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The complementary and conflicting relationship between the Special Court for Sierra Leone and the Truth and Reconciliation Commission1

Published online by Cambridge University Press:  17 February 2009

Abdul Tejan-Cole
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Extract

Societies emerging from political turmoil and civil unrest associated with gross violations of human rights and humanitarian law face the crucial question of how to deal with these atrocities and put the past in its place. Since the 1980s, this problem has been a major preoccupation of international law and scholarship. The traditional responses include outside intervention in such states pursuant to Chapter VII powers under the United Nations Charter, grants of conditional amnesty to perpetrators of war crimes and crimes against humanity, grants of some form of unconditional amnesty, and prosecution of perpetrators.

Nowhere is this question more pressing than in Sierra Leone, which recently emerged from a ten-year civil war characterized by systematic, serious and widespread violations of human rights and international humanitarian law. The Government of Sierra Leone had to make a choice between these four traditional strategies for dealing with these pervasive human rights violations.

Type
Current Developments
Information
Yearbook of International Humanitarian Law , Volume 5 , December 2002 , pp. 313 - 330
Copyright
Copyright © T.M.C. Asser Instituut and the Authors 2002

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References

3. Ratner, S.R., ‘New Democracies, Old Atrocities: An Inquiry in International Law’, 87 The Georgetown LJ (1999) pp. 707–748Google Scholar. See also Ratner, S.R. and Abrams, J.S., Accountability For Human Rights Atrocities In International Law: Beyond The Nuremberg Legacy (Oxford, Clarendon Press 1997) at pp. 140–141Google Scholar; Zalaquett, J., ‘Confronting Human Rights Violations Committed by Former Governments: Principles Applicable and Political Constraints’, in State Crimes: Punishment or Pardon (Denver CO, Aspen Inst. 1989) pp. 41–43Google Scholar; Sarkin, J., ‘The Necessity and Challenges of Establishing a Truth and Reconciliation Commission in Rwanda’, 21 HRQ (1999) at pp. 768–770CrossRefGoogle Scholar, Henrard, K., ‘The Viability Of National Amnesties in View of the Increasing Recognition Of Individual Criminal Responsibility At International Law’, 8 Journal of International Law MSU-DCL (1999) pp. 595–649Google Scholar. See also Huyse, L., ‘Transitional Justice’, in Harris, P. and Reilly, B., eds., Democracy and Deep-Rooted Conflict: Options for Negotiators (Stockholm, IDEA 1998) at pp. 273, 275Google Scholar; Malamud-Goti, J., ‘Transitional Governments in the Breach: Why Punish State Criminals’, in Kritz, N.J., ed., Transitional Justice: How Emerging Democracies Reckon with Former Regimes (Washington DC, US Inst, of Peace Press 1995) at pp. 189, 206Google Scholar; C.S. Nino, ‘Response: The Duty to Punish Past Abuses of Human Rights put into Context: The Case of Argentina’, in N.J. Kritz, ed., ibid., at pp. 417–419.

4. For a detailed account of the atrocities in Sierra Leone see Tejan-Cole, A., ‘Human Right under the Armed Force Revolutionary Council – A catalogue of abuses’, 10 African JI & Comp. L (1998) p. 481Google Scholar. See also <http://www.hrw.org.htm> and <http://www.amnesty.org>, in particular, the country and special reports on Sierra Leone from 1991 to date.

5. The RUF is a loosely organized guerrilla group that started the war in 1991 seeking to topple the government of Sierra Leone and to retain control of the lucrative diamond-producing regions of the country. It was headed by a former Corporal in the Sierra Leone Army, Foday Sankoh.

6. Led by Charles Taylor, President of Liberia, it launched a civil war in neighbouring Liberia in 1989.

7. The Council formed by Johnny Paul Koroma after 25 May 1999

8. Peace Agreement Between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leoné, 7 July 1999 [hereinafter Lomé Accord] <http://www.sierraleone.org/Loméaccord.html>.

9. Peace Agreement Between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, 30 November 1996 [hereinafter Abidjan Accord] <http://www.sierra-leone.org/abid-janaccord.html>.

10. For a detailed account, see ‘Sierra Leone: Getting Away With Murder, Mutilation, Rape-New testimony from Sierra Leone’, Human Rights Watch, July 1999 <http://www.hrw.org/hrw/reports/1999/sierra/>, and Tejan-Cole, A., ‘The Special Court for Sierra Leone: Conceptual Concerns and Alternatives’, 1 African Human Rights Law Journal (2001) p. 107Google Scholar.

11. See <http://sierra-leone.org/slnews0500.html>, Rupert, J. and Farah, D., ‘Liberian Leader Urges Sierra Leone Rebels to Free Hostages’, Washington Post Foreign Service Saturday (20 05 2000) p. A20Google Scholar.

12. Onishi, N., ‘Gunmen Fire on Protesters in Sierra Leone’, New York Times (9 05 2000)Google Scholar. <http://sierra-leone.org/slnews0500-B.html> quoted MSF as saying that there were approximately 40 civilian casualties.

13. Res. 1315 (2000) of 14 August 2000. The Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, UN SCOR, UN Doc. S/2000/915 (2000).

14. See <http://www.sierra-Ieone.org/documents.html> and <http://daccess-ods.un.org/doc/UN-DOC/GEN/NO1/693/10/IMG/NO169310.pdf?OpenElement>.

15. Letters dated 22 December 2000, 12 January 2001 and 12 July 2001, respectively. <http://www.reliefweb.int>.

16. Deputy Under-Secretary for Legal Matters.

17. Then Attorney-General and Minister of Justice, now Vice President of Sierra Leone.

18. <http://www.sierra-leone.org//specialcourtagreement.html>.

19. These Resolutions include 1343 (2001) (which imposed sanctions on Liberia for its support for the RUF and its involvement in the illicit arms-for-diamonds trade) <http://www.un.org/Docs/scres/2001/res1343e.pdfresolution>; resolutiion 1306 (2000) (prohibiting the direct or indirect import of all rough diamonds from Sierra Leone) <http://www.un.org/Docs/scres/2000/res1306e.pdf>; Resolution 1171 (1998) (terminating sanctions imposed on the military junta) <http://www.un.org/Docs/scres/1998/sres1171.htm> and resolution 1132 (1997) (demanding that the military junta take immediate steps to relinquish power in Sierra Leone and make way for the restoration of the democratically-elected government and a return to constitutional order) <http://www.un.org/Docs/scres/1997/9726713E.htm>.

20. There are numerous references in United Nations documents categorically stating that the Court was not established pursuant to Chapter VII. The Secretary-General of the UN in his Report on the establishment of the Special Court for Sierra Leone endorsed the view that the Court was not established pursuant to the Chapter VII of the Charter and noted that ‘the Security Council may wish to consider endowing it with Chapter VII powers for the specific purpose of requesting the surrender of an accused from outside the jurisdiction of the Court.’ The statements by UN officials constitute a part of the travaux preparatoire of the Special Court Agreement and will be used by the Courts when interpreting the Statute and the Agreement.

21. <http://daccessods.un.org/doc/UNDOC/GEN/N00/605/32/PDF/N0060532.pdf?OpenElement>.

22. See the Truth and Reconciliation Commission Act 2000, section 2(1), which states ‘There is hereby established a body known as the Truth and Reconciliation Commission.’

23. <http://www.sierra-leone.org/lomeaccord.html>.

24. <http://www.sierra-leone.org/trcact2000.html>.

25. Art. 11 of the Statute — Organisation of the Special Court, <http://www.sierra-leone.org/special-courtstatute.html>.

26. Art. 12(1) (a) of the Statute — Composition of the Chambers, <http://www.sierra-leone.org/spe-cialcourtstatute.html>.

27. Art. 2(1) of the Statute (As amended by letter from the President of Security Council to the Secretary-General dated 22 December 2000.)

28. Art. 12(l)(b) of the Statute — Composition of the Chambers, <http://www.sierra-leone.org/spe-cialcourtstatute.html>.

29. For the effect of the war on the Sierra Leone Judiciary see ‘In Pursuit of Justice: A Report on the Judiciary in Sierra Leone’, Report by the Commonwealth Human Rights Initiative. <http://www.humanrightsinitiative.org/publications/Sierra%20Leone%20Report.pdf>.

30. Seen. 12supra.

31. Section 3(1) of the Act.

32. Section 3(3) of the Act.

33. Act No. 6 of 2000.

34. Section 6(2) (a) of the Act.

35. Section 6(2)(b) of the Act.

36. <http:http://daccessods.un.org/doc/UNDOC/GEN/N00/605/32/PDF/N0060532.pdf?OpenElement>.

37. Art. 2 of the Statute of the Special Court for Sierra Leone gives the Court power to prosecute persons who committed murder, extermination, enslavement, deportation, imprisonment, torture, rape, sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence, persecution on political, racial, ethnic and religious grounds and other inhumane acts as part of a widespread or systematic attack against a civilian population.

38. Art. 3 of the Statute of the Special Court for Sierra Leone gives the Court power to prosecute persons who committed or ordered the commission of serious violations of Art. 3 common to the Geneva Conventions of 12 August 1949 for the protection of War Victims and of Additional Protocol II thereto of 8 June 1977. These violations include 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 other form of corporal punishment; collective punishments, taking of hostages; acts of terrorism; outrages upon personal dignity; pillage; the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court and threats to commit any of these acts.

39. Art. 4 of the Statute of the Special Court for Sierra Leone lists these as including intentionally directing attacks against the civilian population or against individual civilians not taking part in hostilities; 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, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict. In the letter from the President of Security Council to the Secretary-General dated 22 December 2000, the original Art. 4(c) was amended to read ‘Conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.’

40. Chapter 31 of the Laws of Sierra Leone. Art. 5(a) of the Statute of the Special Court for Sierra Leone.

41. Art. 5(b) of the Statute of the Special Court for Sierra Leone.

42. Art. 1 of the Statute of the Special Court for Sierra Leone as amended by letter from the President of the Security Council to the Secretary-General dated 22 December 2000.

43. UN Doc. S/2000/915, para. 1, sub-paras. 1–4.

44. Briefing Paper on Relationship between the Special Court and the Truth and Reconciliation Commission – Legal Analysis and Policy Considerations of the Government of Sierra Leone for the Special Court Planning Mission <http://www.specialcourt.org/SLMission/PlanningMission/Briefing-Papers/SLGovTRC_SpCt_Relationship.doc>.

45. The United Nations, the Government or Court officials have not confirmed or denied this figure. However, in a statement quoted on Sierra Leone web on 13 October 2002, the Deputy Registrar of the Court, Robert Kirkwood, stated that the new court building will have 26 cells and that all of the accused will be held in individual cells built in accordance with international standards.

46. Communiqué issued by the ‘Expert Meeting on the Relationship Between the Truth and Reconciliation Commission and the Special Court for Sierra Leone’, United Nations, New York, 20–2112 2001Google ScholarPubMed.

47. Art. 1 of the Statute of the Court.

48. Para. 28 of the Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, UN SCOR, UN Doc. S/2000/1315 (2000).

49. For a critique of the temporal jurisdiction of the Court see Tejan-Cole, loc. cit. n. 10, p. 107.

50. <http://daccessods.un.org/doc/UNDOC/GEN/N00/661/77/PDF/N0066177.pdf?OpenElement>.

51. A recent story I heard confirmed this confusion. When a friend who ordered a taxi told the driver he was going to the Special Court, the driver took him to the TRC office.

52. <http://www.sierra-leone.org/lomeaccord.html>.

53. <http://www.sierra-leone.org/trcact2000.html>.

54. However, there is one indirect reference in the Statute of the Court. In Art. 15(5) under the rubric ‘The Prosecutor’, it provides as follows: ‘In the prosecution of juvenile offenders, the prosecutor shall ensure that the child-rehabilitation program is not placed at risk and that, where appropriate, resort should be had to alternative truth and reconciliation mechanisms, to the extent of their availability.’

55. Section 122 of the Constitution, <http://www.sierra-leone.org/constitution-vii.html>.

56. <http://www.sierra-leone.org/constitution-vii.html>.

57. This supervisory power is not limited to the Supreme Court; all other courts forming part of the Superior Courts of Judicature that have supervisory powers also have such powers over the Truth and Reconciliation Commission.

58. Art. 8(2) of the Statute, <http://www.sierra-leone.org/specialcourtstatute.html>.

59. <http://www.specialcourt.org/documents/SpecialCourtAct.html>.

60. See the Memorandum of object and reasons of the Act. <http://www.specialcourt.org/docu-ments/ImplLegn.html>.

61. <http://www.specialcourt.org/documents/ImplLegn.html>.

62. <http://www.slcgg.org/letterag.htm>.

63. A national Non-Governmental organisation in Sierra Leone, <http://www.slcgg.org>.

64. Similar views were expressed by a number of national and international NGOs including PRIDE, the National Forum for Human Rights and the International Centre for Transitional Justice.

65. <http://www.sierra-leone.org/trcact2000.html>.

66. Also known as the doctrine of implied repeal, leges posteriores priores contrarias abrogant states that an earlier Act cannot be used to amend or repeal a later Act. Instead, where any conflict arises between Acts of Parliament that cannot be smoothed by judicial interpretation, the later one always takes precedence.

67. ‘Briefing Paper’, supra n. 44.

68. The Government of Sierra Leone states in its Briefing Paper ibid, that the issue of information control has often been confused with the issue of primacy. However, ‘Primacy refers solely to the question of which court has jurisdiction over a particular case or individual. As such, it only applies in respect of Sierra Leonean Courts and only in the limited situation where one body either is or could be seized of jurisdiction in a particular matter. Primacy is legally and conceptually different from the issue of information sharing or compliance with orders of the Court. Thus the fact that the Special Court has primacy over Sierra Leone courts is separate from the question of whether a national institution is required to comply with orders of the Special Court: this is governed solely by article 17 of the Agreement, which requires complete compliance.’

69. Report by the Post-Conflict Reintegration Initiative for Development and Empowerment, in partnership with the International Centre for Transitional Justice entitled ‘Ex-Combatant views of the Truth and Reconciliation Commission and the Special Court in Sierra Leone’, p. 19. <http://www.ictj.org/downloads/PRIDE%20report.pdf>. However, at the press conference launching the report, PRIDE Executive Secretary Joe Patrick Amara said that although the possibility of the Special Court using information from the Truth and Reconciliation Commission is a concern of some ex-combatants, 63% of those surveyed expressed a willingness to testify before the Truth and Reconciliation Commission, even if the information could be used by the Special Court.

70. The Act does not prohibit the sharing of information disclosed in public. Section 7(3) of the Act.

71. If the subsequent Special Court Agreement (Ratification) Act repeals this provision then the Special Court has the authority to demand any information from the Truth and Reconciliation Commission.

72. <http://www.sierra-leone.org/slnews1202.html>.

73. See n. 65 supra.

74. Report of the United Nations Secretary-General on the Establishment of the Special Court for Sierra Leone issued on 4 October 2000. <http://daccessods.un.org/docAJNDOC/GEN/N00/661/77/PDF/N0066177.pdf?OpenElement>.

75. Letter from the Secretariat, UN Doc. S/2001/693 (12 July 2001) <http://www.un.org/Docs/sc/letters/2001/693e.pdf> (referring to an amended budget and a letter of 14 June 2001 from the Secretariat to Member States regarding revised budget estimates). These numbers include contributions received up until 6 July 2001.

76. The shortfalls amount to approximately US$ 1.8 million for the first year and US$ 19.6 million for the second and third years combined.

77. <http://www.sierra-leone.org/slnews.html>.

78. Eighth weekly briefing of the truth and reconciliation commission chaired by Professor William Schabas, on 11 September 2002 <http://www.sierra-leone.org/trcbriefing091102.html>.

79. ‘Briefing Paper’, supra n. 44.

80. See n. 65 supra.