The Lomé Amnesty under International Law
Prosecutions in Sierra Leone
Trials in Other Countries
The Need for an International Tribunal
In early May 2000, a fragile peace process in Sierra Leone collapsed after rebel forces of the Revolutionary United Front (RUF) took hostage hundreds of soldiers from the U.N. Mission in Sierra Leone (UNAMSIL) and for a short while appeared to threaten the capital, Freetown. Fighting between pro-government forces and the RUF has resumed, reigniting the civil war that began in 1991 and was supposedly ended in July 1999 with the conclusion of a peace accord in Lomé, Togo.
The U.N. Security Council should reconsider the situation in Sierra Leone in light of the changed circumstances on the ground. Human Rights Watch believes that it should have three priorities: ensuring the protection of civilians; providing for justice for human rights abuses; and cutting off the supply of weapons to the RUF.
Human Rights Watch, which has had a permanent research presence in Sierra Leone since April 1999, has documented a resurgence in abuses against civilians by the RUF since full-scale fighting resumed in early May; previously we had reported continuing abuses at a lesser scale since the peace accord. Recent abuses include the first testimonies of mutilations since the signing of the Lomé peace accord in July 1999, as well as rape, summary executions, abductions, widespread looting, and the recruitment of child soldiers (often from among those demobilized under the terms of the Lomé accord). Disturbingly, UNAMSIL troops have on several occasions reportedly abandoned civilians to their fate without making any attempt to protect them from RUF attack.
These reports underline the importance of protecting civilians as the first priority of the international and government forces operating in Sierra Leone. The aim of the international forces should be to create an ever-expanding zone in which civilian safety can be ensured and there is "zero tolerance" of human rights abuse by any party to the conflict. For some time to come, Sierra Leoneans will necessarily count on the international community to provide security against the RUF and other abusive forces; international troops under UNAMSIL must have the mandate, the training, and the means to ensure this protection effectively.
The civil war has fed on a cycle of impunity by which the quickest route to power has been through the commission of atrocities for which there have been no consequences. The lesson of the breakdown of the Lomé accord is that repeated amnesties do not buy peace: those responsible for orchestrating the killings, rapes, mutilations, and abductions that have characterized the war must be brought to justice. The United Nations, a chief broker and "moral guarantor" of the Lomé accord, and its member states, have a particular obligation to see that justice is finally done. Human Rights Watch believes.that the best route to justice for Sierra Leone would be the establishment of an International Criminal Tribunal for Sierra Leone (ICTSL) along the lines of the international tribunals for Rwanda and the former Yugoslavia. Whatever process is established, it must be able to ensure trials of those responsible for the most serious abuses by all sides dating back to 1991, when the war began, and observe minimum standards of justice and fairness.
Although the Security Council imposed an arms embargo on Sierra Leone in 1997, and modified it in 1998 to apply to rebel forces only, it has not taken responsibility for the enforcement of this sanction or for the investigation of reported breaches. Human Rights Watch believes that it is essential that the Security Council specifically provide for measures to enforce the embargo, including the deployment of monitors along the border with Liberia, and that it undertake to investigate alleged violations thoroughly. Key to halting breaches of the embargo will be steps to control the flow of smuggled diamonds from Sierra Leone with which the RUF apparently has been able to purchase weapons.
Human Rights Watch urges the Security Council to take promptly the following steps:
- Strengthen the mandate of the troops deployed under UNAMSIL to provide protection to civilians, and give the troops the means to do so. In particular UNAMSIL should be required to take all necessary measures to protect civilians within its areas of deployment, and to use its best efforts to expand the zone within which it is able to protect civilians. UNAMSIL should direct its attention most urgently to areas where there is clear evidence that RUF forces continue to commit serious abuses, such as Masiaka, Makeni, Port Loko, Lunsar and the Yelibuya peninsula.
- Strengthen the role of the civilian human rights unit of UNAMSIL. That unit should have the mandate and resources to: investigate and publicly report on human rights abuses by all sides to the conflict in Sierra Leone, including the RUF, pro-government forces, and UN troops; establish responsibility for abuses by identifying the direct perpetrators and those with command responsibility; inform the relevant disciplinary and judicial authorities of abuses, and press for accountability; and monitor and report on the efforts of the relevant authorities, domestic and international, to discipline or punish abuses. The unit's work should be well integrated into the larger UNAMSIL mission, and its findings and recommendations should be given due weight by UNAMSIL's military and political components.
- Require UNAMSIL to work with the Sierra Leonean government to put in place disciplinary and other procedures to prevent violations of international humanitarian law and other abuses by pro-government forces including the Sierra Leone Army (SLA) and the Civil Defense Forces.
- Confirm that the Security Council does not recognize the amnesty granted in the Lomé accord insofar as it purports to apply to international crimes of genocide, crimes against humanity, war crimes, and other serious violations of international humanitarian law, in line with the reservation attached to the accord by the Special Representative of the Secretary General at the time of its signing.
- Establish an effective and fair process to bring to justice those alleged to have committed crimes of this type, under procedures that meet minimum international standards of due process and fairness, as set out in detail below. Human Rights Watch believes that the most effective way to ensure such justice is by the establishment of an International Criminal Tribunal for Sierra Leone. The process established must focus on human rights crimes committed by all sides to the conflict, and not only on the responsibility of RUF leader Foday Sankoh.
- Reaffirm the commitment of the U.N. to the establishment in Sierra Leone of a Truth and Reconciliation Commission and a National Human Rights Commission, as provided for in the Lomé accord, but clarify that this is no substitute for a penal tribunal.
- Provide for the U.N. to give substantial assistance to the re-establishment of an independent and effective Sierra Leonean justice system, including the training of judges and administrative personnel.
- Impose a mandatory ban on direct and indirect imports of rough diamonds from Sierra Leone to ensure that proceeds from this trade cannot be used by rebels to purchase weapons. This ban should apply to all diamond transactions not authorized by the government of Sierra Leone through an effective certification regime. The Security Council should explicitly call upon U.N. member states to adopt immediately national measures implementing the diamond embargo and making violators subject to stiff penalty, and furthermore should ensure that the embargo applies to all diamond transactions, including those arranged under previous contracts.
- Order an inquiry into illegal arms flows to the RUF rebels, modeled after the U.N. International Commission of Inquiry (Rwanda), also known as UNICOI, and drawing on the recent experience of the U.N. sanctions committee on Angola, which has investigated sanctions-busting in Angola. This inquiry should be specifically mandated to investigate the trade in arms and diamonds from and to rebel-held areas in Sierra Leone, including through visits to countries implicated in embargo violations. The inquiry should be conducted by a panel of experts selected for their investigative experience. Panel members should be provided with clear terms of reference, adequate resources, and full cooperation from governments, regional and international organizations, and international law enforcement officials. The preliminary results of the investigation should be made public at the earliest possible opportunity in order to identify the channels of supply, expose violators, and devise strategies to halt illicit arms flows.
- Provide for the rigorous enforcement of the arms embargo imposed on the RUF, including by the deployment as soon as possible of well-equipped U.N. forces to monitor borders (especially with Liberia), roads, and airstrips bordering on rebel-controlled areas and halt any weapons shipments they detect.
- Require the Security Council Committee established pursuant to resolution 1132 (1997) concerning Sierra Leone overseeing the arms embargo to take proactive steps to investigate possible breaches of the embargo and to make public its conclusions and recommendations in relation to those breaches.
- Create a new Arms Embargo Unit within the U.N. to monitor the implementation of international arms embargoes, in consultation with the U.N. sanctions committees. This unit, once established, would provide a permanent investigative capacity otherwise available only on an ad hoc basis through the creation of investigative panels.
Human Rights Watch calls on the member states of the U.N. to:
- Provide effective financial and other support to the U.N. operation in Sierra Leone and independently for projects aimed at ending human rights abuses in the country, including the reconstruction of the Sierra Leonean justice system.
- Send investigators to Sierra Leone immediately, in consultation with the U.N. and the Sierra Leonean government, to collect evidence of war crimes and crimes against humanity committed both before and after the Lomé accord.
The Sierra Leonean civil war began in March 1991, when the Revolutionary United Front (RUF) entered Sierra Leone from Liberia, launching a rebellion to overthrow the repressive and corrupt one-party rule of the All Peoples Congress (APC). Under the leadership of Foday Sankoh, a corporal in the Sierra Leone Army who had been imprisoned in 1971 for his alleged involvement in an attempted coup against the APC, the RUF was originally made up of a mixture of middle-class students with a populist platform, unemployed and alienated youths, and Liberian fighters from Charles Taylor's National Patriotic Front of Liberia (NPFL). The ideological component to the movement, however, was never clearly actualized, and the rebellion quickly developed into a campaign of violence whose principal aim appeared to be simply gaining access to the country's diamond and mineral wealth.
Since the outbreak of the war, the country has been marked by instability. In 1992, APC President Joseph Momoh was overthrown in a military coup by Captain Valentine Strasser, whose National Provisional Ruling Council (NPRC) ruled until it was itself overthrown in 1996, by his deputy, Brigadier Julius Maada Bio. Later in 1996, however, multi-party elections were held and won by Ahmad Tejan Kabbah, head of the Sierra Leone People's Party (SLPP), who pledged to bring about an end to the war. The RUF and Kabbah's government signed a peace agreement in November 1996, the Abidjan Accord, which called for a cease-fire, disarmament, demobilization, and the withdrawal of all foreign forces. The cease-fire, however, was broken in January 1997 when serious fighting broke out.
In May 1997, President Kabbah was overthrown in a coup led by army major Johnny Paul Koroma, heading the Armed Forces Revolutionary Council (AFRC). Koroma cited the government's failure to implement the peace agreement as the reason for the coup. Upon taking over, the AFRC suspended the constitution, banned political parties, and announced rule by military decree. It also ushered in a period of political repression characterized by arbitrary arrests and detention and widespread human rights abuses. President Kabbah and his government fled into exile in neighboring Guinea.
The AFRC had significant support within the Sierra Leonean Army (SLA), which had become disillusioned by President Kabbah's decision to cut back support for the military. The SLA accused Kabbah of putting greater confidence for the country's defense in and giving more economic resources to a network of civilian militias, known as the Civil Defense Forces (CDF), the largest and most powerful of which are the Kamajors. Formalizing an alliance between the army and the rebels based on joint opposition to President Kabbah and the SLPP, the AFRC invited the RUF to join them in the new government.
In August 1997, following the AFRC's announcement of a four-year program for elections and return to civilian rule, which represented a breakdown in negotiations for the return of Kabbah, the Economic Community of West African States (ECOWAS) put in place an almost total embargo against Sierra Leone. From March 1997, Foday Sankoh was held in custody in Abuja, Nigeria, after being detained as he entered the country, supposedly on firearms offenses. In October 1997, the United Nations Security Council adopted a resolution imposing mandatory sanctions on Sierra Leone, including an embargo on arms and oil imports.
In February 1998, the largely Nigerian ECOWAS peacekeeping forces known as ECOMOG, working together with Kamajor militia and claiming to act under a defense pact with the Sierra Leone government, launched an operation which drove the AFRC/RUF forces from Freetown. In March 1998, President Kabbah was reinstated as president and over the next several months ECOMOG forces were able to establish control over roughly two-thirds of the country, including all regional capitals. However, in a series of offensives in late 1998, the rebels managed to regain control of more than half of the country, including the diamond-rich Kono district and several other strategic towns and areas. From this position, the RUF, in alliance with the AFRC and dissident members of the SLA, launched a brutal attack on Freetown in January 1999. During the attack on Freetown, the combined rebel forces (RUF, AFRC, and dissident SLA) carried out massive abuses, including the amputation of the hands of hundreds of civilians, as well as widespread rape and summary killings.
Although the assault on Freetown was eventually repulsed, the Sierra Leonean government, faced additionally with the threat by Nigeria to withdraw its troops, had no choice but to reopen negotiations with the RUF. On 18 May, 1999, the Sierra Leonean government and RUF signed a cease-fire agreement, which came into effect on 24 May. Foday Sankoh was released from custody by the Nigerians and participated in negotiations. On July 7, 1999, a peace accord between the RUF and the Sierra Leone government was signed in Lomé, Togo, of which the government of Togo, ECOWAS, the Organization of African Unity (OAU), the U.N., and the Commonwealth were described as "moral guarantors." The accord provided for the RUF to be transformed into a political party and brought into government, with Foday Sankoh as vice-president and chair of a Commission for the Management of Strategic Resources, National Reconstruction and Development. ECOMOG was to be withdrawn, and the Security Council was requested to amend the mandate of the civilian U.N. Observer Mission in Sierra Leone (UNOMSIL), present in Sierra Leone since June 1998, and to authorize the deployment of U.N. peacekeeping troops to oversee a process of disarmament, demobilization and reintegration (DDR) of rebel and government forces and reconstruction of national armed forces.
Only on October 22, 1999, did the Security Council finally adopt a resolution (1270) establishing UNAMSIL and authorizing a force of 6,000 military personnel, including 260 military observers. Two further resolutions followed in February and May 2000, amending the mandate of the force and increasing the authorized troop strength to 11,100 and then 13,000. Even once resolution 1270 was adopted, it took months for U.N. troops to arrive. By the end of April 2000, after the Nigerian government finally began to implement its longstanding decision to withdraw substantial numbers of its troops (though Nigerians still form a large component of UNAMSIL), the number of U.N. soldiers had reached only 8,700.
The implementation of the Lomé accord was marred by delays in nearly all of its key components, including disarmament. Serious human rights abuses continued. The RUF and other dissident elements within the AFRC and SLA never showed any serious commitment to the peace process. Human Rights Watch continued to document serious human rights abuses and regular violations of the Lomé accord. The RUF continued to abduct and train child soldiers during the peace process, suggesting that it was preparing for a return to hostilities. Because the RUF was in continued control of Sierra Leone's rich diamond areas under the Lomé accord, it had access to the necessary funds to maintain its war machine. However, the international community largely ignored the serious human rights abuses committed by RUF rebels during the peace process and their leaders' demonstrable lack of commitment to the Lomé accord.
In early May 2000, RUF rebels took hostage several hundred UNAMSIL peacekeeping troops, seizing their weapons and vehicles, and full-scale fighting resumed. When the fighting appeared to threaten Freetown, several hundred British soldiers were rapidly deployed to Sierra Leone, in the first instance to evacuate foreign nationals desiring to leave, but also to secure the airport, allow reinforcement of the U.N. contingent, and assist in the reorganization of the pro-government forces as an effective fighting force. The release of the hostages has been secured, with the assistance of the Liberian government. At their maximum there were more than 1,200 British troops in Sierra Leone, though the British government has already begun to withdraw most of them, and plans to leave only a few hundred, including a contingent to assist in the reorganization and training of the Sierra Leonean army. As of June 5, there were 11,350 UNAMSIL troops in the country, including 254 military observers, made up largely of Nigerians, Kenyans, Zambians, Ghanaians, Guineans, and Indians, under Indian command. On May 17, RUF leader Foday Sankoh was taken into custody, after going into hiding in Freetown for a week. He is currently held by the Sierra Leonean government at an undisclosed location.
The U.N. and its member states have failed to demonstrate the commitment to the implementation of the Lomé peace accord that is implied by the U.N.'s acceptance of the position of "moral guarantor" of the agreement. It took three-and-a-half months for the Security Council to adopt a resolution creating a peacekeeping force, and further months for the soldiers authorized under that resolution actually to arrive in Sierra Leone; only after the recent crisis did UNAMSIL's military contingent reach the level of 11,100 authorized in February. Moreover, the mandate eventually granted to the peacekeeping force is too limited for the conditions facing it, while the troops that have been deployed have failed to implement even that limited mandate.
The current resolution governing UNAMSIL establishes what has been described as a hybrid mandate, authorizing some use of force, but essentially holding to a classical peacekeeping (under Chapter VI of the U.N. Charter) rather than peace-enforcing role (Chapter VII). According to resolution 1289 of February 7, 2000, UNAMSIL is authorized, in addition to responsibilities relating to the facilitation of the free flow of people and humanitarian relief and the provision of security at various locations, "to take the necessary action to ensure the freedom of movement and security of its personnel and, within its capabilities and areas of deployment, to afford protection to civilians under imminent threat of physical violence, taking into account the responsibilities of the Government of Sierra Leone."
UNAMSIL has failed to fulfil even this limited mandate to protect civilians. When UNAMSIL forces have come under RUF attack since the resumption of hostilities in early May, they have frequently chosen to make an immediate retreat rather than attempting to maintain their positions. When abandoning their positions in Lunsar and Hastings in early May, and Kabalah in early June, UNAMSIL troops took no steps to protect the civilian populations of these areas. Human Rights Watch research has established that the RUF have committed serious human rights abuses in areas briefly under RUF control, including rape of women and girls, summary executions, abductions, mutilations, widespread looting, and arson. Such abuses have taken place in Masiaka, Makeni, Lunsar, Port Loko, Yelibuya Peninsula and many smaller villages in the area of recent RUF activity. In light of the RUF's clearly demonstrated abusive record towards civilian populations, UNAMSIL command must take the possibility of RUF abuses against the civilian population into account when abandoning positions to the RUF: recent research demonstrates that civilians are indeed "under imminent threat of physical violence" when RUF takes control of an area.
To make clear the obligation that U.N. soldiers have towards the population of Sierra Leone, Human Rights Watch believes that the mandate of UNAMSIL should be strengthened to require (not only authorize) its forces to take all necessary action to provide security to civilians within the areas of its deployment, and in addition to use its best efforts to expand the zone within which it is able to protect civilians.
But amending the mandate of UNAMSIL is not sufficient. The recent deployment of British troops indicated that what is needed in Sierra Leone is above all a well-equipped, well-trained force under decisive command willing to take a stand to challenge those who abuse human rights. The Security Council should call on other countries with sufficiently trained and equipped troops, under effective command, to make a contribution to the UNAMSIL forces.
In addition to ensuring the protection of civilians against RUF abuses, the U.N. must work with the Sierra Leonean government to put in place disciplinary and other procedures to prevent and punish violations of international humanitarian law and other abuses by pro-government forces, including international troops. This vigilance is especially necessary because many of those now fighting on the side of the government have a history of abuse, especially the members of the AFRC/ex-SLA, but also the CDF militias. Close attention should be paid to abuse of suspected RUF fighters, including summary executions of suspected RUF rebels, by pro-government forces. In this context, Human Rights Watch is disturbed at the emphasis that has been placed on reconstituting the Sierra Leonean army as the first priority of the international community. Given the Sierra Leonean army's history of serious abuses, its reconstitution must be in a accountable form. We question whether this is possible in the short term and under current political conditions.
The role of the civilian human rights unit of UNAMSIL should be strengthened to allow it to play an effective role monitoring the human rights conduct of all forces in Sierra Leone, including the RUF, pro-government forces, and UN forces present in Sierra Leone. To ensure that the civilian human rights unit has a deterrent effect on human rights abuses, the unit should have the necessary mandate and resources to investigate allegations of human rights abuses effectively and to establish responsibility for those abuses by identifying the individuals involved as well as command responsibility. Further, the civilian human rights component of UNAMSIL should have the mandate and capacity to press for accountability for abuses by sharing its findings and conclusions with the relevant disciplinary and judicial authorities, and by monitoring the disciplinary or judicial response of those authorities. The civilian human rights unit of UNAMSIL should make public on a regular and timely basis its findings and recommendations about human rights abuses in Sierra Leone and the response of the parties involved. The work of the civilian human rights unit of UNAMSIL needs to be well integrated into the larger UNAMSIL mission, and its findings and recommendations must be given the necessary weight by the political and military units of UNAMSIL.
Since the civil war began in 1991, warring factions used extreme violence against civilians with impunity. Members of the RUF, including their leader Foday Sankoh, not only escaped justice but were rewarded for a decade of unspeakable atrocities by being brought into government under the Lomé accord and granted a blanket amnesty for crimes committed during the war. Forces on the government side, including some from the former Sierra Leone Army and the AFRC who have fought on both sides at different times, have also escaped any consequences for human rights crimes. Article 9 of the Lomé agreement required the government of Sierra Leone to "grant absolute and free pardon and reprieve to all combatants and collaborators in respect of anything done by them in pursuit of their objectives."
International law, however, does not accept amnesties for the most serious human rights abuses. Indeed, states have a duty to prosecute the perpetrators of serious violations of human rights and international humanitarian law. For the last decade the United Nations, through different organs, has consistently rejected laws granting impunity for serious human rights crimes. The U.N. Security Council and other bodies have also underlined the need to prosecute those responsible for grave breaches of international humanitarian and human rights law.
The Special Representative of the U.N. Secretary-General, present at the negotiations, attached a reservation to the Lomé agreement in line with these statements, which provided that: "The United Nations interprets that the amnesty and pardon in article nine of this agreement shall not apply to international crimes of genocide, crimes against humanity, war crimes, and other serious violations of international humanitarian law." The U.N. Commission on Human Rights noted this reservation and affirmed that: "all persons who commit or authorize serious violations of human rights or international humanitarian law at any time are individually responsible and accountable for those violations and that the international community will exert every effort to bring those responsible to justice."
The Security Council failed to endorse explicitly the Lomé disclaimer or to reject the amnesty laws, although it has taken the position that the amnesty does not extend to post-Lomé abuses. In resolution 1289 of February 7, 2000 the Security Council noted only that "the amnesty extended under the [Lomé] Peace Agreement does not extend to ... violations committed after the date of its signing." Going further, British Minister of State Peter Hain stated in testimony before the House of Commons Foreign Affairs Committee on May 22, 2000, that the amnesty "cannot apply to any members of the RUF, from Foday Sankoh downward, who have clearly torn up the agreement by reneging on the piece of paper they signed. Therefore, as was made perfectly clear in Lomé, they forfeit the amnesty which they were granted, rightly or wrongly, at that time."
The Security Council should reconfirm explicitly that the purported Lomé amnesty does not apply to crimes of genocide, crimes against humanity, war crimes and other serious violations of human rights and humanitarian law regardless of when these crimes were committed.
Where fundamental guarantees of justice and fairness can be met, Human Rights Watch believes that it is the primary responsibility of national courts to prosecute human rights crimes. In the case of Sierra Leone, however, the justice system has been so destroyed by a decade of war that we do not believe that trials would be able to meet fundamental guarantees of justice and fairness without substantial international assistance and involvement. Even with international assistance, the Sierra Leonean judiciary may not be capable of offering the fairness and transparency necessary to conduct trials of this sensitivity and complexity. The system is characterized by poorly trained and low-paid judicial staff and lack of resources, as well as the effects of the continuing instability and lack of security in the country. Sierra Leone retains the death penalty, which Human Rights Watch opposes under all circumstances because of its inherent cruelty.
Moreover, given the strong sentiments of the Sierra Leonean public against the RUF and its leader Foday Sankoh in particular, it is uncertain whether the Sierra Leone judiciary would be able to withstand the public and political pressure for a speedy conviction of the rebel leader, regardless of evidence and proper procedure. Such a trial could easily be rejected by its detractors as a form of victors' justice. Finally, a trial for Foday Sankoh in Sierra Leone would create significant incentives for the RUF to blackmail the Sierra Leone government into freeing or pardoning Sankoh, through the continued use of terror tactics against the population. Moving the trial to a more international setting would significantly increase the credibility of the process, guarantee a fair trial, and would limit the proceedings' potential for disruption.
Nevertheless, in the medium to long term, it is clear that the majority of crimes during the civil war will have to be judged in Sierra Leonean courts. Given the current limitations in personnel, resources and capacities of these courts, the international community should begin preparing the assistance that will be needed for them to function effectively and according to international standards, including preparing programs to assist in the training of new staff.
In order to bolster the capacity of the Sierra Leone judiciary, the international community should also work with the Sierra Leonean authorities to integrate foreign jurists, particularly from Commonwealth countries with similar systems, who could serve as judges, defense lawyers, and prosecutors in these trials. The common law basis of the Sierra Leone legal system and its similarity to many other Commonwealth jurisprudences would allow for the introduction of foreign jurists, defense lawyers, and prosecutors from other commonwealth countries with minimal disruption.
Under the international law principle of universal jurisdiction, the perpetrators of genocide, crimes against humanity and war crimes can be prosecuted in any country. The United Nations Convention against Torture, ratified by 118 countries, requires states to prosecute or extradite torturers who enter their territory. Former president of Chile Augusto Pinochet was the first former head of state to be indicted by another country for human rights crimes, Hissein Habré of Chad was the second, and many observers have called for Foday Sankoh to be tried under similar circumstances.
For Sierra Leone, however, the Pinochet precedent would be only a partial response to the need for justice. The responsibility for crimes against humanity and war crimes during Sierra Leone's brutal civil war extends beyond Foday Sankoh, and thus demands that investigations be conducted against those in leadership positions who ordered such crimes on all sides, including the RUF, the AFRC/ex-SLA, and the civilian militias or civil defense forces commonly referred to as Kamajors.
For these reasons, Human Rights Watch believes that best method to achieve justice would be for the Security Council to create an International Criminal Tribunal for Sierra Leone (ICTSL) with jurisdiction over all crimes against humanity, war crimes and others serious violations of human rights and international humanitarian law committed at least since March 1991, when the RUF launched its rebellion.
Sierra Leonean NGOs have endorsed the idea of international justice. Noting that "we are strongly convinced that the impunity enjoyed by the actors in this conflict is responsible for the continuous atrocities being committed," the National Forum for Human Rights called for the establishment of an international war crimes tribunal. Forum of Conscience, a human rights organization, has joined in this call.
Because of the inevitable time required to establish an international criminal tribunal, Human Rights Watch urges the international community, in coordination with UNAMSIL and the Sierra Leone government, to send investigators to Sierra Leone immediately to collect evidence of war crimes and crimes against humanity committed both before and after the Lomé accord. Beginning this process of gathering evidence now is essential for maximizing the potential of the prospect of justice to deter further atrocities.
No matter what route to justice is established, the minimum benchmarks attached to this memorandum should be adhered to.
The United Nations Security Council imposed an arms embargo on Sierra Leone in 1997, and modified it in 1998 to apply only to non-governmental forces. The Security Council formally delegated to ECOMOG responsibility to enforce the U.N. arms embargo, but the regional force showed little capacity to halt illegal weapons inflows. When U.N. peacekeeping forces began taking over responsibility for the Sierra Leone mission in December 1999, their mandate did not include enforcement of the international arms embargo against the rebels through border monitoring and other measures, leaving no one with responsibility for this crucial task. The Security Council has also not provided for reported breaches of the embargoes to be properly investigated. The sanctions committee set up to monitor implementation of the 1997 embargo on Sierra Leone is not known to have carried out independent investigations, even though there has been some correspondence in individual cases of reported breaches.
Human Rights Watch has been concerned by persistent reports that RUF rebels have continued to import weapons via neighboring countries despite the embargo. These reports suggest that arms destined to the RUF routinely transit through neighboring Liberia, which is also subject to a mandatory U.N. arms embargo. Charles Taylor's NPFL and later Liberian government has long been accused of providing direct military support to the RUF, including training, personnel and considerable logistical support. The government of Burkina Faso under President Blaise Compaoré has also been implicated in the provision of weapons to the rebel forces. The RUF continues to have in place channels of supply through which it can readily import weapons.
The diamond trade has also been key to the conflict. Drawing its initial support at least in part from anger at the government's mismanagement and theft of diamond resources, the RUF's ability to purchase weapons depends to a large extent on its control of Sierra Leone's diamond-producing areas. This control continues today, and an estimated 85 percent of diamond production in Sierra Leone is believed to be smuggled out of the country, mainly through Liberia. While the Lomé agreement provided that the government shall "exercise full control of the exploitation of gold, diamonds and other resources for the benefit of the people of Sierra Leone," it gave Sankoh the post of chairman of the Commission for the Management of Strategic Resources, National Reconstruction and Development. U.N. attempts to enter the diamond areas may have been an element in the decision of the RUF to take UNAMSIL soldiers hostage.
Human Rights Watch therefore calls on the Security Council to take firm measures to ensure that the RUF is not able to replenish its military supplies and thus prepare itself for further violence and grave human rights abuses. At a minimum, the Security Council should provide for the rigorous enforcement of the arms embargo imposed on the RUF, including by the deployment as soon as possible of well-equipped U.N. forces to monitor borders (especially with Liberia), roads, and airstrips bordering on rebel-controlled areas and halt any weapons shipments they detect. The Security Council should also seek to halt diamond smuggling from Sierra Leone by imposing a ban on all diamond imports from Sierra Leone, other than those authorized by the Sierra Leonean government through an effective certification regime. In addition, the Security Council should order an ad hoc inquiry into illegal arms flows to the RUF rebels and the role of trade in diamonds in financing weapons purchases. Finally, it should create an arms embargo unit within the U.N. to ensure continual monitoring of the implementation of these sanctions.
Human Rights Watch believes that justice for Sierra Leone would be best served by an international tribunal. Whether this is the case or a tribunal is established under Sierra Leonean law, we consider the following to be the minimal acceptable principles for a credible and legitimate justice effort. We call on the Sierra Leonean government and the United Nations to commit themselves to these principles. We also call on the United Nations and other international actors to condition funding and international recognition for any trials in Sierra Leone upon acceptance and implementation of these principles. It is essential that the international community avoid giving legitimacy to trials that would not meet minimum international standards.
- Legal Basis of the Proceedings. The tribunal or court's jurisdiction, competence, fair trial guarantees, rules of procedure, and evidence should be drawn from international standards including, where appropriate, precedents of the two existing ad hoc international tribunals for the former Yugoslavia and Rwanda. The Court must enjoy and be seen to enjoy full independence and to operate with impartiality.
- Organization of the Court. An effective justice effort would require sufficient judicial resources to allow for the timely disposition of trials, and provision for independent appellate review.
- Personnel. It is essential for the credibility of the process that the judges, prosecutor, and staff be individuals of high moral character, impartiality, and integrity who possess experience in criminal and international law, including international humanitarian and human rights law.
- Subject Matter Jurisdiction. The court should be given jurisdiction not only over crimes defined in the Sierra Leonean criminal code such as murder, battery, torture, kidnaping, and rape, but also over crimes subject to universal jurisdiction under international law, including crimes against humanity, war crimes and others serious violations of human rights and international humanitarian law committed at least since March 1991, when the RUF launched a rebellion to overthrow the Sierra Leonean government. The definitions of these crimes should be drawn from the statute of the International Criminal Court and the ad hoc tribunals for the former Yugoslavia and Rwanda. In the case of an international tribunal, it should have ongoing jurisdiction until the Security Council declares that the conflict no longer poses a threat to international security, as is the case with the tribunal for the former Yugoslavia.
- Protection of Witnesses and Personnel. Programs must be established for the protection of witnesses and the security of all other participants, including judges and lawyers as well as investigators and defendants and prisoners. This protection must be available from the earliest investigatory stage through post-trial measures. In particular, the court must be able to take security measures to protect witnesses and victims and their families from reprisals. Such measures must not prejudice the rights of suspects and accused.
- Fair Trial and Due Process. The court should ensure the highest international standards of fair trial and due process at all stages of the proceedings. Particularly given the collapse and consequent mistrust of official institutions in Sierra Leone, justice must not only be done, but be seen to be done. Therefore, the tribunal must be scrupulous in its respect of international standards including according to Articles 10 and 11 of the Universal Declaration of Human Rights (Universal Declaration); and Articles 14 and 15 of the International Covenant on Civil and Political Rights (ICCPR).
- Circumstances of Arrest and Conditions of Confinement. No one should be subject to arbitrary arrest and detention in contravention of Article 9 of the Universal Declaration and Article 9 of the ICCPR. All prisoners should be treated humanely in accordance with Article 10 of the ICCPR; the U.N. Standard Minimum Rules for the Treatment of Prisoners; the U.N. Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; and Articles 7 and 15 of the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
- Death Penalty. There should be no provision for the death penalty, which is an inherently cruel punishment under all circumstances.
- Pardons and Amnesties. Amnesties, which essentially erase the criminality of past acts from the record, should be barred. If exceptional circumstances arise in which the granting of an individual pardon is contemplated, the extreme seriousness of the offenses should be taken into account so as not to undermine the decisions of the courts and rob the whole effort of legitimacy.
- Financing. The international community should provide adequate financial support to ensure the effective and timely functioning of the justice effort. The international community should provide support for the reconstruction and capacity-building of the Sierra Leone justice system, including the training of judges, prosecutors, defense lawyers, and administrative support staff.
- Cooperation. The Sierra Leonean government, the United Nations, and its member states must agree to give their complete cooperation with the justice effort and comply with court resolutions and orders, such as opening files, ordering the arrest of suspects, ensuring full cooperation with all aspects of the investigation and the arrest of suspects, and allowing staff to appear before the court.
- Broad-based and Inclusive Justice. The process established must focus on the criminal responsibility for crimes against humanity, war crimes and other serious violations of human rights and humanitarian law committed by all sides to the conflict in Sierra Leone, and not only on the responsibility of RUF leader Foday Sankoh.