Dear Sir/Madam,

Human Rights Watch greatly appreciates the efforts by the Secretary-General, the Secretariat and the Group of Interested States to create a Special Court for Sierra Leone (the "Special Court"). We are also aware of the importance of the Special Court, both to bring justice to victims in Sierra Leone and to set a positive precedent for a new mechanism of international justice - one that combines international and domestic mechanisms and laws. With the return of the planning mission from Sierra Leone, we hope that preparations will now intensify to establish the Special Court. We believe it is critically important to maintain momentum.

While we have not seen the planning mission's report, we are aware of the significant logistical challenges in making the Special Court operational. With a limited budget and lagging voluntary pledges for the Special Court's second and third years, the Court's efficient establishment will be decisive to its legitimacy and effectiveness.

Before the issues related to establishing the Special Court go to the Security Council, we write to detail recommendations that we believe are critical to the Special Court's effectiveness. Since April 1999, Human Rights Watch has investigated human rights violations, including war crimes and crimes against humanity, in Sierra Leone. We have a small office in Freetown.

Some of our concerns, as discussed below, stem from the unique hybrid nature of the Special Court. This hybrid character creates challenges to ensure the Special Court's independence from the Government of Sierra Leone. At the same time, the funding of the Special Court through voluntary contributions makes it equally important to ensure the Special Court's independence from improper influence by donor states.

As you know, the Special Court will be unlike the two current ad hoc tribunals, not only in its structure, but also in having a Management Committee to oversee budgetary and administrative matters. We have high expectations that the Management Committee will play an important role enabling the Special Court to make the most of its resources through a combination of new, efficient and creative management. This will require flexibility and creativity. At the same time, we believe the United Nations' experience, and logistical and technical support will be a vital resource to the Special Court.

This letter organizes its discussion into issues relevant to (A) Chambers, (B) the Office of the Prosecutor, (C) the Registry (including the Victims and Witnesses Unit), and (D) Other Issues. In certain instances, the letter comments on the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda ("ICTR") since those will be the procedural rules initially used by the Special Court.[1]

A. CHAMBERS

The integrity, judicial independence and expertise of the persons who are selected to serve as judges on the Special Court will profoundly influence the justice that the Special Court will dispense. Selecting judges with appropriate qualifications and relevant experience, requiring the judges to act in accordance with the highest ethical standards, and providing appropriate training for the judges and their clerks are all key to ensuring the proper operation of the Special Court.

1. Judges should have experience as criminal trial judges.

Article 13 of the Statute of the Special Court for Sierra Leone ("Special Court Statute") states that in hiring judges "due account shall be taken of the experience of the judges in international law, including international humanitarian law and human rights law, criminal law and juvenile justice." There is no requirement, however, that persons selected have expertise as criminal trial judges. Recruiting judges with this expertise is crucial to the Special Court and essential to the progress of trials. While we are aware that considerable progress has already been made in selecting judges to serve on the Special Court, we urge that any decisions made to date be reviewed in light of this criterion.

2. Judges and clerks should receive training.

Judges and clerks of the Special Court should receive training. That training should include:

• a) substantive issues of international humanitarian law;
• b) sensitivity to victims and witnesses (including victims of sexual violence, child witnesses,[2] and particular groups that, due to poor education and/or illiteracy, may have difficulty understanding court procedures or questions asked of them);
• c) training on the procedural rules that will be utilized by the Special Court; since those procedural rules resemble those of the ICTR, and for judges who have primarily a common law background, training should focus on how those rules differ from common law rules; without proper training, judges may not be equipped to apply rules that are an amalgamation of civil and common law since certain practices necessarily will be unfamiliar to judges from either background; and
• d) sensitivity to the need to maintain judicial independence (discussed below).

Videotapes of training sessions should be made so that when there is turnover new personnel can view the videotapes if in-person training is not available.

Funds need to be raised specifically to fund such training. Alternatively, states should be encouraged to directly send experts to provide such training at no cost to the Special Court.

3. Rules should govern the conduct of the judges, and provide for disciplining and removing judges and other staff. There should also be a mechanism to investigate allegations of improper judicial conduct.

Judges for the Special Court need to be held to the highest judicial standards. It is important to develop rules governing the conduct of the judges, and to provide an independent mechanism for investigating allegations of improper conduct, and disciplining and removing judges. There currently is no such mechanism provided for in the ICTR's Rules of Procedure and Evidence. During the preparatory phase for the Special Court, a team of international judges, ideally with prior experience in international criminal law, should, together with the Prosecutor, draft a set of rules to govern the conduct of judges and other court staff, and propose a mechanism for enforcing such rules.

4. Judges need to maintain independence and impartiality.

While Article 13(1) of the Special Court Statute states that Special Court judges "shall be independent in the performance of their functions," it is crucial to emphasize that at all times, judges must act in such a way as to ensure their impartiality and independence from (a) the ruling party and Government of Sierra Leone, (b) other political leaders in Sierra Leone, (c) other states-particularly, donor states, states in the region and the judges' states of nationality, and (d) other entities.

The need to maintain the necessary independence from the Government of Sierra Leone will be especially difficult due to the "mixed" nature of the Special Court. As you know, the Special Court is a hybrid court composed of international and domestic elements and will have judges appointed by the Government of Sierra Leone and a Sierra Leonean Deputy Prosecutor. Thus, the perception may arise that the institution is improperly influenced by the current Sierra Leonean government. It will be important to make clear that the Special Court is a free-standing body that is independent from influence and functions impartially.

5. A mechanism needs to be developed to ensure that cases move at an appropriate pace.

A mechanism needs to be developed to hold Special Court judges responsible for moving cases on their dockets. For instance, Rule 65 bis of the Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia (ICTY) requires a status conference 120 days after the initial appearance, and 120 days thereafter. In Canada, the Federal Court Rules establish a status review mechanism that is automatically triggered at various stages. In the U.S. federal system, cases are flagged if they have been outstanding for more than three years, or a motion has been pending for more than six months. Not only is the slow processing of cases wasteful of resources, it raises fair trial issues if defendants are held in pre-trial detention too long.

B. OFFICE OF THE PROSECUTOR

More than any other single position, the Prosecutor will determine what the Special Court will be able to achieve. It will be critical that the Office of the Prosecutor act independently and impartially. Equally crucial will be setting out and identifying, at the earliest feasible moment, a prosecutorial strategy on how to bring those with the greatest responsibility for serious violations of international humanitarian and Sierra Leonean law to justice.

1. The Office of the Prosecutor should be independent and act impartially.

It is crucial that the Office of the Prosecutor be independent from influence and act impartially.

One challenge will be ensuring independence from the Government of Sierra Leone. While Article 15(1) of the Special Court Statute states that the Prosecutor "shall not seek or receive instructions from any Government or from any other source," at the same time Article 15(2) states that the Prosecutor shall "be assisted by the Sierra Leonean authorities." While it is important for local authorities to cooperate with the Special Court, it is also important that such assistance not appear to compromise the Prosecutor's independence. Again, the fact that the Special Court is a mixed institution will tend to make the Special Court appear to inherently favor the Sierra Leonean government. Special efforts will be needed to ensure independence and impartiality from improper influence.

It is equally important that the Office of the Prosecutor act independent of any improper political influence by other forces, such as donor states, regional states and the United Nations Mission in Sierra Leone ("UNAMSIL").

2. Consideration should be given to hiring professional staff from the region.

While Article 15(4) of the Special Court Statute requires that the Deputy Prosecutor be Sierra Leonean and that the Prosecutor be assisted by "such other Sierra Leonean and international staff as may be required," an effort needs to be made to ensure that, in addition to the Deputy Prosecutor, Sierra Leoneans serve as prosecutors and investigators, and not, for instance, only as support staff.

3. There needs to be a clear and comprehensive prosecutorial strategy from the outset.

While we are cognizant that it will be an enormous task for the Office of the Prosecutor to collate the rudimentary victim and witness statements that exist and to commence investigations, it is not too early for the Special Court to start developing criteria for an overall prosecutorial strategy. It will obviously take time to collect and systematize the evidence, map the crimes, determine patterns, obtain an overview of the systematic and widespread nature of the crimes, and determine the key players. At the same time, given the limited budget of the Special Court, and the fact that the budget will restrict the number of people the Court will be able to prosecute, it is crucial that the Special Court have a prosecutorial strategy that enables it to prosecute those who "bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law."

While decisions as to who specifically to try will depend upon the findings of individual investigations, initial criteria for prosecutions can be set in advance.

We recommend that, in developing a strategy, the Office of the Prosecutor should focus on, among other things:

• a) Seeking to identify those individuals who bear both direct and indirect command responsibility for the worst abuses and patterns of abuses;
• b) Ensuring that prosecutions include within the indictment, where relevant, counts related to crimes of sexual violence (discussed further below), abduction of civilians, and recruitment and forced conscription of children;
• c) Paying attention at an early stage to ascertaining which witnesses might enter plea agreements, which are helpful both in expediting cases, and obtaining information that can be used against other defendants; and
• d) Paying attention at an early stage to ascertaining when indictments against different individuals can be joined for more efficient use of court time.

The Office of the Prosecutor should note that a number of Sierra Leoneans who undoubtedly would have been investigated, if not indicted, by the Special Court are reported to have died. Investigations of key perpetrators who are reported to have died should be conducted to ascertain whether those persons are in fact dead.

4. Investigators and prosecutors should be trained on how to investigate crimes of sexual violence and violence committed by and against children.

Article 15(4) of the Special Court Statute provides that "due consideration should be given in the appointment of staff to the employment of prosecutors and investigators experienced in gender-related crimes and juvenile justice." While we agree that it is crucial to hire people with such experience, the Special Court's Office of the Prosecutor should still design, in collaboration with relevant experts, a training program for prosecutors and investigators, to be held on a periodic basis. The training program should include a compulsory gender and children's rights sensitization training program for all staff and a more in-depth training course for those staff dealing more directly with cases involving sexual violence and children. The in-depth training should include instruction on investigating and prosecuting: (a) crimes of sexual violence, (b) crimes committed against children that constitute crimes within the Special Court's jurisdiction, and (c) crimes committed by children.

Human Rights Watch's fact-finding in Sierra Leone has revealed the commission of a range of crimes against women, including crimes of sexual violence and sexual slavery, as well as abductions and amputations. We have also documented extensive violence against children, including forced conscription, forced labor, sexual violence, amputations and mutilations. It will be important for prosecutors and investigators to know how to investigate such crimes and treat victims and witnesses appropriately.

Due to the limited resources of the Special Court, particular efforts will need to be made to raise funds to pay for training, and/or states should be encouraged to send experts to provide such training at no cost to the Special Court.

5. Crimes of sexual violence should be included as a focus of investigations and, where appropriate, included in indictments.

Because of the pervasive nature of the crimes of sexual violence in Sierra Leone, it will be critical for the Special Court's Office of the Prosecutor to ensure that investigators rigorously pursue leads and thoroughly investigate serious allegations of crimes of sexual violence. When evidence of sexual violence rises to the level of one of the crimes within the Special Court's jurisdiction, charges related to these offenses should be included in indictments.

Crimes of sexual violence are typically under-investigated and under-prosecuted. While the Statute of the Special Court recognizes that widespread or systematic sexual violence is a crime against humanity, it will be crucial to ensure that such crimes are recognized in practice. Investigators should avoid making assumptions about whether or not victims of sexual violence would want charges brought against perpetrators. Such assumptions could lead investigators to ignore leads in cases of sexual violence or to impose their own assumptions on the victim. Sexual violence cannot be dismissed as a regrettable but inevitable feature of armed conflict and civil unrest. It must be investigated and prosecuted like other crimes in these situations.

6. Investigators should be under the direct supervision of trial prosecutors rather than in a separate unit, and should provide ongoing investigative support both before and during trial.

Investigators should report to the Office of the Prosecutor and should be assigned to trial teams to provide support in pre-trial, trial and, if relevant, post-trial stages. Problems can occur if investigators are not under the direct supervision of trial prosecutors and do not continue to provide investigative support during the course of a trial. Prosecutors need to be able to go back to the same investigators that worked on the case originally and have the investigators help explain their findings and fill any gaps in the evidence. Problems can arise if the same investigators are not made available for such purposes.

C. THE REGISTRY

The Registry is responsible for the administration and servicing of the Special Court, and will contain a Victims and Witnesses Unit. The Registrar is in a position to regulate a whole host of issues, from prohibiting fee splitting, to prohibiting defendants from changing court-appointed counsel multiple times, to delineating qualifications needed to serve as counsel for an indigent defendant. Key to ensuring the proper functioning of the Victims and Witnesses Unit is creating accountability to the Registrar, handling prosecution and defense witnesses separately, and ensuring that appropriate measures are implemented regarding child witnesses and victims of sexual violence. The Registry should also ensure that vacancies at the Special Court are posted and filled promptly.

1. The Registry needs to be subordinate to Chambers and the Office of the Prosecutor.

The Registry should be subordinate to Chambers and the Office of the Prosecutor. The Registry should play a functionary role, assisting Chambers and the Office of the Prosecutor. It should not be the co-equal of Chambers and the Office of the Prosecutor.

2. The Registry and Registrar need to maintain independence.

Because any perception that the Registry or Registrar are biased will create the perception that the Special Court also is biased, the Special Court's Registry and Registrar should carefully maintain independence. If, for example, the Registrar provides money or assistance to certain victims but not to other victims, that could create the appearance that the Registry, and thus, the Court, favors one side. Strict neutrality will need to be maintained from, among others: (a) the ruling party and Government of Sierra Leone, (b) other political leaders in Sierra Leone, (c) other states-particularly, donor states and states in the region, and (d) UNAMSIL.

3. The Victims and Witnesses Unit should handle separately protection for prosecution and defense witnesses. There should not be a separate unit addressing gender-based issues.

The protection needs of defense and prosecution witnesses should be handled separately. However, there should not be a separate unit to address gender-based issues. Having a separate unit devoted to gender-based issues could create problems of coordination and collaboration.

4. The Victims and Witnesses Unit needs to ensure that witness protection is effective from the inception of an investigation, through trial and, where appropriate, post-trial.

The Special Court's witness protection program will need to be carefully designed so that witness protection functions at all stages. Witness protection cannot solely occur at trial, but needs to commence at the investigation stage, and potentially extend to post-trial protection.

At the investigation stage, consideration needs to be given to ensuring that in conducting interviews and transporting people to trials, witnesses' identities are not inadvertently divulged. For instance, if investigators travel to interview witnesses in clearly marked vehicles, the entire village then knows which individuals have spoken to investigators. If witnesses who agree to provide testimony are then picked up in the same type of vehicles, and flown to testify in clearly marked aircraft, their identities have in effect been revealed. In many cases, non-governmental organizations ("NGO's") could be used as intermediaries to facilitate meetings between investigators and witnesses at safe locations so that witness identities are not compromised.

Careful procedures will also need to be put in place to ensure that lapses do not occur during trials. Witness protection programs must also protect witnesses after trial. If a witness has provided damaging testimony against a perpetrator, it is then that the witness may be in the most serious danger.

5. Members of the Victims and Witnesses Unit should receive specific training on addressing the specific issues facing traumatized witnesses, including victims of sexual violence, and children.

Members of the Victims and Witnesses Unit should receive training on addressing the specific issues facing traumatized witnesses, including victims of sexual violence, and children. Appropriate procedures should also be adopted regarding the treatment of such witnesses. For instance, it is important that survivors of sexual violence be treated with appropriate respect and dignity, by, among other things, being provided medical check-ups and new clothing before testifying.

6. Measures to prevent disclosure to the public or the media of the identity or whereabouts of a victim or a witness should be granted only on a case-by-case basis.

Under ICTR Rule 75, a variety of methods can be used to prevent disclosure to the public or the media of the identity or whereabouts of a victim or a witness. While the Rules, which permit judges to grant protective measures, should not be changed, Special Court judges should be encouraged to make the determination of whether to grant protected treatment on an individualized basis except where there are clear categories of witnesses likely to require such measures, such as children. Blanket grants of protected treatment will undermine the public nature of trials and will reduce the likelihood that false testimony will be publicly exposed. Grants of protected treatment, for instance, make little sense for well-known figures, and are also inappropriate unless the witness in fact seeks protected treatment. Presumptions also should not be made, for instance, that all victims of sexual violence do in fact wish to receive protected treatment.

7. The Registry needs to develop vetting procedures to ensure that persons hired by the Special Court were not perpetrators. The Registry also needs to fill vacancies promptly.

It is crucial that the Registry develop vetting procedures to ensure that no one who is hired is in fact a perpetrator or closely linked to individuals who may have been perpetrators (whether or not they are likely to be charged before the Special Court). It is both embarrassing and compromises the integrity of a court when background checks are not sufficiently conducted, and, for instance, an investigator is implicated in crimes that the Special Court would have jurisdiction to prosecute.

8. The Registry should establish an explicit rule prohibiting fee splitting.

The Registry should establish an explicit rule preventing a defense attorney from splitting fees with his or her client. Fee splitting is unethical and wasteful of resources.

9. Rules should make it difficult for indigent defendants to change attorneys multiple times.

The rules should make it difficult for indigent defendants to change attorneys multiple times without showing good cause. Multiple changes of counsel delay trials and waste resources. Under ICTR Rule 45(H), an indigent accused has to show both "exceptional circumstances" and "good cause" to have assigned counsel removed. That rule should be strictly applied at the Special Court. Frivolous motions to remove defense counsel should be rejected.

10. The Registry should make efforts to ascertain whether "indigent" defendants are in fact indigent.

The Registry should make efforts to investigate whether "indigent" defendants are in fact indigent, at least where there is some reasonable suspicion that the accused has significant assets. It wastes resources for a court to automatically pay for free legal counsel for all detainees based on claims of indigence when various detainees may not in fact be indigent. Any efforts in ascertaining whether a defendant is indigent should not, however, impede the assignment of appointed counsel and progress in the case.

11. The Registry should formulate criteria for selecting attorneys interested in serving as defense counsel for indigent defendants.

The Registry should formulate rules on qualifications required to serve as defense counsel for indigent defendants (including, for instance, requiring a minimum number of years of criminal trial experience). It is critically important to an accused's receiving a fair trial that he or she be provided qualified defense counsel. If all persons interested in serving as defense counsel are automatically allowed to serve, the quality of defense representation will vary widely.

12. To the extent resources allow, the Registry should make decisions, transcripts, and exhibits available on a website.

While we are aware of the serious resource constraints facing the Special Court, if it were possible, it would be useful to have a website for the Special Court where, at minimum, decisions, and possibly also transcripts and exhibits (redacted if necessary) could be made publicly available promptly. This would benefit operations of the Special Court, journalists reporting on the trials, and, potentially, the work of Sierra Leone's Truth and Reconciliation Commission ("TRC").

Given the limited amount of funds available to the Special Court, an effort should be made to ascertain if a state would be willing to contribute funds and/or appropriate experts to run the web site at no cost to the Special Court.

D. OTHER ISSUES

1. The problem of indictees who have fled Sierra Leone needs to be addressed; mandatory obligations to surrender indictees need to be created.

Many Revolutionary United Front ("RUF") commanding officers, for instance, have already left Sierra Leone, and have been recruited to fight in Liberia. Other RUF members openly boast that they plan to leave Sierra Leone before the Special Court becomes operational. Problems are compounded by the poor state of the intelligence service in Sierra Leone, and the role several neighboring West African states have played in supporting one or another warring faction.

The UN Security Council should adopt a resolution mandating that states comply with requests by the Special Court to surrender persons under indictment. In addition, the Organization of African States (OAS), and Economic Community of West African States (ECOWAS) should separately require member states to comply with such requests.

2. The relationship between the Special Court and the TRC needs to be defined and codified upon or prior to establishment of the two institutions.

While there have been discussions on the overall issue of the relationship between the Special Court and the TRC, the relationship needs to be specifically defined. Suggestions on how to define that relationship will be the subject of a separate letter from Human Rights Watch.

3. The Management Committee needs to be involved in continued monitoring of the performance of the Special Court's judges, prosecutors and registry.

The performance of all parts of the Special Court will need monitoring to ensure that any problems are addressed early and that any needed reforms are implemented. The Management Committee should play a key role in this regard and should meet regularly with the goal of correcting any problems as they arise.

4. Publicity/interface with the community

It is critically important to undertake an information campaign to inform the people of Sierra Leone about the mandate and modus operandi of the Special Court both before, and once it is, operational. Sierra Leoneans will need to understand how the Special Court will work, who it will prosecute, and its relationship with the TRC (once defined). Once the Special Court is operational, there will need to be a concerted effort to keep the people of Sierra Leone informed on the progress of cases. It is important that Sierra Leoneans also understand the mixed-nature of the Special Court-that it is not just an effort of the international community, but a process with which Sierra Leoneans are integrally involved.

We hope these comments are useful to your work. Thank you for your consideration.

Sincerely,

Peter Takirambudde
Executive Director
Africa Division

Richard Dicker
Director
International Justice Program

[1] Article 14 of the Special Court's Statute provides that "[t]he Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda obtaining at the time of the establishment of the Special Court shall be applied mutates mutandis to the conduct of the legal proceedings before the Special Court." The Special Court judges may thereafter amend those rules. See Articles 14.1-14.2.

[2] For instance, as to training regarding child witnesses, the training should include information on the juvenile justice standards contained in the Convention on the Rights of the Child, the U.N. Standard Minimum Rules for the Administration of Juvenile Justice, and the U.N. Rules for the Protection of Juveniles Deprived of their Liberty. In particular, training should emphasize the best interest of the child standard and the child's right to have his or her privacy respected at all stages of a proceeding.