Letter to U.N. Secretary-General Kofi Annan on Principles of Justice in Sierra Leone

Dear Mr. Secretary-General,  
 
Human Rights Watch welcomes the commitment shown by the Security Council on August 14, 2000, to bringing the perpetrators of crimes against humanity, war crimes and other serious human rights abuses in Sierra Leone to justice (S/RES/1315). The resolution has asked you to send a team of experts to Sierra Leone and to submit a report with recommendations to the Security Council within thirty days.   
 
Human Rights Watch believes that the effectiveness of this justice effort will to a significant degree be determined by the framework for the court to be proposed by the team of experts. Human Rights Watch believes that justice and the ending of the culture of impunity in Sierra Leone are of paramount importance for the peace process and the country's overall future. A justice effort, to be meaningful and to produce lasting results, must be credible and legitimate. The criminal responsibility of all abusive parties must be assessed, including those of the RUF's former allies, the Armed Forces Revolutionary Council (AFRC) and dissident factions of the Sierra Leone Army (SLA).  
 
A "mixed" tribunal, as proposed by the Security Council, presents unique challenges which were not faced by the tribunals created for the former Yugoslavia and Rwanda. Human Rights Watch welcomes a participatory role for the Sierra Leone authorities in the proposed Sierra Leone court, in the hope that Sierra Leone's participation in the proposed court will lead to more tangible justice for the people of Sierra Leone and a strengthening of the judicial institutions of that country. However, the proposed court must be carefully designed to prevent political manipulation of the judicial process and a denigration of the rights of the accused. In order to ensure that the justice effort in Sierra Leone is broad-based, unbiased, and fair, the international community will need to play a significant, and not just a supportive, role in the proposed tribunal. Note must also be taken of the weakened state of the Sierra Leone judiciary, a fact recognized by the Sierra Leone government itself, which must of necessity limit the role the country can play in an international criminal tribunal.  
 
We consider the following to be the minimal acceptable principles for such a justice effort. As you embark on the negotiations, we call on you to commit the United Nations to these principles.  
 
Legal Basis of the Proceedings:  
The 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, prosecutors,  
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:  
As per paragraph 2 of Resolution 1315, 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. 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.  
 
Temporal Jurisdiction:  
Human Rights Watch strongly believes that the court should be given jurisdiction over crimes committed at least since March 1991, when the RUF launched a rebellion to overthrow the Sierra Leonean government; and that the court's jurisdiction should be ongoing 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.  
 
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 Foday Sankoh and other RUF leaders.  
 
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.  
 
Mr. Secretary-General,  
 
We know of your strong commitment to ending impunity in all parts of the world. We trust that you will personally assure the highest standards and the greatest integrity for the justice effort in Sierra Leone.  
 
As usual, we stand ready to assist members of your staff with more information should it be deemed useful.  
 
With best regards,  
 
 
Peter Takirambudde  
Executive Director, Africa Division  
 
Joanna Weschler  
U.N. Representative