index  |  next>>

Introduction

The devastating eleven year civil war in Sierra Leone, which lasted from 1991 until 2002, was characterized by unspeakable brutality and serious crimes.  Forces failed to distinguish between civilians and combatants.  Families were gunned down in the street, children and adults had their limbs hacked off with machetes, and girls and women were taken to rebel bases and subjected to sexual violence.  The civil war was notable for the systematic use of mutilation, abduction, sexual violence, and murder of civilians.  Tens of thousands of civilians were killed and up to one-quarter of the population was displaced.  The majority of crimes were perpetrated by rebels from the Revolutionary United Front (RUF) and the Armed Forces Revolutionary Council (AFRC).  However, government forces and their allies, including the Civil Defense Forces (CDF), also committed serious crimes, albeit on a smaller scale and of a different nature than those by the rebel alliance.

Accountability for serious human rights crimes, like those committed during Sierra Leone’s war, is essential for several reasons: to bring justice to the victims, to punish the perpetrators, and to lay the foundation for building respect for the rule of law in post-conflict societies.  Since 1998, Human Rights Watch has monitored the conflict in Sierra Leone, documented human rights crimes, and pressed for justice for these crimes.¹  Human Rights Watch maintained a field office in Sierra Leone from 1999 to 2002.

Following the end of the conflict, the Sierra Leone justice system lacked the capacity to hold perpetrators of the crimes accountable.  Corruption and political manipulation plagued the judiciary.  Hundreds of criminal suspects suffered from extended and unlawful detention, many without the due process guarantees stipulated in the constitution.  The numbers of judges, magistrates, and prosecutors were inadequate and numerous courtrooms and police stations were destroyed during the war.  Prompted by a request from Sierra Leone President Tejan Kabbah to the United Nations, a national-international court, the Special Court for Sierra Leone (Special Court or SCSL), was established in 2002 by agreement between the Sierra Leone government and the United Nations to prosecute serious crimes committed during the war. 

The Special Court presents an important opportunity to help bring a measure of accountability in Sierra Leone and indeed to allow the victims of horrific atrocities and their families to know that justice has been done.  The Special Court also represents a significant new model of international justice, often referred to as a “mixed” or “hybrid” tribunal.  It differs from the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY), the so-called ad hoc tribunals, in a number of significant ways.  The Special Court is staffed by internationals and Sierra Leoneans, rather than by an entirely international staff.  The Special Court’s statute includes both domestic and international crimes as opposed to only international crimes.  The seat of the Special Court is in the capital of Sierra Leone, rather than outside the country where the crimes occurred.  Other hybrid models that are staffed by internationals and nationals, and are located on the territory where the crimes occurred, exist.  However, these mechanisms, namely the Special Panels for Serious Crimes in East Timor and Regulation 64 Panels in Kosovo, constitute part of a domestic justice system as opposed to an independent institution.  The Special Court for Sierra Leone is the first stand alone hybrid justice mechanism with primacy over the domestic courts. 

Each of the existing international justice mechanisms has been tailored to a particular situation and is defined by the historical circumstances, negotiations, and compromises under which it was created.  Each model also has advantages and challenges.  The Special Court model provides the potential benefits of enabling the accountability process to be accessible to the population most affected by the crimes and leaving a legacy with this population, while remaining insulated from the deficiencies which may characterize a local justice system.

The Special Court is also set up to be “leaner and meaner” than the ICTY and ICTR, in significant part as a response to criticisms that the ad hoc tribunals are too costly and slow.  The Special Court is expected to operate at a lesser expense for three years of operations than the cost of one year of operations at the ICTY and the ICTR in recent years. ²  The Special Court was also set up to be dependent on voluntary contributions, instead of on funding through U.N. assessed contributions.³  The Special Court is expected to function for approximately three years, while the ad hoc tribunals were not created with any predetermined expectations with regard to their length.  The ICTR and ICTY have functioned for eight and ten years respectively, and only in the past few years have they developed a “completion strategy” that provides for phasing out operations by 2010.⁴ 

The Special Court’s mandate is limited to prosecuting those who “bear the greatest responsibility” as opposed to those “who bear responsibility.”⁵  The Special Court’s authority is also restricted to prosecuting crimes committed during less than half of the conflict.  Whereas the Special Court has so far indicted thirteen individuals and is not expected to issue more than a few additional indictments at most, the ICTR has indicted over seventy individuals, while the list of indictees at the ICTY tops one hundred.⁶  The Special Court’s limited mandate and time period for which it has authority, along with the small number of indictees, raise concerns that the Special Court will not be able to bring a measure of accountability for the crimes that matches the level of the human rights catastrophe that occurred, that the people of Sierra Leone need, and that the victims deserve. 

Human Rights Watch has actively supported the efforts of the Special Court.  We have encouraged governments to cooperate with the Special Court to ensure that suspects do not escape its jurisdiction and have urged the international community to provide adequate financial support for the court.  Human Rights Watch has also provided recommendations to ensure that trials are conducted fairly and efficiently, that the Special Court operates independently and impartially, and that investigations and prosecutions effectively bring to justice those who bear the greatest responsibility for crimes committed in Sierra Leone.⁷ 

This report evaluates the Special Court’s efficacy around a series of benchmarks that are crucial to its success: 1) adherence to international fair trial standards; 2) effectiveness in achieving its mandate; 3) efficiency; 4) protection of witnesses; 5) accessibility to Sierra Leoneans; 6) leaving behind a legacy; and 7) providing security.  The report seeks to identify accomplishments and make recommendations where we believe the Special Court should improve operations.  Some of these recommendations can be implemented without increased funding for the court, while others require the Registry to recommend additional funding for particular areas, for the Special Court Management Committee to support these allocations, and for donors to fund them.  The report also makes recommendations on the crucial importance of financial and political support by key governments.  

The report is largely based on a mission Human Rights Watch conducted to Freetown in March 2004, during which we conducted interviews with some twenty Special Court staff, including within the Office of the Prosecutor, the Defense Office, the Chambers, the Registry, the Outreach Section, the Witnesses and Victims Support Unit, and those responsible for security and detention of suspects.  We also met with defense counsel representing indictees at the Special Court, persons working with the Truth and Reconciliation Commission, members of civil society, and diplomats.  Additional interviews with Special Court staff, defense counsel, and diplomats were conducted by telephone and in person in New York and Freetown between April and August 2004.  Many of the individuals we interviewed wished to speak candidly but did not wish to be cited by name.  We have cited the majority of sources with only generic references, such as “Special Court staff” or “defense counsel.”

The establishment of the Special Court represents a tremendous effort by many extremely dedicated staff members operating under difficult conditions and with scarce resources.  In 2002, the staff of the Registry and the Office of the Prosecutor (OTP) created a court from the ground up in war-ravaged Freetown.  As no suitable facilities existed, the registrar, Robin Vincent, worked to establish a courthouse and court infrastructure.  At first, until offices were constructed, the OTP operated out of the home of the prosecutor, David Crane, working day and night to conduct investigations and to build cases. 

The Special Court has made significant accomplishments to date that reflect meaningful progress to ensure a measure of accountability in Sierra Leone, all the more so considering the limited resources available to this institution.  These include: completing investigations; indicting suspects from all warring factions; charging all indictees with child recruitment and most indictees with gender based crimes, in addition to other substantive crimes; establishing a defense office to represent issues of common interest relating to defense and to ensure protection of the rights of the accused; issuing precedent-setting decisions on international jurisprudence and disposing of more than one hundred and fifty pre-trial motions; conducting outreach to the local population; employing Sierra Leoneans to work in every organ of the Special Court, including as trial attorneys, investigators, defense counsel, and judges; and completing the courthouse, which will be donated to the Sierra Leone government.  The Special Court commenced trials on June 3, 2004, with the trial of Sam Hinga Norman, Moinina Fofana, and Allieu Kondewa, who are affiliated with the CDF.  On July 5, 2004, the Special Court commenced the trial of Issa Hassan Sesay, Morris Kallon, and Augustine Gbao, who are affiliated with the RUF.

Nevertheless, Human Rights Watch has concerns about aspects of the Special Court’s operations that are hampering its work, many of which directly relate to inadequate funding of the court by donors.  The most serious of these include: an inappropriately narrow interpretation of the Special Court’s mandate to prosecute those “bearing the greatest responsibility;” inadequate logistical support and lump sum payment structure for defense counsel; inadequate witness protection; and the lack of establishment of the second Trial Chamber.  Nigeria’s failure to surrender Charles Taylor is also undermining the court’s ability to achieve its mandate.

One of the most serious challenges facing the court is insufficient and insecure funding by donors.  This has put an enormous strain on the court’s operations.  Key areas of the Special Court have been under funded, namely the Defense Office, the Witness and Victim Support Unit, the Chambers, and the Outreach Section.  Under funding could undermine the Special Court’s accomplishments and, indeed, its work to protect witnesses and ensure the rights of the accused.  

The initial proposed budget for the court was approximately $114.6 million over three years.⁸  However, even this relatively tight budget was cut to approximately $57 million due to difficulties in securing funding, although the total estimated budget had increased to about $76 million for three years as of March 2004.⁹  Despite relentless efforts to obtain funding by the registrar and initiatives by contributing states, including members of the Special Court Management Committee, voluntary contributions total only $49.3 million, and, as of July 2004, were expected to last the court only through the beginning of its third year of operations.¹⁰  Even with a much needed grant from the United Nations in April 2004 in the amount of $16.7 million, $23.3 million in anticipated costs over the next year and a half currently are unfunded.

Moreover, a condition of this U.N. grant is that it will be reduced in the amount of any additional voluntary contributions.¹¹  Additionally, long-term funding must be secured for certain residual mechanisms to function beyond the Special Court’s existence, specifically for witness protection and for the maintenance of detention facilities in accordance with international standards.  Human Rights Watch urges the U.N. secretary-general to request and the U.N. Advisory Committee on Administrative and Budgetary Questions to recommend that the General Assembly remove the restriction on the U.N. grant immediately and authorize the remaining $23.3 million of the secretary-general’s request to fund the court through December 2005. 

We further urge the Registry to support additional allocations for under funded areas, and for the Management Committee to advocate strongly on behalf of such funding.  We urge governments to provide additional voluntary contributions and the U.N. secretary-general and General Assembly to intervene as necessary to address outstanding shortfalls.

The OTP has taken important steps to ensure justice for serious crimes in Sierra Leone by investigating and prosecuting individuals associated with all sides of the conflict and charging accused with gender based crimes and child recruitment.  However, Human Rights Watch believes that the existing indictments reflect an inappropriately narrow interpretation of the court’s mandate. 

The individuals currently indicted could be characterized as the highest-level commanders in the CDF, the AFRC, or the RUF who were the “kingpins” or “masterminds” of the war, or their financial backers.  These indictees allegedly “knew or had reason to know” about the commission of the crimes and may have also participated in directly committing atrocities.  Human Rights Watch believes that the mandate should be interpreted to also include other perpetrators who, while not at the top of the chain of command, were regional or mid-level commanders who stood out above similarly ranking colleagues for the exceedingly brutal nature of the crimes they committed.  The failure to indict such persons is of particular concern as the court has indicted only thirteen suspects, nine indictees are facing trial, and there are unlikely to be more than a couple of additional indictments. 

This sentiment was echoed by members of local civil society groups interviewed by Human Rights Watch, who expressed frustration that a limited number of regional or mid-level commanders known for their notorious behavior, some of whom physically carried out the crimes, have escaped indictment by the Special Court.  Three such commanders noted by civil society members include AFRC commanders Savage and Al Hadji Bayoh, and CDF commander Musa Junisa.

However, Special Court staff were resistant to interpreting the court’s mandate to include regional or mid-level commanders who distinguished themselves by their brutality, citing time and resource constraints and the difficulty of identifying a small number of alleged perpetrators who would fall under this interpretation.¹²  Nevertheless, the research of Human Rights Watch and others suggests that there are, in fact, a very limited number of individuals who fall into this category.  We also suggest that sufficient evidence to prosecute them would have been obtained in the process of building cases against top commanders who have already been indicted.  In light of the small number of indictees and the resources invested in this mechanism, interpreting the mandate to include regional or mid-level commanders who are notorious for the brutal crimes they allegedly committed would provide an important opportunity to ensure that the possibilities for justice are maximized through prosecutions at the Special Court.  Human Rights Watch urges the OTP to review prior investigative work to assess whether several of these persons should be further investigated or indicted, and if so, to pursue prosecution of such cases.

The establishment of the Defense Office represents an important innovation that is helping to ensure that defendants receive a fair trial at the Special Court.  However, the lack of resources available to defense teams paid for by the court, which relates at least in part to under funding of the court more generally by donors, could constrain their ability to mount a defense.  While fairness does not require a dollar for dollar match between resources available to the OTP and the defense, the extent of disproportionate allocation of such resources at the Special Court could contribute to a perception that trials are unfair and that equality of arms is not upheld. 

The facilities provided by the Defense Office for defense teams have suffered from a lack of resources, which have hampered case preparation.  As of March 2004, nine defense teams, including more than twenty defense attorneys, were provided with only three rooms in which to work, which limited their ability to conduct confidential meetings.¹³  Although in recent months increased space has been made available and additional offices are under construction, storage and access to fax and photocopiers remain ongoing problems, and teams must share limited access to computers and vehicles.¹⁴  This is contrasted with resources available to the OTP.  Human Rights Watch was told that OTP office space consists of five containers, each OTP staff member has access to a computer, and storage includes filing cabinets, along with a separate location for storing evidence.¹⁵  OTP staff also had availability to vehicles during crucial stages of investigations, although at the beginning of 2004, this was considerably cut back as well.

The trials at the Special Court involve complex issues; they are expected to include testimony of more than one hundred witnesses and last many months.¹⁶  It is essential that defense teams have appropriate facilities to prepare and present their cases.  Human Rights Watch recommends that the Registry immediately take additional action to ensure that defense teams have adequate facilities, including sufficient space to store documents and access to fax, photocopy, Internet, and computers, recommending additional funding as necessary for this purpose.  Human Rights Watch further urges the Management Committee to support these allocations and for governments or the United Nations to fund them.

The payment structure for defense counsel also raises serious concerns; it could create an incentive for counsel to work less even when case preparation and presentation require additional work.  In an effort to keep costs low and to avoid problems such as overpayment of defense counsel and fee splitting, the Special Court Defense Office will pay each defense team a lump sum for compensation and all expenses for the duration of representation of each accused.  Contracting counsel may request payment beyond the lump sum amount at the end of the trial for “Special Considerations” that may include “payments for additional professional fees arising out of the continuation of the trial of the Accused” past a pre-determined date or “the provision of services of an exceptional nature.”¹⁷  However, this arrangement apparently establishes a cap regardless of the complexity of the case, the amount of witnesses involved, and the number of hours counsel will appear in court, unless these issues result in continuation of the trial beyond a pre-determined date or constitute services “of an exceptional nature,” which are not defined.  Human Rights Watch was told that this arrangement may have undermined representation in some instances, in that some international defense counsel have left matters involving international law to local counsel who do not have experience with these issues rather than make additional trips to Freetown.¹⁸ 

The need to keep costs low and to avoid overpayment of defense counsel can not be accomplished at the expense of the defendant’s right to a fair trial.  Human Rights Watch recommends that the Defense Office amend legal services contracts to allow defense teams to petition for compensation beyond the lump sum cap if the team can demonstrate a serious need for hours of work and other expenses to prepare and present the case that exceed the cap.  Human Rights Watch further recommends deletion of the requirement that services be of an “exceptional nature” to obtain additional funds.  We urge the Registry to recommend making additional funds available to the Defense Office for this purpose, for the Management Committee to support this provision, and for the United Nations and donor countries to fund it.

Locating the Special Court in Sierra Leone – along with the court’s tight budget – present challenges for the protection of witnesses not faced by the ICTY and the ICTR.  The Witness and Victim Support Unit (Protection Unit) is employing a number of initiatives to ensure protection for witnesses, including using “safe houses” for protected witnesses.  However, we are concerned that the Protection Unit lacks sufficient resources and skilled staff to ensure that witnesses receive “relevant support, counseling and other appropriate assistance, including medical assistance, physical and psychological rehabilitation, especially in cases of rape, sexual assault, and crimes against children” as required under Rule 34 of the Special Court Rules of Procedure and Evidence (SCSL Rules).  Human Rights Watch was told that Protection Unit staff have behaved in a manner that has undermined protection in some instances, including by failing to follow-up when a witness raised concerns that the witness was being followed.¹⁹  Special Court staff also raised concerns about the ability of the Protection Unit to handle what was expected to be a growing number of witnesses needing protection during trial.²⁰  Special Court staff commented that the unit is “doing okay, for [the] money,” but that it was not quite prepared.²¹ 

Human Rights Watch urges the Registry to work with the Protection Unit to identify where lack of resources of the Protection Unit may be compromising its ability to work effectively and to recommend funding of these resources.  Human Rights Watch further urges the Management Committee to support these allocations and for donors to fund them.  We also urge donors to provide funding to ensure witness protection after the court ceases operations, through adequate support for materials and logistical equipment for a domestic witness protection unit.  Additionally, Human Rights Watch urges the Registry to coordinate training of Protection Unit staff to ensure that protection is adequate, with a specific focus on providing sufficient information to witnesses, following through on witness concerns, and operating in a way that does not betray the identity of witnesses.

Within the constraints of barebones resources and staff support, the Chambers have successfully moved the majority of cases from indictments to trial, ruling on more than one hundred and fifty pre-trial motions along the way, including on jurisdictional motions involving precedent-setting issues under international law.²²  However, the lack of establishment of the second Trial Chamber threatens to seriously undermine the court’s capacity to complete operations efficiently.  

The existing Trial Chamber is currently holding two trials – those of the CDF and RUF – on a rotating basis, hearing each case for approximately one month at a time.  Additional Trial Chambers are permissible under Article 11 the SCSL Statute and a second Trial Chamber is envisioned, but has not been established as of this writing.  Human Rights Watch was told that the second Trial Chamber was included in the budget for the second year of operations, but that a variety of factors contributed to delay in its establishment, including the prospect that all AFRC and RUF cases might be consolidated into one trial based on a motion for joinder by the OTP.²³  In January 2004, the Trial Chamber ruled on the joinder motion holding that the indictees (excluding Charles Taylor) would be tried in three groups, the RUF, the AFRC, and the CDF trials.²⁴  However, as of August 2004, judges to serve on the second Trial Chamber have still not been appointed.²⁵

Establishment of the second Trial Chamber would contribute significantly to ensuring that the Special Court completes its operations efficiently by allowing for the AFRC trial to be conducted at the same time as the RUF and CDF cases, and, should he be surrendered to the court, also the case of Charles Taylor.  The limited duration of the court underscores the importance of establishing the second Trial Chamber as quickly as possible and consistently resolving issues that undermine such efforts.  Human Rights Watch strongly urges both the Sierra Leone government and the U.N. secretary-general to immediately complete appointments of qualified judges to the second Trial Chamber, and for the Registry to address any and all matters necessary to ensure that the second Trial Chamber commences work as soon as possible.

Lack of cooperation by Nigeria with the Special Court through its continued shielding of Charles Taylor threatens to undermine the court’s work to bring justice for the most serious crimes.  Former Liberian President Charles Taylor was indicted by the Special Court on seventeen counts of crimes against humanity and other serious violations of international humanitarian law.  Taylor was given asylum in Nigeria in August 2003, after he was forced from power in Liberia.  Nigeria’s harboring of Taylor goes against international law, undercuts the investment made by the international community to combat impunity in Sierra Leone, and is an affront to victims of the crimes committed in Sierra Leone. 

Nigeria should immediately surrender Taylor to the Special Court to face trial for the crimes he is accused of committing.  Human Rights Watch urges the United Nations and its member states who have failed to call for President Olusegun Obasanjo to surrender Charles Taylor to the Special Court to raise this issue both publicly and privately with the Nigerian president.  The inadequate response by the international community is inconsistent with international efforts, particularly U.N. Security Council resolutions, calling for indictees to be brought before the ICTR and ICTY.²⁶

To ensure that the Special Court achieves its objectives, these concerns must be addressed by the United Nations and its member states, the Special Court Management Committee, and the appropriate organs and units of the Special Court.  In particular, the registrar should recommend that adequate funds be provided to support under funded areas described above so that the court is properly budgeted to operate consistently with its objectives to bring justice fairly and effectively.  The Management Committee should support these allocations and the United Nations and governments should fund them.  The victims of the brutal crimes committed in Sierra Leone deserve nothing less.

In addition to the concerns outlined above, we provide background on the establishment of the court below in Section II, followed by an area by area assessment of the court’s operations in which we detail positive developments as well as additional concerns and make recommendations to improve court operations.  The areas are discussed in the following order: Chambers, Office of the Prosecutor, Defense, Witness Protection, Security, Accessibility, and Legacy.  We conclude with a section on the need for international cooperation and financial support for the Special Court.