Global Policy Forum

By Alison Smith *

Introduction

The article A "Special Court" for Sierra Leone's War Crimes (1), is very interesting in a number of respects. As the article notes, the Special Court is a unique model for addressing the consequences of conduct committed during a conflict. Given the hybrid nature of the Special Court, while it will address some of the problems posed by the International Criminal Tribunals, it may face other difficulties for which there is no set or obvious answer. Solutions to these problems could enable the Special Court to act as a template for future prosecution of war crimes and other violations of international humanitarian law.

The article is, however, worrying in as many respects as it is interesting. There are a number of errors, inaccuracies and misrepresentations within the article that should be corrected. The most serious of these is the notion that the Government of Sierra Leone was the driving force behind the inclusion of persons under the age of 18 within the jurisdiction of the Court. Rather, it was actually the United Nations who first proposed the inclusion of those aged between 15 and 18 within the jurisdiction of the Special Court, a position the Government of Sierra Leone was initially very reluctant to accept, but eventually came to embrace. The statement, there fore, that the Government of Sierra Leone was the initiator of this idea is simply incorrect. There are a number of other areas where the article is misleading, such as regarding the administration of the Court and the issue of Chapter VII powers, or contains factual errors, such as Foday Sankoh being appointed Vice-President at Lomé.

This paper is submitted as a short response to the various issues raised by "A 'Special Court for Sierra Leone's War Crimes". Since the Special Court has the potential to make an important contribution to international criminal justice and modes of responding to violations of international humanitarian law, it should be discussed. However, these discussions should take place on the basis of the facts about the Special Court, not on the basis of guesses, hypotheticals and misinformation (2) .

Jurisdiction over people under the age of 18

The author states that the Special Court will set a precedent in the prosecution of juveniles. I t is regrettable that the author chose to address this issue at all, given the number of inaccuracies and omissions within this paragraph. The most serious of those inaccuracies amounts to a blatant misrepresentation of the true situation, whether through the author being given misinformation or simply neglecting her research.

The author states that: "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". This is not only a misrepresentation of the facts, it is in fact almost the complete opposite of the respective positions held during negotiations. The idea of giving the Special Court jurisdiction over people between the ages of 15 and 18 originated from within the United Nations and was, without prior discussion with relevant Sierra Leone officials in New York or Freetown, included within the draft Statute drafted by UN officials. Indeed, it is worth emphasizing that the age of 15 as the lower age at which the Court may exercise jurisdiction was not the result of discussions between UN officials and the Government of Sierra Leone, rather it was the starting position of UN officials and came to be accepted by the Government of Sierra Leone.

After receiving the draft Statute, the initial compromise position presented by the Government of Sierra Leone was that the Special Court should have jurisdiction over people aged over 17, which is the age at which a person takes on full adult criminal liability in Sierra Leone. However, at the insistence of UN officials both in New York and in Freetown, the Government of Sierra Leone came to adopt the position initially advanced by the United Nations and agreed to the inclusion of a revised article 7 within the draft Statute now provides for the Special Court jurisdiction over juveniles, but at least it does not foresee a whole trial chamber specifically designated to hear such trials, as in the initial United Nations proposal. It is fair to say that the Government of Sierra Leone has come to embrace the provision, arguing that the people of Sierra Leone would not perceive that the Court is capable of dispensing justice should those aged between the ages of 15 and 18 be arbitrarily excluded from the jurisdiction of the Special Court. However, to suggest that this article is a result of the Government of Sierra Leone being "adamant" that those responsible face prosecution before the Special Court "regardless of their age" is simply untrue.

Further to this point, the paragraph dealing with this issue gives the impression that the Special Court will have an abundance of children who were drugged and forced to fight by the RUF appearing before it. There are a number of points which should be borne in mind when considering this issue:

First, before anybody will be indicted by the Special Court, the Prosecutor will have to be satisfied that they bear "the greatest responsibility" for the atrocities committed in Sierra Leone. Indeed, the author herself makes this point in a preceding paragraph: "those who bear the greatest responsibility" is intended to direct the attention of the Prosecutor to the ringleaders of war crimes and other violations of international humanitarian law in Sierra Leone. This is the threshold of personal jurisdiction which must be reached prior to any indictments being issued. It is difficult to see how many children will fulfill this criteria, if any.

Second, the relevant age is the age at the time of the alleged commission of the offence, not the age of the person at the time at which they may be facing prosecution. This is a point which often appears to be overlooked when this most contentious issue is discussed.

Third, the use of children as a means of warfare was not limited to the RUF, although the issue of child combatants within the RUF has certainly claimed the most attention in the Western media. It should not be forgotten that all fighting factions in the conflict in Sierra Leone at one time or another have recruited minors as combatants, including the CDF and the SLA as well as the RUF.

Fourth, all criminal jurisdictions around the world contain some mechanism for the prosecution of children; there is a lower age at which a person under the age of 18 becomes criminally responsible for their actions. This ability to dispense juvenile justice is foreseen in a number of international instruments, not least of which the Convention on the Rights of the Child. In some countries, that age is as low as 10 and one should not forget that in the United States people as young as 14 have been sentenced to life in prison.

Finally, as the author hints at in a later paragraph, there are other mechanisms which are more appropriate for children, such as the Truth and Reconciliation Commission, to which children will be directed. However, the author fails to recognize that the draft Statute in fact calls the Prosecutor's attention to the desirability of directing children through these types of mechanisms (3). Nor does the author relate that there will be special proceedings for those aged between 15 and 18 which take into account the age of the accused and that there is a range of sentencing options which must be utilized should someone under the age of 18 be convicted, which include options such as vocational training and the DDR process but do not include imprisonment.

Administration of the Special Court

The author states that the "United Nations decided to create a special hybrid-court that will be administered jointly by the Sierra Leone government and the United Nations". As noted, the establishment of a Special Court was first requested by the Government of Sierra Leone and the decision to create such a body has come about as a result of negotiations, and therefore a joint decision, between the Sierra Leone and the United Nations. It is important that the Special Court is not viewed as the international community imposing its will on Sierra Leone: this perception is not only untruthful, it could also prove ultimately damaging to the perception of the Court, particularly within Sierra Leone, and thus its credibility and effectiveness.

In addition, it is incorrect to state definitively that the Court itself will be administered jointly by the Government and the United Nations, although this is one possibility. Rather, the Statute sets the primary responsibility of the Registry as the "administration and servicing o f the Special Court" (4). This includes responsibility for administration of the financial resources of the Special Court (5). The Statute explicitly provides for the Registrar to be a staff member of the United Nations (6). The President of the Special Court has reporting obligations to both the UN Secretary-General and the Government of Sierra Leone under the Statute, as he or she will be reporting to the two parties who concluded the Agreement, but this does not necessarily amount to "administration" or oversight by either entity. In the absence of a definitive reporting and oversight structure in either the Statute or the Agreement, it can only be concluded that the exact methods of oversight of the Court remain to be seen. It is therefore not clear on what basis the author makes such a definitive statement, other than by extrapolation and guesswork.

Effect of proceedings on Sierra Leoneans

As the author correctly notes, one of the main problems of the International Criminal Tribunals is that they are not located within the countries they are supposed to be serving. The remoteness of the Tribunals has indeed made it difficult, as the authors states, for "ordinary Bosnians and Rwandans to follow the Tribunals' cases"(7). The work of the Tribunals is by and large not known by people in the former Yugoslavia or Rwanda and, where it is known, is easy to dismiss as something which has no relevance to them (8). The location of the Special Court within Sierra Leone will go some way to overcoming these problems and preventing them before they arise.

However, it is overly simplistic to suggest that simply locating the seat of the Court within Sierra Leone is the answer to this problem. The irrelevance of the Tribunals to the people it is supposed to serve is not simply due to its location. Rather, it is the result of a lack of designing, enabling and implementing an effective public education and sensitization program. One example of this is found in the fact that until 1999, the ICTY did not translate Tribunal decisions and other relevant documents into Serbo-Croatian or other local languages. If the Special Court is to ensure that it does not fall prey to the same problems, it must implement an effective public education and sensitization program and ensure widespread dissemination of its findings in local languages and by methods which will reach the people (9).

Chapter VII mandate

In discussing the Special Court not being directly established by the Security Council, the author appears to be confusing a number of concepts, including the powers of the Security Council under Chapter VII (10).

While the Agreement between the United Nations and Sierra Leone will be the legal basis for the Court, there is nothing to prevent the Security Council from acting under Chapter VII to require third States to cooperate with the Special Court. Whether the Security Council will do so is a separate question quite apart from the legal basis and method of the establishment of the Court itself. Indeed, as the author notes, the Secretary-General recommended that the Security Council endow the Court with the power to request the transfer of suspects from third States, and in fact recommended that the Security Council do so under Chapter VII. The Security Council may yet decide to do so.

It is the issue of the Security Council making a decision on the matter under Chapter VII which throws into question the Special Court's ability to compel (as opposed to simply request) transfer of suspects from third States rather than its lack of primacy over courts of third States. Indeed, as the Report of the Secretary-General makes quite clear, these are two separate issues, although they are both affected by whether or not the Court is given Chapter VII powers. The ability to compel a transfer relates to whether there is an obligation on States to cooperate with the Court. The question of primacy is a question of jurisdiction which is quite apart from the question of an obligation to cooperate.

In addition, the question of the territorial jurisdiction of the Special Court does not depend on the use of Chapter VII powers. The territorial jurisdiction of the Special Court is limited to those acts that occurred in the territory of Sierra Leone (11). Similarly, the territorial jurisdiction of the ICTY is limited to the former Yugoslavia (which has enabled the Prosecutor to assert the Tribunal's jurisdiction over acts committed in Kosovo and Macedonia) and the territorial jurisdiction of the ICTR is limited to Rwanda and "neighboring" countries. It is true that a Tribunal established by the Security Council may have been able to assert jurisdiction over acts committed in Guinea, but only if Guinea was explicitly included in the territorial jurisdiction of that Tribunal.

Additional factual corrections

The author appears to have mixed two facts in describing the impetus to prosecute war crimes in Sierra Leone. The date of June 2000 is indeed the first time the idea of establishing a Special Court was brought up on an international level. In addition, the hostage-taking in many ways was a motive for the international community to become involved in establishing an accountability mechanism for the horrific events occurring during the ongoing conflict in Sierra Leone. However, the abduction of the 500 UN peacekeepers actually took place in May 2000 and was not itself the direct impetus for commencing negotiations on the Special Court. Rather, the direct impetus was a letter sent in June 2000 by President Kabbah of Sierra Leone to UN Secretary-General Kofi Anan requesting assistance in establishing a court to try those people responsible for the atrocities committed in Sierra Leone.

The other inaccuracy concerns the statement that the Lomé Peace Agreement appointed Foday Sankoh as "Vice President". Whatever the perceptions of any of the parties to Lomé may have been, the Lomé Peace Agreement does not purport to appoint Foday Sankoh as the Vice-President of Sierra Leone.

It should be recalled that Sierra Leone is a democratic country with a written Constitution setting out all the various offices within the Sierra Leone Government and how people may achieve those offices. As such, the Sierra Leone Constitution contains detailed provisions concerning the Vice-President of Sierra Leone, of whom - it should be noted - there can be only one, and how he or she may be elected. Rather, article V(2) of the Lomé Peace Agreement states that: "The Chairmanship of the Board of the Commission for the Management of Strategic Resources, National Reconstruction and Development (CMRRD) shall be offered to the leader of the RUF/SL, Corporal Foday Sankoh. For this purpose he shall enjoy the status of Vice President and shall therefore be answerable only to the President of Sierra Leone." Thus the reference to the "status" of "Vice President" is used only in a very limited sense and designates the reporting responsibilities and authority of Foday Sankoh in terms of his position of Chairman of the CMRRD only.

Conclusion

The Special Court for Sierra Leone has the potential to address the atrocities committed in Sierra Leone and establish accountability for violations of international humanitarian law committed in that country.

Thus it has the potential to send a message to would-be leaders that the culture of impunity is over and the adoption of illegal methods of warfare will be punished. The Special Court has also attracted a lot of controversy for a number of reasons, particularly on the issue of ability to prosecute persons aged under 18 at the time of the alleged commission of the crime. In order to prevent the controversy engendered by the Special Court outweighing its ability to bring justice for the people of Sierra Leone, all care should be taken to ensure that only correct information is disseminated about its origins, its jurisdiction and powers and, most importantly, its possibilities and limitations.

* Alison Smith has been working on Special Court issues in Sierra Leone since June 2000. She has worked closely with both the Government of Sierra Leone and with local human rights and civil society organizations.

(1) http://www.crimesofwar.org/mag_sierra.html.

(2) The references in this paper to the draft Statute and Agreement for the Special Court are to the draft of 1 February 2001. While this document has been released to the people of Sierra Leone by the Government of Sierra Leone for consultation purposes, it is recognized that the draft has not been made publicly available by the United Nations.
Nonetheless, the additions, alterations and omissions in the draft of 1 February 2001 are all foreseen in the exchange of letters between the Secretary-General and the Security Council of December 2000 (S/2000/1234) and January 2001 (S/2001/40).

(3) Statute, article 15(5).

(4) Statute, article 16(1).

(5) Agreement, article 4(1).

(6) Statute, article 16(3).

(7) It should be note d in passing that the ICTY was not established solely for Bosnians but rather for all inhabitants of the territory of the former Yugoslavia who have been and continue to be affected by war, which also includes Croatians, Serbs, Kosovars, Macedon ians and others.

(8) cf., in this respect, "Justice Unknown, Justice Unsatisfied", published in the Education and Public Inquiry and International Citizenship series of Tufts University, based on intelligent and thorough research conducted by the authors, Cibelli and Guberek.

(9) Illiteracy is widespread in Sierra Leone, therefore written translations of relevant documents and decisions is not sufficient. Rather, there must be extensive efforts made to disseminate information by other means, for example through radio broadcasts and public meetings.

(10) It should be reiterated at this point that the Special Court will be a treaty-based, sui generis court established by Agreement between the Government of Sierra Leone and the United Nations. Properly, therefore, the Agreement contains no reference to Chapter VII, since neither the Secretary-General nor any State may presume to say when and under what conditions the Security Council may exercise its Chapter VII powers.

(11) Statute, article 1.

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