April 18, 2002
Human Rights Watch Policy Paper On The Interrelationship Between The Sierra Leone Special Court And Truth And Reconciliation Commission
This paper sets forth Human Rights Watch’s recommendations for how the Special Court and Truth & Reconciliation Commission (“TRC”) should interact. While we recognize that neither institution yet exists and that arrangements between the institutions will need to be agreed upon by the institutions themselves, we circulate this paper with the hope of stimulating discussion so that these issues may be addressed in the future. After three general observations, Part I discusses information sharing from the TRC to the Special Court. Part II discusses information sharing from the Special Court to the TRC. Finally, Part III discusses the mechanics of how the information sharing would occur.
Three general observations underlie our basic approach to the interaction between the TRC and the Special Court. First, Human Rights Watch believes that it is important for the institutions to conclude a written agreement that permits them to interact cooperatively. Second, we believe that the institutions should, when possible, share, not duplicate, each other’s efforts. Third, we believe that the Special Court should refrain from subpoenaing the TRC.
1. Human Rights Watch fully agrees with the Planning Mission Report that arrangements between the institutions should be finalized, so that the institutions may have a cooperative relationship.
The recent Planning Mission Report recognizes the need for the conclusion of cooperative arrangements between the TRC and the Special Court, and notes general agreement by experts convened to discuss the relationship between the Special Court and TRC that the institutions should “perform complementary roles” that are “mutually supportive” and “in full respect for each other’s mandate.”1
We also believe both institutions have important roles, and should work in a mutually supportive way. Given the limited resources of both institutions and the immense work before them, the importance of the institutions working cooperatively cannot be overemphasized.
Since the Planning Mission Report was written, however, Sierra Leone has enacted an implementing law for the Special Court that affects the relationship between the institutions. Specifically, the Special Court Agreement 2002 (Ratification) Act 2002 (hereafter, the “Implementing Law”) states in Section 21(2): “Notwithstanding any other law, every natural person, corporation, or other body created by or under Sierra Leone law shall comply with any direction specified in an order of the Special Court.” Because the TRC is a body created under Sierra Leonean law,2 the Implementing Law creates a duty for the TRC to comply with orders of the Special Court. Because there are no exceptions stated in the Implementing Law, the implications are that the TRC would have to comply with all orders of the Special Court.
The TRC Act on its face permits the TRC to receive information on a confidential basis.3 However, because the Implementing Law is later in time and also states that it applies “[n]otwithstanding any other law,” the Implementing Law would presumably trump the TRC Act. This suggests that the Special Court could require the TRC to produce even “confidential” materials.
The implications of that are troubling, and are at odds with the relationship between the institutions that was envisioned in the Planning Mission Report. We fear that if no “confidential” information received by the TRC is treated as “confidential,” that could potentially undermine the willingness of persons to come before the TRC to provide testimony.
As a policy matter, Human Rights Watch believes that in order for the institutions to operate to their best advantage, have a cooperative relationship, and, most importantly, provide effective redress to the people of Sierra Leone, the institutions will need to finalize an agreement regarding their approach to information sharing.
It would be unfair for witnesses not to know conclusively how information that is being provided to the TRC would be treated, and whether “confidentiality” that is granted by the TRC is to have any meaning. Thus, any agreement between the Special Court and TRC should be concluded as soon as those institutions are in a position to do so, so that the public can be informed as to how the institutions will interact, and, more importantly, people who are providing information to the institutions will know how that information can be used.
2. Human Rights Watch believes that certain cooperation should go beyond what is envisioned in the Planning Mission Report, so that the institutions do not duplicate each other’s efforts when witness confidentiality is not an issue.
The Planning Mission Report suggests that the TRC should share with the Special Court “confidential” material provided to the TRC only where the information can “only be obtained from” the TRC and the information is “essential for the conviction or acquittal of the accused.”4 We agree with that approach. It both seeks to preserve the “confidentiality” of most confidential materials, yet allows the Special Court to trump that confidentiality to prevent a miscarriage of justice.
Our main difference with the approach suggested by the Planning Mission Report is that we believe that, where there is no issue of “confidentiality” or where sharing of information would not compromise an ongoing Special Court investigation or reveal privileged information, the institutions should be able to freely share information, including sharing information from the Special Court to the TRC. (See Parts I.B. and II below.)
The reason for our divergence from the Planning Mission approach stems from a concern that both institutions will face serious resource and time constraints and thus should not be compelled to perform duplicative work where there is no issue of witness confidentiality or similarly compelling reason. The Special Court is initially budgeted to operate for only three years. The TRC will operate for only twelve to eighteen months, and its mandate is to cover events during an eight year period. Due to the extensive nature of the crimes that have been committed and the time periods over which those crimes occurred, both institutions will have a great deal of work to perform in a short time. Accordingly, we believe that the institutions should benefit from the fact that their efforts will sometimes overlap, rather than have to replicate each other’s efforts.
3. We believe that the Special Court should subpoena the TRC only as a last resort.
The Planning Mission does not discuss mechanisms for sharing information between the two institutions, and the Implementing Law suggests only that the Special Court will be able to subpoena the TRC.
Rather than having the Special Court utilize its subpoena powers against the TRC, we believe that information sharing (which we advocate should occur not only from the TRC to the Special Court but vice versa) should be accomplished on a more cooperative basis. As discussed below, we believe that information sharing could be handled by liaison persons who would be appointed by the institutions. (See Part III.B-C below.)
Using subpoenas would waste precious resources in drafting document requests and responding to them, and most likely create an unduly litigious and hostile relationship.
Using subpoenas would also encourage unnecessary disputes between the institutions. For example, the Special Court might subpoena the TRC for “confidential” information and the TRC might resist the subpoena, or it might resist producing non-confidential information on the grounds that the request was overbroad. Alternatively, the TRC might attempt to subpoena the Special Court, although it is unlikely that it has power to do so.5 Yet, there is no adjudicatory body that seems appropriate to resolve any dispute that, for example, might require ordering the Special Court to take a particular action.6 More importantly, any discovery battle between the institutions would waste their resources, could diminish the institutions in the eyes of the public, and would be an utterly unnecessary divergence from the institutions’ key mandate—to provide redress to the people of Sierra Leone.
I. INFORMATION SHARING FROM THE TRC TO THE SPECIAL COURT
II. INFORMATION SHARING FROM THE SPECIAL COURT TO THE TRC
While the Planning Mission Report, the TRC Act and the Implementing Law do not address the topic, we believe that it is also important to examine the issue of information sharing from the Special Court to the TRC. Because the work of the institutions will overlap, it is quite likely that the Special Court will perform work that could be relevant to the TRC, and from which the TRC might benefit. Again, given the limited resources of both institutions and the huge amount of work facing them, we believe that such information sharing, especially regarding initial background work, should be encouraged. The proposals discussed in II.A-B below would require an agreement between the institutions to implement since there currently is no requirement for the Special Court to share any information with the TRC.
III. MECHANISMS FOR SHARING INFORMATION
Equally important as developing guidelines for sharing information between the two institutions is developing a mechanism to accomplish that sharing of information. Human Rights Watch advocates that the two institutions develop a cooperative relationship that will facilitate information sharing without the need for formal subpoenas.22
1 Planning Mission Report, Annex to U.N. Doc. S/2002/246, at ¶¶ 49, 53 (Mar. 8, 2002).
2 The TRC was established by Sierra Leone’s Truth and Reconciliation Commission Act 2000 (Feb. 2000) (the “TRC Act”).
3 Specifically, section 7(3) of the TRC Act provides: “At the discretion of the Commission, any person shall be permitted to provide information to the Commission on a confidential basis and the Commission shall not be compelled to disclose any information given to it in confidence.”
4 Planning Mission Report, ¶ 55.
5 See n. 24 infra.
6 Because the Special Court has primacy over Sierra Leonean courts, they seem an inappropriate venue to adjudicate obligations of the Special Court.
7 See TRC Act, Art. 7(3) (providing that, “[a]t the discretion of the Commission,” persons may “provide information to the Commission on a confidential basis”); Art. 7(1)(b) (permitting the TRC to hold testimony sessions “some of which may be public”).
8 Planning Mission Report, ¶ 55. Disclosure in such circumstances would not violate section 7(3) of the TRC Act, which makes any grant of confidential treatment left to the “discretion of the Commission.” The TRC might consider setting guidelines as to when “confidential” treatment is appropriate. In order both to promote full and truthful disclosure to the TRC and lessen any burden upon the Special Court—i.e., to ensure that information is not unnecessarily treated as confidential—the TRC should grant confidential treatment only where there is legitimate need for it.
9 Another option would be to ask a witness who does not want his or her name publicly revealed if he or she would be willing to have information provided to the TRC available to the Special Court if a pseudonym were used. If the witness agreed, a modified procedure might be used whereby the information (with the witness identified by pseudonym) could be freely available to the Special Court, and only if the Special Court wanted to know the witness’ identity would the Special Court prosecutors or defense need to prove that the two above criteria were met.
10 In order to encourage perpetrators to testify despite the fact that confidentiality could not be guaranteed, it might be useful to offer reduced sentences (and make it publicly known that reduced sentences will be granted) to perpetrators who come before the TRC, testify truthfully, and subsequently are prosecuted by the Special Court. Given the limited number of people who will be prosecuted by the Special Court, this practice might not result in any, or very few, sentence reductions, but might increase perpetrator participation in the TRC.
11 While we use the term “Special Court,” it will actually be investigators, prosecutors or defense counsel who seek the information. Mechanisms to allow them to obtain the information are discussed in Part III.
12 This proposal would not need to be implemented in an agreement between the TRC and Special Court since under the Implementing Law the Special Court could presumably require the TRC to provide such statements.
13 ICTR Rule 90(A) suggests that witness testimony should primarily occur in court, although, in certain circumstances, deposition testimony may be used. See ICTR Rule 90(A) (“Witnesses shall, in principle, be heard directly by the Chambers unless a Chamber has ordered that the witness be heard by means of a deposition as provided for in Rule 71.”). Rule 89(C), however, arguably is broad enough to allow admission of statements made out of court. See ICTR Rule 89(C) (“”A Chamber may admit any relevant evidence which it deems to have probative value.”). The ICTR’s Rules of Procedure and Evidence will be used by the Special Court. See Statute of the Special Court for Sierra Leone, Art. 14.
14 Again, this proposal would not need an agreement between the institutions.
15 The TRC will have the power to gather “any information it considers relevant” including “reports, record, documents or any information from any source,” and to visit premises for the purpose of “taking copies of any documents which may be of assistance to the Commission.” TRC Act, § 8(1)(a)-(b). See also § 8(1)(G) (empowering the TRC to issue subpoenas).
16 Again, this proposal needs no agreement to implement since under the Implementing Law the Special Court could order the TRC to provide such documents.
17 This topic would need to be addressed in an agreement between the institutions since the Implementing Law suggests that the Special Court could order the TRC to produce even work-product. There should be no need for the Special Court to obtain work-product of the TRC since the Special Court should primarily be concerned with obtaining evidentiary material, not mental impressions. To the extent underlying facts are contained in any “work-product,” perhaps the document could be “redacted” to remove mental impressions and legal theories so that factual material that the TRC has treated as non-confidential could be available to the Special Court, and factual material that the TRC has treated as confidential could be obtained if the two-part test set forth in Part I.A were met.
18 This concept already exists in ICTR Rule 66(C), which allows the prosecutor, upon grant of an application by the Special Court, not to disclose to the defense information “which may prejudice further or ongoing investigations, or for any other reasons may be contrary to the public interest or affect the security interests of any State.”
19 See ICTR Rules of Procedure and Evidence, Rule 70 (A) (“reports, memoranda, or other internal documents prepared by a party, its assistants or representatives in connection with the investigation or preparation of the case, are not subject to disclosure . . . .”).
20 This assumes that the agreement discussed in Part I.A for treating information as “confidential” has been implemented so that in most circumstances “confidential” TRC information remains confidential.
21 See ICTR Rule 70 (A) (protecting work product); Rule 97 (protecting lawyer-client privilege).
22 The Planning Mission Report does not discuss the mechanics of information sharing.
23 The recent Implementing Law makes it clear that the TRC would have to comply with Special Court orders, which would include orders to provide information. See Implementing Law, § 21(2).
24 The TRC Act provides that the Commission has power “to issue summonses and subpoenas.” TRC Act, § 8(1)(g). That provision, if applied to the Special Court, appears to conflict with the Implementing Law and provisions of the Relationship Agreement Between The United Nations and The Government of Sierra Leone (“Relationship Agreement”), which both provide for the inviolability of Special Court premises. See Implementing Law, § 7(1)-7(4); Relationship Agreement, Art. 8.
25 ICTR Rule 68 requires disclosure of evidence that is known to the Prosecutor and “which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence.” See also ICTR Rule 66-67 (mandatory information disclosure).
26 If reasonable efforts to locate the witness are unsuccessful, a presumption should apply that the Special Court will accord some form of protected or confidential treatment regarding information previously treated as confidential by the TRC. See ICTR Rules 68, 75 (allowing various measures to protect victims and witnesses); ICTR Rule 70(B) (allowing the prosecutor to use “confidential” information to generate new evidence without disclosure to the defense). That presumption should also apply while efforts are made to locate a witness and, if a witness is located, until any request for protected treatment is ruled upon and implemented by the Special Court.
27 Although it is anticipated that the TRC will primarily hear testimony, it also has the power to conduct investigations. See TRC Act, § 7(1)(a).