Nineteen months after its eleven-year civil war was declared over, Sierra Leone is attempting to bring to justice “those who bear the greatest responsibility for war crimes and crimes against humanity”. On 10 March 2003, under the codename, “Operation Justice”, the Special Court for Sierra Leone issued its first public indictments and carried out its first arrests, targeting top commanders of armed groups, including the prominent cabinet minister and national commander of the civil defence forces Chief Sam Hinga Norman. On 4 June, it took a more dramatic step, one that upset a number of capitals, including Washington, and brought it into the global spotlight: as President Charles Taylor of Liberia travelled to Ghana for peace talks, Prosecutor David Crane unsealed an indictment originally issued against him on 3 March, served an arrest warrant on Ghanaian authorities, and transmitted the warrant to Interpol.
This is a status report on the Special Court, which was created in January 2002 and officially started to function on 1 July 2002. The Chief Prosecutor (Crane) and the Registrar (Robin Vincent) arrived in Freetown by early August. The former’s office was working at full capacity by November. Though the Registry and Chambers are less fully developed, and trials are not expected to start until November 2003, the relative rapidity with which it has been moving suggests it may meet the target it has set for itself of completing its work within three years. Nevertheless, the Special Court is only in its first stages. The main task of running fair and expeditious trials is still ahead. The role of its judges will be crucial, as will that of the Defence Office, which is only now being formed.
It is early days but a number of concerns have arisen about the way the prosecutor has interpreted Sierra Leone’s conflict in various statements, the procedures surrounding some indictments, and in particular, the perceived Americanisation of the Court. The U.S. government, its main donor, wishes the Special Court to succeed at least in part in the expectation that a demonstration of how such an ad hoc tribunal can handle the gravest of war crimes and crimes against humanity will reduce the widely perceived need for the new International Criminal Court that the Bush administration strongly opposes. While the subtle links alleged on several occasions by Prosecutor Crane between diamonds and al-Qaeda terrorist networks can be interpreted as an attempt to increase U.S. interest, they are also seen by many in Sierra Leone as examples of the Court being used to promote U.S. foreign policy interests. Against this background, it is important that the Court not lose focus. It needs to be careful not to appear to be subject to outside influence if it wants to fulfil its mandate with impartiality and provide a “new model” for international justice.
One of the main challenges faced by the Special Court is ensuring that its workings are transparent. Substantial security concerns have arisen around the arrests and indictments of the civil defence force commanders, the Director of War Operations for the Kamajors, Moinina Fofana, and the former Kamajor High Priest, Allieu Kondewa, as well as Chief Norman. Some of the security problems result from the fact that the Court is located in Sierra Leone, unlike the UN tribunals for former Yugoslavia (ICTY) and for Rwanda (ICTR), which sit outside the countries of concern. However, the location can also be the advantage it was meant to be if the Court makes a constant effort to keep the population and the media fully informed of its thinking and its actions. Its outreach dimension has come some way but more effort is required to educate about its work a population that is 80 per cent illiterate. The Court has been accused of being distant from local journalists and insufficiently attentive to opportunities to involve them in informing Sierra Leone’s citizens.
The controversial question of what the Special Court experience may mean for the future of the ICC aside, it was established as a hybrid body – part international, part national – in order to provide a cheaper and more expeditious alternative to the fully international tribunal of the type used for Yugoslavia and Rwanda. Donors must now give it a fair chance to demonstrate its value by providing political support and delivering on their financial pledges. This is all the more necessary because in the eyes of many in Sierra Leone, it suffers from a crisis of legitimacy. The former commander of the RUF insurgents, Foday Sankoh, died while under arrest on 29 July 2003; the former battlefield commander of the RUF, Sam Bockarie apparently also is dead, as may be Johnny Paul Koroma, the leader of the Armed Forces Revolutionary Council (AFRC) 1997 military junta. Charles Taylor has thus far escaped arrest. The absence of these high profile indictees undermines the Court’s credibility in the eyes of ordinary citizens.
Another important question is whether the UN Security Council will enhance the Court’s power and prestige by giving it a mandate under Chapter VII of the Charter, which would require all member states of the world organisation to comply with its orders, including its indictments and arrest orders for high profile figures such as Charles Taylor. Both the ICTY and the ICTR have Chapter VII mandates. While the issue has been complicated by the diplomatic manoeuvres under way to remove Taylor from Liberia as part of the effort to end that country’s civil conflict, ICG believes that such a decision is needed. A Chapter VII mandate would not guarantee state compliance, but without it, the Special Court will continue to face unnecessary obstacles.
Freetown/Brussels, 4 August 2003