Global Policy Forum

By Michelle Sieff *

In August, 2000 the UN Security Council requested that the Secretary-General negotiate an agreement with the Sierra Leone government to establish a special court to prosecute war crimes committed during the on-going war. In October, the Secretary-General presented a model for the court, which is neither a UN body along the lines of the International Criminal Tribunals established for the former Yugoslavia and Rwanda (ICTY and ICTR) nor a domestic tribunal. Rather, it is a hybrid court that will be jointly administered by the United Nations and the Sierra Leone government. Because it will combine local and international justice, many diplomats are hopeful that the Special Court for Sierra Leone will provide a new template for the prosecution of war crimes. Although this model addresses many of the shortfalls experienced by the standing UN tribunals, the court for Sierra Leone is likely to confront several unique problems not faced by the others. Currently it is still awaiting final approval from the Security Council.

The impetus to prosecute war crimes in Sierra Leone came about in June 2000 when Foday Sankoh's Revolutionary United Front took some 500 UN peacekeepers hostage. It was clear that the RUF had no intention of allowing the United Nations to take control of the country's diamond-rich areas, which was a critical component of the Lome Peace Accords signed in July 1999. In response, the British government, which had long advocated a tougher line towards the RUF, drafted a comprehensive resolution calling for the expansion of the UN peacekeeping mission in Sierra Leone, an embargo on Sierra Leonean diamonds, and the prosecution of war criminals such as Foday Sankoh, the now-captured leader of the rebel group.

From the outset, it was clear that the Sierra Leone government would require international assistance to prosecute those responsible for the atrocities. First, the country's penal code did not incorporate violations of international humanitarian law, such as crimes against humanity and war crimes. Second, after a decade of war, which had devastated the economy, the government simply did not have the financial resources to set up a war crimes court. But perhaps the most important reason, according to Sierra Leone Ambassador to the United States, John Leigh, was to establish the credibility of the court. "We don't want the court to be seen as victor's justice," Leigh said, "and international involvement will prevent this perception." Appalled at the humiliation of the UN mission, the then American Ambassador to the United Nations, Richard Holbrooke, insisted that the United States play a lead role in creating the court. According to American officials, Holbrooke wanted the United States to draft the resolution in order to demonstrate leadership on this important moral issue. Diplomats speculate that Holbrooke also wanted to salvage American credibility in the wake of Washington's role in brokering the Lome Accord, which not only granted blanket amnesty to the RUF, but appointed Sankoh as Sierra Leone's vice-president and gave him control of the country's diamond mines. Due to significant financial and personnel requirements, none of the Security Council members supported the establishment of another UN tribunal along the lines of the ICTY and ICTR. Thus, the United Nations decided to create a special hybrid-court that will be administered jointly by the Sierra Leone government and the United Nations.

The primary difference between the Special Court and the ICTY and ICTR is the mandate under which they were created. The ICTY and ICTR were established by the Security Council under Chapter VII of the UN Charter, which gives the United Nations power to intervene in the affairs of sovereign States to restore international peace and security. Thus, these tribunals are under UN jurisdiction and operate independently from and irrespective of the Yugoslav and Rwandan governments. The Special Court for Sierra Leone, on the other hand, will be created by a treaty between the United Nations and the Sierra Leone government. It will be under joint UN-Sierra Leonean jurisdiction, and as such represents an entirely new model for bringing perpetrators of war crimes to justice. The Special Court will be staffed with both local and international judges and prosecutors. The Secretary-General will appoint a Chief Prosecutor, while the Sierra Leone government, in consultation with the UN, will appoint a Deputy. Although the Deputy will have some input in deciding on indictments, the Chief Prosecutor will make the final decision.

One of the major advantages of the Special Court over the standing UN Tribunals is that, security permitting, it will be located in Sierra Leone. The ICTY proceedings in The Hague, and ICTR proceedings in Arusha have made it nearly impossible for ordinary Bosnians and Rwandans to follow the Tribunals' cases. Not surprisingly, the Tribuals' rulings have had little impact on the wars victims, whom the courts are allegedly supposed to serve. Because Sierra Leone's Special Court will be located in-country, it will be much easier for victims to follow the court's proceedings. At the same time, diplomats hope the court's location will facilitate the diffusion of legal knowledge from international to local judicial officials, which will assist in rebuilding the country's judicial system. In fact, the Security Council resolution explicitly notes the pressing need for international cooperation to assist in strengthening the judicial system of Sierra Leone.

However, one potential drawback is that, because it is directly established by the Security Council, the court cannot assert primacy over the national courts of third States. As a result, it will lack the authority to order the surrender of an accused residing outside of Sierra Leone. Although many war crimes suspects, including Sankoh, are already in custody in Sierra Leone, others have fled to Liberia and other West African countires. To resolve this problem, the Secretary-General recommended that the Council endow the court with the power to request the surrender of suspects in third States.

The absence of a Chapter VII mandate will also prevent the court from extending its jurisdiction to prosecute war crimes now being perpetrated in neighboring Guinea. In September, militias armed and trained by President Charles Taylor of Liberia, the same leader who supported the RUF, began massacring civilians in yet another brutal campaign. To date, about 600 people have been killed and some 60,000 forcefully expelled from their homes. Intelligence analysts fear that the region is headed towards full-blown war. Although a UN tribunal with a Chapter VII mandate might have been able to prosecute these crimes, the Special Court will be limited only to atrocities committed within Sierra Leone. Another potential problem for the Special Court concerns its funding. Institutions created by the Security Council, such as the previous Tribunals, are funded by scaled assessments, in which each country's contribution is proportionate to its size and wealth. However, because it will not be directly established by the United Nations, the Sierra Leone court will be financed through voluntary contributions. In his report, the Secretary-General warned against voluntary contributions, arguing it would render the court neither viable nor sustainable, and recommended it be financed through assessed contributions. Security Council members refused, and in a compromise reached in January, the Secretary-General suggested establishing the court once it had received funds and pledges to cover the first three years of its operation. It is not clear however, how long it will take to gather the estimated $70 million needed for three years, leaving the date for the court's establishment up in the air.

Aside from the innovative balance between local and international justice, another major difference between the Special Court and the previous tribunals concerns its jurisdiction. The Court will set precedents in the prosecution of both leaders and children.

The Security Council resolution specifically called for the prosecution of people who bear the greatest responsibility for crimes against humanity, war crimes, and other serious violations of international humanitarian law. The statutes setting up the Yugoslav and Rwanda tribunals did not include such language, and as a result, ICTY was criticized for wasting valuable resources on prosecuting "small fish." According to Pierre Prosper, special advisor in the U.S. State Department's Office of War Crimes Issues, this phrasing is a signal for the court to prosecute the ringleaders of war crimes in Sierra Leone, leaving the rest to the country's Truth and Reconciliation Commission. This development is important for international justice, he says, because it is impossible for international courts to go after each and every perpetrator. In addition to its approach to leaders, the Court will set precedent in the prosecution of juveniles. Given the RUF tactic of drugging and abducting children and forcing them to fight, a large number of children committed atrocities in Sierra Leone. The Sierra Leone government was adamant that those responsible be held accountable regardless of their age, but UN officials involved in the drafting of the mandate argued that persons under the age of eighteen should not face prosecution. In a compromise in keeping with Article 4, of Additional Protocol II to the Geneva Conventions, which states that belligerents not include persons under age fifteen, the two sides agreed that the Special Court would be permitted to try suspects aged fifteen and older. This provision marks the first time in international legal proceedings that war crimes suspects under eighteen will face prosecution.

These restrictions on the court's jurisdiction will mean that many crimes will never be prosecuted, but rather will be addressed by a proposed Truth and Reconciliation Commission. Sierra Leone's Parliament, after consultation with the UN High Commissioner for Human Rights, passed legislation in February 2000 calling for its creation. Indeed, after a recent visit to Sierra Leone, the Security Council suggested that because the court might dissuade perpetrators from disarming for fear of prosecution, the Truth and Reconciliation Commission might provide a better alternative for some combatants, particularly children.

Given its mandate to prosecute those with the greatest responsibility for war crimes, the court will have to decide whether to indict the one man who continually instigates conflict and brutality in the region--President Charles Taylor of Liberia. The ICTY indicted Slobodan Milosevic while he was President of Yugoslavia and the message was clear: even Heads of State are not immune to war crimes prosecutions. The international community is quickly losing patience with Taylor. Holbrooke recently compared the two men, contending that: Taylor is Milosevic in Africa with diamonds. During a recent visit to Monrovia, American officials threatened Taylor with a war crimes indictment by the Special Court if he does not end his support of the RUF. But the most pressing challenge for the court and the pursuit of justice is that hostilities are still taking place. The draft agreement instructed the court to prosecute crimes committed since November 30, 1996, the signing of the Abidjan Accords, the first comprehensive peace agreement between the Sierra Leone government and the RUF. Because the conflict continues, no closing date was stipulated. This will place it in a similar position as the ICTY when it was established in the midst of the Bosnian war in 1993, which made it difficult for investigators and prosecutors to gather evidence and build cases against suspected perpetrators.

The ICTY only became effective when the international community ended the war in Bosnia with a massive bombing campaign and the Dayton Accords. Although another ceasefire was signed in November between the Sierra Leone government and RUF, the rebels refuse to give up the wealthy diamond areas and are still terrorizing civilians. Western governments are still trying to stop the fighting. The British recently began preparing the Sierra Leone army for an offensive against the RUF. In the twilight of his administration, U.S. President Bill Clinton sent hundreds of troops to Nigeria to train West African battalions for participation in the UN mission in Sierra Leone. Still decisive intervention to end the war seems unlikely. General Colin Powell's appointment as Secretary of State will no doubt spur a review of American policy in Sierra Leone, and from recent reports he has a keen interest in African affairs. Powell has already backtracked on earlier threats to withdraw American troops from Bosnia and Kosovo, suggesting that the Powell doctrine on intervention, both military and legal, will most likely be a work in progress. Whether or not he decides to take action to end the conflict in Sierra Leone remains to be seen, but continued fighting will no doubt hinder the progress of Sierra Leone's war crimes court.

*Michelle Sieff, a PhD candidate in the Political Science Department at Columbia University, is writing her dissertation on State responses to mass atrocity in Africa.

FAIR USE NOTICE: This page contains copyrighted material the use of which has not been specifically authorized by the copyright owner. Global Policy Forum distributes this material without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. We believe this constitutes a fair use of any such copyrighted material as provided for in 17 U.S.C § 107. If you wish to use copyrighted material from this site for purposes of your own that go beyond fair use, you must obtain permission from the copyright owner.