition groups. The RUF was established and originally funded by former Liberian President Charles Taylor, who had the intention of grabbing power in Sierra Leone. But the real driving force of the conflict was control over natural resources, especially the country's diamonds. This war was the continuation of business by other means, to paraphrase the famous military tactician, Karl von Clausewitz.

The extreme nature of the violence, and the fact that the victimization of the civilian population was not the "collateral damage" of a conflict otherwise fought between two armies but the modus operandi of the rebels, brought the conflict in Sierra Leone to international attention. However, while expressing concern, the international community would make no commitments to armed intervention or the type of help that could have turned the tide of the civil war. Two peace agreements were signed and quickly collapsed. The regional peacekeeping force, ECOMOG, which is the armed force of the Economic Community of West African States (ECOWAS), was deployed to assist the government of Sierra Leone in defeating the rebels. The government even resorted to hiring mercenaries to help it win the war, but to no avail. With the rebels controlling two-thirds of the national territory (containing one-half of the population), and seemingly no way to defeat the rebels militarily, the government—under pressure from the international community, particularly the United States and the United Kingdom—decided once again to sue for peace.

The Lomé Peace Agreement, signed on July 9, 1999, in the capital city of Togo, was a highly compromising document in which the government of Sierra Leone, in its desperate bid to end the conflict, offered a blanket amnesty to all the rebels, as well as government troops that might have committed serious crimes, and agreed to bring the RUF into the government. It also placed the RUF's notorious leader, Foday Sankoh, at the head of a commission known as the Strategic Minerals Commission, which would oversee the country's mineral resources and postwar reconstruction, with responsibility for "securing and monitoring the legitimate exploitation of Sierra Leone's gold and diamonds" and reviewing all mining licenses in the country. What were in effect rewards for brutality outraged many international observers, and the amnesties were considered to violate international law. In an oral disclaimer to the Peace Agreement, made at the time of the signing of the agreement, the United Nations (UN) Special Representative for Sierra Leone, Francis Okelo, said that the amnesty did not apply to genocide, crimes against humanity, and other serious violations of international humanitarian law. Backed into a corner, the government of Sierra Leone felt that it had no alternative.

The government's willingness to offer the best possible terms to the rebels in order to persuade them to renounce violence did not produce the hoped for peace and stability. By May 2000 the Lomé Peace Agreement was on the verge of collapse, as the RUF and other rebel groups, who had refused to disarm or demobilize, attacked the UN peacekeepers who had been sent to police the shaky "peace."

Establishment of the Special Court for Sierra Leone

With the spirit of reconciliation fading fast in Sierra Leone, the government called for the creation of an international criminal tribunal that would try the rebels who had committed war crimes and crimes against humanity.

In response, on August 14, 2000, the UN Security Council unanimously adopted Resolution 1315, setting in motion a process intended to culminate in the establishment of a body to be called the Special Court for Sierra Leone. The resolution expressed the Security Council's distress over the "very serious crimes committed within the territory of Sierra Leone against the people of Sierra Leone and the United Nations and associated personnel, and at the prevailing situation of impunity." It declared that persons who commit such crimes are individually criminally responsible, and that "the international community would exert every effort to bring those responsible to justice in accordance with international standards of justice, fairness, and due process of law." The resolution went on to say: "[I]n the particular circumstances of Sierra Leone, a credible system of justice and accountability for the very serious crimes committed there would end impunity and would contribute to the process of national reconciliation and to the restoration and maintenance of peace."

UN Resolution 1315, consisting of nine paragraphs, entrusted to the UN Secretary-General the task of negotiating an agreement to create an independent special court with the government of Sierra Leone. It recommended that the Special Court have subject matter jurisdiction over crimes against humanity, war crimes, and other serious violations of international humanitarian law. In contrast to the already existing ad hoc International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), the Special Court was to have a mixed character, with both international and national elements.

There were several reasons for the decision by the UN to propose a court of mixed character rather than a "pure" international one such as the ICTY or ICTR. In the first place, the government of Sierra Leone itself favored the establishment of a court that would have both international and national features. Second, there was no support at the international level for the creation of yet another very expensive ad hoc international criminal tribunal modeled on the ICTY or ICTR, which by the year 2000 were as a pair costing the UN approximately $200 million per year. Although the Statute of the International Criminal Court (ICC, located in The Hague, Netherlands) was adopted in July 1998, it could not hear cases concerning the war in Sierra Leone, as under Article 11(1) of the Statute: "The Court has jurisdiction only with respect to crimes committed after the entry into force [of the Statute], on July 1, 2002."

Following the adoption of Resolution 1315, the next step in the creation of the Court was the issuance by the Secretary-General, on October 4, 2000, of a Report on the Establishment of a Special Court for Sierra Leone. Annexed to the report were a draft agreement between the UN and Sierra Leone concerning the establishment of the Court and a draft statute for the Court, which were the starting points for the subsequent bilateral negotiations. The final versions of both the Statute and the Agreement were signed sixteen months later, in January 2002. In the interim letters were exchanged among the Security Council, the Secretary-General, and the government of Sierra Leone in an effort to resolve the main issues in contention, which were the size of the Court, its jurisdiction over persons, and funding for the Court. Final agreement on these issues was reached in February 2001. Delays thereafter were attributable to difficulties having to do with the acquisition of sufficient funding to establish and operate the Court. When the funding was secured, work began on the actual establishment of the Court, the hiring of staff, and the preparation of the first indictments.

The Agreement and the Statute

Although the Special Court for Sierra Leone has much in common with its antecedents (the ICTY and ICTR), it differs from them in several key respects. One fundamental distinction is that the legal basis of the Court is the bilateral agreement between the UN and Sierra Leone, and not a resolution of the Security Council.

The establishment of the Special Court by an agreement rather than a Security Council resolution offered both advantages and disadvantages. On the plus side, it meant that Sierra Leone was able to put the stamp of its own personality on the Court—to a far greater extent than the former Yugoslavia or Rwanda had been able to put theirs on the international tribunals. On the minus side, the Special Court, not having been established pursuant to the Security Council's Chapter VII powers, lacks the authority to issue binding orders to states. Although the Secretary-General had recommended to the Security Council that it endow the Special Court with binding powers, the Security Council declined to do so. This means that the Court cannot, for example, order a state to surrender a person for trial, and must depend on states' good will when it comes to cooperation.

Although the Agreement and the Statute each has its own purpose, there is some overlap between them and they should be read together. Apart from establishing the legal basis of the Special Court, the Agreement lays out the composition of the Court and the procedure for the appointment of its judges, prosecutor, and registrar. It establishes that the Special Court shall be located in Sierra Leone. There are provisions in the Agreement that deal with administrative and other technical matters, including the legal status of the Court itself; the privileges and immunities of the judges, prosecutor, and registrar; and the privileges and immunities of international and Sierra Leonean court personnel. Immunity of counsel, witnesses, and experts, as well as the security, safety, and protection of these persons, are guaranteed. Practical arrangements regarding the establishment of the Court, the settlement of disputes, and the entry into force of the Agreement are also spelled out.

Structure and Size of the Special Court

The Special Court for Sierra Leone has a tripartite structure, consisting of a Registry, an Office of the Prosecutor, and Chambers of the judges.

The UN Secretary-General had originally proposed a Chambers consisting of two trial chambers, both composed of three judges, and one Appeals Chamber, in which five judges would serve. However, the Security Council rejected this, primarily on the basis of financial constraints, stating that "the Special Court should begin its work with a single Trial Chamber with the possibility of adding a second Chamber should the developing caseload warrant its creation." The Security Council also rejected the Secretary-General's suggestion of alternate judges.

Although the Security Council had asked the Secretary-General to consider the possibility of the Special Court's sharing the judges of the Appeals Chamber of the ICTY and ICTR, the Secretary-General rejected this proposal as unworkable. While the Secretary-General recognized the advantages of having a single Appeals Chamber that, as the ultimate judicial authority in matters of interpretation and application of international humanitarian law, would offer the guarantee of a coherent development of the law, he found that this goal might also be achieved by linking the jurisprudence of the Special Court to that of the international tribunals. Article 20(3) of the Statute provides that the Court shall be guided by the decisions of the Appeals Chamber of the ad hoc international criminal tribunals (for Rwanda and the former Yugoslavia), whereas Article 14(1) references the Rules of Procedure and Evidence of the ICTR.

As the Special Court has jurisdiction over domestic as well as international crimes, it was necessary that at least some of the Court's judges have knowledge of Sierra Leonean law or at least have a common law background. The Agreement and Statute thus provide that one of the three judges of the Trial Chamber and two of the five Appeals Chamber judges shall be appointed by the government of Sierra Leone. The Agreement further provides that the Secretary-General should particularly seek nominations for the remaining Trial and Appeals Chambers judges from member states of the ECOWAS and the British Commonwealth. Judges serve four-year terms and are eligible for reappointment.

The chief prosecutor, who works only for the Special Court, is chosen by the UN Secretary-General; the Deputy must be a Sierra Leonean national. The prosecutor is appointed for a four-year term and is eligible for reappointment. The prosecutor acts as an independent and separate organ of the Court and is prohibited from receiving any instructions from any government.

The Registry is responsible for the day-to-day running of the Court. It includes the Victims and Witnesses Unit, which is responsible for establishing security measures for the protection of witnesses who testify before the Special Court.

The Jurisdiction of the Special Court

The Statute stipulates that the Special Court shares jurisdiction with the national courts of Sierra Leone, but enjoys primacy over those courts and, at any stage of its proceedings, may formally request a national court of Sierra Leone to defer to its competence. Defendants are not vulnerable to the risk of double jeopardy. Article 9 of the Statute makes clear that no person who has been tried before the national courts can later be tried by the Special Court in respect of the same acts. But there are exceptions. Retrial is possible if: (1) the acts for which the defendant was tried in a national court were characterized as ordinary crimes; (2) the national proceedings were not impartial or independent; or (3) the national proceedings were designed to shield the accused from international criminal responsibility or were not diligently prosecuted.

Time Limits

Given the Special Court's limited budget, there existed a need to limit its caseload. This was partly achieved by restricting the Court's temporal jurisdiction. Although the Secretary-General recognized in his Report on the Establishment of a Special Court for Sierra Leone that the armed conflict in Sierra Leone officially began on March 23, 1991, when the RUF invaded Sierra Leone from Liberia, the Court was given temporal jurisdiction that extended only as far back as November 30, 1996, the date of the signing of the Abidjan Peace Agreement. This latter date meant that the Court's jurisdiction would encompass the period during which the most serious crimes were committed. The Court's jurisdiction is open-ended.

A further issue that might have impacted on temporal jurisdiction was the amnesty granted in the Lomé Peace Agreement. If the amnesty were considered to be legal and in force, the Special Court's jurisdiction would then extend only to crimes committed after July 7, 1999—whereas if that amnesty were illegal, the Court would also enjoy jurisdiction over crimes committed before that date. In his October 2000 report, the Secretary-General stated: "[T]he United Nations has consistently maintained the position that amnesty cannot be granted in respect of international crimes, such as genocide, crimes against humanity, or other serious violations of international humanitarian law." Scholars agreed. Article 10 of the Statue of the Special Court therefore rejects amnesty in respect of international crimes, but leaves open the question of whether national crimes can be prosecuted by the Special Court in instances in which an amnesty has been granted. It can be argued that the Court's temporal jurisdiction concerning national crimes begins only on July 7, 1999.

Jurisdiction over Persons

Discussion of the Special Court's personal jurisdiction focused on two issues: (1) defendants' position in the chain of command and level of personnel responsibility; and (2) whether the Court should have jurisdiction over children who were suspected of having committed atrocities.

Concerning the first issue, the parties to the Statute had to decide whether the Statute itself should place restrictions on who was and was not a prosecutable defendant, or whether this should be left to the discretion of the prosecutor. From the outset it was agreed that only those most responsible for the crimes committed in Sierra Leone should be prosecuted before the Special Court. However, some time elapsed before there was agreement as to the exact wording of the Statute's Article 1, concerning the Court's personnel jurisdiction over persons. The Secretary-General's original draft statute provided that the Special Court should have jurisdiction over "persons most responsible for serious violations of international humanitarian law and Sierra Leone law." Subsequently, the Security Council changed this to "persons who bear the greatest responsibility." The Security Council added to the Secretary-General's draft Article 1 the words: "including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone." This removes any ambiguity as to whether the Court has jurisdiction over crimes that were committed after the signing of the Lomé Peace Agreement.

Responding to these adjustments, the Secretary-General stated that "the words [of the Security Council]. . . provide guidance to the prosecutor in determining his or her prosecutorial strategy." He also stated that although he agreed that the Special Court should prosecute only those most responsible for serious violations of international humanitarian law, such a restriction "does not mean that the personal jurisdiction is limited to the political and military leaders only. Therefore, the determination of the meaning of the term persons who bear the greatest responsibility in any given case falls initially to the prosecutor and ultimately to the Special Court itself."

At the same time, the inclusion of this wording (having to do with the Court's ultimate discretion in respect of jurisdiction over persons) in the final version of the Statute of the Special Court in combination with the Court's limited financial resources suggested that the Court's main focus would be rebel leaders. The initial indictments filed by the Chief Prosecutor David Crane supported this assumption. Although violations of international humanitarian law by persons other than rebel leaders were documented, the Security Council indicated that they should be tried in other forums. The Security Council specified that the primary responsibility for prosecuting members of peacekeeping forces, for example, fell to the sending state.

The other aspect of the Special Court's jurisdiction over persons that was in contention concerned the politically sensitive question of whether the Court should be able to prosecute child soldiers—and if so, what should be the age of criminal responsibility.

The involvement of minors (some not yet teenagers) in the commission of atrocities during the armed conflict in Sierra Leone has been well-documented. These children were mostly abducted and forcibly recruited into rebel groups, and were compelled to carry out atrocities, sometimes against members of their own families.

The Secretary-General's Report of October 2000 made reference to the "terrible dilemma" of jurisdiction in relation to these minors. Although it was widely recognized that the crimes in question were committed by youths who had been under some form of duress and intoxication, there was considerable popular support within the country for prosecuting at least those minors suspected of having committed the very worst crimes.

The agreed upon solution left open the possibility of their being tried, and built into the Statute a number of safeguards in the event that they would be tried. Article 7 of the Statute provides that the Special Court has jurisdiction over persons who were fifteen years of age or older at the time of the alleged commission of the crime. It allows the Court to prosecute minors if they are judged by the Court to be among those persons who bore the greatest responsibility for alleged crimes, in accordance with Article 1. The judicial safeguards include separate trials from adults, protective measures, and provisional release pending trial.

Article 7(2) stipulates that any juvenile who is tried and found guilty by the Special Court should not be subject to imprisonment. It further provides that the Court may order any of the following as an alternative to imprisonment: "care guidance and supervision orders; community service orders; counseling; foster care; correctional, educational, and vocational training programs; approved schools; and, as appropriate, any programs of disarmament, demobilization, and reintegration or programs of child protection agencies." Moreover, several articles stipulate that judges, prosecutors, investigators, and registry staff shall be experienced in juvenile justice. Article 15 also provides that, in the prosecution of juvenile offenders, the prosecutor shall ensure that the child-rehabilitation programs are not endangered, and that, where appropriate, resort shall be made to the Truth and Reconciliation Commission.

Although the age of criminal responsibility, fifteen years, is considerably less than the eighteen years stipulated in the Statute of the International Criminal Court, criminal responsibility at age fifteen is arguably not contrary to customary international law. The UN Convention on the Rights of the Child (1989) has provisions in respect of the prosecution of children and the legitimate detention of children, but does not specify a minimum age of criminal responsibility—although it stipulates that capital punishment should not be imposed on anyone younger than eighteen years at the time of the alleged offense. In relation to this, the criminal codes of many states allow prosecutions of even very young children. In fact, the age of criminal responsibility under Sierra Leonean law is ten years of age, and persons over seventeen years can be given the death penalty.

Jurisdiction over Subject Matter

The Special Court has subject matter jurisdiction over four categories of crimes: crimes against humanity; violations of Article 3 (of the Statute), which provides for the protection of civilians in wartime (essentially a recapitulation of portions of the 1949 Geneva Conventions and their Additional Protocol II of 1977); other serious violations of international humanitarian law; and crimes under Sierra Leonean law. The last category of crime in particular contributes to the individual character of the Special Court and distinguishes it from the earlier ICTY, ICTR, and ICC, all of which have jurisdiction only over international crimes. Yet all of the provisions that specify the Special Court's subject matter jurisdiction to some degree depart from similar provisions that regulate those other tribunals.

Article 2 of the Statute of the Special Court offers another definition of crimes against humanity, or at least one whose common elements diverge slightly from those of earlier definitions contained in the ICTY, ICTR, and ICC Statutes, as well as the Charter of the Nuremberg Tribunal. Of all the definitions, the one contained in Article 2 of the Statute of the Special Court is the most pared down and essential definition, but at the same time it contains elements of each of the earlier definitions. It provides: "The Special Court shall have the power to prosecute persons who committed the following crimes as part of a widespread or systematic attack against any civilian population: [the list follows]." By contrast, each of the definitions in the ICTY, ICTR, and ICC Statutes required additional common elements, which were added in order to limit the jurisdiction of those particular tribunals. In particular, unlike the statute of the ICTY, the Statute of the Special Court in contrast does not require that crimes against humanity be linked with an armed conflict. As for the specific acts listed in Article 2 of the Statute of the Special Court, most are taken almost verbatim from the Statutes of the ICTY and ICTR. The list is not as comprehensive as that contained in the crimes against humanity provision of the ICC Statute. The most significant variation (from the ICTY and ICTR delineations of crimes against humanity) is found in paragraph (g) of Article 2 of the Statute of the Special Court, which has provisions related to sexual crimes, and which was borrowed from the ICC Statute. Whereas the ICTY and ICTR Statutes simply list "rape" as a crime against humanity, the Statute of the Special Court mentions "rape, sexual slavery, enforced prostitution, forced pregnancy, and any other form of sexual violence." The other crimes designated as crimes against humanity in Article 2 include: murder; extermination; enslavement; deportation; imprisonment; torture; and persecution. The only distinction between this list and analogous lists in the ICTY and ICTR Statutes (excluding the sexual crime distinction) concerns the crime of persecution. Whereas the Statutes of the ad hoc tribunals refer to "persecutions on political, racial, and religious grounds," the Statute of the Special Court adds the designation "ethnic." Proof of malevolent intent is a required element of conviction for the crime of persecution, but not for the other crimes against humanity.

Article 3 of the Special Court Statute, which concerns war crimes committed during internal armed conflicts, is based on the equivalent Article 4 of the ICTR Statute. Article 3 identifies as war crimes: (1) violence to life, health, and physical or mental well-being of persons, in particular murder, as well as cruel treatment such as torture, mutilation, or any form of corporal punishment; (2) collective punishments; (3) the taking of hostages; (4) acts of terrorism; (5) outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution, and any form of indecent assault; (6) pillage; (7) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized people; and (8) threats to commit any of the foregoing acts. The list is not exclusive and other war crimes may be prosecuted.

Like the ICTR (but unlike the ICTY and ICC), the Special Court does not have jurisdiction over war crimes committed in international armed conflicts. Although the armed conflict in Sierra Leone was generally a noninternational armed conflict (between the armed forces of Sierra Leone and armed opposition groups), the involvement of non-Sierra Leonean parties has been documented. The opposition groups are known to have received financial and military assistance from Liberia and Guinea. Whether or not that assistance was sufficient to require the reclassification of the conflict is an open legal question.

Article 4 of the Statute of the Special Court deals with other serious violations of international humanitarian law and has no equivalent in the ICTY or ICTR Statutes. It mentions three separate and distinct war crimes, only one of which is concerned with the conduct of hostilities. Its paragraph (a) gives the Special Court the power to prosecute persons for "intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities." Paragraph (b) gives the court jurisdiction with respect to the crime of "intentionally directing attacks against personnel, installations, material, units, or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations." Finally, paragraph (c) allows the Court to prosecute a crime (mentioned previously) that was common during the conflict in Sierra Leone, that is: "abduction and forced recruitment of children under the age of fifteen years into armed forces or groups for the purpose of using them to participate actively in hostilities." This crime is not mentioned in the ICTY or ICTR Statutes, although it appears in another form in the ICC Statute. Article 5 allows the Special Court to prosecute some crimes under Sierra Leonean law. The crimes are: (1) offenses relating to the abuse of girls, which are prosecuted under the Prevention of Cruelty to Children Act (1926); and (2) offenses relating to the wanton destruction of property, prosecuted under the Malicious Damage Act.

The Special Court lacks jurisdiction over the crime of genocide, in contrast to what is provided in the Statutes of the ICTY, ICTR, and ICC.

The Truth and Reconciliation Commission and Its Relationship to the Special Court

Following the adoption of the Truth and Reconciliation Commission Act on February 22, 2000, Sierra Leone took steps to establish a Truth and Reconciliation Commission (TRC). Although there is no formal relationship between the Special Court and the TRC, and although they are meant to operate completely independently from one another, their roles are designed to be complementary. Whereas the Special Court focuses on prosecuting the most serious perpetrators of offenses related to the Sierra Leonean armed conflict and should only gather information relevant to that purpose, the TRC's role is to provide the bigger picture in relation to the conflict, and to assist in the process of reconciliation. In particular, it gives a voice to the victims, and especially those who cannot appear before the Special Court. This is especially important considering that the Special Court allows victims only a very limited role. The TRC also provides a mechanism for dealing with child soldiers, and for allowing other former combatants to express remorse and ask for forgiveness.

The Commission is composed of seven members, four Sierra Leoneans and three non-nationals. It has a one-year mandate, to be preceded by a preparatory period of three months. The Commission's purpose is clearly set out in Article 6(1) of the Truth and Reconciliation Commission Act:

The object for which the Commission is established is to create an impartial historical record of violations and abuses of human rights and international humanitarian law related to the armed conflict in Sierra Leone, from the beginning of the conflict in 1991 to the signing of the Lomé Peace Agreement; to address impunity; to respond to the needs of the victims; to promote healing and reconciliation; and to prevent a repetition of the violations and abuses suffered.

What this means in practice is that the Commission's functions are:

(a) to investigate and report on the causes, nature, and extent of the violations and abuses . . . to the fullest degree possible, including their antecedents, the context in which the violations and abuses occurred, the question of whether those violations and abuses were the result of deliberate planning, policy, or authorization by any government, group, or individual, and the role of both internal and external factors in the conflict; and (b) to work to restore the human dignity of victims and promote reconciliation by providing an opportunity for victims to give an account of the violations and abuses suffered and for perpetrators to relate their experiences, and by creating a climate which fosters constructive interchange between victims and perpetrators, giving special attention to the subject of sexual abuse, and to the experiences of children within the armed conflict.

The Commission is instructed to carry out its work by means of undertaking research and investigations; holding sessions (some of which are public); listening to the stories of victims, perpetrators, and other interested parties; and taking individual statements and gathering additional information. It is to submit a report to the president at the end of its work. The TRC was formally inaugurated on July 5, 2002, began taking statements from victims and witnesses in December 2002, and is expected to complete its work sometime in 2004.

SEE ALSO International Criminal Court; International Criminal Tribunal for Rwanda; International Criminal Tribunal for the Former Yugoslavia; National Prosecutions; War Crimes

BIBLIOGRAPHY

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Avril McDonald