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.

General Observations
Recommendations
&nbsp&nbsp&nbsp&nbspI. Information Sharing from the TRC to the Special Court
&nbsp&nbsp&nbsp&nbspII. Information Sharing from the Special Court to the TRC
&nbsp&nbsp&nbsp&nbspIII. Mechanisms for Sharing Information

General Observations

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.

Recommendations

I. Information Sharing from the TRC to the Special Court

A. Human Rights Watch supports the suggestion in the Planning Mission Report that witness testimony provided at closed TRC sessions and statements taken on a confidential basis should generally remain confidential, and only be disclosed to the Special Court in limited circumstances.

The TRC Act provides that, at the discretion of the Commission, information may be provided to the TRC confidentially; it also provides for testimony to be given at closed TRC Sessions.[7] While, as detailed above, we believe that that portion of the TRC Act may be trumped by passage of the Implementing Law for the Special Court, we believe that every effort should be made to preserve the TRC's ability to maintain such information as confidential as long as that would not result in a miscarriage of justice before the Special Court.

For policy reasons, we believe that both institutions should reach an agreement that would strike the right balance between the TRC's need to treat information as confidential and the Special Court's occasional need to trump such confidentiality.

We agree with the suggestion made in the Planning Mission Report that the Special Court should only obtain "confidential" information from the TRC in the following circumstances: "(i) the information or evidentiary material sought can only be obtained from the TRC, and (ii) the evidentiary material requested is essential for the conviction or acquittal of the accused."[8]

These criteria should be adopted in an agreement to be concluded between the Special Court and TRC. If the criteria are adopted, they should be explained both in any general information sessions about the TRC and Special Court, and when a witness provides confidential information to the TRC. Thus, potential TRC witnesses would need to be informed that even "confidential" information could be disclosed in those extremely limited circumstances.[9] By limiting disclosure to such situations, witness incentives to provide confidential information to the TRC would hopefully not be diminished significantly.[10]

As to how the Special Court[11] would know whether the TRC has confidential information that is relevant to Special Court proceedings, details of how the information sharing would work are discussed in Part III below.

B. Witness statements taken by the TRC where confidential treatment is not requested should be readily available to the Special Court.

As mentioned above, Human Rights Watch takes a different view than the Planning Mission regarding witness statements taken by TRC personnel where no confidential treatment is requested. We believe such information should be available to the Special Court.[12]

Given the extremely short time periods that the two institutions will function and the huge workloads facing them, we believe that the institutions should share information when feasible. Thus, for instance, if the TRC interviews all the inhabitants of a certain village as to whether a certain massacre occurred, that information could be relevant to proceedings before the Special Court. While the information might not directly implicate any particular defendant, it might, for example, be relevant to establishing whether alleged crimes against humanity were "systematic or widespread." Although witness statements alone would not be that useful as evidence,[13] they might provide Special Court investigators with a starting point for their work. It would be wasteful and unnecessary for the institutions to duplicate each other's work.

Thus, the TRC would explain to a potential witness that there are two ways to provide information to the TRC: (a) confidentially, or (b) not confidentially. Information that the TRC agrees to treat as confidential would only be disclosed to the Special Court under the extremely limited circumstances set forth above. Information not provided confidentially could readily be disclosed if the Special Court-or more precisely, the prosecution or defense, through the appropriate liaison person (see Part III below)-requested it. Again, that non-confidential information could be shared with the Special Court if requested by the Special Court should be explained as part of any public information campaign regarding the institutions once such an agreement is reached.

C. Witness testimony provided at public TRC sessions should be available to the Special Court.

Testimony that witnesses provide to the TRC under their own names in open TRC Sessions and other materials made public by the TRC should be available to the Special Court.[14] Because such information will be in the public domain, there is no reason why the Special Court should not be able to utilize it.

Depending on how the TRC's work is made available to the public, perhaps the Special Court could obtain it through that same medium. A person providing testimony to the TRC in an open session would probably need to be informed that information provided could be utilized by the Special Court.

D. Documentary evidence gathered by the TRC should be readily available to the Special Court.

Documents gathered by the TRC[15]-not witness statements taken by the TRC, but underlying documents-should also be available to the Special Court.[16] If the TRC subpoenas documents from a source, and the Special Court also wishes to obtain some or all of those documents, it seems wasteful to require the Special Court to issue a second subpoena to that source. In fact, if the originals of the documents were turned over to the TRC, the person or entity subpoenaed might not have documents to produce to the Special Court. The Special Court should have the option of obtaining some or all of the documents from the TRC. Allowing sharing of documents also prevents competition between the institutions as to who will subpoena particular documents first.

E. It should be left to the discretion of the TRC whether they wish to reveal information that has not resulted in a public document, or that contains mental impressions or legal theories-i.e., work-product.

As to work that the TRC has done that has not resulted in a public document or that contains mental impressions or legal theories-i.e., work-product-it should be left to the discretion of the TRC whether to share such information. To mandate sharing of this type of information could require providing information that was not yet intended for outside viewing. On the other hand, if the TRC staff wish to share such work with the Special Court, they should be permitted to do so.[17]

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.

A. Witness statements made to Special Court personnel should be available to the TRC as long as disclosure would not compromise the Special Court's work or reveal privileged materials, and the witness consents.

Currently, the Special Court has no clear obligations to share any information with the TRC. As a policy matter, however, Human Rights Watch believes that witness statements made out of court to Special Court investigators that the TRC wishes to obtain should be available to the TRC if disclosure would not compromise the Special Court's work or reveal privileged materials and the witness consents.

If there is information sharing from the Special Court to the TRC, the Office of the Prosecutor would, however, need the ability to decline to share information-or request that the TRC hold off from public disclosure of certain information-if disclosure of such information would prejudice an investigation or case before the Special Court.[18] To the extent witness statements contain work-product of investigators or attorneys, there should be no disclosure of those statements or portions of those statements.[19]

Special Court investigators who interview witnesses should give them the option of withholding consent to disclosure of their statements to the TRC. The witnesses should also be informed of the possibility of having the TRC treat their information as confidential, and what that would mean.[20] Because individuals who provide statements to Special Court investigators may not in fact testify before the Special Court, they may not wish to share information with the TRC or may request that the TRC treat their information confidentially.

B. Documents gathered by the Special Court but not used at trial should be available to the TRC unless disclosure would compromise the Special Court's work.

In the course of their work, Special Court investigators and prosecutors may obtain documents from individuals. If those documents are relevant to a matter as to which the TRC is hearing testimony or investigating, the TRC may want to obtain those documents. As a policy matter, the TRC should be allowed to view or copy such documents as long as disclosure of the documents would not compromise the work of the Special Court. Had the TRC been the first on the scene, it would have been able to subpoena the documents. A situation should not be created where the TRC has incentive to subpoena documents as soon as possible because it is unable to access them once they are obtained by the Special Court.

A situation might arise, however, where disclosure of certain documents to the TRC could result in information becoming publicly known before the Special Court would want to disclose it. The Special Court should have the leeway to require that the TRC hold-off from using such documents. Such concerns are heightened when a matter under investigation has not resulted in a public indictment. In such a situation, disclosure and use of any relevant documents by the TRC could potentially reveal the subject matter of the Special Court's investigation, and potentially cause a defendant (who might become the subject of a sealed indictment or who already is the subject of a sealed indictment) to flee the country. Thus, the Special Court should have the right to withhold documents that would compromise an ongoing investigation.

C. The TRC should not be able to obtain work-product or material covered by the attorney-client privilege.

If the Special Court does provide information to the TRC, it would be important to note that the TRC should not be allowed to obtain information covered by the attorney-client privilege, or attorney work-product, i.e., material which contains mental impressions or legal theories.[21]

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]

A. The Special Court should attempt to work cooperatively with the TRC and not use its subpoena powers.

As the law currently stands, the Special Court can subpoena the TRC,[23] but the TRC most likely cannot subpoena the Special Court.[24] Regardless of the ability to issue subpoenas, we believe that, as a policy matter, it would be preferable for both institutions to engage in informal information sharing.

Informal information sharing would potentially avoid:

  • wasting resources on drafting document requests and responding to them;
  • creating disputes between the two bodies, which could require intervention of some adjudicatory body to resolve;
  • creating an unduly adversarial relationship; and
  • having to litigate disclosure disputes that would distract from the real work of the institutions.

Accordingly, as part of any agreement between the Special Court and TRC on information sharing, we believe that both institutions should commit to trying to interact through cooperative means.

B. Liaison persons from the institutions could meet at periodic sessions, perhaps every month, and work out information exchanges.

If the TRC and Special Court agree to informal information sharing, they should designate liaison persons for that purpose. The liaison persons might meet, for example, at least once a month to facilitate disclosure. Such meetings could be used to keep persons at one institution briefed on the work of the other institution. For instance, as to information that would not otherwise be public, persons would not know to seek disclosure unless the other institution let it be known (even if in the most general terms) that it had information on a certain topic.

Informal meetings also seem more conducive to facilitating disclosure of only that information which is really needed, and avoiding large-scale production of information that could waste resources of the institution gathering the information and the institution receiving it.

C. The Special Court should appoint separate liaisons to handle information sharing for the prosecution and defense.

Obviously, investigators and prosecutors in the Special Court's Office of the Prosecutor will be interested in obtaining information from the TRC, and will be knowledgeable about information that the Office of the Prosecutor has that might be useful to the TRC.

Defense counsel, however, must be included in the information sharing process. Consideration should be given to appointing a person from the Registry to be the liaison person between the TRC and defense counsel who might seek information from the TRC. Because ICTR rules require the prosecution to disclose exculpatory evidence to the defense,[25] to the extent exculpatory information comes to the prosecution's attention through liaisons with the TRC, there would be an obligation to disclose the information.

As to a liaison for the prosecution, a person could either be designated from the Office of the Prosecutor, or individuals from the Office of the Prosecutor could work through a liaison in the Registry.

D. Applications for disclosure where the prosecution or defense seek TRC information that is confidential or work-product should be made to the Special Court.

Where disclosure is sought of material the TRC has treated as confidential, a determination would have to be made whether (i) the information can only be obtained from the TRC and (ii) is essential for the conviction or acquittal of the accused. (See Part I.A above.)

We believe that the party seeking the disclosure, either the prosecution or defense, should make an application to the Special Court. While, in general, we prefer disclosure issues to be worked out informally, in the instance where a decision needs to be made whether disclosure of confidential TRC information is warranted, we believe the matter should be the subject of formal adjudication.

E. The TRC and Special Court will need to coordinate on witness protection.

If there is any sharing of information between the Special Court and TRC, meetings between the two institutions will be needed to ensure that sharing of information does not inadvertently result in a person failing to be covered by witness protection.

Especially where information is provided to the Special Court that was provided by a TRC witness who had requested confidential treatment, the witness should be informed promptly that his or her testimony is being provided to the Special Court. Steps may need to be taken to prevent public disclosure of the witness' identity, and to ascertain whether the witness wants to participate in the Special Court's witness protection program. Careful consideration needs to go into deciding which body would be charged with locating the witness and advising the witness that his or her information is being provided to the Special Court and discussing potential protection options.[26]

F. The TRC and Special Court will need to coordinate on evidence gathering and forensic standards.

The TRC and Special Court will also need to coordinate their methodologies on evidence gathering. For example, to the extent the TRC investigates a particular site[27] or is provided with materials, it will be important to ensure that TRC investigators do not in any way disturb or taint evidence that the Special Court might need, or break a chain of custody that the Special Court might need to prove.


[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).