The Spe­cial Court for Sierra Leone rests – for good

Africa Renewal - - Contents - By Lansana Gberie

2,493 num­ber of pages in Charles Tay­lor’s judg­ment

The Spe­cial Court for Sierra Leone made its fi­nal ma­jor de­ci­sion on 26 Septem­ber 2013 when its Ap­peals Cham­ber up­held the 50-year sen­tence handed down to for­mer Liberian Pres­i­dent Charles Tay­lor. The court rul­ing in April 2012 found Mr. Tay­lor guilty of five counts of crimes against hu­man­ity, five counts of war crimes and one count of other se­ri­ous vi­o­la­tions of in­ter­na­tional hu­man­i­tar­ian law per­pe­trated by Sierra Leone’s Rev­o­lu­tion­ary United Front (RUF) rebels, who he sup­ported.

Tay­lor was tried in The Hague un­der a spe­cial ar­range­ment with the Spe­cial Court, and con­victed for his role in the mur­ders, rapes and acts of ter­ror­ism against the civil­ian pop­u­la­tion of Sierra Leone dur­ing a vi­cious civil war from 1991 to 2002. He was also found guilty of re­cruit­ing chil­dren un­der 15 years as sol­diers. The 2,493-page judg­ment found that Mr. Tay­lor was the main backer of the RUF, and was aware of its atroc­i­ties at the time.

Mr. Tay­lor was trans­ferred to a prison in the UK in Oc­to­ber 2013 to serve the re­main­der of his sen­tence – the re­sult of an agree­ment be­tween the court and the UK govern­ment. By the rules of the UK ju­di­cial sys­tem, Mr. Tay­lor, 65, has 43 years left to serve and will only be el­i­gi­ble for early re­lease after serv­ing twothirds of his sen­tence, at which point he will be more than 90 years old.

The for­mer Liberian leader is the first head of state, after Ger­many’s Ad­mi­ral Karl Doenitz (who was con­victed by the Nurem­burg court after the Sec­ond World War) to be con­victed by an in­ter­na­tional court for war crimes and crimes against hu­man­ity. Many have hailed Mr. Tay­lor’s con­vic­tion as a land­mark achieve­ment by the Spe­cial Court.

The court’s other im­por­tant achievements in­clude first-ever con­vic­tions for at­tacks against UN peace­keep­ers, con­vic­tions for forced mar­riage as a crime against hu­man­ity, and for the re­cruit­ment of chil­dren for com­bat. They are tes­ti­monies to the de­ter­mi­na­tion of the court’s pros­e­cu­tors and judges, but also to the rather pro­tean na­ture of the court’s man­date. Some of the court’s cre­ators ini­tially fret­ted about its ap­par­ent over­reach­ing, and none was pleased that it lasted three times longer than planned and cost more than an­tic­i­pated.

UN Sec­re­tary-Gen­eral Ban Ki-moon in De­cem­ber hailed the court’s “im­pres­sive le­gacy” and its role in ad­vanc­ing the global quest for ac­count­abil­ity. Still, many Sierra Leoneans see the court as a re­sult, not the cause of the coun­try’s peace and sta­bil­ity.

Money and con­trol

The Spe­cial Court for Sierra Leone was es­tab­lished by an agree­ment be­tween the UN and the Sierra Leonean govern­ment on 16 Jan­uary 2002, the month that the coun­try’s civil war of­fi­cially ended. Meant to last for only three years with an ini­tial bud­get of $75 mil­lion, the court for­mally closed in De­cem­ber 2013 after spend­ing about $300 mil­lion.

The Court’s cus­tom-made com­pound in Freetown is a mas­sive for­ti­fi­ca­tion of high walls topped with barbed wire, and its own prison house. The premises cost $3.5 mil­lion, mi­nus the land. In his let­ter in June 2000 to the UN Sec­re­tary-Gen­eral, the late pres­i­dent Ah­mad Te­jan Kab­bah, a lawyer, con­cep­tu­alised the court as “a sym­bol of the rule of in­ter­na­tional law, es­pe­cially at a time when some State and nonS­tate ac­tors are in­creas­ingly dis­play­ing, shame­lessly, con­tempt for the prin­ci­ples of in­ter­na­tional law.”

Mr. Kab­bah would, in his me­moirs, Com­ing from the Brink, pro­fess to be “stunned and up­set” by some of the court’s ac­tiv­i­ties. The pres­i­dent’s “buyer’s re­morse” can, of course, be dis­missed as an ex­am­ple of a para­ble of wishes granted—like King Mi­das, he merely got it in ex­cess.

The point is that once David Crane, an en­er­getic— not to say the­atri­cal—Amer­i­can de­fence depart­ment lawyer, was ap­pointed as pros­e­cu­tor, all pre­tence that Mr. Kab­bah was even marginally in con­trol of the court dis­ap­peared. David Sch­ef­fer, in his book, All the Miss­ing Souls, says that the US and the UK were the main back­ers of the court. Mr. Sch­ef­fer, the first US am­bas­sador for war crimes through­out Pres­i­dent Bill Clin­ton’s sec­ond term, de­cided that the court was to be sui generis, mean­ing that it was to be very dif­fer­ent from all other tri­bunals. It was to be wholly lim­ited

to the Sierra Leonean con­text. It wasn’t to have any over­ar­ch­ing am­bi­tion.

Par­tic­u­lar ef­fort was made to present the Spe­cial Court as UN-backed to dis­tin­guish it from the In­ter­na­tional Crim­i­nal Court ( ICC) and the tri­bunals for the for­mer Yu­goslavia and Rwanda. It wasn’t given the sta­tus of Ar­ti­cle VII of the Rome Statute that es­tab­lished the ICC, which would have made its fund­ing and com­pli­ance with its rul­ings manda­tory as a UN Se­cu­rity Coun­cil in­stru­ment. Fund­ing was to be by vol­un­tary con­tri­bu­tions from mem­ber states, which meant that those with the most geopo­lit­i­cal in­ter­ests in the sub-re­gion, the US and UK, would be the key fun­ders. The court was to be gov­erned by a man­age­ment com­mit­tee com­pris­ing these coun­tries as well as Nige­ria, which, as the key peace- en­forcer in Sierra Leone, also had an im­por­tant in­ter­est. The statute of the court ruled out pros­e­cu­tion of peace­keep­ing troops, to Nige­ria’s relief.

The in­volve­ment of the govern­ment of Sierra Leone was lim­ited to a pro­vi­sion in the court’s statute for the govern­ment to ap­point the deputy pros­e­cu­tor and two of its six judges. Yet the statute stated that the Spe­cial Court “shall have pri­macy over the na­tional courts.”

Crit­ics soon be­gan to note that a judge at the court—paid $240,000 tax free per an­num plus huge al­lowances—was earn­ing several times more than the Pres­i­dent of Sierra Leone. The of­fice of the pros­e­cu­tor’s an­nual bud­get of more than $4 mil­lion was more than the bud­get of the Sierra Leone Supreme Court. The Court’s per­ma­nent staff of 422, many of them for­eign na­tion­als, meant that about 70% of its en­tire bud­get was used up as salaries and bonuses.

Re­flect­ing on this awk­ward im­bal­ance, Stephen Rapp, a for­mer chief pros­e­cu­tor of the court, said in an in­ter­view with Time mag­a­zine in 2009, shortly after he left to take a job in the ad­min­is­tra­tion of US Pres­i­dent Barack Obama, that they were “con­duct­ing jus­tice in a com­fort­able court­room with long tri­als and well-paid at­tor­neys. Pris­on­ers had sin­gle cells, and they had com­mit­ted the worst crimes. A mile away in the lo­cal prison there were sim­ply no re­sources. [If I were] to do it over, I would try to de­velop a court within the na­tional sys­tem… Maybe not a court that costs $30 mil­lion a year.”

“Most re­spon­si­ble”

Ralph Zack­lin, the UN’s lawyer who ne­go­ti­ated the set-up of the court with the Sierra Leone govern­ment, con­trived the no­tion of “most re­spon­si­ble” for war crimes to be the fo­cus of the court’s pros­e­cu­to­rial ef­forts. In a re­port to the Se­cu­rity Coun­cil in Oc­to­ber 2000, he de­fined those “most re­spon­si­ble” as “ob­vi­ously in­clud­ing the po­lit­i­cal or mil­i­tary lead­er­ship,” as well as “others in com­mand authority down the chain of com­mand… judg­ing by the sever­ity of the crime or its mas­sive scale.”

Though the Sierra Leonean war started in 1991, the court de­cided that pros­e­cu­tion would ad­dress only those crimes com­mit­ted after the sign­ing of the first (failed) peace agree­ment, the Abid­jan Ac­cord of Novem­ber 1996. On 7 March 2003, Mr. Crane an­nounced the first set of in­dict­ments, which in­cluded mem­bers of the RUF, the Sierra Leone Army and the Civil De­fence Force (CDF), which re­sisted the RUF. In all, the court would in­dict 14 per­sons, of which two—the RUF leader Fo­day Sankoh and his for­mer com­man­der Sam Bockarie—died be­fore their trial be­gan. A third, Hinga Nor­man, the pu­ta­tive leader of the CDF and cab­i­net min­is­ter in Pres­i­dent Kab­bah’s govern­ment, died dur­ing his trial.

Clearly the in­dict­ment of per­sons from all armed groups was meant to cre­ate an im­pres­sion of even-hand­ed­ness. But it puz­zled many in Sierra Leone who con­sid­ered the CDF as a heroic civil mili­tia which bat­tled to pro­tect civil­ians and helped re­in­state Mr. Kab­bah’s govern­ment after it was over­thrown in 1997.

The pro­ceed­ings of the court as well as its judg­ments bench­marked a new le­gal con­trivance: “Joint Crim­i­nal En­ter­prise” or JCE. This con­cept was first used by the In­ter­na­tional Crim­i­nal Tri­bunal for the for­mer Yu­goslavia (1991-1999). It con­sid­ers each mem­ber of an or­ga­nized group in­di­vid­u­ally re­spon­si­ble for crimes com­mit­ted by that group within the “com­mon plan or pur­pose”. It is an in­ge­nious way of de-le­git­imis­ing lead­ers of vi­o­lent groups and crit­ics note that it can eas­ily trans­late into guilt by as­so­ci­a­tion. The court en­tered con­vic­tions in all the cases it tried – an ex­tra­or­di­nary achieve­ment in­deed!

Le­gacy

At the for­mal clos­ing cer­e­mony of the court, UN Un­der-Sec­re­tary- Gen­eral for Le­gal Af­fairs and UN Le­gal Coun­sel Miguel de Serpa Soares hailed this achieve­ment as “a land­mark, not only for the Spe­cial Court, but also for in­ter­na­tional crim­i­nal jus­tice in gen­eral.” How­ever, as im­por­tant as Mr. Tay­lor’s con­vic­tion and sen­tenc­ing are, as well as those of others, it is un­clear what im­pact these would have on other pow­er­ful politi­cians in the re­gion.

Mr. Tay­lor was tried for sup­port­ing a for­eign war, not for the crimes he com­mit­ted in his own coun­try. Liberia’s civil war killed far more peo­ple (about 200,000) than Sierra Leone’s (75,000). But no one has faced jus­tice for the atroc­i­ties com­mit­ted in Liberia, which have been doc­u­mented by the coun­try’s Truth and Rec­on­cil­i­a­tion Com­mis­sion in a 2009 re­port. Still, an im­por­tant ar­gu­ment for the Spe­cial Court’s le­gacy is that it demon­strated that no one is above the law.

SCSL (Spe­cial Court for Sierra Leone)

The Spe­cial Court for Sierra Leone in Freetown.

UN Photo/SCSL/AP Pool/Peter DeJong

For­mer Pres­i­dent of Liberia Charles Tay­lor (back, cen­tre) await­ing ver­dict.

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