Two transitional justice mechanisms are currently underway to address the cycle of impunity in Sierra Leone: a Truth and Reconciliation Commission (TRC) and a Special Court for Sierra Leone (SCSL). Both bodies became operational in the third quarter of 2002.
The Lomé Amnesty
Under international law, states have an erga omnes obligation-in other words a duty owed to the whole international community-to investigate and prosecute crimes against humanity, genocide and torture even if this means that amnesty laws are in effect annulled. This means that Sierra Leone therefore has an obligation under international law to prosecute those who committed crimes against humanity and torture, irrespective of the Lomé Amnesty and the setting up of the SCSL. Other states also have an obligation to prosecute these crimes based on the principle of universal jurisdiction (see below at p. 66 for a discussion on this principle). Crimes committed in the post-Lomé period fall outside the amnesty and can be prosecuted under domestic law.
The granting of an amnesty may also be challenged under the Sierra Leonean constitution and international law, as being against the fundamental legal principle of the state's duty to provide an effective remedy against official violation of guaranteed rights. The U.N. Human Rights Commission has ruled that "States may not deprive individuals of the right to an effective remedy, including compensation and such rehabilitation as may be possible."244 A duty to revoke the amnesty retroactively may even arise under international law. Several Sierra Leonean lawyers have discussed the issue of the amnesty's constitutionality and whether to challenge it in court.
Truth and Reconciliation Commission
The commission should have been established within ninety days after the signing of the peace agreement, but the Sierra Leonean Parliament did not pass the Truth and Reconciliation Act establishing the TRC until February 2000. Its establishment was further delayed due to the renewed outbreak of fighting in May 2000, and lack of political will of both the government and the international community. As the selection process for the commissioners took longer than planned, the government also decided to delay the commencement of the TRC until after the May 2002 elections to ensure that the TRC would not be politicized by the elections. The activities of the TRC may well be further hampered by funding shortfalls. Only U.S. $1.5 million had been pledged as of June 2002, partially because the Office of the U.N. High Commissioner for Human Rights (OHCHR) did not launch the funding appeal until January 25, 2002. Its total planned budget was reduced from almost U.S. $10 million to U.S. $6,276,440 in August 2002 and has remained unchanged since then.246
On May 13, 2002, President Kabbah announced the seven commissioners. The four Sierra Leoneans are: Rt. Rev. Dr. Joseph C. Humper; Justice Laura A. E. Marcus-Jones; Prof. John A. Kamara; and Mr. Sylvanus Torto. The three international commissioners are: Madam Ajaaratai Satang Jow (Gambia); Ms. Yasmin L. Sooka (South Africa); and Professor William Schabas (Canada). The commission had a three-month preparatory phase, which started in July 2002, and must wrap up its activities and submit a report within twelve months of the start of hearings, which as of this writing have not yet begun.247 An interim executive secretariat headed by the Sierra Leonean lawyer Yasmin Jusu-Sheriff and staffed with eight other members was established to support the work of the commissioners. The budget will be used to establish the secretariat of the commission in Freetown, which will support the seven commissioners and the office of the executive secretary. In addition, it is likely that six operational units will be established to provide support to the commissioners and the executive secretary.248 The establishment of regional offices is also provided for under the Act and should encourage Sierra Leonean participation and ownership of the process. These offices are expected to begin functioning in early 2003.249
The TRC's mandate is "to create an impartial historical record of violations and abuses of human rights and international humanitarian law related to the armed conflict in Sierra Leone, from the beginning of the armed conflict in 1991 to the signing of the Lomé Peace Agreement; to address impunity; to respond to the needs of the victims; to promote healing and reconciliation and to prevent a repetition of the violations and abuses suffered."250 The commission is called upon to give special attention to the subject of sexual abuse and may also implement "special procedures to address the needs of such particular victims as children or those who have suffered sexual abuse ..."251 Any committees formed by the commission to assist it in the performance of its functions should also take into account gender representation.252
Both the UNAMSIL human rights unit and NGOs have conducted sensitization activities, mainly in the key urban centers, to ensure Sierra Leonean awareness of the process, but at the time of writing, there was still considerable confusion about the role of the TRC, especially in relation to the Special Court for Sierra Leone (SCSL).
Human Rights Watch believes that the work of the TRC would be greatly enhanced were the staff of the TRC to be gender-balanced with women represented at all levels and to include persons with expertise in sexual and gender-based violence. The gender adviser, expected to take up the post in January 2003, should provide gender sensitization training and ensure that the work of the TRC, including investigations and hearings, are carried out in a sensitive manner. Human Rights Watch recommends that the TRC explore the relationship between the widespread and systematic nature of conflict-related sexual violence and the low status of and discrimination against women. The final report on the findings of the TRC should highlight gender-specific abuses committed throughout the country during the armed conflict. The TRC should also make recommendations on improvements to the law and judicial system toward eliminating the discriminatory nature of customary and general law, and on legal reform and human rights training for government authorities, including members of the criminal justice system. The report should highlight the need for increased assistance (shelter, medical care, education, skills training, mental health programs, etc.) for women, as well as for strengthening existing women's groups through capacity building.
Special Court for Sierra Leone
Due to delays in funding contributions and agreement on key substantive matters, the agreement between the government and the U.N. to establish the Special Court for Sierra Leone was not signed until January 16, 2002.254 The total budget for the SCSL is U.S. $56.8 million. The first year of the court has been fully funded and pledges have been received for the second year.255 The secretary-general appointed the prosecutor and registrar on April 19, 2002, and it is hoped that the first trials will commence in the second quarter of 2003.0 Given budgetary constraints, it is likely that only a limited number of persons will be tried, perhaps as few as twenty.
The SCSL differs in notable ways from the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. Firstly, it is based on an agreement between the government and the U.N. and was not established by a Security Council resolution under Chapter VII of the U.N. Charter. This means that the Special Court does not have the power to require international cooperation.1 Secondly, the SCSL is a hybrid court relying on both international and domestic laws. The professional and support staff of the court will be a mix of Sierra Leonean and foreign nationals.
Article 1 of the SCSL provides that the court has the competence to try "persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996."2
Other crimes that the court has the jurisdiction to prosecute are provided under Article 2 to Article 6. Under Article 2, which defines the crimes against humanity that the SCSL has the power to prosecute, the following crimes of sexual violence are specified: "rape, sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence."3 Rape, enforced prostitution and any form of indecent assault can also be prosecuted as violations of Common Article 3 to the Geneva Conventions and Additional Protocol II as stated under Article 3 of the statute. Under Article 4, specific serious violations of international humanitarian law are enumerated, including intentionally attacking civilians and the recruitment of children under fifteen years old into the armed forces. With the unanimous adoption by the U.N. General Assembly of the Optional Protocol to the Convention on the Rights of the Child (CRC) in May 2000,4 however, the minimum age for any conscription or forced recruitment has been raised to eighteen.5 Under Article 5, gender-based crimes can also be prosecuted under domestic law provisions. However, as these provisions do not meet international standards in terms of definition of crimes and punishment, they should not be applied.6
In accordance with the U.N.'s statement that it did not recognize the Lomé amnesty as it purported to apply to genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law, Article 10 of the court's statute states:
This means that those bearing the greatest responsibility for crimes against humanity (Article 2); violations of Article 3 common to the Geneva Conventions and Additional Protocol II (Article 3); and other serious violations of international humanitarian law (Article 4) can be prosecuted for their crimes.
The issue of command responsibility is of crucial import to the SCSL given that its mandate is to try "persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders, who in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone."8 The court therefore will only prosecute the so-called "big fish" and not the "small fry" or those persons who in many instances actually committed the violations. Article 6 of the statute of the SCSL provides that:
The failure by rebel commanders and army officers to punish combatants involved in abuses, despite documentation of and international attention to crimes of sexual violence perpetrated by rebels and pro-government forces, indicates that such persons of authority knowingly tolerated and even condoned these abuses. Commanders may also bear individual criminal responsibility for crimes of sexual violence in addition to command responsibility, as the testimonies in this report highlight.
It is highly regrettable that the court's temporal jurisdiction does not extend to the beginning of the conflict (March 23, 1991). Instead November 30, 1996, the date of the Abidjan Peace Accord, was chosen as it was felt that including the whole war would impose too great a burden on the court. The U.N. also felt that this date corresponded to a new phase in the conflict without necessarily having any political connotations, and that this temporal jurisdiction encompassed the most serious crimes committed by persons of all political and military groups and in all geographical areas of the country.10 The temporal jurisdiction is, however, open-ended as the war was still ongoing at the time of the discussions on the court's establishment. The U.N. states that the lifespan of the court will be determined by "a subsequent agreement between the parties upon completion of its judicial activities, an indication of the capacity acquired by the local courts to assume the prosecution of remaining cases, or the unavailability of funds."11
In terms of prosecuting crimes of sexual violence, the statute specifies that "given the nature of the crimes committed and the particular sensitivities of girls, young women and children victims of rape, sexual assault, abduction and slavery of all kinds, 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."12 Likewise, Article 16 (4) specifies that personnel of the Victims and Witnesses Unit should include experts in trauma, including trauma related to crimes of sexual violence and violence against children.
As the TRC and Special Court will be functioning simultaneously, the interaction between the two bodies, whose subject matter as well as personal and temporal jurisdiction intersect, must urgently be clarified. This is crucial in terms of sharing of information, especially confidential information, but also for the sensitization efforts underway. Enabling legislation enacted in March 2002 contains a provision, criticized by many nongovernmental organizations, that establishes the primacy of the SCSL, apparently including over the TRC.13
Given that the SCSL will only try a limited number of alleged perpetrators, it needs to establish a clear and comprehensive prosecutorial strategy from the onset. Within the court's mandate, the prosecutor should ensure that gender-related crimes are thoroughly and sensitively investigated and rigorously prosecuted as crimes against humanity or war crimes. The two gender crimes investigators should conduct compulsory gender sensitization training for all staff, and provide more in-depth training for staff members dealing most directly with survivors of sexual violence. The gender crimes investigators should also have access to all cases under investigation, even the ones not previously identified as gender cases, to provide guidance and expertise.
Principle of Universal Jurisdiction
The special rapporteur for violence against women also stressed the principle of universal jurisdiction in her report on her mission to Sierra Leone:
0 S/2002/246, Letter dated March 6, 2002 from the secretary-general addressed to the president of the Security Council. David Crane, a prosecutor for the U.S. Department of Defence, was appointed as prosecutor and Robin Vincent of the U.K. was appointed as the registrar.
1 See also letter from Human Rights Watch to members of the Security Council and other interested states dated September 27, 2001. Under Chapter VII, which is entitled "Action with respect to threats to the peace, breaches of the peace, and acts of aggression," the Security Council can decide to take non-military and/or military action against states that threaten international peace and security. Decisions taken by the Security Council under Chapter VII-which should be read in conjunction with Article 24, which confers primary responsibility for the maintenance of international peace and security to the Security Council, and Article 25, under which U.N. member states agree to accept and carry out the decisions of the Security Council-are binding on member states.
6 Article 5 refers to the sections (6, 7 and 12) of the 1926 Prevention of Cruelty to Children Act that relate to abuses committed against girls under the age of fourteen. See above, "Rape as a crime under general law," et seq., for a discussion of these provisions.
10 United Nations, Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, S/2000/915, October 4, 2000, para. 25-28. Other dates considered were May 25, 1997, and January 6, 1999, but the U.N. considered that these would be perceived as offering only selective justice.
12 Article 15 (4) of the statute of the SCSL. A Woman's Task Force for the Special Court and TRC was established with the support of the International Human Rights Law Group to advocate that gender-based crimes be properly investigated by both bodies and-in terms of the Special Court-prosecuted. The Women's Task Force has also advocated for the appointment of staff who are experienced in and sensitive to cases of sexual violence, as well as for gender balance i.e. women should be well represented in positions of authority as well as in positions of support (statement takers, investigators, counselors and interpreters, etc.).
13 Special Court Agreement 2002 (ratification) Act 2002 (March 7, 2002). Article 21 (2) of the Act provides that: "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."
14 Slavery can be prosecuted as a war crime and a crime against humanity, but also on an independent basis against both state and non-state actors during wartime and peace given its status as a peremptory norm of customary law.
15 Draft Code of Crimes Against the Peace and Security of Mankind, Articles 8, 9, 17, 19 and 20, Report of the International Law Commission on the Work of its Forty-eighth Session, U.N. Doc. A/51/10, para.50 (United Nations, 1996).