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Justice within the Arrangement of the Special Court for Sierra Leone versus Local Perception of Justice: A Contradiction or Harmonious?

Document Cited in Related
Vincent
Date01 February 2014
Published date01 February 2014
AuthorLydia A. Nkansah
DOI10.3366/ajicl.2014.0082
Pages103-119
INTRODUCTION

In their quest to hold individuals accountable for war crimes and abuses of international human rights laws, in conflict and post-conflict situations, the international community established varied forms of international tribunals/courts. The Special Court for Sierra Leone (SCSL) was one such court. The establishment of the Nuremberg and the Tokyo Tribunals in 1945 by the Allied Forces to prosecute the German and Japanese war criminals for the abuses of World War II marked the beginning of international criminal justice.1

L. F. Damrosch, L. Henkin, R. C. Pugh, O. Schachter and H. Smit, International Law: Cases and Materials, 4th edn, West Group (2001).

Subsequent efforts by the UN to establish an international criminal tribunal to prosecute genocide and other war crimes proved futile due to the Cold War.2

Ibid.; Harvard Law Review, ‘Development in the Law: International Criminal Law’, 114(7), Harvard Law Review (2001): 1943–2073.

 There were no such trials after the Nuremberg and Tokyo ones until the Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1992 and the International Criminal Tribunal for Rwanda (ICTR) in 1994 in response to the atrocities which took place in those countries. In 1994, the UN revived its earlier initiatives towards a permanent mechanism for the prosecution of war crimes, culminating in the establishment of the International Criminal Court (ICC).3

Damrosch et al., supra note 1. See also L. Apori-Nkansah, ‘Accountability in Post-conflict Societies: The Truth and Reconciliation Commission and Special Court for Sierra Leone’, 6(1) Legon Journal of International Affairs (2009): 27–44.

 Following the ICTY, ICTR and the ICC, the international community sought to establish an international criminal mechanism with national components. The SCSL was one such court and the first of its kind.4

T. Cruvellier and M. Wierda, The Special Court for Sierra Leone: The First Eighteen Months, Prosecutions Case Studies Series, International Centre for Transitional Justice (2004), available at http://www.ictj.org/images/content/1/0/104.pdf (accessed 3 August 2007).

 It was established in 2002 by a UN treaty ‘to prosecute 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 30th November 1996’. This includes ‘leaders who, in committing such crimes, have threatened the establishment of and implementation of peace process in Sierra Leone’.5

Statute of the Special Court for Sierra Leone (2002), article 1, available at http://www.sc-sl.org/documents.html (accessed 3 May 2007).

 With the permission of the Security Council, the SCSL could also prosecute peacekeepers and their personnel for any of the offences within its jurisdiction where the ‘sending State is unwilling or unable genuinely to carry out an investigation or prosecution’.6

Ibid., article 1(2)&(3).

 It had no jurisdiction to prosecute anyone who had committed offences under the age of fifteen at the time of the commission of the offences in question.7

Ibid., article 7.

The SCSL had concurrent jurisdiction with the national courts but with primacy in cases of conflict. Thus the SCSL could request Sierra Leonean courts to defer to it at any stage in its proceedings with regard to matters within the SCSL's competency.8

Ibid., article 8.

Where an offence had been tried by the SCSL, the national courts could not try the same offence. Where a matter was tried by the national court, the SCSL could retry the same matter provided that such an offence was treated as ‘an ordinary crime’ or the proceedings at the national court ‘were not impartial or independent, were designed to shield the accused from international criminal responsibility or the case was not diligently prosecuted’.9

Ibid., article 9.

 A sentence of imprisonment by the SCSL was to be served in Sierra Leone. Under certain circumstances, however, it could be served outside in countries that had an agreement with the ICTY and ICTR for enforcement of sentences or any other nation with which the SCSL might enter into an agreement to that effect.10

Ibid., article 22.

 Sierra Leone was the seat of the Special Court. This notwithstanding, the UN and the government of Sierra Leone could enter into an agreement with a government of an alternate state where it became necessary for the Special Court to seat outside Sierra Leone for security reasons.11

Article 10 of the Agreement between the United Nations and the government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, 2002 available at http://www.sasl.org/LinkClick.asp (accessed 3 August 2012).

 In terms of administration, the SCSL was not anchored within the administrative set-up of the UN or that of Sierra Leone. It was overseen by a management committee comprising of interested states including the government of Sierra Leone and the UN Secretariat.12

S/2000/915; article 7 of the Agreement.

 The SCSL was funded by the voluntary contributions of the UN member states and the international community

The SCSL's model was a departure from the ICTY and ICTR, which were established by UN resolutions and anchored in the UN administrative system, to try international offences and sited outside the geographical jurisdictions of where the offences to be prosecuted took place.13

B. M. Mackay, ‘A View from the trenches: The Special Court for Sierra Leone – The First Year’, 35(273) Case Western Reserve Journal of International Law (2003): 273–85; C. Schocken, ‘The Special Court for Sierra Leone: Overview and Recommendations’, 20(436) Berkeley Journal of International Law (2002): 436–61.

It also differs from the ICC in that the ICC is a permanent court sited at The Hague that can try offences committed outside its geographical location

Affiliates of international criminal justice believe that it prevents future atrocities, punishes the offender, fosters national reconciliation, creates a historical record of abuses, reveals truth about the past and serves as catharsis for future prosecutions.14

Harvard Law Review, supra note 2.

The idea is that holding perpetrators accountable will contribute to reviving the rule of law for sustainable peace in post-conflict situations. Studies have been conducted generally into some aspects of international criminal justice;15

Ibid.; D. Jacobs and N. Arajarvi, ‘The International Criminal Court’, 7 The Law and Practice of International Courts and Tribunals (2008): 115–16; C. C. Jalloh, ‘Regionalizing International Criminal Law?’, 9 International Criminal Law Review (2009): 445–9; S. Linton, ‘Cambodia, East Timor and Sierra Leone: Experiments in International Justice’, 12 Criminal Law Forum (2001): 185–246; M. Ssenyonjo, ‘The International Criminal Court and the Lord's Resistance Army Leaders: Prosecution or Amnesty?’, 7 International Criminal Law Review (2007): 361–89; J. Subotic, Hijacked Justice: Dealing with the Past in the Balkans, Cornell University Press (2009); L. Vinjamuri and J. Snyder, ‘Advocacy and Scholarship in the Study of International War Crime Tribunals and Transitional Justice’, 7(1) Annual Review of Political Science (2004): 345–62; P. M. Wald, ‘Iraq, Cambodia, and International Justice’, 21 American University Law Review (2006): 541–56.

 however, there is the need for an in-depth analysis of how international criminal justice resonates in the domestic settings of its intervention. This paper seeks to contribute to that by examining the Special Court for Sierra Leone APPROACH TO THE STUDY

The study is based on an interdisciplinary approach to legal scholarship which included data from non-legal sources. The idea of an interdisciplinary legal study is based on the premise that law is not an end in itself so in order to understand law and its institutions, one needs to understand the social conditions within which law operates.16

For detailed examination of the rationale behind interdisciplinary legal studies see S. Halliday, Judicial Review and Compliance with Administrative Law, Hart Publishing (2004); R. A. Posner, ‘The Decline of Law as an Autonomous Discipline: 1962–1987’, Harvard Law Review (1987): 761–80, at 762; R. Cotterrell, ‘Subverting Orthodoxy, Making Law Central: A View of Sociolegal Studies’, 29(4) Journal of Law and Society (2002): 632–44, at 633; M. Galanter and M. Edwards, ‘The Path of the Law Ands’, 1997 Wisconsin Law Review (1997): 375, available at http://ssrn.com/abstract=1001444 (accessed 6 April 2013); F. Cownie, Legal Academics: Cultures and Identities, Hart Publishing (2004).

The aim of the study was to examine how the SCSL resonated as a justice mechanism engaged in post-conflict Sierra Leone for peace-building. Understanding the dynamics of the SCSL cannot be achieved solely by analysing statutes and case law. It is imperative to learn from those who experienced the phenomenon. Consequently, the data consist of documentary sources, the author's observational field notes and interviews. Participants comprised Sierra Leonean public officers, United Nations personnel who served in Sierra Leone, civil society actors, SCSL officers as well as Truth and Reconciliation Commission officials who were purposefully selected based on their knowledge and experiences of the SCSL. Interviews were conducted on confidential basis from December 2006 to March 2007. The interviews were cross-sectional and conducted within a short interval in Sierra Leone, the natural setting of the participants with the exception of two. Interviews were semi-structured with open-ended questions with each lasting between forty-five minutes to an hour. Data were coded and analysed through detailed ‘description’, ‘categorical aggregation’, ‘direct interpretation’, establishment of ‘correspondence and patterns’, and development of ‘naturalistic generalisations’. Given the fact that the author was the main...

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