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II. Overview: Continuing Accomplishments and Shortcomings

During the phase of holding trials, which began in June 2004, the Special Court continues to make significant strides towards bringing justice for atrocities that were committed during the Sierra Leone armed conflict. The Special Court’s accomplishments are all the more significant given the obstacles the court has had to overcome, including establishing an infrastructure in a severely underdeveloped country devastated by conflict, and in the face of limited and uncertain funding. Despite its achievements, some concerns remain regarding court operations. Summarized below, and detailed in later sections of this report, are the Special Court’s strengths and achievements, and the areas of concern that should be addressed to ensure that the court is able to conduct and complete its work as fairly and effectively as possible.

A. A Highly Functional Operation

Only three years after its establishment, the Special Court is making major progress on trials. Three trials of nine accused are currently proceeding simultaneously before two trial chambers. As of August 2005, more than 150 witnesses had testified, and the prosecution had closed its case in one of the three trials. The appointment of Trial Chamber II in January 2005 was a major development that enhanced the court’s efficiency by enabling the third major trial to commence in March 2005.

Given the substantial progress made in what tend to be extremely complex cases, both trial chambers have overall demonstrated a strong degree of efficiency. The active interventionist style of courtroom management by Trial Chamber II also makes a useful contribution to addressing the need to fully protect the rights of the accused and the interests of witnesses while promoting the efficient administration of justice. Additionally, the Registrar has consistently promoted effective courtroom management, which has included the creation of a judicial services coordination committee to make recommendations on technical and logistical issues related to courtroom usage.

The Office of the Principal Defender (Defence Office) continues to serve a critical function in helping to protect the rights of the accused, and represents an unprecedented and important innovation for international and hybrid tribunals. The principal defender advocates on behalf of the defense with the court administration and before the judges on issues relevant to defense representation and fair trials. The principal defender, along with duty counsel who work in the Defence Office, screen defense counsel applicants, and monitor performance by defense counsel. The Registry has shown an important commitment to effective defense representation, including making significant increases in allocations of needed logistical support for defense teams and access to investigators.

The Special Court provides a comprehensive scheme of protection and support for the hundreds of mostly Sierra Leonean witnesses, both victims and non-victims, who will testify. The court makes much effort to protect the identity of witnesses, and provides shelter for witnesses prior to and during testimony in safe houses around Freetown. The court also provides medical assistance and psychosocial counseling for witnesses. The court has taken a range of steps to respond to threats against witnesses that have been made in certain instances (despite ongoing efforts to avoid such threats). For a small number of witnesses considered to be particularly vulnerable to reprisal, the court has organized their relocation within Sierra Leone or abroad.

Witnesses are generally treated with respect and dignity, and receive support by staff from Witness and Victim Support (Witness and Victim Support Unit) in the courtroom. Witnesses have characterized the experience of testifying positively to court staff. Aware of the importance of assessing the condition of witnesses after they testify and return home, the Special Court provides return transport, and plans to make at least one follow-up visit to each witness after he or she is back home.

The court continues to make robust and innovative outreach and communications efforts to increase Sierra Leoneans’ awareness of the court’s work. The Public Affairs Unit creatively engages and trains local media, and produces audio and video summaries of the court’s work. The Outreach Unit canvasses the country with information about the court through video screenings, discussion, and dissemination of written material. The court magnifies its reach by targeting particular sectors of society such as students, and conducting trainings for civil society.

The court’s judicial operations, combined with its outreach programming, are helping to leave an important legacy by strengthening respect for the rule of law in Sierra Leone. Through employment and training of Sierra Leonean staff, the court is also building local professional capacity. The development of a domestic witness protection unit (an element of the Special Court’s commitment to protection after the court closes operations, and hitherto lacking in Sierra Leone) is serving to increase capacity in this crucial area. The proposed establishment of an independent radio station dedicated to justice issues would serve to promote debate on the rule of law. The court is also taking some steps to reach out to the national justice sector.

Special Court staff have recognized the importance of advance planning for the completion of court operations and responsibilities that will remain after that time, which is underscored by the court’s anticipated limited duration. The court began developing a strategy to address this, known as its “completion strategy,” in 2004. In May 2005, the court issued an updated completion strategy that identifies two major components: the completion phase and the post-completion phase.²

B. Areas Where Improvement is Needed

This summary and the subsequent sections presenting issues of concern contain recommendations by Human Rights Watch for remedial actions. Additionally, a detailed set of recommendations addressed to specific institutions and actors is presented at the end of the report. Many of the earlier recommendations have financial implications, which are acknowledged in the recommendations at the end of the report addressed to the Special Court’s Management Committee and donors.

During proceedings, instances of disclosure of identifying information concerning protected witnesses by judges, accused, prosecution, and defense counsel have occurred. While complete non-disclosure may not be achievable or even advisable, efforts to avoid the disclosure of identifying information concerning witnesses should be intensified. There have also been instances of judges making insensitive and condescending remarks to witnesses in the courtroom.

Substantial delays in decisions on motions continue to exist in certain instances, and raise particular concern with regard to motions that implicate fair trial rights. Efforts to prioritize and dispose of such motions must be made. There are also significant differences in the pace of trials between the first and second trial chambers, with some practices by Trial Chamber I undermining the momentum of proceedings.

Despite improvements in support for defense teams over the past year, funding of two areas essential to the preparation and presentation of defense cases – expert witnesses and international investigators – may prove insufficient. Defence Office staff and defense counsel have expressed concern that funding is inadequate and budgetary allotments in 2005-2006 are a fraction of the amounts requested by the Defence Office for these areas. When Human Rights Watch researchers raised concerns over possible inadequate funding, we were told that there is some flexibility in the budget, and that the Special Court is committed to ensuring reasonable defense needs. Human Rights Watch welcomes the Registry’s commitment to ensuring defense needs. However, relying on the Registry’s flexibility to secure adequate funding means that concerns remain.

Given the challenges in assuring high quality representation of complex cases, performance of some defense counsel at the Special Court is, not surprisingly, deficient in certain instances. Increased oversight by the Defence Office to address problems in performance by counsel, including ensuring full participation by all members of defense teams and more training, is needed.

There has been substantial late disclosure of witness statements to defense counsel and instances where disclosure obligations have been breached by the prosecution. Disclosure is crucial to case preparation, and the prosecution should rigorously abide by its obligations to make disclosure in a timely fashion.

Given the limits of what the court can do to guarantee the physical and mental well-being of witnesses, they have, not surprisingly, suffered threats. In some cases, these incidents are believed to be linked to disclosure of information about the witness by the accused or part of his defense team. Although the court has aggressively sought to hold persons involved in making such threats accountable when they occur on court premises, the court would do well to consider taking similar action for incidents that occur off court premises.

Follow up with witnesses after they return to home villages is somewhat limited, due reportedly to a lack of adequate staffing in the Witness and Victim Support Unit, and logistical challenges. Plans to fully address witness protection after the court closes down in Sierra Leone should also be further developed. This includes integrating all relevant court staff in the creation of a domestic witness protection unit, and allocating a limited number of court staff to provide oversight of this unit as part of the court’s residual activities.

With regard to accessibility, given that radio remains the main medium for the majority of Sierra Leoneans to learn about the court, having weekly radio summaries of proceedings is too limited. While the court has indicated interest and commitment to developing an independent radio station that would focus on justice issues and provide detailed coverage of the court, this project has not yet been funded. In the meantime, more immediate efforts to increase radio programming on proceedings are needed. Attendance in the public gallery also remains limited. Court staff have recognized this as a problem and indicated their intention to intensify initiatives to expand attendance. Plans in this regard should be actively implemented.

To ensure a meaningful legacy, engagement with the national justice system should be increased. There is currently little interaction between Special Court judges and staff with judges and staff of the national courts, and limited programming to foster such interaction. While the Special Court is not a judicial reform project, more active efforts are needed to create impact on the national justice system, a crucial aspect of strengthening the rule of law in Sierra Leone. Such efforts are closely linked to promoting the overall purpose of the court to limit impunity.

C. Two Major External Obstacles

There are two main obstacles beyond the court’s control which continue to undermine the court’s ability to bring justice as fairly and effectively as possible for crimes committed during the Sierra Leone conflict: inadequate and uncertain funding, and Nigeria’s continued shielding of Charles Taylor.

Initially forced to rely exclusively on voluntary contributions, the Special Court has faced constant financial shortfalls. Following a request by the U.N. Secretary-General in March 2004 for a U.S.$40 million subvention to help address the court’s financial difficulties, the U.N. General Assembly has assisted the court enormously by granting it up to U.S.$33 million to help fund operations through the end of 2005.³ However, this assistance will not cover the court’s budget for its final period of operations nor during its post-completion phase.

The court has made tremendous achievements on scarce and insecure resources. Inadequate funding for the court to complete operations would be extremely detrimental, and Special Court officials should not have to devote extensive time to securing funding. It is essential that governments come forward with necessary voluntary contributions to fund the court during its final phase and in this regard, Human Rights Watch welcomes pledges made by donors at a funding conference for the court in late September 2005. Governments must now redeem those pledges and make additional contributions to ensure the court has adequate funding to complete operations fairly and effectively and to perform necessary activities during its post-completion phase. It is also essential that the U.N. provide funding to the court to address outstanding shortfalls, and in this regard, the General Assembly should authorize the remaining U.S.$7 million of the Secretary-General’s subvention request.

It is also crucial that Nigeria promptly surrender Charles Taylor to the Special Court. Taylor has been accused by the Special Court of seventeen counts of war crimes and crimes against humanity against the people of Sierra Leone. The crimes include killings, mutilations, rape and other forms of sexual violence, sexual slavery, the recruitment and use of child soldiers, abduction, and the use of forced labor by Sierra Leonean armed opposition groups. Nigeria’s ongoing harboring of an indicted war criminal undermines the court’s ability to achieve its mandate to prosecute those bearing the greatest responsibility for serious crimes committed in Sierra Leone’s armed conflict. African governments, along with other key states including the United States (U.S.) and the United Kingdom (U.K.), as well as the U.N., must work vigorously with Nigeria’s President Olusegun Obasanjo to ensure Taylor’s surrender to the Special Court. Given scarce resources and the anticipated short duration of the court, time is of the essence.

Human Rights Watch continues to engage in intensive advocacy to ensure adequate overall funding of the Special Court, and the surrender of Charles Taylor to face trial there. As this report focuses on current operations at the Special Court, however, these issues are not discussed further in this document (although it does detail a number of instances where increased allocations of funding may be necessary to support particular operations).