Abdul Karim Bangura. Abdul Razak Rahim and Sami Gandy-Gorgla
The Policy Sciences Research Section of the Sierra Leone Working Group
"We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well. We must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanity's aspiration to do justice."
_Judge Robert Jackson
Judge Robert Jackson's opening remark at the Nuremberg trial, to a great extent, fosters a euro-centric view of the judicial process and of history. The "record on which we judge these defendants is the record on which history will judge us tomorrow" is a veiled reference to the world-view held by nations that organized the trial. Although the trial was being offered as one of the models for conflict resolution, there was hardly anything substantial or complex to resolve. The trial had to follow prescribed rules and procedures to restore respect for values that had been disturbed or violated as a result of the conflict. Rationale for the trial and belief in the effectiveness of the rules and procedures were all components of the same world-view and belief structure held by nations that facilitated the trial. "Detachment" and "intellectual integrity" simply entailed, keeping one's personal emotions out of the trial and following the letter of the law. Today, the world-view and belief structures are not exactly that simple. India and the Philippines gained independence during the course of the Nuremberg trial, and many former colonies have now also gained their independence. The task of "fulfilling Humanity's aspiration to do justice" can hardly be fulfilled by following Nuremberg type assumptions about the world. It is not so much a question about relativity of justice; it is more a question about the rational basis for the rules and procedures and the efficacy of the "justice" solution offered. The following example from the Reports of the Aboriginal Justice Inquiry of Manitoba illustrates some of the complexities involved:
"Of crimes common to both societies, murder requires special notice. It was conceived of differently by Indian and European and was therefore punished by different processes. In Europe murder was an offence against the state; among Indians it was an offence against the family of the victim. European law demanded the murderer's life as atonement to the state; Indian custom made his life forfeit to his victim's family. In Europe, the state apprehended the murderer; among Indians it was the family's obligation to do so. European observers tagged the Indian custom "revenge" and blathered much about the savagery revealed by it. Yet, as compared to the state's relentlessness, the tribe provided an institution carefully and precisely designed to stanch the flow of blood. The obligation of blood for blood could be commuted into a payment of valuable goods by the murderer's own kin-folk to the relatives of his victim. This custom (which had been known centuries earlier in Anglo-Saxon England as wergild) was a widespread stabilizer of Indian societies, forestalling the development of obligatory revenge into exterminating feuds."
The United Nations (UN), a seeming solution to the problem, is structured such that escaping the rational structure of the world of Nuremberg is virtually impossible. The "veto power" wielded by nations within the Security Council almost guarantees that the precepts of the world of Nuremberg are always maintained. The ascription of "world power," economic and military, status to nations produces the same result. We might not have the possibility of "victor's justice," but unfettered justice is still unattainable since economic, military, and political interests are often factored into the quest for "justice." These are often displayed in the lack of uniformity in application of so called international crimes law.
The conflict in Sierra Leone was, by all accounts, marked by heinous crimes. Individuals directly responsible for these crimes must be held accountable for their personal actions. Contrary to views fostered by the Sierra Leone Special Court (SLSC), victims were not only those murdered, raped, mutilated, or children robbed of their innocence. Forces that maintained social balance, primarily in rural areas, were destroyed and violated. Healing, therefore, requires more than avenging the sufferings of those victims identified by the SLSC. Restoring balance in all facets of society goes beyond the reach and competence of rhetoric issued by the court. Promise to punish the accused, to bring closure, is a concept that may be at variance with that held by the community. The court's ineptness in comprehending the true basis for the conflict trivializes the people's experience and their sense of what is required of them to preserve and defend their humanity. The victims the court talks about include many that died protecting the lives of their fellow humans and the sanctity of their communities. How will the community ever honor its heroes when insidious tongues from the court vilify their cause? How will a society be healed when the solution offered is polluted by vile insinuations that depict contempt and avarice for that society? All attempts at restoring stability have to gain legitimacy. Our aim here is to pit the hollow rhetoric fanfare of the SLSC against the stark reality required to rebuild a community. We show that with respect to legitimacy, the SLSC stands on very shaky ground. As Judge Henri Bernard, a French judge at Nuremberg, put it, "a verdict reached by a tribunal after a defective procedure cannot be a valid one."
Procedure, in this case, is not limited to court proceedings. The SLSC, we must remember, is unlike other legal institutions in Sierra Leone with established legitimately and acceptance. We will show that the procedures used to establish the court were flawed, thereby denying it of any claims to legitimacy. We will also show that the court's ability to deliver justice has been greatly impaired by latent extra judicial motives. According to Judge Radhabinod Pal, also a judge at Nuremberg, "Questions of law are not to be decided in an intellectual quarantine areaŠ we cannot afford to be ignorant of the world in which disputes arise."
The SLSC has demonstrated that it is incapable of understanding the world of this specific conflict and has, therefore, attempted to manipulate the process to suit its self-ordained mandate. "No Peace without justice" and "No one is above the law" are two phrases popularized by the SLSC. Considering former breakdown in the rule of law in Sierra Leone, these slogans gained ready acceptance. As is the case with slogans, the euphoria they generated diverted attention from their efficacy against the social reality in Sierra Leone. The fact that these slogans came out of the mouths of officials of a quasi-United Nations organization accompanied with a massive architectural monument, they built the expectations that never again will there be injustice in Sierra Leone. It was not significant that there is no inextricable connection between peace and justice, and that claims about positive connections amount to intellectual fraud. It didn't matter that the slogan politicizes justice and opens the possibility of corrupting justice itself. They border on intellectual dishonesty, fraud and deception to deliberately exploit the craving for peace with promise of justice from an institution whose foundation did not respect a basic need for justice_i.e. transparency. This is what Ambassador John Danforth, a United States representative to the UN, had to say about transparency:
"Transparency is a true engine of the rule of law, and can promote a responsive and trusted judicial system in both stable societies and those scared by conflict. For the rule of law to grow in a society, the people must know the law. The law must be transparent to all citizens. That means the judicial system_courts, police, prisons_must be open and visible."
The Special Court is, as it is often emphasized, a product of an agreement between the Sierra Leone Government and the United Nations to address serious violations during the Sierra Leone conflict. Sierra Leone, up to the date of the agreement, was not an oligarchy. It had a Constitution and an elected Parliament. The Constitution clearly stipulates conditions to be fulfilled before a treaty or agreement is introduced into the body of law. This is more so the case when the treaty or agreement introduces changes within the constitution itself. The Special Court agreement changed the judicial system's hierarchal structure and also deleted the clause that protected the Head of State from arrest. Under these conditions, the Constitution stipulates that the agreement be preceded by two Gazette publications separated by nine days, a referendum, and parliamentary debate. These requirements were never followed, amounting to a blatant disrespect of the law of the land. The bill was introduced to Parliament a few days before Parliament was dissolved for elections and no referendum was conducted. Parties entering into a contract have to establish that the other party is qualified and authorized to be a party to the contract. With respect to Sierra Leone, the authority comes from the Constitution. Letters of invitation from the President, negotiation involving the Attorney General, and the President's signature are not enough to subvert the will of the people. Ambassador Danforth has spelled out, what may be considered, expectations from the UN:
"The United Nations in particular should marshal its resources to help societies emerging from conflict to develop their national judicial capacities in a manner that is accountable to their citizenry."
"But the rule of law cannot only be imposed by international bodies, to make the rule of law effective, citizens must know their own government. They must understand how it works and how to influence it. Where legal and judicial matters necessarily involve certain confidences and restraints on sharing of information, absolute secrecy can encourage corruption."
The required Gazette publications and referendum are all measures aimed at satisfying the "accountability to their citizenry" requirement. The oversight by the Sierra Leone Government, which went along with the compliancy of the United Nations amounts to an attempt to impose the Special Court on the people of Sierra Leone. The tardiness displayed by the Sierra Leone Supreme Court to address this is a further sign that the legacy of the Special Court will be founded on unjust principles permitting future disregard for the Constitution whenever any government finds it expedient.
Perhaps there was a need for absolute secrecy since the rational basis for the President of Sierra Leone's June 12, 2000 letter to the Security Council has not been fully disclosed to the public. The claim that "there is no amnesty under international law," often cited as the basis for the SLSC, is nothing more than a half-truth traded as absolute truth. Crimes under international law have not, since before the Special Court, been codified into an exact science. Types of conflict, the nature of the crime, applicable treaties or conventions, are all factors that govern obligation to prosecute. Michael Scharf, a former Attorney-Adviser, Office of the Legal Adviser, US Department of State, 1989-1993, in The Letter of Law: The Scope of the International Legal Obligation to Prosecute Human Rights Crimes, best expresses this fluid situation: "It is one thing to suggest that in a given case the decision not to prosecute violators represented a poor policy judgment; it is quite another to conclude that such a violation violated international law."
It is, according to Scharf, not true to categorically claim that "there is no amnesty for international crimes." Scharf draws attention to the fallacy in this slogan when he states that
"In the past several years, Argentina, Cambodia, Chile, El Salvador, Guatemala, Haiti, Uruguay, and South Africa have each granted amnesty to members of the former regime that commanded death squads that tortured and killed thousands of civilians within their respective countries. With respect to four of these countries (Cambodia, El Salvador, Haiti, and South Africa), the United Nations pushed for, helped negotiate, and/or endorsed the granting of amnesty as a means of restoring peace and democratic government. At the preparatory conference for the establishment of a permanent international criminal court in August 1997, the U.S. Delegation circulated a paper suggesting that the proposed permanent court should take into account such amnesties in the interest of international peace and national reconciliation when deciding whether to prosecute."
This question will be discussed fully at another time. Looking at the basis of the Special Court from the "obligation to prosecute" angle, however, the Sierra Leone Government and the United Nations seem to be exploiting the power of slogans to deride a society into accepting a system based on deception. Further scrutiny may establish the absence of any desire to inform the citizenry.
The President's letter to the Security Council was on June 12, 2000, almost a year after the July 7, 1999 signing of the Lome Agreement. In a June 22, 2000 Keynote address to the National Conference on the Lome Peace Agreement Organized by the Sierra Leone Labour Congress, ten days after the President's letter, the President made the following comments:
"It is important to note that the Agreement is not just a conflict management document. It is, by letter and spirit, an instrument of conflict resolution. Notwithstanding its perceived weaknesses, the Lomé Peace Agreement was intended to pave the way for stability, national reconciliation and sustainable peace in Sierra Leone. On our part, that is the Government and people in whose name I signed it, the document was a solemn commitment to take some bold and courageous steps to end the brutal conflict once and for all. This commitment is explicitly articulated in the Preamble to the Agreement. Among other things, we expressed our determination to establish sustainable peace and security, we pledged forthwith to settle all past, present and future differences and grievances by peaceful means, and to refrain from the threat and use of armed force to bring about any change in Sierra Leone. This is a very important part of the document. It is as binding on the signatories, the Government and the RUF, as the other sections of the Agreement."
"Let me remind you that the basis of the 1999 Lomé Agreement was in fact the 1996 Abidjan Accord. The question of amnesty or immunity for example, was not new. Article 15 of the 1996 Abidjan Accord stated, and I quote: To consolidate the peace and promote the cause of national reconciliation, the Government of Sierra Leone shall ensure that no official or judicial action is taken against any member of the RUF/SL in respect of anything done by them in pursuit of their objectives as members of that organization up to the time of the signing of this Agreement."
"We have every reason to renounce our obligations under the Agreement and unilaterally declare them null and void. However, it would be irresponsible on our part to do so. In fact such a course of action would be detrimental to the safety and welfare of our people, and inconsistent with their desire, indeed their right to live in peace and security."
Both Agreements, Lomé and Abidjan, were facilitated by the United Nations. They were also both witnessed by United Nations representatives. We can safely infer that the President did not have problems with amnesty provisions in both agreements, and it is a fact that the United Nations registered no objections to amnesty provisions in the Abidjan agreement. This calls to question references to amnesty provision as a basis for the Special Court. The claim from the United Nations that it added a hand-written objection to the Lomé agreement raises further questions. Can a portion of a signed contract be invalidated or suspended based on an observation from a witness? Signing an agreement by an authorized representative of the government makes the agreement legally binding on the people of Sierra Leone. Can the President unilaterally institute measures leading to the violation of that agreement without following constitutional procedures? Amnesty reference seems more like a convenient excuse to hide infractions of the Sierra Leone Constitution. This is more so the case considering the fact that international tribunals have not been even contemplated in a host of post-conflict situations. Liberia, Ivory Coast, Uganda, Iraq, etc. are some examples supporting the lack of universal validity to the slogan "there is no amnesty for international crimes." Reasons for the Special Court are, therefore, open to speculation.
Many reasons have been advanced for the eventual push for the Special Court. Amnesty provision, as we indicated above, is at best questionable. Although the Sierra Leone internal politics seem far-fetched, it cannot be readily dismissed considering a statement from Ambassador Cunningham, United States Acting Permanent Representative to the UN, on Sierra Leone, in the Security Council:
"Mr. President, as the author of the resolution establishing the Special Court, I want to say a special word about that because it wasn't mentioned very prominently in the briefing - although others have referred to it. Ten months ago, the Council decided that it wanted those most responsible for the commission of war crimes and crimes against humanity in Sierra Leone to be brought to justice. This means a narrowly defined group of ring-leaders whose actions have disqualified them from participation in the political life of the country. It means a finite process that will hold a small number of criminal leaders accountable, while allowing the rest of Sierra Leone's leaders to proceed with the political life of the country." June 28,2001 [UN Press Release #98 (01)].
Although Ambassador Cunningham's observation is certainly true, one cannot infer that the Special Court was set up to influence the direction of Sierra Leone electoral politics. This will require a conspiracy theory that will be totally absurd. The Special Court trial, however, does provide an opportunity for the proverbial "ball to make a fortuitous bounce" in favor of those who see heroes emerging from the conflict as formidable opponents in future political races. What seem to be more credible are observations from some journalists and legal experts.
The role of the United States, it seems, was not limited to authoring the resolution and furnishing funds for initial operation of the SLSC. Evelyn Leopold (Reuters) reported that "One Legal expert, who has been tracking the court's organization, said Washington pushed hard for(David) Crane's so it could make sure the tribunal keeps a narrow focus and completes its work in a reasonable period of time."
Washington also pushed for the appointment of David Crane (who recently resigned his post as Chief Prosecutor of the Special Court) over an Australian who is a former prosecutor for the United Nations court trying those accused in the 1994 genocide in Rwanda and who also was part of a United Nations planning team for the Sierra Leone Court. Crane served "in the Pentagon's inspector general office, heading a unit which clears personnel for access to sensitive programs" (Evelyn Leopold). According to a June 11, 2002 News & Information article, Crane "served as assistant general counsel with the Defense Intelligence Agency and legal adviser to U.S. Forces, Multinational Force and Observers, in Sinai, Egypt, as well as the Waldemar A. Solf Professor of International Law at the Judge Advocate General's School of the U.S. Army." Crane's prosecutorial experience will not be an issue if the Statute of the Special Court did not require that
"The Prosecutor shall be appointed by the Secretary-General for a three-year term and shall be eligible for re-appointment. He or she shall be of high moral character and possess the highest level of professional competence, and have extensive experience in the conduct of investigations and prosecutions of criminal cases (Article 15, 3)."
High moral character, highest level of professional competence, are never in question. Crane's "Extensive experience in the conduct of investigations and prosecutions of criminal cases" was never established. This was crucial, considering the important role given the Chief Prosecutor in defining the crimes committed and in determining who to indict.
There are many other reasons, in addition to Crane's Pentagon experience, that have led people to question whether the Special Court is a United States' creation or a response to the President of Sierra Leone's June 12, 2000 request for help or a search for real justice. It is widely believed that the Special Court model is one Washington prefers over a permanent International Criminal Court (ICC). Washington has also displayed this same preference in the case of Dafur. Washington's preference, we are sure, is founded on good reasons considering the role the United States is playing in maintaining world peace. A strong and heavy imprint of American preference in the realization of the Special Court, however, led to the perception that "justice" will be contrived to produce a "success" case that will strengthen America's preference in modeling tribunals. The structure of the Special Court and the inordinate number of Americans and British (one of America's staunchest allies) playing crucial roles seem to reinforce this perception. The prosecutor's office relies almost entirely on American consultants that are known proponents of the American model for tribunals. Crane's pronouncements did not help to erase this perception.
Characterization of the Sierra Leone war as purely a war for diamonds ties the war to terrorist movements. To many, this Americanizes the war while at the same time it displays insensitivity to the Sierra Leone experience. The near obsession with the pursuit of Charles Taylor, which is both legal and justified, to a point where the Chief Prosecutor is claimed to have "shown scant respect to the combined goodwill of those (West African) leaders and the peoples they represent" did not help the perception. The structure of the Special Court is such that the Chief Prosecutor has the discretion to define what constitutes crime, those to be indicted, collect evidence, and prosecute the accused in front of judges. This model is susceptible to the perception of deliberate skewing, considering the preponderance of opportunity to influence the court towards Washington's model. Giving judges ample provisions to subject the indictments to an extensive preliminary review is one way to allay this perception. Unfortunately, primarily because of the three-year mandate, "the court's rules have been revised to minimize the judge's preliminary review of the prosecutor's indictments" (Sierra Leone Faces Significant Obstacles in Establishing Rule of Law, HRSP Concludes, Virgina University Law posting April 12, 2004). What had been portrayed as a positive point in comparison to other tribunals may also contain elements that subvert justice. In that same posting, the Chief Prosecutor is recorded as saying: "At some level guilt isn't the issue, the issue is who among the many, many people we are going to choose [to indict]." A serious issue, we may claim, was reduced to the game of "pinning the tail on a donkey" by the Prosecutor. It is not too clear who the donkey will be in this case. But the Sierra Leone Government and the United Nations both have their credibility on the line over the Special Court issue. There is "no peace without justice," especially when justice is perceived as contrived and polluted.
For additional copies of this and other Sierra Leone Working Group Occasional Papers, please contact:
Abdul Karim Bangura
School of International Service
Washington, DC 20016