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Chambers

An impartial, independent, and competent bench is essential to ensuring the fairness of proceedings before the Special Court.³⁷  It is also crucial that the Chambers treat witnesses properly and operate efficiently.  Efficiency is important to protect the right of the accused under international law to a trial without unreasonable delay and to avoid undue waste of limited financial resources available to the Special Court, particularly given the expected limited duration of the court.  Of all the court organs, the Special Court’s overall efficiency is likely to be most heavily dependent on the Chambers’ ability to keep the trials moving expeditiously.  However, efficiency must never be provided at the expense of ensuring a fair trial.

The Chambers include a mix of international and local judges, with a majority of appointments made by the U.N. secretary-general and a minority of appointments made by the Sierra Leone government.³⁸  The Chambers have faced predictable difficulties in bringing together judges from varying legal traditions to adjudicate cases and have worked with barebones resources and staff support.  Within these constraints, 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.³⁹ 

However, as discussed above, the lack of establishment of the second Trial Chamber threatens to seriously undermine the court’s capacity to complete operations efficiently.  Human Rights Watch also has concerns over delays in the issuance of rulings in a number of instances, which we believe is related in part to inadequate funding of the court by donors, and treatment of witnesses and courtroom management.  Below we elaborate on these concerns and provide recommendations to address them.

A. Establishment of the Second Trial Chamber

The 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 expected 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. 

At present, there are four cases: the defendants are members of the RUF, the AFRC, the CDF, and Charles Taylor.  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 of 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 the 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.⁴⁰  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.⁴¹  However, as of July 2004, judges to serve on the second Trial Chamber have still not been appointed.⁴²

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.

B. Timeliness of Rulings on Motions

While numerous rulings on motions have been issued on a timely basis at the Special Court, substantial delays have also occurred.  Some of these are problematic as they relate to rights of the accused or witness protection.  Others raise concerns simply by the extended period between the time the motion was filed and the decision was issued.  Delay in one ruling can, in some instances, create a domino effect, pushing back other rulings that cannot be issued without the decision, and slowing down proceedings overall.  Human Rights Watch has prepared a chart that details the approximate time from the filing of a motion to issuance of a ruling for a number of motions, namely those whose decisions were available on the court website between May 23, 2003, and July 30, 2004, that took more than two months to be issued.⁴³  This chart is attached as the appendix to this report. 

In one example, a decision denying bail to a defendant was handed down almost four months after the initial application for bail.⁴⁴  A decision on a request to modify the conditions of detention also took approximately four months to resolve, apparently due in part to the August 2003 recess and confusion over whether to treat it as a request for bail or modification of conditions of detention.⁴⁵ 

In another example, the Trial Chamber took approximately three and one half months to rule on two motions by the prosecutor to combine nine individual cases into two trials, an RUF/AFRC trial and a CDF trial.⁴⁶  In part, the delays may have resulted from wide variation in how quickly defense counsel responded to the prosecutor’s motion.  However, even accounting for such delays, the Trial Chamber considered these motions for almost two months before ruling on them. 

While the Trial Chamber typically determined motions concerning the protection of witnesses within one and a half months of their filing,⁴⁷ in the case of Augustine Gbao the Trial Chamber took approximately five months to rule on a motion for protection of witnesses, although Gbao’s counsel apparently made more extensive legal claims in the Response to the Motion for Protective Measures.⁴⁸ 

In the Appeals Chamber, the judges took between eight and nine months from June 2003 to March 2004 to rule on three motions challenging the court’s jurisdiction on the basis of the Lomé Accord, lack of judicial independence, and lack of constitutionality.⁴⁹  Two additional motions that challenged the court’s jurisdiction to try the crime of child recruitment and to prosecute Charles Taylor were decided between ten and eleven months after they were filed on May 31, 2004.⁵⁰  Several factors may partially explain the delay.  First, there was a change in SCSL Rule 72 in August 2003.⁵¹  The effect of this change was that the Trial Chamber referred these motions to the Appeals Chamber for initial and final adjudication approximately three months after the motions were first filed.⁵²  Second, some of the motions were the subject of numerous amicus curiae submissions.  However, even after the last submissions and arguments were made, the Appeals Chamber took between three and five months to resolve these claims.⁵³  This is particularly troubling as one of the justifications made by the judges for the change of Rule 72 was indeed to avoid delays that would undermine detainees’ rights to be tried fairly, effectively, and expeditiously.⁵⁴  The Appeals Chamber also took between six and seven months to rule on a number of other jurisdictional motions.⁵⁵

Human Rights Watch believes that at least two issues, which are discussed in depth below and are in part related to under funding of the court by donors, have hindered efficiency in rendering decisions: 1) an inadequate number of legal advisors assigned to the Chambers; and 2) the extent of availability of the Appeals Chamber. 

Legal officers provide important support to judges by assessing research needs and conducting substantive research on legal issues arising out of proceedings, preparing and drafting legal documents, including written judicial decisions, and managing files.  Human Rights Watch believes that the limited number of legal officers assigned to the Chambers is hampering the capacity of the Chambers to consistently issue quality decisions as efficiently as possible. 

In theory, four legal officers, including one senior legal officer, were allocated to support the Appeals and the Trial Chamber.⁵⁶  In practice, the first legal officer did not commence working at the Special Court until October 2003, more than six months after indictments were issued, and only two legal officers supported the Chambers until June 2004.⁵⁷  Two additional legal officers were assigned to the Trial Chamber in June 2004, one covering each trial, and recruitment was underway for two associate legal officers to further support the Trial Chamber as of this writing.⁵⁸  However, there is no allocation in the existing budget to hire additional legal officers once the second Trial Chamber is established.⁵⁹  Thus, the Chambers are likely to suffer again from significantly limited support once the second Trial Chamber commences functioning.⁶⁰

Human Rights Watch was told that the small number of advisors allocated to the Chambers is related to the need to keep costs low.⁶¹  However, by providing Chambers with adequate legal support, efficiency will be enhanced, thereby ultimately reducing the overall length and cost of the proceedings.  In this regard, Human Rights Watch urges the registrar to recommend an increase in the budget to provide for the hiring of additional legal officers to be assigned to the Chambers, specifically to provide a total of three legal advisors for each Trial Chamber and the Appeals Chamber.  Human Rights Watch further urges the Management Committee to support this increase and for governments and the United Nations to provide funding for these additional advisors.

The slowness in rulings on major jurisdictional challenges by the Appeals Chamber raises concerns that the Appeals Chamber judges are not convening enough to ensure that decisions are issued efficiently.  The Appeals Chamber functions on an ad hoc basis and convenes as necessary, in some cases by phone.  We understand that this arrangement is in part due to budgetary constraints and that under this arrangement Appeals Chamber judges are compensated for the hours that they work, rather than being salaried.⁶²  As a result, judges who are not otherwise retired have continued to maintain other professional commitments while they serve in the Appeals Chamber.⁶³

Special Court staff characterized the work of the Appeals Chamber judges as consisting of work for about one to two days a month or work for concentrated periods at different points since September 2003, including during a week of hearings in November 2003, a week of deliberations in December 2003, and a week each in March and in May 2004, along with time spent preparing before and after hearings and meetings.⁶⁴  Regardless of whether the Appeals Chamber works on a full-time or ad hoc basis, Human Rights Watch urges Appeals Chamber judges to make themselves available when motions are before the Appeals Chamber so that rulings are rendered as expeditiously as possible. 

C. Treatment of Witnesses and Courtroom Management

It is absolutely necessary that when witnesses come forward to testify, often at great risk to themselves and their families, that they are treated with dignity and respect.  This is a matter of principle and also pragmatic, as ill-treatment of witnesses will have a chilling effect on witness cooperation with the court and undermines the very principles on which the court is founded.  In the two months since trials began, some concerns have been raised regarding the treatment of witnesses.  Human Rights Watch was told that judges have reportedly referred to the “degree of intelligence of a witness” in reference to a witness’ lack of education, laughed concerning the illiteracy of a witness, requested that a witness whose arms were obviously amputated raise hands to demonstrate this, and, in at least one instance, stated the name of a child witness in open court.⁶⁵  At the same time, Human Rights Watch was told that judges have demonstrated sensitivity in other instances to witnesses, particularly with rape victims, by allowing breaks whenever a witness breaks down, psychosocial support staff to sit close to the witness when the witness gives testimony if the witness prefers this, and comprehensive measures for protection of identity, including use of voice distortion, closed circuit television, and a screen during testimony.⁶⁶  The judges have also worked with the Witnesses and Victims Support Unit to ensure proper treatment of witnesses.⁶⁷

Concerns have also been raised regarding inefficient courtroom management.  Human Rights Watch understands that there have been missed opportunities to have trial sessions.  Trials are in session between twenty and twenty-five hours a week, with five and a half hours scheduled three days a week, a half day session one day each week, and one day reserved for the hearing of motions or arguments as necessary with trial otherwise in session.⁶⁸  Human Rights Watch was told that in one instance, a hearing on a motion was scheduled on the day reserved for the hearing of motions, but it was set for the afternoon and no other proceedings took place the rest of the day.⁶⁹ 

Additionally, the Trial Chamber is on judicial recess three out of four weeks in August 2004 and is expected to be on judicial recess during most of December 2004.⁷⁰  Human Rights Watch urges the Trial Chamber to utilize days reserved for motions for trial sessions when motions are not being heard, and to assess whether maintaining efficiency requires that daily trial sessions be longer and judicial recesses be more limited.  As discussed above, however, measures to increase efficiency must not be implemented in ways that would undermine protection of the rights of the accused.

In June 2004 there was a first ever exchange between Special Court judges and ICTY and ICC judges on procedural and substantive matters, including courtroom and case management, elements of crimes, theories of liability, and witness issues.⁷¹  In particular, Special Court staff reported a noticeable improvement in the treatment of witnesses following this session, underscoring the importance of such initiatives.⁷²  Human Rights Watch urges the Registry to continue to organize these types of sessions on a regular basis, focusing them on:

courtroom management and criminal trial procedure, including on the Special Court Rules of Procedure and Evidence, particularly for new appointees;

substantive issues of international criminal, human rights, and humanitarian law; and

maintaining sensitivity to victims and witnesses (including victims of gender based crimes, child witnesses, and particular groups that, due to poor education and/or illiteracy, may have difficulty understanding court procedures).

Videotapes of sessions should be made so that when there is turnover, new personnel can view the videotapes.

Human Rights Watch further urges, as it has previously, that future judicial appointees be required to have criminal trial experience.⁷³  While all the judges have served as judges previously, we understand that not all of the current appointees have criminal trial experience, which the SCSL Statute fails to explicitly require.⁷⁴  Requiring this experience would contribute to enhancing courtroom management.  Recognizing that the majority of appointments have already been made, we urge the Sierra Leone government and the U.N. secretary-general to require that all future judicial appointees, particularly those to the second Trial Chamber, have experience in criminal trials.