The Special Court for Sierra Leone: Overview and Recommendations

The Special Court for Sierra Leone: Overview and Recommendations By Celina Schocken* We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well. We must summon such detachment and intellectualintegrity to our task that this Trial will commend itselfto posterity as fulfilling humanity's aspirations to do justice.' I. INTRODUCTION A. Overview The civil war in Sierra Leone was one of the most brutal and most overlooked wars in recent memory. Of the 4.2 million citizens of Sierra Leone, over one million are internally displaced, 500,000 are refugees, and upwards of 400,000 people have survived the amputation of one or more limbs. Thousands of children were killed, raped, mutilated, or conscripted as soldiers. A peace agreement signed in Lomd, Togo in 1999 by the Government of Sierra Leone (GOSL) and the Rebel United Front (RUF) eventually led to the cessation of hostilities in January 2002. The agreement included a complete amnesty for the RUF and its leader, Corporal Foday Sankoh, and called for the creation of a Truth and Reconciliation Commission (TRC). On January 16, 2002, the United Nations signed an agreement with the GOSL to create a Special Court for Sierra Leone (SCSL), which will be similar to the International Criminal Tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY). The SCSL is supported by the GOSL as well as by international human rights groups, the United Nations Security Council, the United States, and the European Union. Establishing such a court in Sierra Leone will help the country reach some closure about the war, and bring to justice some of the defendants for their horrific crimes. * Celina Schocken, J.D., Boalt Hall School of Law (University of California, Berkeley), 2002; M.P.P., Goldman School of Public Policy (University of California, Berkeley), 2001; A.B., University of Chicago, 1995. The author wishes to thank Professor David D. Caron for his support, advice, and inspiration on this paper and throughout her time at Boalt Hall. She would also like to give thanks to Michael and Jennifer Lysobey, and to her entire family, for their love, support, and patience. 1. Telford Taylor, THE ANATOMY OF THE NUREMBERG TRIALS: A PERSONAL MEMOIR, 1992, at 168 (quoting Robert Jackson, Opening Statement in the Nuremberg Trials). SPECIAL COURT FOR SIERRA LEONE The SCSL also envisions a new model for international justice. It will be the first international criminal tribunal to sit in the country where the war crimes took place. National judges will sit alongside international judges. Moreover, the agreement itself is innovative, because it is an agreement between the U.N. and Sierra Leone, rather than an agreement by the Security Council imposed upon Sierra Leone. These changes may make the SCSL more relevant to the lives of ordinary Sierra Leone citizens trying to put their lives back together after the war than the ICTR and ICTY have proven to be for victims in Rwanda and Yugoslavia. At the same time, the SCSL will lack many of the resources of the ICTR and the ICTY. The bilateral nature of the SCSL may make it as effective as other ad hoc tribunals, but it may lack the financial and institutional support necessary to achieve its goals. It remains to be seen if international criminal tribunals can operate with less funding than the ICTR and the ICTY. It will also be interesting to see if an ad hoc tribunal can work cooperatively with a Truth and Reconciliation Commission. The answers to these questions will point the way for future war crimes tribunals. The SCSL presents an opportunity for Sierra Leone to punish the worst human rights offenders from the civil war, and an opportunity for the U.N. to prove that the ad hoc tribunal model can be expanded and improved upon, as it considers creating tribunals in Cambodia, East Timor and elsewhere. However, there are serious constraints that could cripple the SCSL. Implementers of the Special Court for Sierra Leone agreement from the U.N. and the GOSL must recognize the most serious problems of the Statute; in particular those dealing with funding provisions for the tribunal, trying juveniles, the abandonment of the Lom6 Accord amnesty provisions, the lack of third-party extradition procedures, and the conflicts between the SCSL and the TRC. If they wish to create an effective model for international justice, solutions to these problems must be found. The Statute of the SCSL and the plans for the Court must be viewed against the backdrop of the peace plans signed in Abidjan and Lom6. Many terrible crimes took place between the two Accords, but the latter granted amnesty for those crimes, while undertaking the creation of a TRC. The SCSL intends to target many of the crimes committed between the two agreements, thus implicating the amnesty agreement. This paper begins with background information on the civil war. Parts II and III describe the Statute of the SCSL and outline how the Court will operate. Part IV examines other issues related to the establishment of the Court. Part V makes recommendations to the organizers of the SCSL in order to ameliorate some of the anticipated problems. B. Background Sierra Leone gained independence from the United Kingdom in 1961. Despite diamonds and other natural resources, as well as excellent farmland, approximately 70 percent of the government's budget comes from international 438 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 20:436 assistance programs. 2 Sierra Leone ranks last on the United Nations Development Program's Human 3Development Index, with a life expectancy of only thirty-four years in 1999. Since independence, politics in Sierra Leone have been rife with corruption and mismanagement. In 1985, military commander Joseph Momoh became President when dictator Siaka Stevens, in his late eighties and facing a student uprising, retired. 4 Initially, Momoh was quite popular, but problems with student activists and dissidents such as Foday Sankoh, who were trained and funded by Libya, persisted.5 In March 1991, with the support of Mohamar Qaddafi of Libya 6 and Charles Taylor of Liberia,7 the new Rebel United Front (RUF) entered Sierra Leone from Liberia. GOSL troops, loyal to Momoh, fought RUF troops on the Liberian border. After several months, a group of soldiers on the front line, upset about not being paid, went to Freetown to protest. On April 29, 1992, these soldiers overthrew President Momoh, establishing the National Provisional Ruling Council (NPRC) under 29-year-old Army Captain and paymaster Valentine Strasser. s The NPRC entered into talks with the RUF to end the civil war, but these talks failed. 9 Strasser held onto power for four years, despite the civil war, until he was overthrown in 1996. In elections held shortly after this coup, Ahmed Tejan Kabbah was elected President. 10 At the same ti (...truncated)