Last week, the Special Court for Sierra Leone released its Ninth Annual Report on its activities. Article 25 of the Statute of the Special Court requires the President to release an annual report to the Government of Sierra Leone and the Secretary General of the United Nations. The Ninth Annual Report focused on activities carried out by the Special Court between June 2011 and May 2012, the most significant of which was the Trial Chamber Judgment in the case of former President of Liberia, Charles Taylor. The Trial Chamber found Taylor guilty of committing war crimes, crimes against humanity, and other serious violations of international humanitarian law during the civil war in Sierra Leone and sentenced Taylor to fifty years in prison. Upon delivery of the judgment, Taylor became the first head of state to be tried and convicted by an international tribunal. The Taylor judgment is currently being appealed. Once the appeal judgment is issued, the Special Court will conclude its mandate, likely becoming the first UN-backed internationalized criminal tribunal to do so. [OSJI]
The Role of the Special Court for Sierra Leone
The Special Court is a hybrid tribunal. In 2002, it was established pursuant to an agreement between the Government of Sierra Leone and the United Nations in order to try those 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.” SCSL Statute. The Special Court is therefore responsible for prosecuting the individuals most responsible for the massive and widespread war crimes and crimes against humanity committed during the latter half of Sierra Leone’s eleven-year civil war that lasted from 1991 to 2002.
The Special Court has conducted four major criminal cases as well as several contempt of court cases, the majority of which have been carried out in the court facilities in Freetown, Sierra Leone. Due to security concerns, the trial of Charles Taylor and subsequent appeal have been carried out in The Hague. Although the 1999 Lomé Peace Accord between the government of Sierra Leone and the Revolutionary United Front contained an amnesty provision pardoning all rebel forces and their collaborators for acts committed during the war, this provision has not been a bar to prosecutions at the international level. Article 10 of the Special Court Statute expressly states that any amnesties shall not serve as bars to prosecutions conducted by the Court. Further, the Court held in Prosecutor v. Sesay, Kallan and Gbao, SC-SL, Trial Chamber, Judgement of 25 February 2009, that the amnesty clause did not apply to war crimes, crimes against humanity, or other serious violations of international humanitarian law.
Prior to the Taylor Judgment, the Special Court issued judgments in three cases concerning the leaders of armed groups that had played a major role in the conflict. In August 2007, the Special Court issued its judgment in the case of Prosecutor v. Fofana and Kondewa, SC-SL, Trial Chamber, Judgment of 2 August 2007 (commonly referred to as the CDF case). The Special Court found Moinina Fofana and Allieu Kondewa – leaders of the Civil Defence Forces (CDF) which fought in support of the Government against the RUF and Armed Forces Revolutionary Council (AFRC) rebel groups – guilty on four counts and five counts of war crimes, crimes against humanity, and other serious violations of international humanitarian law respectively. A third defendant, Samuel Hinga Norman, died of natural causes before completion of the trial. On appeal, the Court reversed Kondewa’s convictions for collective punishment and enlisting child soldiers and Fofana’s conviction for collective punishment. See Prosecutor v. Fofana and Kondewa, SC-SL, Appellate Chamber, Judgment of 28 May 2008. The Court, however, increased Kondewa and Fofana’s sentences for other crimes to twenty years and fifteen years, respectively.
The Special Court’s decisions have set important precedent in the field of international criminal law. In June 2007, the Special Court convicted Alex Tamba Brima, Ibrahim Bazzy Kamara, and Santigie Borbor Kanu, all former high ranking members of the AFRC of eleven counts of war crimes, crimes against humanity, and other serious violations of international humanitarian law. See Prosecutor v. Brima, Kamara and Kanu, SC-SL, Trial Chamber Judgment of 20 June 2007 (commonly referred to as the AFRC case). Notably, the three defendants were convicted of enlisting child soldiers and acts of sexual violence, including rape. The Trial Chamber sentenced Brima and Kanu to fifty years’ imprisonment and Kamara to 45 years.
In February 2009, the Special Court convicted Issa Hassan Sesay, Morris Kallon, and Augustine Gbao, leaders of the RUF of multiple violations of war crimes, crimes against humanity, and other serious violations of international humanitarian law that also included enlistment of child soldiers and acts of sexual violence as well as directing attacks against UN peacekeepers. See Prosecutor v. Sesay, Kallon and Gbao, SC-SL, Trial Chamber, Judgment of 25 February 2009 (commonly referred to as the RUF case). Sesay was sentenced to a total of fifty-two years of imprisonment while Mallon and Gbao were sentenced to a total of forty and twenty-five years respectively. The convictions in these cases mark the first time former rebel and militia leaders have faced criminal convictions and imprisonment for using child soldiers and directing attacks against UN peacekeepers. The cases also mark the first time forced marriage has been prosecuted as a crime against humanity.
Judgment in the Charles Taylor Case
The main focus of the 2012 Annual Report was the conclusion of the trial of the Special Court’s most high profile defendant. Charles Taylor was president of Liberia during the Sierra Leone civil war and is considered by many to be responsible for the conflict because of his assistance to rebel groups and his role in planning attacks on Sierra Leonean towns between 1998 and 1999. Taylor was indicted in March 2003 on seventeen counts of war crimes and crimes against humanity and other serious violations of international humanitarian law but these charges were later reduced to eleven. In accordance with U.N. Security Council Resolution 1688 (2006), Taylor was tried in the Special Court’s Hague Sub-Office because of concerns that trying Taylor in the same area where his alleged crimes had been committed would be a threat to the safety and security of the region.
In April 2012, Taylor was convicted of all eleven counts. These included aiding and abetting and planning: acts of terrorism, murder, rape, sexual slavery, outrages upon personal dignity, cruel treatment, other inhumane acts (including mutilations and amputations), recruitment, enlistment and use of child soldiers, enslavement and pillage. The Court unanimously held that Taylor participated in planning the rebel attacks on Kono, Makeni and Freetown between December 1998 and February 1999 and had aided and abetted the rebel groups in the commission of war crimes and crimes against humanity. The Court, however, also found that the prosecution had failed to prove beyond a reasonable doubt that Taylor had lead the rebel groups or that he had participated in a joint criminal enterprise with them. The following month, the Trial Chamber sentenced Taylor to fifty years of imprisonment. The Special Court is not permitted to sentence defendants to death or to life in prison. Both the prosecution – which had asked for an eighty year sentence – and the defense have appealed.
The SCSL’s Legacy and the Residual Special Court for Sierra Leone
When the Appellate Chamber delivers its judgment in the Taylor case, the Special Court will have fulfilled its mandate. The Special Court noted in its Ninth Annual Report, “Legacy in the context of hybrid courts has been defined as the ability to create a ‘lasting impact on bolstering the rule of law…by conducting effective trials to contribute to ending impunity, while also strengthening domestic judicial capacity.’” A significant portion of the Annual Report therefore focused on the legacy activities currently being carried out and planned.
In acknowledgment of the work that will remain after the Special Court winds up its activities, the U.N. and the government of Sierra Leone negotiated an Agreement on the Establishment of the Residual Special Court for Sierra Leone that was finalized in 2010. Both the Agreement and the Residual Special Court for Sierra Leone Statute were ratified by the national parliament in December 2011.
According to the Agreement, the principal seat of the Residual Special Court will be in Sierra Leone; however, there will be an interim seat in the Netherlands until the U.N. and the government of Sierra Leone decide otherwise. The Residual Special Court will also own all of the archives of the Special Court. However, due to a lack of archive space and preservation tools in Sierra Leone, the archives are currently being housed in the Netherlands. Of particular importance is the fact that the Residual Special Court will assume responsibility for the protection and support of witnesses once the Special Court concludes. Finally, the Residual Special Court has jurisdiction to try Johnny Koroma, the former leader of the AFRC who was indicted on seventeen charges in May 2008 but whose whereabouts remain unknown. The Office of the Prosecutor, however, is negotiating for the referral of the case to a competent national tribunal should Koroma ever be apprehended.
Another issue facing the Special Court is the future of the courthouse premises in Freetown. The Special Court submitted proposals to the government of Sierra Leone for potential future uses of the court facilities. Among the government’s top four preferences, all of which are to be implemented at some point, is to construct a Peace Museum to educate the public about the civil war and reconciliation process. The Open Society Foundation has noted that securing the necessary resources to house the archives as well as making the Peace Museum accessible to the public are key tasks that must be addressed.
Finally, both the Special Court and civil society have emphasized that part of the tribunal’s legacy will include incorporating its best practices into the national justice system and ensuring justice for the victims. The Open Society Foundation has noted the reluctance to try lower-level members of rebel and militia groups due to the amnesty provision in the Lomé Peace Accord and security concerns on the ground. Therefore, whether such prosecutions will take place in the future remains to be seen. Meanwhile, the University of Nottingham Human Rights Law Centre and the NGO Green Scenery have published a Best Practices Guide for incorporating some of the best practices of the Special Court into the Sierra Leone criminal justice system. Among these best practices are the criteria for granting protection to witnesses while respecting the rights of the accused and protecting the rights of the accused to be free from self-incrimination.
The judgment on appeal in the Charles Taylor case is expected to be delivered in September 2013. Although the Special Court and the Residual Special Court have substantial work ahead of them, the Special Court can already be said to have had a significant impact on international criminal and humanitarian law through its refusal to grant impunity to heads of state and top commanders as well as its prosecution of crimes against women and children as crimes against humanity. Just this week, the United Nations Security Council and UN Women commended the Special Court on its work and urged continued funding for its transition period.