Speaking to Africa - The Early Success of the Special Court for Sierra Leone

Santa Clara Journal of International Law Volume 5 | Issue 1 Article 11 1-1-2006 Speaking to Africa - The Early Success of the Special Court for Sierra Leone Noah B. Novogrodsky Follow this and additional works at: http://digitalcommons.law.scu.edu/scujil Recommended Citation Noah B. Novogrodsky, Speaking to Africa - The Early Success of the Special Court for Sierra Leone, 5 Santa Clara J. Int'l L. 194 (2006). Available at: http://digitalcommons.law.scu.edu/scujil/vol5/iss1/11 This Article is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion in Santa Clara Journal of International Law by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact . 5 SANTA CLARA JOURNAL OF INTERNATIONAL LA W I (2006) Speaking to Africa The Early Success of the Special Court for Sierra Leone Noah B. Novogrodsky* I. Introduction After a decade of civil war marked by appalling human rights abuses, Sierra Leone has embraced not one, but two transitional justice experiments - a recently concluded truth and reconciliation commission l and a series of criminal prosecutions. The concurrent operation of the truth commission and the international trials has given rise to a significant body of scholarship addressing the problems of sequencing, confusion, objectives and the use of evidence before the two institutions. 2 • Director of the International Human Rights Program and_Adjunct Professor at the University of Toronto Faculty of Law, and Visiting Professor at Georgetown University Law Center. This paper was originally presented in Prof. Beth Van Schaack's Transitional Justice Workshop at Santa Clara University School of Law. I am indebted to Prof. Beth Van Schaack for the invitation to share these ideas and for her helpful comments. I am also grateful to Mathew Goldstein for exemplary research assistance and to Mora Johnson and Kathryn Howarth whose work at the Special Court and comments on the tribunal influenced my thinking. I. 2. 194 The truth and reconciliation commission was established with the goal of creating an "impartial historical record of violations and abuses of human rights and international humanitarian law related to the armed conflict in Sierra Leone." See The Truth and Reconciliation Commission Act 2000 art. 6(1), Feb. 10, 2000, available at http://www.sierra-leone.org/trcbook-TRCAct.html. The phenomenon ofa criminal tribunal operating alongside a truth commission and the potential role for each instrument has been addressed by the commission and various legal scholars. See Elizabeth M. Evenson, Truth and Justice in Sierra Leone: Coordination Between Commission and Special COllrt, 104 COLUM. L. REV. 730 (2004) (exploring the operation challenges associated with each institution). See also William A. Schabas, The Speaking to Aji-ica 195 Far less attention has been paid to the actual operation of the two entities. The focus of this article is the legacy of three early decisions of the Special Court for Sierra Leone and their potentially transcendent impact on other African conflicts. Between March and June 2004, the Special Court for Sierra Leone issued a trinity of jurisdictional opinions addressing the recruitment of child soldiers, the effect of a domestic amnesty on subsequent intemational prosecutions, and the status of head of state immunity. 3 A hybrid tribunal established by the United Nations and the Govemment of Sierra Leone, thc Court was created to try thosc who "bcar thc greatcst responsibility" for scrious violations ofintemational humanitarian law eommittcd during the country's civil war aftcr November 1996." The Special Court employs individual criminal accountability as a means of promoting transitional justicc and the rule of law in Sierra Leone. Whether by fortune or design, however, the Special Court's early decisions have particular resonance for Africa as a whole and echo well beyond the modest effort unfolding in Freetown, Sierra Leone. This paper argues that the Special Court is fashioning a new institutional model that draws on the strengths of intemationalized proceedings while maintaining local relevance and legitimacy. By addressing the crimes of Sierra Leoneans and foreigners alike, the Special Court has mediated intcmational and local imperatives to create a hybrid entity that, while speaking predominantly to forcigners, blends local, regional and intemational dimensions. 3. 4. Relationship Between Truth Commissions and [ntemational Courts: The Case oj'Sierra Leone, 25 HUM. RTS. Q. 1035 (2003); Abdul Tejan-Cole, The Complementwy and Con{lictinR Relationship Between the Special Court {or Sierra Leone and the Truth and Reconciliation Commission, 6 YALE HUM. RTS. & DEV. L.J. 139, 154-55 (2003); Marieke Wierde, Priscilla Hayner & Paul van Zyl, Exploring the Relationship Between the Special Court and the Truth and Reconciliation Commission of Sierra Leone, 2002 INT'L CTR. FOR TRANSITIONAL JUST., available at http://www.ictj.orglimages/contentlO/8/084.pdf. Recruitment is defined in Article 4 of the Statute of the Special Court for Sierra Leone as H[c ]onscripting or enlisting children under the age of 15 years into anned forces or groups using them to participate actively in hostilities." The implication of this Article is that a child under the age of fifteen cannot meaningfully consent to enlist or participate in anllcd conflict. The Secretary-General, Report of the Secretary-Geneml on the Establishment o{ a Special Court/or Sierra Leone, annex, delivered to the Security Coullcil, U.N. Doc. S/2000/915 (Oct. 4, 2000) [hereinafter Special Court for Sierra Leone]. Agreement Between the United Nations and the Government of Sierra Leone on the Establishment ofa Special Court for Sierra Leone, Jan. 16,2002, available at http://www.sc-sl.org/scsl-agreement.html. 195 5 SANTA CLARA JOURNAL OF INTERNATIONAL LAW I (2006) II. Background '" Already desperately poor and badly misgoverned, Sierra Leone empted in a fuB fledged civil war in March 199 I when guerillas calling themselves the Revolutionary United Front (RUF) invaded the country from neighboring Liberia. 5 RUF leader Foday Sankoh had met then-Liberian rebel commander Charles Taylor in Libya and the two leaders coordinated attacks, exchanged weapons and shared tactics that would redefine bmtality in West Africa. 6 The ensuing war was characterized by grave human rights abuses committed by rebels and government-affiliated troops alike. Over a ten-year period, armed units in Sierra Leone kidnapped mral populations, extracted forced labor in diamond mines and created more than a million refugees. 7 Before the war was over, the RUF and Government forces were joined in the conflict by the Armed Forces Revolutionary Council, mercenary armies - including the South African headed firm "Executive Outcomes" - several regional and UN peacekeeping collections and a militia know (...truncated)