Global Policy Forum

By Hans Nichols

From the hills that rise above this capital [Freetown, Sierra Leone], the daytime view is typical of West Africa. Shacks of mud, tin and sheets of canvas or plastic share the slope with the concrete compounds of the foreign-aid workers and ministerial class. Downtown, ambitious high-rises, built in the heady days of the post-colonial era 40-plus years ago loom over rotting wooden houses, brick churches and the occasional pastel mosque. At night, when municipal power has been turned off and the cooking fires have burned out, much of the lower city is as black as any forest in the interior. The darkness is interrupted only by a yellow haze from the Special Court for Sierra Leone (SCSL), where generators illuminate the compound of the United Nations court that holds the nine accused of "bearing the greatest responsibility" for a conflict that lasted 11 years, took 50,000 lives and shocked the world with its child warriors, amputations and cannibalism.

Many residents see the bright lights of the SCSL and wonder if the UN tribunal and all the foreign money spent on it are really the best way to heal their country's wounds and prevent it from sliding back into chaos. Negative perceptions of the court persist for several reasons, not the least of which is a local press corps that brand it an agent of "white man's justice."

The country's Truth and Reconciliation Commission (TRC) has competed with the UN tribunal for funds and attention from the beginning, and considers the court a threat to national healing. In a 5,000-word final report issued in early October and made widely available in November, the TRC all but condemned the SCSL, asking how special tribunals and truth commissions can work together in Sierra Leone or in neighboring countries. It accused the court of promoting instability throughout the region by running roughshod over the amnesty principles that underlie the TRC. "The international community has signaled to combatants in future wars that peace agreements containing amnesty clauses ought not to be trusted and, in so doing, has undermined the legitimacy of such national and regional peace initiatives," the commission concluded.

With other West African countries enmeshed in violence or teetering on the brink of it, Sierra Leone's judicial experiment is being closely watched throughout the region and at The Hague and the United Nations and in Washington. While officials at the SCSL have been able to share their expertise with UN judicial teams in Cambodia and the Democratic Republic of the Congo, the officers of the court are not entirely free to share their experience or impart advice. For example, Robin Vincent, the court's registrar, was two hours from leaving for Baghdad to advise Iraqis on how to set up their war-crimes tribunal last January when US Secretary-General Kofi Annan canceled the trip. Mr. Annan was concerned about a UN employee's safety, but he also did not want to give the impression that the United Nations was sanctioning, in any way, the Iraqi court, Mr. Vincent said. That apparently had to do with opposition among some members of the Security Council to the US-led invasion of Iraq. For its part, the Bush administration wants to see the Freetown tribunal succeed, apparently hoping to demonstrate that the International Criminal Court (ICC) at The Hague is not really necessary.

Supporters of the ICC have their own reasons for monitoring the successes and setbacks of the SCSL. They see the court as a valuable beta version, much like the international war crimes tribunals for the former Yugoslavia and for Rwanda (ICTR), and wonder what kind of legal legacy the SCSL in Freetown will leave for the ICC. With each new version of international court, practical lessons are learned and lasting legal precedents are set, said Mr. Vincent, a veteran of the Rwandan tribunal. For example, the ICTR established that rape is "a crime against humanity," and its rules of evidence and procedure have been handed down to the Sierra Leone court, saving judicial resources and accelerating the trials. Already, the Freetown tribunal has enshrined into international law that the recruitment of child soldiers and forced marriage are crimes against humanity, and the Sierra Leone precedent could be used in country-specific courts in Cambodia or East Timor, or by the ICC.

But not every lesson of an international court can be applied to the next country, especially if the meaning of that lesson is still in contention. Needless to say, the commission's final conclusions, and all those politically charged criticisms, were not well-received at the SCSL in Freetown. David Crane, the court's chief prosecutor, said, "The Sierra Leone model is the right model. A plus B equals C. "Truth plus justice equals sustainable peace." But at Sierra Leone's TRC, a countervailing view has emerged. Truth and justice might not be compatible values, say the commissioners, and the court's dogged pursuit of justice has had a chilling effect on its pursuit of "social truth."

The breakdown in relations between the SCSL and the TRC has its origins in the prosecution's boldest decision. Unlike the special courts in Yugoslavia and Rwanda, Freetown prosecutors decided from the start to charge every faction involved in the war, even the winners. That led Mr. Crane to indict Sam Hinga Norman, leader of the pro-government Civil Defense Forces (CDF), a former defense minister and a hero to many Sierra Leoneans, who credit him with beating back the rebels.

Last summer, the TRC decided that it wanted Mr. Norman, who sits in the SCSL dock, to give public testimony and tell his side of the war story, giving him the same opportunity as the president, lower-level rebel leaders and indeed the entire population. Fearful that such testimony could be self-incriminating or could lead to political violence on the streets, the special court refused to allow Mr. Norman to make a public statement. "It was a professional decision that has had some blowback," said Mr. Crane, chief prosecutor of the SCSL, who sees both the people of Sierra Leone and the international community as his constituencies. "It's a pity this issue will characterize the relationship between" the UN court and the TRC, said Mr. Vincent, who tried unsuccessfully to broker a compromise allowing Mr. Norman to speak. "To a certain extent, [the TRC] shunned us."

But Mr. Vincent said there is another reason for bad relations between the court and the commission. "What caused the difficulty for us is that they were funded by voluntary contributions. There was a little bit of a feeling of competition." One of the authors of the TRC report put it more bluntly: "They got what? Over $90 million. We had a budget around $6 million."

Not that there has been no common ground between the UN special court and Sierra Leone's TRC. In its final report, the truth commission concluded that the CDF was responsible for 6 percent of the war crimes, including most of the cannibalism. That was corroborated, in part, during November testimony in the CDF trial, where a witness gave evidence about the cannibalistic initiation ceremony of the CDF.

Even without the competing agendas and different constituencies of the TRC and the UN court, providing justice after a messy civil war is difficult. For the court, it's been made more so because those most responsible for the conflict are either dead or at large. Foday Sankoh, the brutal rebel leader, died in custody. Sam "Mosquito" Bockarie, Mr. Sankoh's field commander, was shot in the face while trying to cross into Ivory Coast from Liberia, though it took some time to verify the identify of his corpse. The whereabouts of Johnny Paul Koroma, the other key rebel leader, is unknown and a subject of wild speculation. UN investigators seem to think he was killed in Liberia, or is living in its jungle, but Koroma "sightings" at local nightclubs occur nearly every weekend, and his family lives here in Freetown in obvious prosperity. And Charles Taylor, the former Liberian president whom many blame for instigating the Sierra Leone conflict, lives as an exile in Nigeria, out of the court's reach. "Without those four, the court has lost a lot of its reason for being," said Andrew Koroma, owner and news director of several Sierra Leone radio stations.

The most ominous warning in the TRC's final report does not even concern the UN court — though if it goes unheeded, all the foreign personnel at the SCSL may have to flee Sierra Leone. The TRC report warns that the fundamental cause of conflict — bad governance — has not been addressed, and suggests chaos might be just around the corner. Or, as Johnny Paul Koroma put it: "The police haven't been paid in two months, man. They are twitchy."

Just how damning the commission's report will be to the overall legacy of the SCSL is an open question. "It's just another document," said Zainab Bangura, a one-time presidential candidate who now runs the National Accountability Group, a Sierra Leone nongovernmental organization. She faults her countrymen for not learning more from the court and welcoming its experts. "The African tradition is, when someone is new in your neighborhood, you stop by and welcome them, and give them some food. We haven't done that."

If violence returns to Freetown — as it did five years ago, despite the presence of 6,000 UN peacekeepers — the decision to hold the trials in the country, once heralded as one of the most significant features of the UN special court, could appear rather foolish in retrospect. With the UN's 17,500 troops all but gone and the remaining Pakistani soldiers leaving by the planeload, the questions about how international tribunals can coexist with truth commissions could quickly become academic. "I don't know what is going to happen in this country," said Mrs. Bangura of the National Accountability Group. "Just keep your passports ready and know how to get to your embassy."