A brief background

Societies emerging from the aftermath of repressive regimes, atrocities or armed conflict are often confronted with the problem of how to deal with the legacy of past human rights abuses. What is the best possible mechanism to bring about stability and democracy in the aftermath of hostilities? How can perpetrators and victims live peacefully side by side? Such questions obviously raise some very difficult political, economic, legal and moral dilemmas for transitional societies.147

There are also tensions between the requirements of the emerging international criminal justice system and those of non-punitive approaches to gross and systematic human rights violations. In most cases, democratically elected governments have limited choices - they can either punish those responsible for such crimes, or grant them amnesty.148

Since the Nuremberg and Tokyo Military Tribunals at the end of the Second World War, international ad hoc or internationally-mandated national tribunals have been established to prosecute those responsible for grave breaches of the four Geneva Conventions of 12 August 1949. The main function of such tribunals is to prosecute those alleged to have committed war crimes, crimes against humanity, genocide and other of violations international humanitarian law.

The most recent organisation created to try such crimes is the permanent International Criminal Court (ICC) whose founding Statute was adopted in Rome, Italy in July 1998. The treaty needs sixty ratifications in order to come into operation.149 At the time of writing, 42 countries had already ratified the treaty.

Since 1974, more than 20 truth commissions have been established worldwide to support the democratic reform process in post-conflict societies.150 Probably the best-known truth commissions are those established in Chile and South Africa. Truth commissions are also currently in progress or mooted in Ghana, Nigeria, Bosnia-Herzegovina, Panama, Burundi, Peru, Nigeria, Somaliland, the Federal Republic of Yugoslavia (Serbia) and East Timor.

Truth commissions are established in the aftermath of intra-state conflicts to act as a mechanism for healing and national reconciliation and so encourage the peace process. The main purpose of a truth commission is to investigate the truth, within a limited space of time, of past human rights violations, and to issue a comprehensive official report of its findings, together with recommendations. The goals of truth commissions are many, and vary from one country to another. In general, these goals include national reconciliation through public acknowledgement of past injustices; the provision of an opportunity for victims to tell their stories as a cathartic exercise; the prevention of future abuses of human rights by instituting reforms in the police, military, judiciary and other state institutions, and the identification of perpetrators for possible prosecution.151 A truth commission not only avoids collective guilt on the part of any one group in society, but also offers an alternative form of accountability.

International criminal tribunals and truth commissions have distinct, but complementary roles and functions.

The Special Court for Sierra Leone

The Lomé Peace Agreement granted the RUF leader Foday Sankoh and his collaborators, amongst others, "absolute and free pardon" from prosecution, but the immunity extended did not cover war crimes.152 On 17 May 2000, Foday Sankoh was arrested in Freetown by the UN peacekeeping forces. He is now in the custody of the government, which has requested the UN Security Council to create an international criminal tribunal to try him and other human rights violators in Sierra Leone.

On 14 August 2000, the UN Security Council requested the Secretary-General to negotiate an agreement with the government of Sierra Leone to create a special court.153 On 4 October 2000, the Secretary-General tabled a report to the subject for the consideration of the Security Council.154

The international community had compelling reasons to create a special court for Sierra Leone. First, the nature and extent of atrocities committed in Sierra Leone since 1991 constituted grave breaches of international humanitarian law under the four Geneva Conventions of 12 August 1949, as well as the 1977 Additional Protocols. Secondly, the parties had agreed to respect the rules and customs of warfare.155 Thirdly, the establishment of the ad hoc International Criminal Tribunals for the former Yugoslavia (ICTY) in 1993, and for Rwanda (ICTR) a year later, created a significant precedent. The subsequent adoption of the Rome Statute for the permanent ICC made it even more difficult for the international community to ignore the situation in Sierra Leone. It was on this basis that the amnesty provision in the 1999 Cease-fire Agreement attracted criticism from human rights organisations, civil society and the UN.

During the signing of the Lomé Agreement, the Secretary-General instructed his representative to register a reservation regarding the blanket amnesty granted to the RUF leader, Foday Sankoh.156 In his July 1999 report to the Security Council, the UN Secretary-General wrote:157

"As in other peace accords, many compromises were necessary in the Lomé Peace Agreement. As a result, some of the terms on which this peace has been obtained, in particular the provisions on amnesty, are difficult to reconcile with the goal of ending the culture of impunity, which inspired the creation of the United Nations Tribunals for Rwanda and the Former Yugoslavia, and the future International Criminal Court. Hence...for the United Nations, the amnesty cannot cover international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law..."

The momentum to create some form of accountability mechanism for Sierra Leone was reinforced when the RUF took some 500 peacekeepers hostage in June 2000. It was after this incident that the government of Sierra Leone wrote a letter to the UN Security Council requesting it to authorise the creation of a special court to prosecute those responsible for atrocities committed in Sierra Leone since 1991. The Security Council, (to some degree) influenced by the then US Representative to the UN, Richard Holbrooke), supported the creation of the Special Court and even pledged financial support.158 The USA and Britain are eager to have the court start as soon as possible. A Draft Agreement and a Draft Statute between the Government of Sierra Leone and the United Nations was on the table in November 2000, but these have still not been signed.

Some commentators have observed that the Special Court is largely driven by international players, which may alienate the people it is intended to serve. Cynics might even see the Special Court as representing 'victor's justice' over the vanquished or a witch-hunt against the RUF. These concerns may be legitimate, but if the Court is to function properly (which in itself would provide some guarantee of fairness), then the government of Sierra Leone will need considerable international assistance in setting it up.

Though Sierra Leone has ratified the four Geneva Conventions of 12 August 1949, including the 1977 Additional Protocols and the 1998 Rome Statute for the ICC, it has not implemented these treaties under domestic law, as required.159 It is common knowledge that while the 1949 Geneva Conventions provide for national jurisdiction over grave breaches of the four Geneva Conventions, states are generally reluctant to prosecute their own military personnel for acts committed in situations of armed conflict

Moreover, given the devastation of the economy of Sierra Leone by the war, the government does not have the necessary financial resources to set up a Special Court. When the proposal for the Special Court for Sierra Leone was considered, the Security Council was not prepared to undertake the cost of another UN tribunal along the lines of Rwanda and the former Yugoslavia. It was under these straitened financial circumstances that a hybrid national institution with UN oversight, similar to the war crimes tribunal for Cambodia, became an acceptable option.

In terms of resolution 1315 of 14 August 2000, the Security Council authorised the creation of a special court to prosecute those who "bear the greatest responsibility" for war crimes, crimes against humanity and other serious violations of international humanitarian law committed in Sierra Leone.160 Since the beginning of the conflict in Sierra Leone in 1991, the Security Council has issued a number of resolutions that appealed to parties to the conflict to respect human rights and humanitarian law. However, the Special Court for Sierra Leone will not, like the ICTY and ICTR, be established as a Chapter VII institution. The former are UN institutions operating independently of the domestic courts. The Sierra Leone Special Court is an innovation in that it will apply both Sierra Leonean penal law and international law, and its jurisdiction is limited to war crimes committed within the territory of Sierra Leone.161 The Court will have primacy over the national courts of Sierra Leone, but will not enjoy primacy over the national courts of third states, as do the ICTY and ICTR.

Some critics argue that the Special Court's lack of Chapter VII powers may hinder its functioning in terms of issuing binding orders, enforcing arrest warrants, authorising the search and seizure of documents and materials, and demanding that third states like Liberia and Guinea surrender suspects.162 However, the fact that the Security Council has authorised the Special Court places an obligation on UN member states to co-operate.163 In cases where a third state refuses to do so, the Security Council may take punitive measures against it, such as imposing sanctions - as it has done with President Charles Taylor. An indictment issued against a suspected war criminal by the proposed Special Court will have the effect of making such a suspect an 'international fugitive', as has happened with Rodavan Karadic and Ratko Mladic of Bosnia, who are wanted by the ICTY but are still at large. 'International fugitives' like General Augusto Pinochet and Hussein Habre risk being prosecuted beyond the borders of their home countries, on the basis of universal jurisdiction.164

As has already been mentioned, the Special Court for Sierra Leone is to be created through a treaty between the UN and the government of Sierra Leone.165 The Court will consist of a minimum of eight independent judges, three of whom will be appointed by the Government of Sierra Leone and five by the Secretary General of the United Nations.166 The Secretary-General will appoint the Chief Prosecutor, and the government of Sierra Leone the Deputy Prosecutor (in consultation with the UN).167 While the Deputy Prosecutor will make recommendations regarding indictments, the final decisions rest with the Chief Prosecutor. Although international oversight will ensure independence and impartiality, the 'internationalised' aspect of the tribunal may have some negative effects, because some of the judges may have little understanding of the political and legal culture of Sierra Leone. However, the judges to be appointed will be from West African and Commonwealth states, which should prove a mitigating factor.

Another unique feature of the Special Court is its location in Freetown, if the security situation permits. Security concerns relate to ensuring the safety of defendants or suspects awaiting trial, and the protection of both witnesses and victims. If the latter can be reasonably guaranteed, the Court will be easily accessible to the victims, and the people of Sierra Leone will be able to follow its proceedings. The fact that trials will take place in Freetown will send a powerful message to the people of Sierra Leone that justice is being done within the framework of the rule of law. In contrast, the ICTY with its seat in The Hague and the ICTR with its seat in Arusha, are far removed from the victims in the former Yugoslavia and Rwanda, and thus the trials of people accused of war crimes have little public impact in these countries.

The Special Court will also set a precedent by trying juveniles 'bearing the greatest responsibility' for atrocities committed in Sierra Leone. The government of Sierra Leone is adamant that people answering this description should be prosecuted, regardless of age. This poses a serious moral dilemma, because it is customary international law that children under the age of 15 years may not be recruited or participate in hostilities.168 However, in cases such as Sierra Leone, children below the age of 15 years were abducted and used as child soldiers, thus rendering them both victims and perpetrators. A compromise has been reached, whereby the Court may try suspects of 15 years of age and above, taking into account such factors as the rehabilitation and reintegration of offenders and the truth and reconciliation process.169 A 'juvenile chamber' will be established to deal specifically with child-related cases.

The temporal jurisdiction of the court runs from the period starting on 30 November 1996 (the date of the first failed agreement between the government and the RUF) until a date to be agreed by the parties. However, this issue has been a bone of contention because the GoSL has attempted predate the temporal jurisdiction of the Special Court to 1991, the start of the war, in a move the RUF allege is clearly aimed at focusing the Court's attention on them. However, the GoSL's motivation is also to ensure that earlier atrocities committed in the rural areas are not neglected, and that justice is sought for the victims of these serious human rights violations. It was only from 1997 onwards that the situation in Sierra Leone came to be a focus of international attention when the conflict reached urban areas, namely the capital of Freetown, whereas most atrocities prior to this date took place in rural areas. Nevertheless, the UN Secretary-General has stuck to the agreed date of 1996, the year that President Kabbah was elected and the Abijan peace process began.

Finally, a major problem facing the Special Court is its source of funding. Since it is not a UN body, it will be funded through voluntary contributions. The Secretary-General has warned against reliance on voluntary contributions, arguing that the Court will be neither viable nor sustainable under such conditions. The budget for the Special Court is estimated at US $ 58 million for three years. The Secretary-General has recommended that the Court be established only when funds are in hand for the first year, and pledges have been made for the second and third years.

The Truth and Reconciliation Commission

Unlike the Special Court, the proposed Truth and Reconciliation Commission (TRC) for Sierra Leone is a 'home-grown' initiative, agreed upon by the conflicting parties during the 1999 Lomé Peace Agreement. For practical reasons the Special Court cannot be expected to try all perpetrators. It will try only those 'bearing the greatest responsibility', which leaves room for many other cases for consideration by the TRC, or to be tried by the national courts of Sierra Leone. It is likely that the number of potential defendants to be tried by the Special Court will not exceed between 20 or 30, and that these will mainly be senior military and political leaders.170

Although it has been established through an act of Parliament by the government of Sierra Leone, the TRC will be an independent body.171 Like Haiti's, the TRC for Sierra Leone will be a mixed commission, composed of seven commissioners, four of whom will be nationals of Sierra Leone and three non-nationals.172 In order to ensure the transparency and independence of the Commission, the selection of the four national commissioners is be co-ordinated by the Secretary-General's Special Representative, and the office of the United Nations Higher Commissioner for Human Rights (UNHCHR) will co-ordinate the appointment of the three international commissioners.173 Commissioners are to be people of integrity and high moral standing.174 The TRC process has enjoyed the support of Mary Robinson, head of the UN Commission for Human Rights (UNCHR) since its inception. Even before the idea of a truth and reconciliation process was agreed upon by the parties to the conflict in the Lomé Agreement, the UNCHR had already proposed the establishment of an international commission of inquiry to investigate gross human rights violations committed in Sierra Leone. The UNHCHR has already solicited funds from the donor community, and a regular contribution to this process is made through a trust fund. The projected budget of the TRC is US $ 8.5 million for 15 months. The Commission is required to submit a comprehensive report with a set of recommendations to the government. The specific mandate of the Commission is:175

"...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 victims, to promote healing and reconciliation and to prevent a repetition of the violations and abuses suffered."

The main purpose of the TRC is two-fold. Firstly, aims to investigate the "causes, nature and extent" of gross human rights violations and abuses, and to determine whether such violations "were the result of deliberate planning, policy or authorisation by any government, group or individual, and the role of both internal and external factors in the conflict."176 Secondly, it aims to restore the human dignity of victims by providing both victims and perpetrators with the opportunity to give an account of human rights violations committed during the armed conflict.177 In carrying out these functions, the Commission shall pay "special attention to the subject of sexual abuse and to the experiences of children within the armed conflict."178 This broad mandate ensures that all parties to the conflict are subject to investigation, including the government and other internal and external agencies.

In addition to engaging in a pedagogical exercise and attempting to reconstruct the national identity of future generations of Sierra Leoneans, the commission is expected to make recommendations179

"...concerning the reforms and other measures, whether legal, political, administrative or otherwise, needed to achieve the object of the Commission, namely, the object of providing an impartial historical record, preventing the repetition of the violations or abuses suffered, addressing impunity, responding to the need of victims and promoting healing and reconciliation."

Once the commission has submitted its report to the president, a 'follow-up committee' will be established to monitor the implementation of the TRC's recommendations.180

In carrying out its mandate, the TRC will: hold public hearings in which victims make statements about past human rights violations; request information from any source, whether government or private individuals; search and seize documents without prior notification; interview individuals or organisations in private at its discretion; and undertake research on the causes, nature and patterns of human rights violations.181

A significant aspect of the TRC is that it can seek assistance from religious and traditional leaders in resolving local conflicts arising from past human rights violations.182 Similar local forums, with the purpose of supporting the reconciliation and healing process, have recently been used in Rwanda and East Timor. The government of Rwanda, in October 2001, established the gacaca courts, which are a pre-colonial community-based system for resolving conflicts.

The TRC for Sierra Leone is vested with investigative powers, that is the authority to request that information be given under oath or affirmation.183 If necessary, the Commission may issue summons and subpoenas if needed to fulfil its mandate.184 Failure to respond to a subpoena or summons, or providing false information constitutes contempt of court, and may be referred to the High Court for possible prosecution.185 Anyone who obstructs the work of the Commission is liable to a fine not exceeding Le1 million, or a term of imprisonment not exceeding one year, or both.186 The Commission may not be compelled "to disclose any information given to it in confidence."187 Hearings may be held in public or, where necessary, in private. An important feature of the truth and reconciliation model in Sierra Leone is that it allows for individual and not collective responsibility, inviting individuals but not groups to make statements or appear before the it.188

However, no provision is made for amnesty in exchange for the truth. During the Lomé cease fire negotiations, blanket amnesty seemed acceptable to all of the parties, who thought it was the best thing to do under the circumstances, even though it was inconsistent with the norms and standards of international law. This is why the Statute for the Special Court specifically provides that amnesty will not be a bar to the prosecution of serious violations of international humanitarian law.

The relationships between the Special Court and the TRC

The fact that the Special Court will target only the 'most responsible' perpetrators of atrocities committed in Sierra Leone means that it is not necessarily at variance with the TRC process; instead it reinforces the idea that the two institutions are complementary. The underlying message of both institutions is that, while it is necessary to have reconciliation, the people of Sierra Leone also recognise a need for justice.

The TRC will attempt both to avoid a collective allocation of guilt and to set the historical record straight. Both will encourage national reconciliation across the political spectrum. The TRC process is expected to address the plight of the youth in Sierra Leone and of the estimated 50,000 to 60,000 women and young girls who were victims of sexually related offences resulting from the conflict. These figures were provided in the most comprehensive study on war-related sexual violence in Sierra Leone carried out by Physicians for Human Rights, with the support of UNAMSIL. Most of the victims were internally displaced people (IDPs). The TRC is also expected to make recommendations on reparations and the reform of state institutions such as the military, police, judiciary and the health sector.

The Special Court, unlike the TRC, cannot be expected to give a historical account of the 'causes and nature and extent' of the conflict in Sierra Leone. However, the Special Court may contribute to a number of important outcomes, such as:

bringing an end to the culture of impunity, by conveying a clear message that the international community will not tolerate the kind of atrocities committed in Sierra Leone;



avoiding retribution by victims, if those bearing the 'greatest responsibility' are punished by an independent and impartial institution; and



restoring the rule of law and setting a precedent for future prosecution of war crimes and crimes against humanity by courts in Sierra Leone (and thus help to improve the legal system of Sierra Leone, since no provision is currently made for the prosecution of war crimes under the penal laws).

While the TRC and the Special Court will probably both start functioning some time in 2002, the possible complementarity of relationship between the Special Court and TRC raises a number of unresolved issues. As long as the relationship between the two institutions remains unclear, the general public will feel uncertain about their functions. It is therefore important to strengthen the current sensitisation and public awareness programme offered by the government of Sierra Leone (the National Commission for Democracy and Human Rights),189 UNAMSIL's Human Rights section and the NGO community on the role and mandate of the TRC and of the Special Court.190

A major concern raised by the RUF relates to the indefinite detention of Foday Sankoh and other RUF leaders, and what this implies for the impartiality of the Special Court and TRC. Since their arrest in May 2000, these leaders have not been charged; nor appeared before a court of law. The indefinite detention constitutes a violation of the due process guarantees under the constitution of Sierra Leone.191 Government arguments that the detention is justified under the state of emergency do not hold, because the right to trial is one of the non-derogable rights under international human rights law. The detention also confirms the conception that only Foday Sankoh and the RUF bear the 'greatest responsibility' for the atrocities committed in Sierra Leone.

The TRC and the independent prosecutor of the Special Court are to investigate all parties, including government forces, who took part in the atrocities.

Of particular importance are the concerns expressed by the RUF regarding the relationship between the TRC and the Special Court.192 These relate primarily to issues of evidence that might be used before either of these courts. For example, if both tribunals need to investigate an alleged massacre at a certain place, they surely cannot both exhume the same mass grave independently. This implies that, if a proper modus operandi is worked out, the two institutions can co-operate to include the sharing of information.

Moreover, since the TRC is not a court of law, defendants appearing before the TRC might also be subpoenaed to appear before the Special Court. Because the TRC has only quasi-judicial powers to issue summons and subpoenas for purposes of carrying out its investigations, Special Court defendants would not be able to invoke the non bis in idem rule (that is, that they cannot be tried twice for the same offence). Obviously, this will affect the willingness of people to testify openly before the TRC. Such dilemmas need to be discussed in a candid and open forum.

Some may argue that the concerns outlined above are irrelevant, or at least of only academic interest. Counter-arguments include the reminder that the TRC has only a 15-month mandate, after which it is expected to submit its report to the government. However, this mandate can be renewed for a further six months if necessary, bringing the total duration to 21 months. On the other hand, the Special Court will run for at least three years. Also, although the TRC has the power to withhold information provided to it in confidence, the Special Court has primacy over national courts in Sierra Leone and may also have the power to override the TRC and force it to provide confidential information.

As to the timing of the TRC, recent international trends in South Africa, Ghana, Serbia, Bosnia-Herzegovina, Rwanda, Nigeria and elsewhere are for truth and reconciliation commissions to be initiated after a new political order has come about. For Sierra Leone, this would mean post-May 2002. However, the RUF feel that the full truth should be exposed before the electorate are asked to make fundamental choices on the nature of a new political order.

Whether the Special Court begins its work before, after or simultaneously with the TRC may be largely immaterial for practical reasons. It is unlikely that the prosecutions will have been completed within the three-year time-span envisaged for the Court. The functioning of the Court will be seriously delayed during its first year of operation by the sheer weight of logistical arrangements, such as: hiring personnel; the identification of a suitable seat for the Court; the ensuring of necessary security measures for victims and defendants; the provision of prisons that meet international standards for defendants awaiting trial, and the persuasion of all factions and groups and neighbouring states to co-operate with the prosecutor. Also, skilled investigators will be needed to carry out complex investigations, which are likely to occupy a considerable length of time before their results can be used by the Court.

By way of comparison, it took the ICTY 18 months to issue its first indictment. Since 1994, the ICTR has obtained only seven convictions. It would therefore be naïve to expect the Special Court to complete its work within a period of three years, or to expect it to deal with more than a handful of those suspected of bearing 'greatest responsibility'. Given the proven inefficiency of past attempts to enforce international humanitarian and human rights law, it is not surprising that peace is enjoying a higher priority than justice at this juncture in the Sierra Leone peace process.

Moreover, longer-term reform of the judicial system in Sierra Leone is a necessary adjunct to any notion of peace with justice. For example, it would be difficult to say that the judiciary in Sierra Leone is independent. The combination of the office of the Attorney General and Minister of Justice is one anomaly. The Attorney General is the chief public prosecutor and legal advisor to the government. As Minister of Justice, he also sits in the Cabinet of ministers and takes political decisions. Moreover, the fact that judges are poorly remunerated exposes them to irregular methods of gaining extra income. This, in practice, undermines the independence of the judiciary.

In addition, access to justice remains one of the acute problems facing Sierra Leoneans, especially in the rural areas. For example, there are only some 20 practicing judges for the whole of Sierra Leone, most of whom sit only in Freetown with the two magistrates in Bo and Kenema the only exceptions. The High Court of Sierra Leone sits only in Freetown. Moreover, there are only about 100 lawyers within jurisdiction. Of this number, eight are in Bo and Kenema, while there are no practicing lawyers in the Northern province

The GoSL is now attempting to re-establish local courts in the countryside in order to alleviate the problem of accessibility. One area that requires consideration in future is the harmonisation of common law and customary law. There is a need to balance the rights of children and of women under the customary law system with the human rights law enshrined in the constitution, and the other universal human rights instruments to which Sierra Leone is a party. However, this will involve a process that could take at least ten years, and this is way beyond the expected temporal mandate of UNAMSIL.194