Transitional Justice, Peace and Accountability: Outreach and the Role of International Courts after Conflict 9780203817278

Table of contents :
Cover
Transitional Justice, Peaceand Accountability Outreach and the role of internationalcourts after conflict
Copyright
Contents
Preface and acknowledgements
Acronyms
Introduction
Conflict in Sierra Leone: the need for justice
International justice for Sierra Leone
Reaching out to Sierra Leone
Outreach
Methodology
Book structure
Part: I Historical background and political context
1. International justice
Introduction
The origins of international judicial intervention
Law and politics
Transitional justice
Legalism
Pragmatism
Emotive
Rwanda and the Balkans: justice after mass atrocity?
Post-­conflict transitional justice in Sierra Leone
Conclusion
2. Sierra Leone: conflict and judicial intervention
Introduction
Sierra Leone: ‘province of freedom’
Sierra Leone: creation of a colony
Conflict
Bitter-­sweet diamonds
Centre–periphery conflict
Discontent in the ranks
Outbreak of hostilities in 1991
Origins of a rebel force: the Revolutionary United Front
Civilians and widespread abuse
Conclusion
Part; II Establishment of theSpecial Court for SierraLeone
3. Establishment of the Special Court for Sierra Leone
Introduction
Next generation
Creation of the court
Statute of the court
Management committee
Hybrid status: new and unique
Mandate
Limited jurisdiction
Charges
Conclusion
4. Internationalised justice in Sierra Leone
Introduction
Indictments
Revolutionary United Front case
Civil Defence Forces case
Armed Forces Revolutionary Council case
Charles Taylor
Procedural concerns
Satisfactory justice for Sierra Leone?
Conclusion
Part: III Outreach and legacy
5. Outreach
Introduction
Initial outreach efforts
Special Court Outreach
Outreach
SCSL: outreach in the beginning
The Outreach Office
Engagement programmes
Evaluating impact
Shortcomings
Barriers
Partnership, judiciary and divisions
Appraising Outreach
How will the Court be remembered in Sierra Leone?
Significance of Outreach to the Court’s legacy
Conclusion
6. Legacy
Introduction
Discussing legacy
Legacy and security sector reform discussions: ‘proleptic justice’
Legacy and judicial reform discussions: tensions for capacity building
Legacy literature
Legacy: capacity-­building projects
Symbolism, proleptic justice and therapeutic legalism
Conclusion
Conclusion: transitional justice, accountability and outreach
The cost of the SCSL
Justice for Sierra Leone
The importance of outreach
Jewel in the crown: success?
Conclusion
Notes
Bibliography and sources
Index

Citation preview

Transitional Justice, Peace and Accountability

This book looks at the outreach and communication strategies employed by internationalised courts to try to understand the wider impact of international justice. The book critically examines the role of outreach within international justice, focusing specifically on the role of outreach at the Special Court for Sierra Leone (SCSL). It contributes to understanding the relationship between international courts and the affected populations – an area currently underexplored and little understood. The assumption that justice brings peace underpins much of the thinking, and indeed action, of international justice, yet little is known about whether this is actually the case. Significant questions surrounding the link between peace and justice remain: Do trials deter would-­be war criminals? Is justice possible for the most heinous crimes? Can international justice replace local justice? This book explores these questions in relation to recent developments in international justice that have both informed and shaped the creation of the hybrid tribunal in Sierra Leone. Through empirical analysis, Transitional Justice, Peace and Accountability answers these questions and provides an insight into individual and community perceptions of international justice. This book will be of much interest to students of transitional justice, war crimes, peace and conflict studies, human rights, international law, and IR in general. Jessica Lincoln is a Tutor in the Department of War Studies, King’s College, London, and has a PhD in War Studies.

Contemporary Security Studies Series Editors: James Gow and Rachel Kerr King’s College London

This series focuses on new research across the spectrum of international peace and security, in an era where each year throws up multiple examples of conflicts that present new security challenges in the world around them. NATO’s Secret Armies Operation Gladio and terrorism in Western Europe Daniele Ganser

The Political Economy of Peacebuilding in Post-­Dayton Bosnia Tim Donais

The US, NATO and Military Burden-­sharing Peter Kent Forster and Stephen J. Cimbala

The Distracted Eagle The rift between America and Old Europe Peter H. Merkl

Russian Governance in the Twenty-­First Century Geo-­strategy, geopolitics and governance Irina Isakova

The Iraq War European perspectives on politics, strategy and operations Edited by Jan Hallenberg and Håkan Karlsson

The Foreign Office and Finland 1938–1940 Diplomatic sideshow Craig Gerrard

Strategic Contest Weapons proliferation and war in the Greater Middle East Richard L. Russell

Rethinking the Nature of War Edited by Isabelle Duyvesteyn and Jan Angstrom

Propaganda, the Press and Conflict The Gulf War and Kosovo David R. Willcox

Perception and Reality in the Modern Yugoslav Conflict Myth, falsehood and deceit 1991–1995 Brendan O’Shea

Missile Defence International, regional and national implications Edited by Bertel Heurlin and Sten Rynning

Globalising Justice for Mass Atrocities A revolution in accountability Chandra Lekha Sriram Ethnic Conflict and Terrorism The origins and dynamics of civil wars Joseph L. Soeters Globalisation and the Future of Terrorism Patterns and predictions Brynjar Lia Nuclear Weapons and Strategy The evolution of American nuclear policy Stephen J. Cimbala Nasser and the Missile Age in the Middle East Owen L. Sirrs War as Risk Management Strategy and conflict in an age of globalised risks Yee-­Kuang Heng Military Nanotechnology Potential applications and preventive arms control Jurgen Altmann NATO and Weapons of Mass Destruction Regional alliance, global threats Eric R. Terzuolo Europeanisation of National Security Identity The EU and the changing security identities of the Nordic states Pernille Rieker

Conflict Prevention and Peacebuilding in Post-­War Societies Sustaining the peace Edited by T. David Mason and James D. Meernik Controlling the Weapons of War Politics, persuasion, and the prohibition of inhumanity Brian Rappert Changing Transatlantic Security Relations Do the US, the EU and Russia form a new strategic triangle? Edited by Jan Hallenberg and Håkan Karlsson Theoretical Roots of US Foreign Policy Machiavelli and American unilateralism Thomas M. Kane Corporate Soldiers and International Security The rise of private military companies Christopher Kinsey Transforming European Militaries Coalition operations and the technology gap Gordon Adams and Guy Ben-­Ari Globalization and Conflict National security in a ‘new’ strategic era Edited by Robert G. Patman Military Forces in 21st Century Peace Operations No job for a soldier? James V. Arbuckle

The Political Road to War with Iraq Bush, 9/11 and the drive to overthrow Saddam Nick Ritchie and Paul Rogers

Understanding Victory and Defeat in Contemporary War Edited by Jan Angstrom and Isabelle Duyvesteyn

Bosnian Security after Dayton New perspectives Edited by Michael A. Innes

Propaganda and Information Warfare in the Twenty-­First Century Altered images and deception operations Scot Macdonald

Kennedy, Johnson and NATO Britain, America and the dynamics of alliance, 1962–68 Andrew Priest Small Arms and Security New emerging international norms Denise Garcia

Governance in Post-­Conflict Societies Rebuilding fragile states Edited by Derick W. Brinkerhoff

The United States and Europe Beyond the neo-­conservative divide? Edited by John Baylis and Jon Roper

European Security in the Twenty-­first Century The challenge of multipolarity Adrian Hyde-­Price

Russia, NATO and Cooperative Security Bridging the gap Lionel Ponsard

Ethics, Technology and the American Way of War Cruise missiles and US security policy Reuben E. Brigety II

International Law and International Relations Bridging theory and practice Edited by Tom Bierstecker, Peter Spiro, Chandra Lekha Sriram and Veronica Raffo

International Law and the Use of Armed Force The UN charter and the major powers Joel H. Westra

Deterring International Terrorism and Rogue States US national security policy after 9/11 James H. Lebovic Vietnam in Iraq Tactics, lessons, legacies and ghosts Edited by John Dumbrell and David Ryan

Disease and Security Natural plagues and biological weapons in East Asia Christian Enermark Explaining War and Peace Case studies and necessary condition counterfactuals Jack Levy and Gary Goertz War, Image and Legitimacy Viewing contemporary conflict James Gow and Milena Michalski

Information Strategy and Warfare A guide to theory and practice John Arquilla and Douglas A. Borer Countering the Proliferation of Weapons of Mass Destruction NATO and EU options in the Mediterranean and the Middle East Thanos P. Dokos Security and the War on Terror Edited by Alex J. Bellamy, Roland Bleiker, Sara E. Davies and Richard Devetak The European Union and Strategy An emerging actor Edited by Jan Hallenberg and Kjell Engelbrekt Causes and Consequences of International Conflict Data, methods and theory Edited by Glenn Palmer Russian Energy Policy and Military Power Putin’s quest for greatness Pavel Baev The Baltic Question during the Cold War Edited by John Hiden, Vahur Made and David J. Smith America, the EU and Strategic Culture Renegotiating the transatlantic bargain Asle Toje Afghanistan, Arms and Conflict Armed groups, disarmament and security in a post-­war society Michael Bhatia and Mark Sedra

Punishment, Justice and International Relations Ethics and order after the Cold War Anthony F. Lang, Jr Intra-­State Conflict, Governments and Security Dilemmas of deterrence and assurance Edited by Stephen M. Saideman and Marie-­Joёlle J. Zahar Democracy and Security Preferences, norms and policy-­making Edited by Matthew Evangelista, Harald Müller and Niklas Schörnig The Homeland Security Dilemma Fear, failure and the future of American security Frank P. Harvey Military Transformation and Strategy Revolutions in military affairs and small states Edited by Bernard Loo Peace Operations and International Criminal Justice Building peace after mass atrocities Majbritt Lyck NATO, Security and Risk Management From Kosovo to Khandahar M.J. Williams Cyber Conflict and Global Politics Edited by Athina Karatzogianni Globalisation and Defence in the Asia-­Pacific Arms across Asia Edited by Geoffrey Till, Emrys Chew and Joshua Ho

Security Strategies and American World Order Lost power Birthe Hansen, Peter Toft and Anders Wivel

European Security Governance The European Union in a Westphalian world Charlotte Wagnsson, James Sperling and Jan Hallenberg

War, Torture and Terrorism Rethinking the rules of international security Edited by Anthony F. Lang, Jr and Amanda Russell Beattie

Private Security and the Reconstruction of Iraq Christopher Kinsey

America and Iraq Policy-­making, intervention and regional politics Edited by David Ryan and Patrick Kiely European Security in a Global Context Internal and external dynamics Edited by Thierry Tardy Women and Political Violence Female combatants in ethno-­national conflict Miranda H. Alison Justice, Intervention and Force in International Relations Reassessing just war theory in the 21st century Kimberley A. Hudson Clinton’s Foreign Policy Between the Bushes, 1992–2000 John Dumbrell Aggression, Crime and International Security Moral, political and legal dimensions of international relations Page Wilson

US Foreign Policy and Iran American–Iranian relations since the Islamic revolution Donette Murray Legitimising the Use of Force in International Relations Kosovo, Iraq and the ethics of intervention Corneliu Bjola The EU and European Security Order Interfacing security actors Rikard Bengtsson US Counter-­terrorism Strategy and al-­Qaeda Signalling and the terrorist world-­view Joshua Alexander Geltzer Global Biosecurity Threats and responses Edited by Peter Katona, John P. Sullivan and Michael D. Intriligator US Hegemony and International Legitimacy Norms, power and followership in the wars on Iraq Lavina Lee

Private Security Contractors and New Wars Risk, law, and ethics Kateri Carmola Russia’s Foreign Security Policy in the 21st Century Putin, Medvedev and beyond Marcel de Haas Rethinking Security Governance The problem of unintended consequences Edited by Christopher Daase and Cornelius Friesendorf Territory, War, and Peace John A. Vasquez and Marie T. Henehan Justifying America’s Wars The conduct and practice of US military intervention Nicholas Kerton-­Johnson

Legitimacy and the Use of Armed Force Stability missions in the post-­cold war era Chiyuki Aoi Women, Peace and Security Translating policy into practice Edited by Funmi Olonisakin, Karen Barnes and Ekaette Ikpe War, Ethics and Justice New perspectives on a post-­9/11 world Edited by Annika Bergman-­Rosamond and Mark Phythian Transitional Justice, Peace and Accountability Outreach and the role of international courts after conflict Jessica Lincoln

Transitional Justice, Peace and Accountability Outreach and the role of international courts after conflict Jessica Lincoln

First published 2011 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2011 Jessica Lincoln The right of Jessica Lincoln to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-­in-Publication Data A catalog record has been requested for this book ISBN: 978-0-415-59839-2 (hbk) ISBN: 978-0-203-81727-8 (ebk) Typeset in Times by Wearset Ltd, Boldon, Tyne and Wear

Contents



Preface and acknowledgements Acronyms



Introduction Conflict in Sierra Leone: the need for justice  3 International justice for Sierra Leone  4 Reaching out to Sierra Leone  6 Outreach  7 Methodology  9 Book structure  11

Part I

xiv xvi 1

Historical background and political context

13

1

International justice: from Nuremberg to Sierra Leone Introduction  15 The origins of international judicial intervention  16 Law and politics  17 Transitional justice  21 Legalism  23 Pragmatism  24 Emotive  25 Rwanda and the Balkans: justice after mass atrocity?  27 Post-­conflict transitional justice in Sierra Leone  30 Conclusion  32

15

2

Sierra Leone: conflict and judicial intervention Introduction  33 Sierra Leone: ‘province of freedom’  34 Sierra Leone: creation of a colony  35

33

xii   Contents Conflict  36 Bitter-­sweet diamonds  37 Centre–periphery conflict  39 Discontent in the ranks  40 Outbreak of hostilities in 1991  42 Origins of a rebel force: the Revolutionary United Front  44 Civilians and widespread abuse  46 Conclusion  48 Part II

Establishment of the Special Court for Sierra Leone

49

3

Establishment of the Special Court for Sierra Leone Introduction  51 Next generation  51 Creation of the court  52 Statute of the court  54 Management committee  54 Hybrid status: new and unique  56 Mandate  57 Limited jurisdiction  58 Charges  60 Conclusion  61

51

4

Internationalised justice in Sierra Leone Introduction  62 Indictments  62 Revolutionary United Front case  63 Civil Defence Forces case  68 Armed Forces Revolutionary Council case  72 Charles Taylor  75 Procedural concerns  78 Satisfactory justice for Sierra Leone?   80 Conclusion  81

62

Part III

Outreach and legacy

83

5

85

Outreach Introduction  85 Initial outreach efforts  86

Contents   xiii Special Court Outreach  88 Outreach  89 SCSL: outreach in the beginning  90 The Outreach Office  92 Engagement programmes  92 Evaluating impact  95 Shortcomings  97 Barriers  99 Partnership, judiciary and divisions  100 Appraising Outreach  105 How will the Court be remembered in Sierra Leone?   110 Significance of Outreach to the Court’s legacy  116 Conclusion  120 6

Legacy Introduction  122 Discussing legacy  123 Legacy and security sector reform discussions: ‘proleptic justice’  126 Legacy and judicial reform discussions: tensions for capacity building  128 Legacy literature  131 Legacy: capacity-­building projects  133 Symbolism, proleptic justice and therapeutic legalism  138 Conclusion  139

122



Conclusion: transitional justice, accountability and outreach The cost of the SCSL  141 Justice for Sierra Leone  141 The importance of outreach  142 Jewel in the crown: success?  144 Conclusion  145

140



Notes Bibliography and sources Index

146 169 184

Preface and acknowledgements

Katrina Manson and James Knight (2009) provide a most apt and succinct description of Sierra Leone: ‘From the wing-­flash of an emerald starling, to the shouts of the star-­fruit seller in the market, to the salty fur of the ocean, Sierra Leone gleams with life, brilliance and pain’. It was a privilege to be able to spend time in Sierra Leone. The people I encountered were welcoming, and provided humbling insights into what was a violent and not so recent past. The questions of how to move forward after violent conflict have dominated recent thinking on peacebuilding. The tensions inherent within discussions on peace and justice were never more apparent than in Sierra Leone, where the world’s first hybrid tribunal was built and justice delivered on a monumental, albeit limited, scale. Understanding how the Court had been received and understood and what this meant for the country’s future are at the heart of this study. This book examines the work of an internationalised court after conflict to try to understand its role, function and wider aims. It does this by looking at the communication strategies employed; namely its Outreach and Legacy sections. It is informed by wider discussions on the link between justice and peace and a desire to understand how this process is understood and accepted by its direct beneficiaries: the people of Sierra Leone. This book is not intended to speak for Sierra Leoneans, and the restrictions to my travel did not permit a countrywide quantitative study; however, the aim is to provide an insight into knowledge and understanding of justice that will contribute to understanding the expectations for international justice, and therefore be instructive for outreach efforts at future internationalised trials. There are many people I would like to thank for their help, advice and support in the course of writing this book. Most importantly, I owe a debt of gratitude to all the people who gave me their time in Sierra Leone, and who spoke openly about their experiences and thoughts on transitional justice. I hope that I am able to do justice to your beliefs in this subject. Any and all limitations and inaccuracies throughout the book are, of course, entirely my own. I would also like to thank the following people in helping me complete this work. Foremost, to Caleb, thank you for your encouragement and support from start to finish, and for giving me perspective when I needed it most. Also, to Gretel: in times of doubt remember that ‘you can do anything you want as long

Preface and acknowledgements   xv as you try your best’, as spoken by your grandparents, who told me this often, and without whom I would not have had the determination to complete this work. Thank you to my parents, Peter and Susan Lincoln, for your endless love and support. I would also like to thank the following friends and colleagues who made the research process enjoyable and provided extensive support, and with whom I shared many a wise word over coffee or drinks when I was in London. I am extremely grateful to Rachel Kerr and James Gow, who provided excellent supervision throughout. Thank you for helping me to focus and to reach the conclusion. Your comments on previous versions of this manuscript have been invaluable and always insightful. It was a great opportunity to work with you both. I would also like to thank Tim Kelsall, Chandra Lekha Sriram, ’Funmi Olonisakin and an anonymous reviewer for their assistance in commenting on various versions of this manuscript. Your input was constructive, helpful and astute, particularly in providing clarity and balance to the analysis on outreach and legacy. I apologise in advance for any and all limitations, which are entirely my own. Nathalie Wlodarczyk, Ivan Zverzhanovski, Dawda Jobarteh, Brian Frutig and Rachael Vincent were great sources of support at King’s and JSCSC; I enjoyed your company immensely. In Bristol, Rachel Ibreck provided a much needed friend and colleague in the West Country. In Sierra Leone, James Roscoe welcomed me to stay in his house as an additional unknown guest in 2005. He was a very gracious host, even when I returned for the second time a year later. Special thanks to Trisha and Simon Thomson, who lent me the money to travel to Sierra Leone the first time, and helped me finish this work by being fabulous grandparents and looking after Gretel when I needed it most; and to Lauren for being a dear friend always. I would like to thank Professor Matt Uttley in the Defence Studies Department, KCL, for granting me a scholarship that allowed me to complete my PhD, and for your support while at JSCSC. I would also like to acknowledge my grandfather in this study, William Lincoln: I would like to have known you better. Thank you also to Eva and Eric Rosenfeld for your inspirational work. The final thanks must go to Usman, Paps and Ed – Ah gladi wae ah sabi una. This book is dedicated to the memory of Ed Sawyer. Jessica Lincoln October 2010

Acronyms

AFRC APC CDF CSO DOO ECOMOG ECOWAS ICC ICTY ICTR IMATT NPFL NPRC OTP RSLAF RUF SCSL SLPP TRC UN

Armed Forces Revolutionary Council All People’s Congress Civil Defence Forces Civil Society Organisation District Outreach Officer Economic Community of West African States Cease-­Fire Monitoring Group Economic Community of West African States International Criminal Court International Criminal Tribunal for the former Yugoslavia International Criminal Tribunal for Rwanda International Military and Training Task Force National Patriotic Front of Liberia National Provisional Ruling Council Office of the Prosecutor Royal Sierra Leone Armed Forces Revolutionary United Front Special Court for Sierra Leone Sierra Leone People’s Party Truth and Reconciliation Commission United Nations

Introduction

The Special Court for Sierra Leone (SCSL), created in 2002, has a singular place in the field of transitional and international justice. First, it broke new ground as a ‘hybrid’ internationalised court, created by agreement of the government of Sierra Leone and the United Nations, whereas its immediate precedents had been created either by full authority of the UN Security Council (the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda) or by state treaty (the International Criminal Court, whose statute also came into effect in 2002). Second, the SCSL was distinctive because it was located in the country where the alleged crimes were committed, unlike its forerunners, which were all located elsewhere – initially, all of them in The Hague in the Netherlands.1 Finally, and most importantly, the SCSL held a truly distinctive place because it was established with the specific means to communicate and connect with the people of Sierra Leone from the outset – an Outreach Office – in stark contrast to the Yugoslavia and Rwanda tribunals, which only falteringly began this work almost a decade after their creation. This was designed to make Sierra Leoneans aware of the Court’s work, to assist significantly in the missions of generating a sense of ‘justice’ being done in a transitional setting, and, thereby, fostering peace and security in a post-­conflict environment. This was widely regarded as a major achievement in itself, and a success in practice. Indeed, Outreach has been called the ‘jewel in the crown’ of the Court in recognition of its work, often carried out with unsecured funding in a post-­conflict setting. The SCSL would appear to be a leader in the field, and to set a significant precedent for other bodies dealing with international justice. This claim for success is an alluring one. Functioning in-­country immediately affords the opportunity that operating thousands of miles away does not, reaching out directly to the beneficiaries of the Court’s justice. However, there have been suggestions that outreach was not the triumph claimed of it. A study by Sawyer and Kelsall in 2008, looking at the Truth and Reconciliation Commission (TRC) and the SCSL, highlights that while they found people to be familiar with the Court, they discovered that the level of understanding of its work among the people of Sierra Leone was limited. A similar study undertaken by the BBC World Service Trust in 2007 also questions knowledge and attitudes regarding the SCSL and TRC. Although it was found that 96 per cent of respondents knew

2   Introduction of the Court, only 4 per cent claimed to know a lot about proceedings.2 Thus, there might well be reason to question the extent to which Outreach was the ‘jewel’ it was claimed to be. The reality is that, despite the claims made regarding the ‘innovative’ and ‘successful’ outreach programme at the SCSL, and subsequent questioning of these claims, no rigorous empirical evidence exists to support this analysis, one way or the other. There has been no focused independent study examining how effective Outreach for the Special Court was in ensuring that its procedures, principles and limitations were widely understood by the beneficiaries of its work – the people of Sierra Leone. It is therefore unknown how far the SCSL helped to end impunity in Sierra Leone, or how far it strengthened the rule of law, or if it allowed people, as hoped, to see that the ‘rule of law was more effective than the rule of the gun’, as claimed by former Chief Prosecutor, David Crane. This book examines the work of Outreach at the Special Court to investigate how the Court addressed impunity in Sierra Leone, and fill this knowledge gap. It looks at the role of Outreach at the Special Court, and also considers its legacy – a factor that came to dominate the end of proceedings. It investigates activities undertaken to enable the local population to understand and follow the complexities of the Court process, and considers the popular response to the work of the Court. Based on field work in Sierra Leone, the book explores levels of knowledge and understanding of the Court. It assesses how Outreach informed Sierra Leone about its limited mandate and jurisdiction; the trial process; and the Court’s wider ambition – to end impunity. In order to do this, the book asks, first, what is transitional justice, what is its purpose, and for whom is it directed?3 To understand the role of the Court in Sierra Leone, it is necessary to question its foundation: how did we arrive at this model? Second, to understand how the Court communicated to Sierra Leoneans we need to appreciate how the Court interpreted its mandate and jurisdiction, and how this subsequently informed Outreach’s strategy. Third, to appreciate the challenges posed in communicating this, we need to look at the role of Outreach in the Court’s structure, while also accounting for the key challenges at the Court: namely, a lack of funds and its sharply defined, narrow focus. Recognising these realities enables a wider assessment of Outreach and its success in generating understanding of the Court and its broader impact. A timely question is: how essential is outreach for international justice? This book determines that it is essential and, most importantly, was so for the Special Court in Sierra Leone. By being based in situ, the Court needed a means to communicate to Sierra Leoneans. Without a method of communication, the Court would not have been able to operate effectively in the country. To fulfil the mandate for international justice – to prosecute persons accused of the most serious crimes of international concern – its role and judicial activities needed to be understood. The importance of outreach for international justice has therefore been recognised with the inclusion of an Outreach Unit at the International Criminal Court (ICC). This focuses on building and maintaining cooperation and support, making sure the judicial activities are public and transparent, and increasing the broader

Introduction   3 impact. These are instructive, and speak to both a dedicated and integrated outreach strategy while also considering the legacy for international justice, underpinned by the belief that justice brings peace. However, there are important issues raised by the work of the SCSL that resonate directly with international justice more generally, which centre on the limitations and role of international justice. The work of the SCSL underscored tensions within transitional justice regarding its humanitarian role balanced with greater demands for development assistance – something the Court had neither the capacity nor the resources with which to engage. Outreach was at the forefront of communicating these limitations. It is only by fairly appraising the work of outreach, which includes appreciating the way in which it evolved, acknowledging that in many respects participants were learning as they went along and, ultimately, that they were doing the best with what they had, that we can begin to understand the role of outreach within international justice. Balancing this with Sierra Leoneans’ understanding and knowledge of the justice delivered by the Court, we can begin to understand the importance of outreach for international justice. 4

Conflict in Sierra Leone: the need for justice The war lasted for over ten years, and is well documented for its breathtaking malevolence (Fanthorpe, 2001) and unspeakable viciousness targeted against the civilian population (TRC Report, 2004: Vol. 2, Ch. 2). The war in Sierra Leone began in 1991, led by the disparate rebel group the Revolutionary United Front (RUF ), with the declared objective of overthrowing the corrupt All Party’s (sic) Congress (APC) government headed by Joseph Saidu Momoh. The APC had ruled Sierra Leone since 1968, when a coup brought Siaka Stevens to power. Stevens, a former senior police sergeant with an educational background in labour and industrial relations, proceeded to turn Sierra Leone into a one-­party state, and by 1978 the APC was declared the only legal political party. This period saw Sierra Leone change from a prosperous country to one that emphasised governance by personal rule: [n]ot founded on conventional concepts of legitimacy, or even on supporting formal bureaucratic institutions. Instead Sierra Leone’s presidents ruled by controlling markets, especially in diamonds, and manipulated other people’s access to economic opportunities in ways that enhanced their power. (Reno, 2003) Power was concentrated in the hands of a few in the political elite; corruption was systemic, with many of Sierra Leone’s natural resources, such as diamonds, being traded through illicit channels; state infrastructure was severely weakened due to lack of investment; literacy levels were low; the judiciary was weakened through bribery and corruption; and poverty was widespread. The decline in state provision and general sense of disenfranchisement created the conditions for the violent conflict that was to follow.

4   Introduction A decade of conflict saw direct targeting of civilians, amputations, forced recruitment of children, sexual violence, and destruction of villages and towns being used as strategies by the warring factions. After two failed peace agreements, at Abidjan, Côte d’Ivoire in 1996, and Lomé, Togo in 1999, and extensive international military intervention, the UN declared peace in Sierra Leone in 2002. Calls for accountability and justice were at the forefront of peace-­building demands in the latter stages of the conflict, both nationally and internationally.5 The level of atrocities committed during the conflict was extensive, and it was widely believed that without justice there would be no peace (Conflict Security & Development Group, 2003). Violence resumed again in 1999, after the signing of the Lomé Peace Agreement. This period saw some of the worst violence against the civilian population, along with the kidnapping of UN peacekeepers and British soldiers by a renegade Armed Forces Revolutionary Council (AFRC) rebel faction: the West Side Boys. Despite a blanket amnesty granted to all ‘combatants and collaborators in respect of anything done by them in pursuit of their objectives’ at Lomé (Lomé Peace Agreement, 1999: Art. IX (1)), the continued violence against Sierra Leoneans demanded an appropriate response. In June 2000, Ahmad Tejan Kabbah, then President of Sierra Leone, requested assistance from the United Nations to prosecute those most responsible for these crimes; namely, a Court to prosecute RUF leaders ‘for crimes against the people of Sierra Leone and for taking UN peacekeepers as hostage’. The gravity of the crimes committed, even after the Lomé Peace Agreement had been signed, proved that this amnesty provision was an inefficient deterrent to the commission of further atrocities. At the time of signing the Lomé Agreement, the UN Secretary General’s Special Representative, Francis Okelo, entered a caveat stating, ‘The United Nations interprets that the amnesty and pardon shall not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law’ (Lomé Peace Agreement, 1999: Art. IX, ss 1&2). This caveat paved the way for the establishment of the hybrid Special Court for Sierra Leone (SCSL or Court hereafter) in 2002. The amnesty therefore applied only to domestic law, and as such was not a barrier to international prosecution (discussed further in Chapter 4). The initial request from the Sierra Leonean government for the Court to focus on RUF crimes was soon broadened by the Office of the Prosecutor to include all parties to the conflict. The decision to investigate crimes committed by all sides, including the Armed Forces Revolutionary Council and pro-­government Civil Defence Forces (CDF ), proved to be contentious, with the CDF seen largely as the arbiters of peace, as discussed in Chapters 4 and 5.

International justice for Sierra Leone Initial negotiations took place in 2000, between the Sierra Leone government and the UN, on the creation of a court that would include national and international staff and judges (UN SCR 1315, 2000). The Security Council was unwilling to

Introduction   5 establish another expensive ad hoc tribunal, such as the International Criminal Tribunal for Former Yugoslavia (ICTY) or International Criminal Tribunal for Rwanda (ICTR), and was keen for the court not to be an organ of the Security Council, to avoid becoming subject to time-­consuming UN bureaucracy. Despite the adoption of the Rome Statute in 1998 for the ICC, it was not actually established until 2002, after sixty states had ratified the Agreement – thus meaning its jurisdiction only extended to crimes after it was created, and that it was therefore an inappropriate judicial method for conducting war crimes trials in Sierra Leone at this time (Frulli, 2000). A hybrid model emerged as a compromise combining both Sierra Leonean and international law: the Special Court for Sierra Leone. The SCSL was a truly ‘ground-­breaking institution’ that combined international and national laws. It was to use both international staff and Sierra Leoneans, who would work together to ‘bring to justice those who bear the greatest responsibility for serious violations of international humanitarian law, and certain violations of Sierra Leonean law’ (Statute of the SCSL, Art. 1, para. 1) committed since November 1996, the date of Sierra Leone’s first peace agreement in Abidjan, Côte d’Ivoire.6 The mandate also included a controversial proposal to put child soldiers between fifteen and eighteen years of age on trial, which the Prosecutor later decided against. This was despite the government of Sierra Leone arguing strongly for this inclusion, as the conflict involved thousands of youths as combatants (Dougherty, 2004). The Registrar and Prosecutor arrived in the capital, Freetown, in August 2002, issuing the first indictments in March 2003. The SCSL represented a new model of international criminal justice, moving away from the larger, expensive ad hoc tribunals. This scaled-­down version was designed to be faster, more efficient, and, perhaps most importantly, more cost-­ effective than the ICTY or ICTR. The concurrent jurisdiction and close involvement of the government of Sierra Leone in the creation of the Court has been compared to the ICC and its principle of complementarity – working with national governments, to prosecute where possible (Frulli, 2000). However, this prudent version of international justice has been criticised for shortcomings in its strategy and practice, mainly due to insufficient funding (Cockayne, 2004–05). As a new model, the Court found itself in the unenviable position of having to learn and adapt on its feet. Although it drew extensively on lessons and experience from the ICTY and ICTR, significant expectations were placed on the Court as setting a precedent for future tribunals and contributing to judicial reform in Sierra Leone, reflecting its dual jurisdiction (Sriram, 2005). Being based in situ – that is, trials taking place in the territory where the crimes were committed (Weirda, 2010) – posed both advantages and disadvantages. The Court could work with Sierra Leoneans in order to contribute to rule of law reform through the training of national staff in international humanitarian law practice, which would contribute directly to capacity building, and provide expertise on areas such as penal reform and witness protection. However, there was also a limitation on the number of people it could employ to do this. As will be discussed in Chapters 5 and 6, my research found significant hostility toward the Court for

6   Introduction not employing greater numbers of Sierra Leoneans in senior positions, particularly in the Prosecution and Registry, thus reinforcing the perception that it was more international than national in character. Adding further tension to this was the greater expectation that the Court would be a cure for many of Sierra Leone’s other ills. The seeming wealth of the Court was perceived to be an injustice – disproportionate, compared to the limited number of indictments that were released and prosecutions conducted, in relation to other more urgent needs. The initial optimism with which the Court was greeted eventually turned to criticism as the number of indictments was scaled back to just thirteen rather than the twenty to thirty envisaged in the beginning. Tensions also grew between the SCSL and the Truth and Reconciliation Commission (TRC) – a complementary transitional justice mechanism established at the same time as the SCSL – as access to testimony from the SCSL indictees was granted to the TRC, but on a limited basis.7 The financial costs involved in establishing and sustaining an internationalised Court in situ also eventually superseded many Sierra Leoneans’ views in relation to justice delivered by the Court. The expectation gap between what would be achieved, and what actually could be achieved, had widened. Many within the Court understood the limitations (judges, prosecutors, defence, etc.); however, my research found that many groups external to the Court, particularly within civil society, appeared not to be fully aware of the Court’s limitations. There are various reasons for this lack of understanding, such as the disjointed nature of outreach in the beginning (discussed further in Chapter 5). The consequences of this were a perception that the Court would contribute directly to domestic rule of law reform, with little understanding or knowledge that the limited mandate of the Court, and significant funding difficulties, prevented this. This generated hostility and a souring of relations between many NGOs, civil society activists and Outreach at the Court. This was underscored after early outreach efforts by the OTP had claimed, one might say fervently, that ‘justice’ would be brought to Sierra Leone. With little understanding about what this meant in practice, expectations were raised at the outset about what the Court would do for Sierra Leone.

Reaching out to Sierra Leone An implicit aim of the Court was to contribute to the rule of law more widely in Sierra Leone, mainly through capacity building, but also through the successful prosecution of those considered to bear the ‘greatest responsibility’. The prosecution of those in leadership positions would prove that seniority no longer granted the immunity it once did, bringing accountability where it had been absent for decades. As stated by Prosecuting Attorney Joseph Kamara during his opening statement to the CDF trials: ‘This is the time that people in leadership positions all over the world realise that they can be held accountable for human rights violations and breaches of international humanitarian law’ (SCSL 2004e, 2 June 2004: 30; Kelsall, 2010: 40). This was particularly important for Sierra Leone, where years of corrupt government had meant that many senior figures

Introduction   7 had indeed evaded prosecution for decades (Robertson, 2006); therefore, the Court was successfully filling an impunity gap on one level.8 Outreach was important in communicating these limitations and the principles on which the Court was based. Concentrating only on those in senior positions, ‘including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone’ (Statute of the SCSL, Art. 1(1)), the Court placed the blame at the highest level, and inadvertently absolved those beneath. This presented significant challenges in communicating these objectives to a country deeply affected by over a decade of violent conflict, particularly in garnering acceptance for such partial justice.

Outreach The SCSL was instrumental in setting the agenda for other outreach programmes in international courts. Yet little independent evaluation of Outreach at the SCSL has been undertaken to assess whether it was successful in its endeavours. Members of Defence, Prosecution and Registry all visited the provinces to answer questions and inform people of the Court’s procedures, and this was believed to have resulted in raised levels of awareness of the SCSL and proceedings, although it was criticised for concentrating efforts on specific areas rather than conducting a widespread campaign (Gberie, 2003). Extensive sample questionnaires were used by Outreach to assess the changing perceptions of the Court generated by their events, which provided valuable insight into the understanding of the Court and how this may (or may not) have changed over time. However, no independent analysis of this information exists.9 Clark’s (2009) study into the challenge of outreach for international war crimes tribunals considers outreach at the SCSL, along with the ICTY and ICTR efforts. However, this work is focused on the views of SCSL staff regarding outreach, rather than those of the population. The report details the breadth of stated work undertaken by Outreach. The level of recorded work undertaken by the Court is considerable, and, visiting the Court, one cannot but be impressed by the resources and facilities established in a limited time, particularly in such stark contrast to its surroundings. However, this does not equate with success in informing people about the Court and its broader impact, as would appear to be an assumption in Clark’s study; neither does it identify the role of the Court in Sierra Leone’s transition to peace. Similarly, Clark claims that the Court has an advantage over the ICTY as its materials only needed to be translated into Krio, the main lingua franca in Sierra Leone. This is incorrect. As will be discussed in Chapter 2, the perception of a Freetown bias, where Krio was widely spoken, was difficult for the Court to counter, and, despite high illiteracy levels, the Court also published work in Mende and Temne – the two other main languages in Sierra Leone – to ensure that it was reaching out effectively to people in the provinces. This straightforward aspect of the Court’s functioning in Sierra Leone, therefore, was one of its biggest challenges in reaching out to the country overall.

8   Introduction Clark’s study also refers to a survey undertaken assessing the impact of the Court, and concludes that the impact of outreach was high: an astounding 85 per cent said that the Outreach team had provided sufficient information about the Court; 85 per cent said that they were able to speak adequately about the Court’s activities, based on information provided by the Outreach section; and 88 per cent of respondents maintained that the Outreach team was doing an excellent job – a clear contrast to the BBC World Service findings mentioned earlier. This was a study commissioned by the SCSL, entitled ‘Public Perceptions of the Special Court for Sierra Leone’, headed by a Sierra Leonean academic from Fourah Bay College, Freetown. Discussions in January and April–May 2007 revealed that Outreach had played a significant role in seeking funding, planning, and recruiting for this survey. The former Registrar had also offered editorial assistance for the final project report. This level of involvement with the project planning and outcomes means that it is difficult to view the report as truly independent. Kelsall and Sawyer’s (2007) research on perceptions of the TRC and SCSL found that overall understanding of the Court and Commission was also poor, and therefore these were perceived to have had limited success. However, despite their findings, Kelsall and Sawyer also established that both Court and Commission were considered to be important mechanisms for consolidating peace in the region. Their study found that, overall, understanding of the Court was very low, but this often did not negate its overall importance as a peace-­ building mechanism for the country. Most importantly, the study found that the presence of the Court in-­country served to highlight the importance of Sierra Leone on the international agenda. My research also found similar perceptions. The presence of the Court often gave it greater acceptance in the country than did its modus operandi. Kelsall and Sawyer’s research also found that there was significantly little crossover with domestic judicial reform programmes, whether nationally- or internationally-­driven initiatives. Although a hybrid court, the SCSL was separate from the state, which underlined its impartiality but also made it difficult to engage directly with rule of law reform. Although this was not part of its mandate, there was a widely held perception that the Court would engage with this, as will be discussed in Chapters 5 and 6. Despite the training provided to national staff throughout the Court, many stated that there would be a significant ‘brain drain’ when the Court left, as there were no jobs or money to pay for skilled staff within the national judiciary (discussed further in Chapter 5). The Court indictments were also believed to reflect an ‘inappropriately narrow interpretation of the court’s mandate, such that several particularly brutal regional or mid-­level commanders have not been indicted’ (Human Rights Watch, 2004). The indictment of thirteen people in a conflict involving thousands raised questions nationally about the Court’s appropriateness as a mechanism to deliver adequate post-­conflict justice to Sierra Leone. It raised further questions regarding the role it would play in strengthening the national system when it remained distinct from local processes, and queries about ending impunity when the

Introduction   9 Court’s narrow mandate meant that many would evade prosecution. Conversely, the prosecution of senior figures also demonstrated that ‘big men’ would not get away with their crimes ‘scot free’. Both terms were used simultaneously during discussions in Sierra Leone regarding the indictments and limitations of the Court, thereby showing awareness of the Court’s functions but dissatisfaction at its ability to address accountability. This is significant for Outreach, as in one sense knowledge of the Court was significant, but (as will be explored in Chapter 5) this knowledge also had its limitations, with many having very little understanding of the role of the Court. My research does not attempt to discredit the important work undertaken by Outreach, often in challenging circumstances; rather, it seeks to understand how the work of Outreach informed Sierra Leoneans about the Court and thus aided in comprehension of its broader impact. By questioning the claims for success, it seeks to explore the underlying assumptions that justice does in fact bring peace. Although there has been significant investment in international justice, it is only by questioning these underlying assumptions that one can begin to understand what international justice means to its beneficiaries. By understanding how justice is received and understood, we can better calibrate our understanding of justice within the peace process. Despite the limitations of Clark’s analysis, she does highlight that outreach has become a fundamental part of and key activity for international justice. Her contribution draws attention to the deficit in understanding of the claims made for success.

Methodology The findings in the book are based on qualitative research undertaken in Sierra Leone, over the course of two years, during May 2005, February 2006, January 2007 and April–May 2007. Semi-­structured interviews and focus groups were held with Court staff, members of Sierra Leonean civil society, the judiciary and ordinary citizens. The questions focused on how the Court conducted its outreach activities, and, externally, on determining how effective this work had been. Research was undertaken in the capital, Freetown, as well as Makeni, Magburaka, Bo, Kenema and Moyamba (in west, north, south, east and central Sierra Leone respectively); these are mainly provincial headquarter towns, thus allowing for a more representative sample of views and information collection.10 Focus groups comprised a variety of participants, including ex-­combatants, youth workers, traders, and civil society members. The groups, although by no means exhaustive, were judged to be representative of key sections of Sierra Leonean society involved in the peace process: civil society members were central to driving the agenda for government reform; ex-­combatants were key to ensuring that Sierra Leone would remain at peace by not taking up arms again; youth workers were important for working with the large percentage of young people in the country, mainly ex-­combatants, by offering training and information dissemination, as well as providing a voice at national level for youth issues; and specific trading groups were important for communities, interacting daily

10   Introduction with many people. In some instances, they provided important channels of communication between the Court and ordinary citizens by working directly with Outreach officers. The Court stated that it would partner with national organisations to disseminate information and gain entry to communities that it would otherwise not have been able to access.11 Indeed, this was cited by the Institute for War and Peace Reporting (IWPR, 2009) as a success for the SCSL to be replicated elsewhere. Interviews with civil society groups were therefore necessary to investigate the veracity of these claims, the level of local ownership felt towards the Court and, thus, the broader impact. Ordinary Sierra Leoneans were also interviewed, to question their knowledge and understanding of the Court as well as to garner a sense of ownership. Questions were based on assessment of individuals’ knowledge of the SCSL; whether they had attended the Court or an Outreach event; and, more generally, on their understanding of the Court’s work and its goals for Sierra Leone. Understanding individual perspectives was also imperative for determining the broader impact. Interviews enabled personal insights into people’s knowledge and understanding of the SCSL, and the focus group sessions allowed discussion on whether the issue of impunity had been addressed by the Court – significantly, how effective Outreach had been at communicating this. These discussions also considered the legacy of the Court – what this was and, in many instances, what it should it be. These research data were essential to examine the role of the Court in the wider peace process and future of Sierra Leone. Key research findings drew attention to the perception of international law as ‘white man’s law’, which raised questions regarding the level of understanding and acceptance of the Court if this divisive view of international justice persisted. These claims were raised at a time when the Court was attempting to establish its legacy, yet found itself restricted to a more facilitative role due to financial restraints and a lack of commitment at an international level. Such restrictions raise interesting questions for the field of international justice and the actual contribution judicial institutions can make to the rule of law and accountability in countries after conflict. If justice is limited (i.e., has no residual capacity-­building/development agenda), should it remain distant? The debate on legacy for the SCSL also presents a confused and tense narrative. This is based mainly on a lack of clarity from the Court about what its legacy was12 – which, in the Court’s defence, was complicated by its lack of mandate, or capacity to engage fully. This again was underpinned by a lack of funding to implement many of the legacy initiatives proposed, as discussed further in Chapter 6. If the wider, implicit, goal of the Special Court was to address the impunity gap that existed (as has been stated in Court literature and international donor discussion), it was important to establish how the SCSL would do this. However, the lack of clarity generally regarding legacy did generate plenty of discussion, both inside and outside the Court, about what it should mean. It is, of course, too early to determine the posthumous legacy of the Court, but it is timely to discuss the broader impact of international justice, particularly

Introduction   11 as it relates to outreach, as this directly feeds into the legacy of the Court in Sierra Leone.

Book structure The book is organised into three parts, with Part I setting out the historical background and political context for the establishment of the SCSL. Chapter 1 discusses the origins of international justice. To understand the possibilities and limitations of the Court it is necessary to investigate the foundations of internationalised justice, while also considering the assumptions underpinning the creation of the SCSL. This is explored together with key debates in transitional justice, which have largely been dominated by legalism, but recently have also begun to incorporate pragmatic and emotional responses to post-­conflict accountability. Calls for greater complementarity (Kerr and Mobekk, 2007) and better cultural understanding (Kelsall, 2010; Kamari and Goodale, 2010) have widened the debate, opening the discussion to enable greater clarity about transitional justice, what it means to the recipients of this justice, and how we should understand it within the context of a peace process. Chapter 2 sets out the historical background to the establishment of the SCSL. It discusses the political and economic situation in Sierra Leone prior to the conflict, during the war and afterwards, examining the factors that led to the outbreak of conflict in 1991 and also exploring why there was a need for a war crimes tribunal. Understanding this context allows for a clearer view of some of the challenges of conducting clear and consistent outreach programmes. Part II of the book discusses the establishment of the Court itself. Chapter 3 looks at the creation of the Court, political considerations behind its hybrid status, and the challenges posed to this novel, yet limited, model of international justice. Chapter 4 examines the Court’s limited mandate and jurisdiction to investigate the implications of only conducting a small number of indictments and the challenges of informing the population about this, particularly when confronted by a hostile media. Part III of the book takes a closer look at the outreach and legacy strategies implemented by the Court. Chapter 5 considers Outreach at the SCSL. This chapter is based on field work and analysis of the Court’s communication strategies employed in its attempts to reach out to Sierra Leone, asking how important outreach was for the SCSL. This section also considers the extent to which outreach has generated knowledge and understanding of international justice, and how this in turn has helped strengthen the rule of law in a post-­conflict country, thus identifying its broader impact. Following in this vein, Chapter 6 investigates the Court’s legacy. The former Prosecutor, David Crane, identified outreach and legacy as two essential organs for the Court’s lasting success in Sierra Leone (Crane, 2004). Therefore, clarifying what the Court’s legacy was, and what this has meant for Sierra Leone, is important in helping to understand the relationship between outreach and legacy, and how they fulfil the wider aims of international justice.

12   Introduction As stated above, the aim of this book is not to criticise the valuable work undertaken by the Outreach section at the SCSL; rather, it is to try to understand the role of outreach for international justice and, consequently, its wider aims. The SCSL offered a unique opportunity to show ‘justice in action’, which would allow people to see those alleged to be most responsible for the worst crimes held to account. But what did this really mean, and how did this address impunity? The book seeks to explore this by speaking to the Court’s beneficiaries and to Court staff, to try to understand how the Court was received and understood, and to comprehend its lasting impact. If the wider aims of international justice are to be realised and impunity tackled, it is important that we try to understand the role of war crimes prosecutions in the larger peace-­building process.

Part I

Historical background and political context

1 International justice From Nuremberg to Sierra Leone

Introduction This chapter explains the origins of the SCSL, positioning it within the legacy of international jurisprudence. It highlights the shortcomings and tensions embedded in international justice from the outset, which have persisted and shaped the development of the SCSL. It starts with a discussion on the development of international justice from the post-­Second World War trials at Nuremberg and Tokyo. It considers the politicisation of these trials, and the principle of ending impunity for the worst crimes resulting from them. The subsequent creation of the ad hoc tribunals for the former Yugoslavia and for Rwanda in the 1990s saw the beginning of an international judicial response to conflict and mass atrocity become the norm.1 As noted by McEvoy (2007), ‘[T]ransitional justice has emerged from its historically exceptionalist origins to become something which is normal, institutionalised and mainstreamed.’ The post-­Second World War trials set the precedent for the international prosecution of war crimes, crimes against humanity and crimes against peace. However, it was not until the latter half of the twentieth century that discourse on law in post­conflict or transitional settings became firmly entrenched in the international peace and security agenda (Teital, 2003; UN Doc. S/2004/616). The further establishment of the Rome Statute in 1998 for the creation of a permanent International Criminal Court firmly established the international demand to end impunity for war crimes and human rights abuses. But can justice satisfy the demands for justice after violent conflict? Will the narrow application of law, through a judicial institution, fulfil the need for justice in this environment? Is limited justice more damaging than no justice at all? These questions perhaps need to be reconsidered, to ask: what contribution can justice make to peace in this setting, and, within this, how are the basic principles of international law communicated to ensure widespread understanding that justice is indeed contributing to peace? The chapter begins with a discussion of the historical developments in international justice. It then moves on to investigate how this field has evolved by considering key transitional justice debates and the central arguments on peace through justice, peace and justice, and peace versus justice. The chapter ends with analysis of post-­conflict justice in Sierra Leone to situate international

16   Historical background and political context j­udicial intervention with recent post-­conflict peace-­building efforts and understand the assumptions underpinning the Court, and appreciate the expectations made of it for Sierra Leone.

The origins of international judicial intervention The current system of international justice has its origins in the Second World War military tribunals from 1945 to 1949. The Nuremberg and Tokyo Trials laid down the legal and conceptual framework for successive developments in international criminal justice, eventually leading to the creation of a permanent international court half a century later: ‘The Nuremberg Tribunals established the principle that there were such things as crimes against humanity, systematic crimes against civilians that can occur inside a country but that might be tried anywhere else’ (Gutman and Rieff, 1999). The Nuremberg principles established a protocol for the treatment and prosecution of war criminals, preparing the way for the creation of the Genocide Convention in 1948, the Universal Declaration of Human Rights in 1948, the Convention on the Abolition of the Statute of Limitations on War Crimes and Crimes against Humanity in 1968, and the Geneva Convention on the Laws and Customs of War in 1949 and its supplementary protocols in 1977. The trials also stood as a stark reminder that such crimes would not be committed with impunity. The post-­Second World War trials saw the indictment of key individuals for the crimes of conspiracy to wage aggressive war, waging aggressive war, war crimes, and crimes against humanity. It was declared under Article 7 of the Nuremberg Charter that: ‘The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment’. The first Major War Crimes Trial at Nuremberg included some of the key officials in the Nazi apparatus, including Ernest Kaltenbrunner, the highest surviving SS leader; Joachim von Ribbentrop, Nazi Minister of Foreign Affairs; and Hermann Goering, Commander-­in-Chief of the Luftwaffe; of the twenty-­one defendants prosecuted only three were acquitted,2 while the rest were sentenced to death by hanging or to serve lengthy prison terms. Article 8 of the Nuremberg Charter declared: ‘The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires’. This set the precedent for the application of individual criminal responsibility in the later ad hoc Tribunals Statutes: Article 7(1) for the ICTY, and Article 6(1) for the ICTR and ICC.3 The Allied Powers also wanted expedient justice, meaning only those in the top echelons of power would stand trial, although many of the most senior leaders were missing from the trials as they had either committed suicide or absconded. Over 100 people were eventually prosecuted. Karl Jaspers (1947) believed that the decision to hold individuals responsible meant that ‘for us Germans, the advantages . . . are its distinction between the

International Justice: Nuremberg to Sierra Leone   17 definite crimes of the leaders and its very failure to condemn the people as a whole’. The individualisation of responsibility for war crimes remains central to present day prosecutions of war criminals, and a controversial aspect of international justice (Bass, 2002; Fletcher and Weinstein, 2002; Neuffer, 2003). The question still stands as to whether punishment of the few is sufficient justice for the many. Such questions continue to dominate discussions on post-­conflict justice, particularly where the line between victim and combatant is blurred. Recent conflicts have increasingly occurred within, rather than between, states. They have also witnessed communities and sometimes neighbours fighting each other, as happened in the former Yugoslavia and Rwanda, where ethnic tensions were exploited with violent consequences. This means that establishing responsibility presents significant challenges to identifying the ‘guilty’ and has the potential to disrupt a peace process where claims for legitimacy or self-­defence can be argued and/or justified. Here, calls for reconciliation have often been made alongside or in place of justice – for example, as seen in Liberia with the creation of the TRC.4 This presents similar difficulties in terms of who to reconcile with, and whether reconciliation is a desirable end-­state for all. Germany, after the Second World War, was physically divided between east and west, but also divided as to its responsibility and acknowledgement of the crimes committed. Many Germans saw themselves as victims of the regime and its failures, not as criminals, or complicit in crimes of the state (Maier, 1988).

Law and politics The contribution to international jurisprudence from the post-­Second World War trials was highly significant, yet the trials themselves have been heavily criticised, particularly for the sense of ‘victor’s justice’, the ‘dubious law applied’, and the lack of provision for tu quoque – the ‘so-­did-you’ defence (Taylor, 1993). The trials have also been deeply criticised for the ex post facto law applied – i.e., whether ‘crimes against peace’ and ‘crimes against humanity’ were indeed crimes at the time they were committed (Futumura, 2005). The legal bases of the trials were a controversial part of the process. The London Charter of 1945 established the tribunals’ jurisdiction over crimes against peace, war crimes and crimes against humanity. Prior to this there was no consensus under international law for the definition of these crimes. Thus, an obvious reproach was that these crimes could not be tried retroactively (Martens, 2005). The fact that they were remains a notable point for discussion on the inherently political nature of international war crimes trials. The Nuremberg and Tokyo Trials were the Allied Powers’ response to prosecuting key commanders for starting a war of aggression. However, secondary to this was the prosecution for the crime of the Holocaust. The support for the tribunals at this time was driven by international outrage at the inhumanity of the Nazi regime against its own citizenry and surrounding populations. Pictures emerging from the concentration camps did not allow for international condemnation with inaction. The Nuremberg Trials saw Nazi leaders tried and punished,

18   Historical background and political context but primarily for wreaking havoc and destruction to such an enormous degree, with the persecution of Jews and minorities a secondary element to trial proceedings.5 The Tokyo Trials were also viewed as heavily politicised in their indictments and judgements, specifically for the focus on ‘crimes against peace’ and for the immunity given to the Emperor. Despite the overall acceptance by the Japanese people of the trial on the grounds that ‘might is right’ and the reality that there was little choice for the vanquished but to accept whatever the victor did, the decisions were not universally accepted (Futumura, 2005). Although regarded as heroes during the war, the ‘sudden’ defeat and misery that followed caused anger towards their leaders among the Japanese people, who had been informed that Japan was on the winning side. The reaction to the former leaders by the Japanese people soon after the war was based on feelings of betrayal for this deception. The Tokyo Trial was able to take advantage of this Japanese mood while at the same time re-­enforcing it, leaving a legacy of indifference and apathy towards the trials. The trial attempted to individualise war crimes and guilt while presenting an authoritative record of history, which only served to reinforce feelings of victory over a defeated people (Futumura, 2005). Similar claims about the politicisation of trials and of their legal basis were made by former Yugoslav President Slobodan Milosevic regarding the ICTY, and by Saddam Hussein regarding the tribunal in Iraq.6 It is difficult to remove the inherently political nature of internationalised trials and the sense of ‘victor’s justice’ that can affect the trial process: ‘Slobodan Milosevic maintained to his death, and his followers continue to maintain, that the wars in the former Yugoslavia were not about ethnic cleansing and destroying Muslims or Croats but about defending a Serbia under attack’ (Sriram, 2007). The creation of a permanent International Criminal Court in The Hague aimed to depoliticise international prosecutions: the ICC has had jurisdiction over war crimes, crimes against humanity, and genocide since the signing of the Rome Statute in 2002 – but only over those states who have ratified the Agreement.7 The fact that the ICC can issue indictments but has no authority to arrest suspects and relies on states themselves to detain individuals has meant that the process is tied with internal state politics and wrangling. This is not always a negative aspect, with the eventual arrest of Charles Taylor and his trial at the Special Court for Sierra Leone highlighting the potential benefits of political manoeuvring and bargaining. Similarly, the ICC can only investigate cases put forward by states or by the Security Council, meaning that it is difficult to disentangle political motivations (or perceptions of such), from the judicial process. The politicisation of the Tokyo and Nuremberg Trials, therefore, is a reminder that ‘while the perceived legacy of Nuremberg was taken to demonstrate the merits of international justice in the aftermath of war, it is by no means settled that this received wisdom is correct’ (Kerr, 2004a). However, Richard Dicker and Elise Keppler (2004) highlight that the ‘imperfect remedy’ offered by the current system of international criminal justice is a ‘vitally necessary alternative to impunity’. The creation of the ad hoc tribunals in the 1990s re-­ignited a drive towards international justice that had not existed since Nuremberg and Tokyo.

International Justice: Nuremberg to Sierra Leone   19 However, Dicker and Keppler draw attention to the tendency to misunderstand the short-­term impact of Nuremberg, which they see as being conflated over the years. The immediate reaction of many Germans was that these were ‘political show trials’ for the benefit of international audiences. The sense of justice established by the victors in the conflict served to undermine the trials’ legitimacy in the eyes of many German people. It has taken a new generation of Germans to ask questions about the prior regime based on an acknowledgement of the documentation created at Nuremberg: ‘The IMT’s record has provided an invaluable and incontrovertible reference point of past crimes’. However, the authors also point to the idealised perception of the trials, acknowledging their highly controversial impact at the time they were conducted. Their immediate impact was much more limited than was the longer-­term acceptance of what had taken place during the War. Therefore, perhaps one of the greatest achievements of the post-­ Second World War trials, which resonates today, was establishing a dialogue on justice, asking questions on responsibility and the guilt of those indicted, and indeed those who were not prosecuted, and what contribution this model of justice made to peace in Germany and Japan after the Second World War. This is central to the debate on whether justice does strengthen peace after conflict. As Sriram (2007) observes in her discussion of the inherent risks (political or otherwise) involved with establishing transitional justice regimes after conflict, these same challenges, namely appropriateness/relevance, are presented to liberal peace-­building strategies, and are tied to the overall acceptability of the process and whether such efforts will undermine peace and cause further instability. As discussed further below, transitional justice efforts have so far been dominated by Western calls for accountability based on a legalism. Although this does not diminish trials as post-­conflict judicial mechanisms, it does highlight potential tensions in creating legitimate judicial institutions where politics may overshadow the process, as seen at the Milosevic and Iraqi trials, as well as at the SCSL with the CDF trials (Kelsall, 2006), discussed in detail in Chapter 3. Despite the increased occurrence and continuing importance of international justice in the international peace and security agenda, there is still little systematic empirical evidence to support the assertion that justice does in fact bring peace. The relative merits and drawbacks of judicial approaches have been the subject of intense debate, although this has largely concentrated on the legal and jurisprudential impacts of war crimes prosecutions. Where it has addressed political issues, it has focused on the role of politics in the international criminal justice process (Chuter, 2003; Kerr, 2004b; Maogoto, 2004). Key issues surrounding the relationship between justice and peace remain under-­explored. Few studies offer empirical research examining the impact of transitional justice. Fletcher and Weinstein (2002) similarly highlight that ‘there have been virtually no studies that have systematically attempted to examine or measure the contribution of trials to reconciliation and social reconstruction’. Stover and Weinstein’s (2004) edited study of individual beliefs on the past and for the future in Rwanda and the former Yugoslavia is an exception to this, offering insightful and extensive investigation in this area. Stover and Weinstein’s

20   Historical background and political context ­ ndings suggest that international or local trials have little relevance to actual fi reconciliation. Although the authors recognise that trials are essential to combating impunity, they acknowledge that their strengths and limitations need to be recognised. They promote a more conciliatory model of social ‘justice’ that does not concentrate solely on trials as a means of establishing peace, but instead incorporates justice, democracy, economic prosperity and transformation, along with reconciliation to achieve social reconstruction. This holistic approach to peace building sees justice as one aspect that informs a larger process with each factor interacting to affect change. Thus, peace is achieved with justice along with multiple other social, economic and political factors. James Gibson’s (2004) extensive work evaluating the truth and reconciliation process in South Africa also offers a comprehensive analysis of how the truth-­telling process affected reconciliation throughout South African society. Although he does not view the SA TRC as a perfect process, he does draw valid conclusions regarding the value of proceedings in establishing the truth, the importance of public acknowledgement of this truth, and the role public apologies have had on the South African peace process. Advocacy groups have similarly produced various large-­scale attitudinal studies towards transitional justice, such as the International Centre for Transitional Justice (ICTJ) comprehensive studies in Iraq (ICTJ, 2004) and Northern Uganda (ICTJ, 2005), as well as the Sierra Leonean civil society organisation Campaign for Good Governance’s opinion poll on the SCSL and TRC conducted in 2002. These reports similarly call for a coordinated transitional justice approach that includes justice, reconciliation, reconstruction and reparations. Inclusion of nationals within the process is also viewed as essential to leaving a legacy of human rights, strengthening the rule of law, and instituting change from within. Outreach and evaluation of previous judicial methods remain pivotal to this success (Interview 77). Criticisms have been levied against the ad hoc tribunals for their lack of connection with their respective populations (Peskin, 2005a). With neither tribunal being based near its geographical focus, a lack of visibility risked undermining their legitimacy. Operating at a distance, outreach was crucial to raising awareness of the principles and processes of the tribunals. Without this knowledge, the link between peace and justice was undermined and the process risked being politicised if certain groups felt that they were being targeted over others (Muna, 1997–98). After years of proceedings, outreach at the ad hoc tribunals was only established in 2003–04 (Interview 70). Many Rwandans and people within the former Yugoslavia felt a frustrating sense of disconnection with the tribunals and outcomes, as many were unaware of the day-­to-day events and had little access to the Courts themselves (Interviews 6, 7). Subsequent domestic methods to address war crimes issues, such as the war crimes courts in Bosnia and Herzegovina and the Gacaca hearings in Rwanda, were hindered by insufficient funds, adding to the frustration over lack of access to justice. The length of time the trials took to complete also led to criticisms centred on the relevance of their work in comparison to other pressing socio-­economic factors.

International Justice: Nuremberg to Sierra Leone   21

Transitional justice Transitional justice emerged as the response to political changes in the late 1980s and early 1990s throughout Latin America and Eastern Europe.8 As discussed previously, this nascent field has gained prominence in the past decade as judicial accountability after atrocity and conflict became the norm. Transitional justice, or the institutionalisation of justice after conflict, is increasingly perceived as central to post-­conflict peace-­building processes, as demonstrated in Sierra Leone, Rwanda, Uganda, East Timor, the Lebanon and the Balkans. However, a one-­size-fits-­all approach was recognised as an ineffective and inefficient approach to providing international justice. As noted by Stover and Weinstein (2004), the desire for justice must also be pragmatic and adequately meet the needs of those calling for justice. It is a basic maxim of law that harms should be remedied (Roht-­Arriaza, 2004). How this is undertaken, though, has increasingly become dependent on financial and political factors: are there funds available, and is there the political will to carry out lengthy trials? Legalist, pragmatist and emotive responses to transitional justice International judicial intervention has been driven by the need to maintain international peace and security, as seen by the creation of the ICTY.9 Judicial methods have been seen as key means of consolidating peace after conflict. Legalism and the promotion of universal standards of justice initially dominated this debate, but developments in this field have given rise to the consideration of alternative judicial and non-­judicial methods for addressing mass atrocity. Hybrid courts have evolved from the need to avoid the financial and political pitfalls of the ad hoc tribunals and truth commissions, or commissions of enquiry have emerged to satisfy the non-­judicial needs of a post-­conflict society. Truth commissions have gained prominence, as stated by the ICTJ, as ‘official inquiries into patterns of past abuse that seek to establish an accurate historical record of events’, with both truth-­telling and reconciliation becoming synonymous ideals within transitional justice. The creation of the ad hoc tribunals and the International Criminal Court demonstrates the belief that the ending of hostilities is no longer regarded, in itself, as sufficient in establishing peace (Fritz and Smith, 2001). The extent and gravity of human rights abuses witnessed during recent conflicts has demanded that those responsible are held to account. Nicole Fritz and Alison Smith (2001) highlight the importance of ‘institutionalising processes of accountability whereby justice must be seen and served if a conflict ridden society is to move forward’. The widespread belief that justice leads to peace has emerged as the prevailing view among many advocates, practitioners and academics of transitional justice. However, as discussed in the Introduction, this assertion has not been rigorously tested. Bass (2000) believes that international human rights organisations such as Human Rights Watch (HRW hereafter) and Amnesty International (AI hereafter)

22   Historical background and political context are central to the promotion of legalism, as they provide the element of ‘outrage’ that he sees as being essential to whether governments respond to mass atrocity and, if so, how they do it. The growing prominence of organisations such as these highlights the importance of post-­conflict justice on the international agenda, and they lobby hard to ensure atrocities and crimes are reported. This growth in interest has come mainly from the West – in particular, the USA and European countries – but, with the increase in transitional justice mechanisms, there has been growing scholarly interest elsewhere on these issues, such as the Centre for the Study of Violence in Africa, based in South Africa. The field of transitional justice has so far been dominated by legalism and a belief in universal standards of justice (Vinjamuri and Snyder, 2004). Institutions that promote and enforce international humanitarian law and human rights law have been critical to this principle, with war crimes tribunals emerging as the key method for achieving this universalism. The ad hoc tribunals set a precedent in international criminal justice by establishing that the international response to mass atrocity would be through due judicial process; it reinforced the rule of law and placed it centrally on the peace agenda. Despite the restrictions of these institutions, international judicial intervention and war crimes prosecutions remain central to post-­conflict peace building. However, the limitations and costs of the ad hoc tribunals, and the realisation that a one-­size-fits-­all approach to post-­conflict justice will not work, has opened debate about alternative forms of justice and accountability. Bass (2000) suggests that legalism is premised primarily on liberal democratic values and the ideal of due process, but he also acknowledges that realism dominates much of the action (or inaction) behind pursuing strategies of international justice (see also Sriram, 2007). Many states are unwilling to sacrifice their own troops to arrest suspected or indicted war criminals that have not harmed their own citizens. Therefore, the vocal calls for accountability from advocacy groups can be pivotal to sparking an international response. Advocacy groups like HRW remain at the vanguard of these calls internationally (see, for example, HRW, 1999a). According to Vinjamuri and Snyder (2004), the field of transitional justice has been widely affected by the normative approaches of scholars, practitioners and advocates working in what has become a fairly fluid field of study. In a comprehensive survey of the literature on war crimes tribunals and transitional justice, Vinjamuri and Snyder highlight two broad areas they consider as dominating the debate thus far: legalism based on a logic of appropriateness, and pragmatism based on a logic of consequences. The third area the authors identify as of increasing significance to transitional justice is based on a logic of emotions, which realises the importance of legalism but concentrates primarily on victims and survivors of conflict. This latter category has become increasingly prominent at a national level within civil society; as international transitional justice mechanisms operate at a macro level, smaller grassroots organisations are appearing to ensure victims are considered, and community relations and conflicts resolved at a micro level.10 However, legalism and

International Justice: Nuremberg to Sierra Leone   23 demands for punitive justice continue to dominate international debate in this area.

Legalism Legalism is premised on the belief that ‘a norm of accountability exists that imposes a moral obligation on the international community to prosecute, in spite of consequences’ (Vinjamuri and Snyder, 2004). Legalist scholars focus on the belief in promoting universal standards of justice. As discussed previously, these universal standards have been heavily criticised for being liberal democratic values of justice, and based on the presumption that liberal democratic countries promote stability and peace, as well as assuming that liberal democracy is a necessary and natural state for peace to flourish. However, it is these principles that underpin recent thinking on the value of war crimes trials.11 Stover and Weinstein (2004) highlight that the system of international justice that emerged in the latter part of the twentieth century was dominated by legalism, but this did not appear to have considered what made sense to the people most affected by mass violence. Instead, the focus was on a form of justice that mirrored that of the developed world; what Mani (2002) calls ‘legal justice’. The authors stress the implicit role played by politics in the creation and success of international trials, even if neutral third parties have established them: It is often argued that justice, like the pursuit of rights, is a universal, a historic practice that exists above politics. But such positivistic notions fail to recognize that courts, like all institutions, exist because of, not in spite of, politics. The creation of the Extraordinary Chambers in Cambodia took years in planning, preparation and implementation between different parties; similarly, the Iraqi High Tribunal was seen as inherently political and as a tool of political manipulation by Western powers (see Amnesty International, 2005). The relevance and legitimacy of these institutions relies heavily on being seen as fair, transparent and free of interference; claims such as these therefore undermine this. An implicit assumption behind the development of internationalised justice through war crimes trials rests on the notion of deterrence, the contention being that failure to deter today will open the door for abuse tomorrow (Malamud-­ Goti, 1990; Meron, 1998). This theory is far from tested, however. How do you determine that war crimes trials prevent further atrocities? Legalism believes that the attribution of individual criminal responsibility through criminal trials acts as both deterrence and reinforcement of the legalist norm – thus offering the proof required (Roth, 2001; Bassiouni, 2002; Dickinson, 2003). Yet the danger of individualising guilt can inadvertently become ‘a de facto form of collective innocence’ (Stover and Weinstein, 2004), and similarly isolate and politicise certain sections of society. The individuals held to account need to be those considered

24   Historical background and political context responsible for war crimes, or the trials may be seen as scapegoating,12 as well as absolving those at lower levels of all responsibility. Stover and Weinstein (2004) draw attention to the limitation and symbolism of criminal trials after mass atrocity, highlighting that the emphasis on individualisation excludes those on the periphery of victims and perpetrators: ‘looting, taunting, or profiting from the misfortune of their neighbours, including those who did nothing to stop or mitigate the violence, the so called “innocent bystanders” ’. Far larger numbers stand at the margins of those defined as perpetrators and victims, and therefore present a quandary for post-­conflict justice. What impact will post-­conflict justice have if it leaves an impunity gap? This question has become increasingly relevant after conflicts where whole communities have become embroiled at various levels. The genocide in Rwanda is an important case in point, where over 100,000 suspected people involved in the genocide were arrested when the new government came to power. Many then proceeded to languish in squalid jails for years due to an inefficient domestic judicial system, lack of financial resources to conduct prosecutions, and, in many cases, lack of evidence (Des Forges and Longman, 2004). The ad hoc tribunal’s prosecutorial focus on only high-­level commanders, planners and instigators of the conflicts presented significant national challenges, specifically in meting out justice to lower-­level perpetrators. Weinstein and Stover (2004) point to the necessity of international courts working in tandem with domestic courts to help address such tensions. Similarly, domestic prosecutions for lower-­level perpetrators in Bosnia were designed to address this problem. However, the responsibility for decisions on prosecutions was handled by judges at the ICTY, whose extended responsibilities, on top of existing tribunal duties, created hostility and administrative backlogs. This resulted in lengthy waits and frustration for the Bosnian judiciary, whose experience of the ICTY had already been less than satisfactory.

Pragmatism The second approach identified by Vinjamuri and Snyder (2004) is based on pragmatism, concerned with the consequences and effect of war crimes trials on the consolidation of future peace and democracy: ‘The consequences of trials . . . trump the goal of justice per se, since the future prospects for justice depend on the establishment of peace and unshakeable democratic institutions’. The pragmatist approach contends that: the decision to uphold a norm of accountability should only be made if it is likely to be effective in achieving substantive ends; war crimes trials are therefore not a goal in themselves but are to be pursued only if they assist in the attainment of pragmatic substantive goals [peace and justice]. (Kerr, 2004a) For many emerging South American countries, legal trials for past human rights abuses were not a realistic choice for new dispensations, despite calls from

International Justice: Nuremberg to Sierra Leone   25 human rights organisations and victims groups to the contrary. Many former regimes in South America were military dictatorships, where amnesty deals were made to ensure successful transition. This was the case in Nicaragua, where, after years of authoritarian rule and civil war, following peace negotiations and elections, Violeta Chamorro became President. Although she established a Tripartite Commission to investigate the violent uprisings, peace was based on a tacit understanding of not looking back. Former military or rebel groups also pose threats as ‘potential spoilers’ to the peace process, and may not relinquish power under threat from prosecution. Therefore, pragmatic reasoning as well as a realistic approach to transitional justice was adopted to help to consolidate peace and transfer to democracy. Snyder and Vinjamuri (2003–04) highlight that, ‘States may pay lip service to the norm of prosecuting war criminals but seldom support such efforts where spoilers present a great risk to stability’. However, for many states in South America, investigations and prosecutions took place years after the transition. For example, in Argentina, despite the self-­ imposed amnesties and pardons the military granted itself before leaving office in 1983, human rights groups and organisations continued to investigate and demand action against former human rights violators, and in 2003 the law protecting military officials from prosecution was ruled as unconstitutional. This highlights the central role played by civil society in maintaining the interest and demand for post-­conflict justice, particularly at the national level, when international interest may have moved on. The continued development of internationalised justice raises the issue of providing support for national institutions instead of building temporary international institutions. The emphasis is placed on building domestic judicial capacity rather than imposing ideals from above, and also on bolstering domestic judicial capacity rather than investing in temporary internationally driven structures (Hill, 2000). The domestic war crimes courts in Bosnia and Kosovo were perceived as a key method in strengthening local legal capacity, but instead have served to isolate, and in some cases offend, local judicial officials. The Gacaca courts in Rwanda were similarly believed to help expedite local justice for genocide suspects, but also helped drive norms of justice through communities. The fundamental shortfalls of the ad hoc tribunals in transferring knowledge, information and capability at a domestic level significantly contributed towards the decision to institute a hybrid court within Sierra Leone in order to achieve capacity building and help affect reforms domestically.

Emotive The third category identified by Snyder and Vinjamuri (2003–04) focuses on the question of domestic capacity and alternative mechanisms of accountability such as truth commissions. Attention has shifted to focus on non-­judicial measures as either complementary to, or alternative measures for, judicial institutions. Debate has opened to re-­examine the role of amnesties and truth commissions in satisfying the ‘normative rather than the punitive objectives of criminal law’, fostering

26   Historical background and political context restorative rather than retributive justice (Naqyi, 2003). The South American and South African Truth Commissions are perhaps the best-­known examples of truth commissions, albeit different models, but demand for post-­conflict truth-­telling has increased. Truth commissions were established in Burundi, Sierra Leone, and Liberia, all with varying mandates, but generally to establish an accurate record of the conflict and attempt to redress crimes committed. The majority of studies looking at alternative methods of accountability tend to focus on international judicial and non-­judicial procedures, while ignoring the many traditional approaches to conflict resolution and levels of appropriateness and applicability. Rosalind Shaw (2005) believes truth commissions are also useful outside of the realm of political violence: ‘Outside of this covert state sponsored violence, for instance in a civil war . . . truth telling can provide a re-­ balancing act by making it clear that atrocities were committed by each side’. However she cautions against the widely held belief that truth commissions heal a wounded nation; ‘[I]t is deeply problematic to suppose that one either can or should produce a single collective memory: social memory is always a process and always a contested one’. For Shaw, assumptions on the healing and conciliatory power of truth commissions are deeply problematic: Ideas concerning the conciliatory and therapeutic efficacy of truth telling are the product of a Western culture of memory deriving from North American and European historical processes. Nations, however, do not have psyches that can be healed. Nor can it be assumed that truth telling is healing on a personal level: truth commissions do not constitute therapy. Shaw was critical of the process in Sierra Leone particularly for the failure to incorporate ‘forgive and forget’ strategies derived from local recovery and reintegration practices into the TRC process. The TRC process, although not without its shortcomings, is generally spoken of favourably by Sierra Leoneans.13 The implicit belief in the healing power of truth commissions remains a key aspect of transitional justice. However, as with the dogmatic belief in the transformative powers of legalism, there is little empirical evidence to suggest that they actually do heal a divided nation, or individuals. Antjie Krog (1999), an influential South African journalist covering the Truth and Reconciliation Commission proceedings, has written of the dangerous assumption that the truth will heal a divided nation. Offering individuals a forum and opportunity to have their experiences heard and acknowledged may offer some respite from suffering, but very few commissions have been able to provide the financial recompense that many victims demand from restorative institutions after conflict.14 Proponents of truth commissions also presuppose a cathartic effect will ensue from the process of ‘telling one’s truth’, yet this assumption is similarly based on the belief that simply discovering the truth in and of itself is satisfying enough; however, as Elster (1998) notes, ‘factually it is not clear that truth-­finding not followed by punishment will induce catharsis’.

International Justice: Nuremberg to Sierra Leone   27 Tim Kelsall (2005) also raises the pertinent question surrounding the value of truth commissions, asking what the truth achieves when the truth is already known. Speaking on the TRC proceedings in Sierra Leone, Kelsall comments that many Sierra Leoneans already knew what had happened during the conflict so there was little need to ‘discover the truth’. However, he acknowledges that despite the lack of any ‘new discovery’ during proceedings, the very ritual and procedure of the TRC seemed to spark reconciliation within the community.15 James Gibson’s (2004) extensive work on the impact of the South African Truth and Reconciliation Commission found that white South Africans who accepted the SA TRC findings were generally more receptive to positive race relations than black South Africans, who did not find the discoveries to be particularly enlightening. This was perhaps due to the fact that many black South Africans were already well aware of what was happening to their communities, unlike their white counterparts. Gibson’s study reports on the anger faced by victims’ relatives at having to watch revealed perpetrators walk free under the amnesty provisions. Many of the black South African interviewees did, however, acknowledge that amnesty was perhaps necessary, although it remained unfair. Reconciliation in South Africa remains deeply contested, as does the concept in relation to post-­conflict justice. The triangulation of peace, justice and reconciliation has been lauded as an ideal type for peace building after conflict, yet defining what reconciliation means is highly controversial, achieving this poses significant challenges, and measuring it would be unfeasible. The aim of reconciliation also calls into question who should be reconciled, and how? Should we reconcile societies back to their pre-­conflict state? This presents substantial ethical and moral dilemmas. What right do external bodies have to propose notions of reconciliation for communities and individuals after mass atrocity? In the aftermath of such atrocities witnessed in Sierra Leone, Rwanda and the former Yugoslavia, communities and individuals attempt to forge new identities and places in societies from the devastation of war, and, despite the importance of reconciliatory practice in helping to bring conflicting parties together, there is a danger in assuming that reconciliation is the Utopia desired by all. For a transitional justice process to be a success, it must be perceived as legitimate, relevant and necessary – not forced externally.

Rwanda and the Balkans: justice after mass atrocity? The ad hoc tribunals were perceived as being able to contribute directly to the peace processes in the former Yugoslavia and Rwanda. However, as with the Nuremberg and Tokyo Trials, the tribunals were accused of bias and charged with victor’s justice (Meernik, 2003; Zacklin, 2004). After initially being heralded as a positive step towards ensuring international accountability for the worst crimes witnessed in Europe since the Second World War, the ICTY was criticised for being politically motivated and too costly to sustain (Simonovic, 2004; Saxon, 2005). However, despite being expensive, the ad hoc tribunals have contributed significantly to the field of international justice, including with

28   Historical background and political context regard to the ‘definition of genocide, the application of “grave breaches” provisions, elucidation and expansion of the laws applicable to non-­international armed conflict, the definition of crimes against humanity and the nature of command responsibility’ (Kerr and Mobekk, 2007). The ad hoc tribunals were established after periods of brutal violence. They have been widely criticised for their enormous running costs, for their lack of connection with the respective countries, for the few prosecutions carried out in comparison with the numbers of perpetrators involved,16 for having no clear completion strategy, and for having no legal basis. Much of this criticism stems from the belief that the tribunals were established to assuage the international community’s conscience for failing to prevent the atrocities from happening in the first place (Rudolph, 2001). Paul Gready (2005) states that ‘The ICTR is an example of international justice by and for the international community’. Criticisms such as these did little to bolster the view of the tribunals in either country (Interview 71). Both tribunals were based outside their geographical foci – the former Yugoslavia and Rwanda – with the International Criminal Tribunal for the former Yugoslavia being based in The Hague, the Netherlands, and the International Criminal Tribunal for Rwanda in Arusha, Tanzania. Although the removal of key indictees from both countries potentially meant an easier transition to peace, it also made it difficult for people to connect directly with the judicial process. This was a problem for the tribunals, both of which operated for over ten years. Public interest was hard to sustain, with continued mounting criticism and negative press, and feelings of indifference and apathy towards the tribunals also manifest due to insufficient outreach. Up until 2000 the ICTR had no defined outreach programme and few staff operating in this department, both in Tanzania and Rwanda. ‘The focal point of the Outreach Programme was the Information Centre Umusanzu mu Bwiyunge in Kigali. The Information Centre was inaugurated in September 2000’. Having no distinct outreach in the beginning meant information dissemination and communication was inefficient between the tribunals and the former Yugoslavia and Rwanda, respectively. This contributed to a lack of connection between the trials and ongoing processes of post-­ conflict reconstruction. The geographic distance of the tribunals from their foci served a necessary and practical security function, but failed to provide a link between the people and the proceedings. Former Yugoslavia The ICTY concentrated its investigations and prosecutions on senior military and political individuals as a means of facilitating the reconciliation process within the war-­torn societies of the former Yugoslavia. In his study of societal peace in Bosnia, James Meernik (2005) examined whether either the apprehension or surrender of suspected major war criminals affected relations among Bosnia’s different ethnic groups. Despite contrary beliefs from the ICTY, Meernik found that the actions of the ICTY did not have a positive impact on

International Justice: Nuremberg to Sierra Leone   29 relations between the Bosnian Serbs, Croats and Bosniaks. In some instances, they served to aggravate relations after a judgement had been made. He admits that his data are oriented towards certain political, military and economic actions of senior level figures towards one another, as opposed to the actions of ordinary people, but comments that such data are difficult to gather and quantify. Large-­ scale violence is easier to recognise than lower or mid-­level human rights abuse, which is often unreported. Major violence is also more likely to be reported by the press than systemic economic, political and social abuses perpetrated by the state or its apparatus. Meernik points to the difficulty in identifying a causal link between, first, relations among the various ethnic groups in Bosnia, and second, the level of societal peace, stating that, ‘peace has been quite a tenuous anomaly for decades’. Meernik’s research examines the impact of the ICTY and its contribution to peace in the states of the former Yugoslavia. He criticises the lack of access to data held by NGOs, believing that access to this information would make ‘impact’ studies significantly easier to conduct, and emphasises the importance of such studies to the increasing prevalence and efficacy of international justice mechanisms. Gary Bass (2000) has also questioned the claim that successful prosecutions have fostered a greater respect for the rule of law in Serbian youth. He recognises that trials have their limitations, but that they are nevertheless an alternative to vengeance, and are good at setting the record straight despite offering a narrow legalist view of the past. Rwanda The genocide in Rwanda has been well documented regarding the violence that occurred in 1994. The massive task of rebuilding and unifying the nation since has been formidable, and layered with politics, ethnic hatred/mistrust, an inefficient legal system and extreme poverty. With Rwanda ranking 165th on the UNDP Human Development Index 2008, the cost of running the ICTR was particularly contentious for the Rwandese who felt very little, or no, connection with the tribunal and its proceedings (Interview 71). The ICTR was criticised as being too little too late, as ‘an act of ‘symbolic politics’ (Gready, 2005), with its prime function widely perceived to be the ‘reaffirmation of the international community’s own morality’ (Uvin and Moronko, 2003). The lack of intervention by the international community in 1994 would appear to support these claims (Polman, 2004). The ICTR also concentrated prosecutions on senior, high-­ranking individuals in positions of power and authority; those believed to have the power to plan, instigate and orchestrate a campaign of genocide and ethnic cleansing. But this focus left thousands of perpetrators in national prisons, often arrested outside any established legal procedures and held in appalling conditions. The ICTR’s mandate states that ‘persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda between 1 January 1994 and 31 December 1994’ will be prosecuted (Statute of

30   Historical background and political context the ICTR, Art. 1). The tribunal represents the first instance of high-­level officials being held accountable before an international court of law for substantial violations of human rights within Africa. The tribunal also handed down the first ever verdict in relation to genocide by an international court.17 This was a significant milestone in the development of the genocide laws, and also showed other African and world leaders that impunity would no longer prevail for serious violations of international law (HRW, 2004). Unlike the ICTY and subsequent Special Court for Sierra Leone, the ICTR’s mandate specifically includes: ‘the purpose . . . is to contribute to the process of national reconciliation in Rwanda and to the maintenance of peace in the region’ (Statute of the ICTR, Introduction). This was significant for the advancement of international justice and peace and security in Africa, but it remains to be seen if, and how, justice will influence peace and reconciliation in the Great Lakes region and in Africa more generally.

Post-­conflict transitional justice in Sierra Leone The geographic distance of the ad hoc tribunals from their respective nations was a key consideration behind the establishment of the Special Court in Sierra Leone and the need for people to see justice ‘in action’. That outreach was an essential part of the transitional justice process had largely become recognised, informed by the ad hoc tribunals. As discussed in the following chapter, the conflict in Sierra Leone saw high levels of violence targeted against the civilian population, and gross abuses of human rights abuses committed throughout the conflict by all sides. Calls for justice were therefore understandably high during the war, and were at the forefront of peace-­building demands afterwards. However, the high cost of sustaining the ad hoc tribunals meant that any post-­ conflict justice effort in Sierra Leone would be considerably scaled down, and would have to be more cost effective. The need for faster results in comparison to the ICTY and ICTR was also essential. The second peace agreement, which took place in Lomé, Togo, in 1999, called for the establishment of a Truth and Reconciliation Commission to be established ninety days after the signing of the agreement (Lomé Peace Agreement, Art. XXVI). This, however, fell far short of the Truth, Justice and Reconciliation Commission that local NGOs had been calling for during the conflict (Interview 1). Civil society groups had hoped for a TRC similar to that established in South Africa that had quasi-­judicial powers, including the provision to grant amnesty and granting of reparations (Promotion of National Unity and Reconciliation Act, 1995). Although eventually passed into law in early 2000, the resumption of violence saw the TRC activities officially frozen by the UN Commission for Human Rights. The TRC had clearly not provided a deterrent for further atrocities. The agreement to establish the Court was signed in Freetown in January 2002, after lengthy negotiations and funding obstacles. The Court was treaty-­based rather than through resolution. This would create delays in starting, as well as ensuring Committee members were not obligated to fund

International Justice: Nuremberg to Sierra Leone   31 the Court themselves. As will be discussed in Chapter 3, this decision placed the Court at a significant disadvantage over the ICTY and ICTR. The precarious nature of unsecured funds impacted upon every level of the Court’s activities. This was particularly the case for Outreach, where funding became a major obstacle to its work. Local non-­governmental organisations (NGOs hereafter) and UNAMSIL declared the TRC as a priority in the peace-­building agenda. However, despite this, severe administrative setbacks meant that the TRC did not start investigations and statement taking until 2002 – two years later than initially anticipated. This coincided with the establishment of the SCSL, but no policy or working practice had been made for how the TRC and SCSL would work together, if at all. Initial support for the TRC soon turned into suspicion as the SCSL crossed over with its proceedings, and disagreements occurred between the Court and the Commission on indictees at the Court testifying to the Commission. The Court did not deny access to the indictees, but placed considerable restrictions on the questioning and location at which the TRC could interview the indictees in order not to jeopardise their chance of a fair trial.18 This caused significant strain on relations between the two organisations, and engendered hostility that never fully dissipated during the TRC’s lifespan. Lack of guidance, administrative failures, and poor sensitisation also meant that ‘an aura of mistrust’ (Interview 9)19 and confusion prevailed throughout the TRC proceedings. The incidence of TRC investigators later becoming SCSL investigators did little to quell these fears.20 Both institutions were beset with significant funding shortfalls, yet a dominant belief was that the TRC did not receive its full funding due to support being diverted to the SCSL. A hostile Sierra Leonean media did little to appease these beliefs and bolster national support for the Court.21 Initially this provoked negative public reaction and lack of acceptance of the SCSL, making Outreach essential to change these beliefs (Interview 21). Both the SCSL and the TRC pose important questions regarding the field of transitional justice as a ‘twin approach’ to building peace after conflict. Although not conceived together, they were both key parts of the judicial approach to peace building, and hoped to complement the other – the SCSL providing the legalism, and the TRC providing the reconciliatory aspects required to establish peace and heal communities affected by the conflict. Both were attempts to end impunity, and, by being based in-­country, it was believed this could be achieved. This twin process was widely thought to be an ideal type: one a prosecutorial body for the highest-­level perpetrators, the other a reparative body designed to facilitate reconciliation. In theory, they should have worked complementarily, each fulfilling the function the other did not have the capacity or mandate to do. In practice, the case of Sierra Leone highlights the failings of implementing a dual system with no clearly defined relationship, or procedure on how to achieve complementarity. The establishment of the TRC and the SCSL at different times, and independently of one another, meant that a sense of ‘going it alone’ permeated this twin process, rather than a unified alliance. The use of restorative and retributive justice systems in Sierra Leone after a failed amnesty

32   Historical background and political context attempt demonstrate the desire for accountability, but highlight the difficulty in implementing an ideal process.

Conclusion The genocide in Rwanda in 1994, conflict in Sierra Leone from 1991 to 2002, and war in the former Yugoslavia in the 1990s highlight the complex challenges and inherent tensions confronting transitional justice. These conflicts involved thousands of people as perpetrators, bystanders, conspirators and victims, some voluntarily and some forced. The ability to satisfy everyone’s desire for justice has become more acute, and more noticeably so with the limitations placed on internationalised justice, mainly through funding – which, as discussed in the case of Sierra Leone, has placed greater emphasis on other non-­legalist approaches to transition: a one-­size-fits-­all approach to justice will not work. Communicating these limitations has, however, also become a necessary element of internationalised justice if it is to have the desired effect of ending impunity.

2 Sierra Leone Conflict and judicial intervention

Introduction According to the United Nations Human Development Index in 2008, Sierra Leone was ranked bottom – as the poorest country in the world. Despite making great strides in post-­conflict reconstruction, the country continued to face ‘daunting challenges’, and needed political and financial assistance from the international donor community. According to the UN, in 2009 the key security issues were corruption, youth unemployment and illicit drug trafficking. These were also identified by the TRC as factors that led to the outbreak of conflict in 1991. The failings of the judiciary were additionally highlighted as contributing to the overall failure of the state (TRC Report, 2004: Vol. 2, Ch. 2). The government established the Anti-­Corruption Commission and made this a priority, but, as noted by the UN, ‘old habits died slowly and would require time and perseverance to overcome’.1 Of an estimated population of 6.5 million in 2009, up to one million young men and women remained unemployed or under-­employed, according to UN reports, with youth remaining the largest percentage of the population; this remained ‘an acute concern’. This chapter investigates the origins of the conflict in Sierra Leone to examine how a potentially prosperous country could descend into violence. It begins with an examination of the creation of the state as a home for repatriated slaves in the eighteenth century, and the divisive rule of the British, which laid the foundation for later divisions that emerged during the post-­independence period. Independence was granted in 1961, with corruption and impunity soon becoming the norm. Corruption and greed tore apart the fabric of society, with few checks and balances for state institutions. Sierra Leoneans bore the brunt of this failure, with poverty becoming widespread despite the presence of large mineral deposits – most notably diamonds (TRC Report, 2004: Vol. 2, Ch. 2). No one was held to account during this period, which saw faith in the judicial system decline. Lack of accountability contributed to the frustrations felt by many towards the state. The RUF exploited these frustrations during the initial stages of its campaign, but the atrocities committed against civilians quickly showed them to be nothing more than a brutal rebel force. The impunity with which most of the crimes were committed throughout the conflict only served to increase frustrations that justice

34   Historical background and political context was not fair or transparent. Despite calls for justice at the forefront of peace-­ building demands, the lack of faith in the accountability processes to date meant that post-­conflict justice for Sierra Leone would face significant challenges: first, creating faith in the system; and second, satisfying peoples’ demands for justice, of which there were many.

Sierra Leone: ‘province of freedom’2 The Portuguese were the first Europeans to visit Sierra Leone, in the fifteenth century, looking for new trade routes between Europe and West Africa (Alie, 1990). The Spanish and British soon became interested in the region because of its trading routes and ready supply of slaves to the Americas (Magbaily-­Fyle, 1981). Sierra Leone became an important post in the transatlantic slave trade until 1792, when the Sierra Leone Company, established by abolitionists William Wilberforce, Granville Sharpe and Thomas Clarkson, helped resettle a group of African-­American former slaves from Nova Scotia. These former slaves had settled on the east coast after the American War of Independence, but were dissatisfied with promises of land that never came to fruition (Magbaily-­ Fyle, 1981). The first group of repatriated slaves succumbed to illness and disease, as well as hostility from indigenous peoples based in the interior. Their numbers were later boosted by the arrival of other repatriated slaves, and the colony of Freetown was subsequently established. In 1807 the British Parliament declared the slave trade illegal, which was to have important consequences for Sierra Leone. The Sierra Leone Company was unable to make a profit from its venture, and requested that the British take it over. The abolition of the slave trade also granted powers to the navy to intercept slave ships and try their owners and crews before a British court. Sierra Leone was considered more practical for these purposes, and the British took over the colony of Sierra Leone in 1808, establishing Vice-­Admiralty courts in Freetown to try offenders (Sibthorpe, 1970). This early history is important for Sierra Leone, as it establishes a division between Freetown and the provinces from its conception as a state. The Freetown area became a British Crown Colony in 1808, whilst the interior, designed as a separate sphere of native administration, did not come under the authority of the British as a Protectorate until 1896. By the time the interior became a British Protectorate in the late nineteenth century, Freetown was inhabited by many freed slaves, ‘creoles or Krios’, who came from various places in Africa. Separated from their homes and traditions, they assimilated various aspects of British life. The Krios brought Christianity, the English language and European goods to much of West Africa (LeVert, 2007). The British further contributed to the division within Sierra Leone by creating a two-­tiered system in almost every aspect of life, from the judiciary to local administration, between the Colony and the Protectorate (Gberie, 2003). This sense of centre and periphery remains, with the rural–urban divide existing in everything, from politics and the legal system to accessing information regarding central government and post-­conflict

Sierra Leone: conflict and judicial intervention   35 d­ evelopment initiatives. The Krios, a minority ethnic group, remain predominantly in Freetown.

Sierra Leone: creation of a colony Sierra Leone gained independence from Great Britain on 27 April 1961. It maintained a parliamentary system, and stayed within the British Commonwealth. The Protectorate and Colony joined together to achieve independence from the British, with medical doctor and Chief Minister Sir Milton Margai becoming Prime Minister of the newly independent state under the Sierra Leone People’s Party (SLPP).3 Upon his death in 1962, Sir Milton was succeeded by his brother, Albert Margai. Albert sowed the seeds for the disorder that followed. Known as ‘Akpata’, the Mende word meaning ‘our wild fat man’, for his frequent outbursts, corruption charges were soon levied against him as he attempted to undermine the democratic progress made within Sierra Leone since independence (Fyfe, 1981). He attempted to prevent political opposition from taking route against him, as well as banning opposition candidates from running against him. His attempts to turn Sierra Leone into a one-­party state failed when rioting broke out in the country and Margai had to call a state of emergency in 1967. The elections the same year saw Siaka Stevens, leader of the opposition All People’s Congress (APC), take a small parliamentary majority; however, within hours of him being sworn in as Prime Minister a military coup, led by Brigadier David Lansana, Commander of the Sierra Leone Armed Forces and friend of Margai, took place, with Stevens arrested along with the Governor General, Sir Henry Lightfoot Boston. Lansana declared martial law and himself as head of state, whilst nullifying the election results (Fyfe, 1981). Lansana’s rule also did not stand the test of time, with a counter-­coup being organised by a group of dissident officers calling themselves the National Reformation Council (NRC) and led by 39-year-­old Colonel Ambrose Genda, who had been Deputy Army Commander under Margai until the latter had him fired. The NRC soon arrested Lansana and Margai, and imprisoned them with the Governor General and Stevens. With these powerful players detained, the NRC declared its stated objective was to re-­establish Sierra Leone’s failing democracy. The NRC was soon replaced following a further coup, led by a group of officers known as the ‘Sergeant’s Revolt’, the Anti-­Corruption Revolutionary Movement, commanded by Brigadier Amadu Bangura. They arrested members of the NRC, restored the constitution, and finally reinstated Stevens in 1968. Two subsequent military coup plots were discovered in 1971 and 1974, with the alleged coup plotters dealt with in characteristically harsh manner by Stevens: the leaders were executed, as were many of Stevens’ critics during his period of rule (Abdullah, 2004; Gberie, 2005). Stevens ruled until 1985, and throughout this period he successfully manipulated the political establishment to his own advantage, eventually banning all opposition parties apart from the APC. The government survived two coup attempts, and saw off numerous disturbances rallying against APC rule. In 1972

36   Historical background and political context the SLPP complained about intimidation and obstruction in the by-­elections, and in 1977 students protested against the regime as corruption became rampant within the political machinery (Abdullah, 1998). Stevens amended the constitution, and in 1978 Sierra Leone became a one-­party state, with Stevens as President.4 Stevens selected Major General Joseph Saidu Momoh as his successor. According to Gberie (2005), ‘He appointed a servile and mediocre officer from his Limba ethnic group, Joseph Momoh, head of the army and made him an ­unelected Member of Parliament’. Momoh was not as despotic as Stevens; rather, he was weak and ineffectual, allowing members of his corrupt government to continue to manipulate and steal state resources. This weakened what was an already fragile state, and by the time Momoh declared a new constitution and the re-­establishment of a multi-­party state, following the collapse of the Soviet Union in 1991, the damage to Sierra Leone and its economy was entrenched (Keen, 2005).

Conflict The war began in 1991, when rebels from the Revolutionary United Front, aided by members of the National Patriotic Front for Liberia (NPFL) and Burkinabe forces, attacked the town of Bomaru in the east of the country. Momoh was in power at the time but was deposed not long after, in 1992, by a young army captain, Valentine Strasser. Strasser surrounded himself with young army lieutenants and captains, all in their twenties, who called themselves the National Provisional Ruling Council (NPRC), with Strasser as their leader designate. His period in office was marked by human rights violations, torture and murder of anyone suspected of supporting the rebel forces. Those accused of a suspected plot against Strasser were all executed – nine coup plotters in total, and seventeen other prisoners. Strasser was ousted by a further military coup headed by his deputy, Brigadier Julius Maada Bio, in 1996. Strasser’s period in office is remembered for the ‘cleaning Saturdays’, when all citizens were expected to clean the streets of Freetown, ensuring the cleanliness of the city – and thus not always an unfavourable memory of his destructive period in office.5 NPRC rule was characterised by brutality, and diamond laundering became highly profitable, undermining any sense of military discipline that remained within the regime (Keen, 2005). Elections were successfully held in 1996, and saw Ahmad Tejan Kabbah and the Sierra Leone People’s Party win by a majority. Maada Bio peacefully handed over to civilian rule, and announced a two-­ month cease-­fire with the RUF. Peace did not remain for very long, with President Kabbah being ousted in 1997 in a further military coup – this time by a group of former members of the armed forces, subsequently led by former army officer Johnny Paul Koroma, who was at the time on trial for treason charges related to a previous coup attempt in 1996. Koroma immediately suspended the constitution, abolished political parties and banned demonstrations. The new government called itself the Armed Forces Revolutionary Council (AFRC), and swiftly invited the RUF to join it in a government of national unity. Kabbah

Sierra Leone: conflict and judicial intervention   37 recruited assistance from ECOWAS (the Economic Community of West African States), with ECOMOG (Monitoring Group) troops helping to return Kabbah to power in 1998. The presence of diamonds in the country meant that the rebel groups could fund their campaigns themselves, and, with willing external buyers, this meant a ready supply of arms. The war continued until officially declared over in January 2002, by which time the country had been plundered and the nation was in ruins.

Bitter-­sweet diamonds The prevalence of highly prized natural resources in Sierra Leone, namely diamonds, also contributed to the country’s demise. These assets were siphoned off to help fund and fuel the conflict from the beginning. Diamonds were discovered in the 1930s, by which time Sierra Leone was an impoverished and struggling colony, with agriculture propping up the economy. The cash crops were palm oil, palm kernels, ginger and ground nuts, which counted for just 30 per cent of the GNP (Gberie, 2005). With the discovery of mineral resources – diamonds and iron ore – the country’s export earnings increased, with ‘diamonds counting for three-­fifths of the country’s export earnings by the time of independence.’ This also signalled the start of a wholly extractive enterprise, with the money and benefits of these minerals not being reinvested back into the state (Keen, 2005). The financial rewards from early diamond mining and mineral discoveries went to benefit the European colonial economies. Similarly, during the latter years before the war, as well as during the conflict, the resources and money drawn from mineral resources to finance the war came to ‘line the pockets’ of those seen as culpable in the hostilities that engulfed Sierra Leone. Despite being abundantly rich in natural minerals and resources, as stated by the UNDP at the beginning of this chapter, Sierra Leone in 2008 remained extremely poor. Extensive alluvial and kimberlitic diamond deposits, as well as bauxite, rutile and gold, can be found in the south and east of the country. Gold, iron and bauxite are found in the north, but diamonds are the key export commodity (Hirsch, 2001). Typically, the diamonds have been owned and controlled by non-­Sierra Leoneans – mainly Lebanese businessmen, who represent a significant economic power base in the country (TRC Report, 2004: Vol. 3b, Ch. 4). Many had been owned since independence, with the TRC finding that ‘By 1966, 73 percent of all shops in the country belonged to Lebanese nationals . . . when the political elite preferred “rent seeking” rather than active participation and quickly ceded control of important economic activities’. The TRC investigation into foreign possession of capital is insightful, as it highlighted the significant ownership of many of the country’s resources by external parties. David Crane also picked up on this during his opening statements at the RUF trial. His explicit focus on mineral resources did, however, lead to criticism of his analysis of the conflict, but, as highlighted by both the TRC and SCSL, this unbalanced allocation of resources was a significant cause of hostility, particularly when compounded with the harsh daily reality of life for many Sierra Leoneans.

38   Historical background and political context Illegal exporting of diamonds has taken place since the 1950s, with many being channelled through Côte d’Ivoire, which has a small number of diamond deposits; The Gambia, which has no diamond deposits; and Liberia and Guinea (TRC Report, 2004). When the UN peacekeeping force eventually started operations in the diamond areas of the country in 2000, they were promptly halted by the RUF, resulting in 500 peacekeepers being abducted (Olonisakin, 2008). The RUF was able to exploit loopholes and finance its war effort with the illegal extraction and selling of diamonds, with the UN estimating the RUF ’s diamond exports as being ‘from as little as $25 million per annum to as much as $125 million per annum’ (Gberie, 2005). The smuggling of illicit diamonds continued into 2009, with government officials stating that it was difficult to control and manage the diamond industry. Despite the diamond-­mining areas of Kono and Tongo falling to the RUF during the war, the Lebanese diamond dealers simply moved elsewhere and continued to trade (Onishi, 2001). The ban on buying diamonds from miners without a licence was shown to be easily exploited, despite claims to the contrary. Miners were required to hold a licence in order to dig and sell on the gems; however, as noted by Onishi, this bureaucratic oversight was sometimes overlooked. The revenue created from this sector was too vast to lose through ‘rampant illegal mining and smuggling’, so post-­conflict initiatives focused on strengthening this sector. Mining increased from 2002, with revenue generated with the help of external investors (for example, Koidu Holdings Limited and the Sierra Leone Diamond Company). The government also implemented Mine Monitoring Officers to monitor illegal activity – anyone found smuggling diamonds faced three to five years in jail – along with the creation of a Diamond Area Development Fund whereby communities in the mining areas received a direct contribution from the taxes collected through the diamonds. In this way local communities were drawn into attempts to stop illicit smuggling by directly benefiting from licit sales of the gems, according to an interview with former Minister of Mineral Resources, Alhaji Mohamed Swaray, by the Diamond Industry Review (2006). Making individuals accountable in this sector was crucial to helping Sierra Leone’s economy prosper after the years of exploitation. With little financial or indeed punitive incentive to prevent the extraction of these resources, conditions would remain ripe for further abuse. In 2003, the diamond industry, along with governments and civil society, launched The Kimberley Process, a diamond certification scheme designed to rid the world of ‘conflict diamonds’. This process attempted to combat the trade in illicit diamonds that has helped to fund conflicts that have overthrown legitimate governments, as happened in Sierra Leone. Awareness of the illegal trade in precious gems increased as coverage of the conflict and its devastating consequences were shown to a global media audience, and dramatised in films such as Blood Diamond. As of 2009, significant challenges remained for many living in these remote areas of the country. Separated by a poor road network and communication system (Lincoln, 2008), people who lived in the south and eastern

Sierra Leone: conflict and judicial intervention   39 areas of the country – places that were targeted by the rebel forces – remained isolated from the centre and development activities (Interview 68).

Centre–periphery conflict Although the war in Sierra Leone was not driven along ethnic lines, the conflict ‘fed, or ignited, deep seated local conflicts in the war zones’ (Gberie, 2005). Ethnicity, age and gender also did not appear to be a central factor in the attacks, with women and men of all ages, religions and ethnicities being targeted. Score-­ settling became one of the strategies used by rebel forces, whereby previous grievances (perceived or actual) were vented on individuals and/or communities, and extreme violence and brutality occurred in retaliation for these real or perceived injustices (TRC Report, 2004: Vol. 3a, Ch. 4). As noted by David Keen (2005), ‘Discontent at Chiefs’ abuses was common in Sierra Leone, often centring on excessive cash levies, unpopular land allocations, forced labour and the punishment of dissenters. All this helped to store up anger which erupted later.’ The lack of checks and balances, throughout the period of APC rule, on chiefdom authority saw some in positions of power abuse this authority to the detriment of many young people living in communities, who often faced heavy fines for petty grievances – meaning they were indentured to the chief for years to come, or were unable to access land and resources due to lineage. Richard Fanthorpe’s (2001) study into this dilemma highlights many underlying problems that eventually fed into the discontent witnessed during the war. Fanthorpe draws attention to the divisions established by the British during colonisation in the various chiefdoms as a source of alienation for many Sierra ­Leoneans living in the protectorate. His study on the damaging effects of native administration imposed on the Protectorate by the British moves beyond much of the analysis of Sierra Leone’s conflict that concentrates mainly on the crisis of ‘lumpen’ agency as a causal factor for the conflict. It explores the artificial taxation system imposed by the British as a means of exclusion, whereby individuals who had previously associated belonging with certain locales now felt excluded. The administrative unit in the Protectorate was the chiefdom, headed by a Paramount Chief with the support of a governing council.6 Paramount Chiefs had authority over Protectorate land, with the colonial authorities at first only recognising ruling families in this privileged position.7 This changed after the Hut Tax War of 1898, where promotion to the post was expanded in order to share the burden of tax collection and decrease the likelihood of revolt in lieu of tax arrears to the colonial authorities. Registration of villages became the central authority of chiefdom governance, with the collection of taxes, hut counts and the organisation of labour becoming the authority of a section chief. Chiefs had rights enshrined in colonial law to extract labour and taxation from their subjects. It also became a criminal offence to disobey the authority of a chief, and individuals were not permitted to travel outside the districts without the permission of the Paramount Chief. The 1930s saw an attempt at democratisation of the local authority process, with the hut tax being scrapped and a new poll tax levied on all adult males. A

40   Historical background and political context Tribal Authority was created by the outgoing British in the late 1950s. Fanthorpe (2001) outlines that ‘headmen of villages with more than twenty taxpayers should serve on Tribal Authorities, with one additional member for every extra set of twenty. Villages with less than twenty were expected to group together to qualify for group representation’. This system of organisation was essentially designed to make tax collection easier. The new Tribal Authority also had the right to elect a Paramount Chief under secret ballot, which in many places saw the demise of the indigenous title system. In 1972, the APC government granted chiefdom authorities the power to ‘distinguish natives of the chiefdoms, people with hereditary rights to local land, with non-­natives who were required to purchase leases to build homes and/or conduct business’ (Fanthorpe, 2001; Keen, 2005). The fact that many individuals could not purchase land without claims to lineage or historical antecedent, and therefore could not register to vote, meant many displaced people and youths became ‘neither citizen nor subject’. Fanthorpe does not subscribe to the economic (greed) theories ascribed to the Sierra Leonean war and popular during the 1990s (Berdal and Malone, 2000); neither does he believe that the system of patrimonialism followed by Siaka Stevens is the sole cause of the conflict (Richards, 1996). Instead, he believes that many of the grievances can be traced back to the ‘colonial native administrative’ system in the late eighteenth century, where historical ties to areas/regions were a key social identifier and were subsequently undermined by ill-­conceived systems of governance implemented by the British. Reorganisation of the local government system is given high priority, as well as securing basic rights to land, living space and legal protection for the majority living in rural areas. His analysis offers sound conclusions regarding many of the causes and divisions emerging from the conflict, and the problems created by artificial situations established by the colonial authorities. This divide, and sense of injustice, remained, and, if anything, Fanthorpe’s analysis highlights the importance of ensuring that people have a sense of security in the area with which they associate in order to allow them to contribute to life in the new state. Without inclusion in the local system, and therefore the wider governance structure, people will continue to live on the periphery, making identification with the new state a difficult proposition.

Discontent in the ranks Issues of local governance were again raised by the former head of state, Ahmed Tejan-­Kabbah of the SLPP, in 1996, during his first Presidential address to parliament. He emphasised a policy of non-­interference between the centre and chiefdoms in governance issues (Rosenbaum and Rojas, 1997). The democratically elected SLPP government planned to introduce new measures that would help disperse power from the centre towards the provinces to ensure that power was not concentrated in the hands of a few – a system that had operated under the former APC regime. In 1997, the SLPP government was overthrown by the Armed Forces Revolutionary Council (AFRC) military coup. This occurred after

Sierra Leone: conflict and judicial intervention   41 attempts to decentralise national government, strengthen local government and support the creation of a ‘locally based and locally controlled traditional hunter tribe militia organisation, the Kamajors’. As Rosenbaum and Rojas identify, the consequences of this would attempt to ensure that no one group would be able to gain quick control over the government or its resources. The reducing of the military budget, particularly in light of the strengthening of the Kamajors, was a significant source of hostility for an already weakened and disloyal army base. Although it is not suggested that this was the sole reason behind the coup, Rosenbaum and Rojas note that it was all part of a larger plan towards decentralisation which would have fed into the dissatisfaction of already discontented armed forces. The decision to cut the budget of an increasingly ill-­disciplined and already underfunded Sierra Leonean Army (SLA) in favour of the local militia was a highly contentious issue. The army had been neglected by central government for years, with the threat of coup ever present. The former Minister of Defence, Chief Sam Hinga Norman, expressed concerns about the threat of disloyalty from members of the armed services who were widely known to be colluding with rebel forces in attacking, looting, pillaging and burning local villages. The army had seen its funding cut drastically, with rice quotas reduced and then siphoned off by corrupt officers to the detriment of the rank and file: They took the rice away from us; the senior officers just said that the Government said they should cut down the rice. All of the circumstances combined to make the plight of the junior soldier fairly miserable . . . the serving officers were living well at the time . . . I thought that they were eating some of our supplies . . . they promised that they were going to raise the salary by 50%; but it never materialised. By March 1997 the CDS was apologising that there were no better supplies. Senior officers and the Government alike were pushing down the junior soldiers. (TRC Report, 2004: Vol. 3a, Ch. 3) Claims were also made that Kabbah was favouring certain Mende Paramount Chiefs in his push towards decentralisation. As highlighted earlier, the war in Sierra Leone was not ethnically driven, but certain ethnic claims and privileges were often exploited at the expense of other groups, underlining the importance of loyalty to a particular grouping. Kabbah himself was Mende. As Fanthorpe (2001) states, ‘ethnic associations have long played a leading role in municipal government and politics in Sierra Leone and the major political parties in the post-­colonial era have established strongholds in different parts of the country inhabited by different ethnic groups’. Keen (2005) also notes that, usually, an important distinction for Sierra Leoneans has been between the Creoles in Freetown (usually the literate and dominant in the colonial civil service) and the other groups up country. Although this distinction appears to have ‘waned somewhat’, it remains ever present in the political, economic and social realities of Sierra Leone. Keen points to this divide as a weakening of the shared perception

42   Historical background and political context of nationhood that this type of divide creates. Rebuilding the nation, and unifying after the war was crucial to consolidating peace; therefore, centre–periphery divisions could not be left unchecked. Violence since the end of the conflict has been drawn along political lines, with members of respective political parties – mainly the two main parties, the APC (support traditionally drawn from Temnes in the north) and the SLPP (whose support base is the Mende in the south) – using rallies as an excuse for intimidation. Although political divisions have always been exploited by politicians vying for support for high positions in government, ethnic differences have been limited by various factors, including the high incidence of marriage across ethnicities, the use of Krio as a lingua franca, and the ‘existence of an elite of chiefs and Western-­educated people speaking English and Creole and attending the same schools’ (Keen, 2005). These divisions were exploited during the conflict, particularly as the army had been purged of potential political opponents by all regimes that came to power, and corruption in the services was endemic as leadership positions became another source of wealth creation for the few (Gberie, 2005). This fuelled resentment among the rank and file, all contributing to the later switching of allegiance of some of the Royal Sierra Leonean Armed Forces (RSLAF ) into so-­called ‘sobels’ – soldiers by day, rebels by night (Richards, 1996; Adebajo, 2002).

Outbreak of hostilities in 1991 Former Chief Prosecutor of the SCSL, David Crane, stated in an interview with Newsweek in March 2003 that: Corruption is endemic in this country. It certainly is a seedbed for discontent, but you have to understand that this is the most black and white, good versus evil situation that I have ever seen in 30 years of public service. They didn’t start this conflict for ethnic, political, cultural or religious reasons – not that this excuses anything. This was a cynical attempt to take over a country to control diamonds to make money to buy guns and weaponry to keep them in power so they could influence others in the region. The bottom line is, it boils down to the diamonds in South Eastern Sierra Leone. [Diamond buyers should remember that] diamonds are a wonderful gift, but some are dipped in blood. (Newsweek, 2003) Although the conflict in Sierra Leone was aided through the sale of diamonds, Crane’s analysis misses the other more ‘grey’ aspects of the conflict that were not always driven by greed (Abdullah, 2004). As mentioned at the beginning of this chapter, scores of young people remained unemployed and disenfranchised, leading to ripe breeding grounds for hostility towards the state and its lack of provisions. As the insurgency gained ground, the availability of young recruits to fill the ranks of the rebel forces was substantial. The years of state failure and,

Sierra Leone: conflict and judicial intervention   43 at times, venting of personal grievances saw the targeting of civilians by armed groups become war strategies (Richards, 1996). Paul Richards (1996) indicates that the initial rebel group was remarkably small, run by a War Council of twenty-­one individuals, with several thousand young members/combatants. The group had little or no territorial base under its control apart from various forest camps. Diamonds were its main source for obtaining food and weapons, and conscription of young people was undertaken by those who appeared sympathetic to its political message. Although the war was essentially internally driven, assistance from external parties helped initiate and fuel hostilities.8 The RUF started as a revolutionary (albeit weak) movement with the aim of overthrowing the APC regime and reinstating multi-­party democracy. What had begun as an apparently laudable objective soon turned into a brutal civil war (Abdullah, 1998). The conflict was not revolutionary in its tempo, with direct targeting of civilians becoming central to rebel objectives. The targeting of the very people the group claimed to be liberating quickly ensured that widespread support for the RUF goals soon turned into terror and hostility. Although the fighting appeared chaotic at times, the amputations carried out during the latter stages of the conflict were a deliberate strategy to scare people away from voting in the elections and to prevent the collection of the harvest (Richards, 1996). Paul Richards’ observation of the initial insurgency in Sierra Leone as a crisis of modernity, caused by the failure of the patrimonial system of the APC over their twenty-­four year reign, was a response to the prevailing ‘New Barbarism’ thesis that had emerged in the early 1990s, driven by Robert Kaplan’s influential article ‘The coming anarchy’ (Kaplan, 1994). Kaplan’s article centres on the conflict in Sierra Leone as anarchic and a product of social breakdown caused by ‘population pressure’ and ‘environmental collapse’. His thesis gained ground in the 1990s as a Malthusian catastrophic view of the world dominated Western debate, which also came soon after America’s disastrous intervention in Somalia. Richards’ thesis instead concentrates on explaining the rationality behind the RUF actions, assuming the group to be an organised movement with a clear political programme for radical social change. As the war progressed, the random cruelty of the rebels against the civilian population contradicts this argument. This can be seen most notably in the strategy of amputations, where prevention of harvest and deterring voting were the rationale behind the brutality. However, as noted by Bangura (2004), the same rationale cannot be applied to such strategies when young children and babies were also the victims of the same system of terror. For Bangura, Richards’ concentration on the rationality of the RUF prevents him from exercising proper scrutiny over the RUF methods. He opines that the RUF was bereft of any ideological basis, and any political declarations about its intentions for revolution were undermined by its irrational violence against civilians. Richards has also been criticised, by those pointing to the fact that the rebel movement had a ‘glaring absence’ of any highly educated intellectuals (Bangura, 2004), for claiming that the RUF comprised ‘excluded intellectuals’. Despite these criticisms, Richards’ study was one of the first to critically examine the conflict in

44   Historical background and political context Sierra Leone and challenge the traditional analysis of ‘ethnic conflict’ in Africa. His identification of disaffected youth operating on the outside of a failing state proved to be correct regarding their contribution to the conflict by supplying a ready, or forced, group of fighters to the insurgency.9 Richards’ study was also one of the first to critically analyse the RUF, its strategies, aims and intent.

Origins of a rebel force: the Revolutionary United Front Human Rights Watch commented, in 1998, ‘This is a war being waged through attacks on the civilian population’. From the beginning, the RUF ’s war was a war of terror. While its political objectives evolved over time, the RUF never ceased or lessened its attack on the lives and properties of the people of Sierra Leone. As discussed above, the war started in the east when a small group of RUF crossed over the border from territory held by NPFL rebels. It was initially believed that the attacks were NPFL revenge attacks for an earlier response to looting in eastern Sierra Leone by the NPFL, in which one Sierra Leonean Army major was killed (Gberie, 2005). A BBC broadcast soon after by Foday Sankoh, leader of the RUF, stating that this was the beginning of his ‘people’s struggle’, confirmed the start of the war. Within a month the RUF had gained control of the majority of Kailahun in the east, and started to advance its attack further east and south. The rebels were prevented from gaining too much ground by government forces with the support of troops from Guinea, with which Sierra Leone had a mutual defence pact. However, by the end of the year the RUF controlled the diamond areas in Kono and parts of Kailahun. The RUF ’s control of forest areas increased throughout the conflict before they advanced towards Freetown. The attack on the capital in 1999 was one of the most violent episodes of the war.10 The RUF consisted of NPFL soldiers – mercenaries from Burkina Faso as well as Sierra Leone dissidents. The composition of the RUF in the beginning consisted of disgruntled and opportunistic fighters/mercenaries, but later included large numbers of abducted and conscripted children and young people – far from the revolutionary group envisaged by the leaders of the movement that emerged in the 1980s (Abdullah, 1998).11 Foday Sankoh became the leader of the RUF; a former ‘disgruntled’ army corporal and militarist, he was not the most obvious character to emerge from the earlier revolutionary movement. Foday Sankoh was jailed for his part in the military coup attempt in 1970 led by Brigadier John Bangura and fourteen alleged others, including Sankoh (Forna, 2003). The stifling of political opposition and corruption by Stevens and the APC regime during the 1970s and 1980s gave rise to a student and youth movement against the state and its increasingly defunct apparatus. This period saw an active revolt against the regime in which Sankoh claimed to have participated. Abdullah (1998: 218), however, claims that Sankoh was not part of this revolutionary movement and instead emerged, ‘as an angry man with an axe to grind over his imprisonment.’12 The Revolutionary United Front was far from its activist declarations. The atrocities committed against civilians countered any such claims to fighting for the

Sierra Leone: conflict and judicial intervention   45 people. David Keen (2005) notes the ideological goals frequently espoused by the RUF – to tackle corruption, overthrow the dictatorial regime in Freetown, and ensure Sierra Leone reaped the benefits from the countryside, as opposed to feeding the ‘greed and caprice of the Freetown elite and their masters abroad’ – as holding some appeal for some ‘embittered Sierra Leoneans’ clinging to the hope of their ‘anticorruption discourse’. The RUF manifesto, Footpaths to Democracy, has widely been shown to be a retrospective mask for the strategies really employed by the group in meeting their objectives: namely, raping and pillaging their way across the country (Abdullah, 1998).13 Declaring itself a political movement, there is little doubt that Sankoh had an eye on power in the centre with the RUF involvement in both the coup in May 1997 and subsequent invasion of Freetown in 1999. As noted previously, any initial sympathy towards the RUF and its ambitions soon dissipated as violence against civilians increased. This led Human Rights Watch in 1999 to state that ‘This is not a war in which civilians are accidental victims . . . This is a war in which civilians are the targets’. HRW investigations throughout the conflict found that ‘Children face some of the gravest abuses in this war at the hands of the RUF . . . The RUF specifically targets children for recruitment as child soldiers, forced labor, and sexual exploitation’. Members of the RUF, including abductees, were tattooed to ensure identification should anyone try to desert the movement. Such identification would also ensure their swift execution should they be found by the army or Civil Defence Forces. Drugs were used often to induce fearlessness: One abductee asked a nine-­year-old rebel about the drugs they were using and was told, it’s a medicine they give us which makes us to have no respect for anybody; whatever we think to do, we just do it. Another rebel added, it gives us power and makes us fear nobody, and yet another said, ‘It makes us feel so tall and you people [civilians] look so small.’ (HRW, 1999a) Such tactics ensured a loyal following, induced through fear and violent repercussions. The violent attacks on Freetown in 1999 are now well documented, but assaults on people in rural areas had been relentless since the start of hostilities. Mutilation and amputation of civilians are synonymous with the war in Sierra Leone, but other equally violent methods were used by the RUF against civilians and target groups. Individual murders were carried out as well as group killings and fire-­related deaths, such as setting fire to buildings when people were still alive inside. HRW (1999a) took testimony of children being thrown into fires, and elderly people being left to burn alive in their houses. Cruel games were also played on civilians before they were killed, such as the dressing up of ECOMOG soldiers to illicit favourable reactions, which would then be punished. Rape and sexual assault were widespread crimes committed against females of all ages. Many would be raped by numerous rebels or soldiers, in repeated and sustained assaults. The physical damage for many was horrific, along with the social

46   Historical background and political context damage, as many of these women and girls were stigmatised and unable to return to their homes or families (Interview 68). Specific groups were also targeted during the attacks on Freetown, such as journalists, police officers, clergymen and Nigerians, but throughout the conflict other groups had been directly targeted. The TRC investigations found that these included foreign missionaries, members of the government and civil servants, human rights activists, successful business people, Lebanese and Indian nationals, and those vocal in their opposition to the AFRC junta during its nine-­month rule. Many of these attacks appeared to be deliberate, with HRW reporting that people saw the rebels with lists of people to be targeted, often as a result of a personal or political vendetta.

Civilians and widespread abuse By the latter stages of the conflict atrocities against civilians were being committed by all sides, including government soldiers, ECOMOG forces and the Civil Defence Forces. Collaboration between the army and the rebels was recognised by Captain Valentine Strasser during the NPRC coup of 1994, when he stated that at least 20 per cent of the army was disloyal, declaring that the war was ‘nothing short of banditry, looting, maiming and raping’ (Gberie, 2005). The subsequent military coup, led by Johnny Paul Koroma of the AFRC, openly invited the RUF to join them, as they shared ‘a combination of experience, talent and patriotism’. It was widely known by Sierra Leoneans that the army had been colluding with the rebels, as they had borne the brunt of this formidable union. The army had long been recognised as a ‘bloated and criminally inefficient’ organ of the state, which is why the duly reinstated elected Kabbah in 1998 focused greater resources on the Civil Defence Forces (Gberie, 2005). This served to exacerbate tensions between the army and the government, and provide no greater protection to civilians (TRC Report, 2004: Vol. 2, Ch. 2, Findings). The Civil Defence Forces – ‘a collection of militias based on local hunting societies, including the Tamaboros, the Gbethis, the Donsos, the Kapras, and most importantly the Kamajors, that arose to protect local communities from rebel attack’ (Kelsall, 2010) – were accused of numerous abuses, including the obstruction of aid delivery by NGOs, and the demanding of fees at roadblocks for their part in liberating Sierra Leone from the AFRC/RUF junta (TRC Report, 2004: Vol. 2, Ch. 2, Findings). Although the bulk of the atrocities were committed by the RUF, the crimes committed by the CDF were no less brutal. HRW and the TRC report that the CDF committed killings and mutilations that involved the disembowelment and eating of vital organs of the victims, to transfer the strength from the enemy. The Kamajors carried out ‘Operation Black December’ in late 1997 and early 1998. It was purposely designed to debilitate the strongholds of the AFRC junta in the Southern and Eastern Provinces. In the process, it caused immense suffering to the civilian populations of many communities in these Provinces. It also led to massive and systematic human rights abuses including

Sierra Leone: conflict and judicial intervention   47 summary killings, torture and looting at checkpoints established by the Kamajors. (TRC Report, 2004: Vol. 2, Ch. 2, Findings, Art. 355) The TRC also found that the Sierra Leonean Army committed the second largest number of reported crimes during the conflict. It found that corruption from the top led to dissatisfaction in the rank and file, which fuelled the resentment resulting in rebellion. The army is known to have collaborated with the RUF and AFRC and been involved with two coup attempts which ‘unleashed violence and chaos on the nation’. ECOMOG, the West African cease-­fire monitoring group, was also found to have committed human rights violations during its tenure as arbiter of the peace in Sierra Leone. Underfunded and under-­resourced, ECOMOG found itself struggling to maintain the insurgency and becoming the de facto surrogate national army, taking instructions directly from the Sierra Leone government, thereby negating its role as neutral arbiter during the conflict (TRC Report, 2004: Vol. 2, Ch. 2, Findings). The invasion of Freetown also saw ECOMOG troops carry out arbitrary killings; in the struggle that ensued, fellow soldiers were killed, and command and control was poorly coordinated. There are also reports of ECOMOG soldiers committing sexual abuse against women and girls.14 When peace was eventually declared over a decade later, in January 2002, after the successful intervention of the United Nations and British Army, Sierra Leone had witnessed some of the most horrific attacks against civilians ever recorded. The attacks on the civilian population were used in a deliberate campaign of fear and intimidation, as a means of exerting political and military control. Appalling attacks were also perpetrated against pregnant women and nursing mothers by the AFRC/RUF. According to the TRC, rape and sexual violence were also prevalent among young and old females. TRC investigations also found that ‘The Sierra Leone civil war was characterised by indiscriminate violence. It broke long-­standing rules, defiled cherished traditions, sullied human respect and tore apart the very fabric of society’ (Vol. 2, Chapter 2: Findings). The violence culminated with the rebel attack on the capital, Freetown, in 1999, which left an estimated 6,000 people dead and most of the city’s infrastructure destroyed, with the ECOMOG forces unable to deter the crisis. After six weeks of talks in the Togolese capital, Lomé, a second peace agreement was reached.15 The Lomé Peace Accord saw the granting of a general amnesty to all participants, and the appointment of members of the RUF into key posts in the government.16 As discussed in the Introduction to this book, Sankoh became the Chairman of the Strategic Minerals and Resources, granting him similar privileges to the Vice-­President. This agreement also granted the rebels posts in government, with the assurance that they would not be prosecuted for war crimes (see HRW, 2000a).17 This was a highly contentious issue and leap of faith for Sierra Leoneans and the government after all they had experienced during the war. The RUF continued to mine illicit diamonds and obstruct the UN from carrying out its peacekeeping activities. The rebels eventually reneged on this peace deal in early 2000 by attacking UN forces in eastern areas of the country, and in

48   Historical background and political context August 2000 the renegade militia group, the West Side Boys, took eleven British soldiers hostage. The resumption of violence saw the failing of the amnesty as an inefficient deterrent to further hostilities. Lomé had also called for the establishment of a Truth and Reconciliation Commission as ‘an important step towards restoring the country to peace and order after a decade of armed conflict.’ Parliament adopted and drafted the TRC Act in February 2000, but, due to insufficient funds and bureaucratic wrangling, the TRC did not start working until 2002, by which time the incumbent President, Tejan Kabbah, had called for international assistance to establish an internationally backed war crimes tribunal to help prosecute the RUF. In August 2000 the Security Council passed Resolution 1315, concluding ‘that the situation in Sierra Leone continues to constitute a threat to international peace and security in the region’, and calling for the creation of a war crimes tribunal to prosecute those most responsible for this instability (UN SCR 1315, 2000).

Conclusion The UN Security Council Report into the conflict in Sierra Leone in 2000 found that ‘The overwhelming majority of atrocities were committed by Sierra Leoneans against Sierra Leoneans’ (UN SCR 1315, 2000). Louise Arbour, UN High Commissioner for Human Rights, declared in July 2005 that ‘Justice screams to be done in both Liberia and Sierra Leone’;18 both countries were emerging from civil wars and were in the process of consolidating peace. These two West African countries were each closely linked to the other’s conflict, with combatants moving across borders; they were also prone to political interference and meddling. Both countries subsequently used a truth-­telling process to establish an historical record of events. Sierra Leone, though, used the Special Court to prosecute those most responsible for planning, orchestrating and continuing the war. With United Nations’ assistance, in July 2002 the Special Court for Sierra Leone was created. This judicial body was independent of the truth-­telling process, yet part of the over-­arching accountability process. Theoretically, these two institutions were complementary procedures; however, as has been discussed, the reality saw both institutions exist in an environment of confusion and mistrust that Outreach struggled to counter. As outlined in this chapter, the level of atrocities committed during the conflict in Sierra Leone demanded that those responsible be held accountable for their crimes. However, the scale of atrocities witnessed presented a major challenge for international justice: how to conduct legitimate, credible and relevant prosecutions to match the need required of them. Basing the Court in-­country would allow Sierra Leoneans to see justice taking place, but the logistics involved in its creation were significant. Sierra Leone was infinitely poor, and, despite the noble aims driving international justice, the stark wealth of the Court that was eventually created, in comparison to the poverty of its surroundings, would come to serve as an injustice for many, particularly when the limitations of its mandate and jurisdiction became apparent.

Part II

Establishment of the Special Court for Sierra Leone

3 Establishment of the Special Court for Sierra Leone

Introduction To understand the high level of expectations surrounding the creation of the Court, it is necessary to examine the political environment in which it emerged. This chapter looks at the establishment of the Special Court to identify the scope of expectations surrounding its establishment and to understand the limitations placed on it. The Court was financed through a system of voluntary contributions, meaning that, from the outset, the SCSL was not guaranteed funding for its complete duration. The precarious nature of this funding arrangement impacted almost every aspect of the Court’s work and overshadowed the final stage of proceedings, as the Court was close to bankruptcy in 2009. This also affected the amount of outreach activities the Court could undertake, as the Outreach Office, although an essential part of the hybrid judicial process, was not a central organ of the Court. These limitations underscore the inherently political nature of war crimes tribunals and ongoing tensions with the public need for justice, balanced with the funds, and at times the will, to drive it. The challenges for the SCSL were therefore manifold: conducting fair and transparent trials after a violent war; communicating the complexity of international justice in a war-­torn country; establishing the Court within the overall peace process to ensure a strong legacy; and balancing this with ensuring there were enough funds to keep the Court operating.

Next generation As discussed, the Special Court was perceived as being the next generation of tribunals – a move away from the lengthy ad hoc tribunals: We are the next generation tribunal in some ways. You have a tribunal that is of the UN, but not in the UN, so there is freedom to have an organization that is flexible, focused. And we are putting the court right in the crime scene so that people can see justice right in front of their eyes because they don’t really understand justice. They haven’t had a real good example. We were able to learn from past tribunals. I am given flexibility that Carla Del Ponte (Head Prosecutor at The Hague) is not. (Newsweek, March 2003)

52   The Special Court for Sierra Leone It was the first hybrid war crimes trial to be created after conflict, and the first internationalised Court to be based in the country where the atrocities had occurred. It had a sharply focused mandate and limited jurisdiction, meaning that a swift process was pivotal to both international expectations and donor requirements. The Court had little choice but to work to tight deadlines, and was bound by high expectations to achieve a lot in a limited time.

Creation of the Court The Court was created at the request of the former President of Sierra Leone, Ahmad Tejan Kabbah, in a letter to the former UN Secretary General, Kofi Annan, on 12 June 2000, requesting assistance in establishing a Special Court for Sierra Leone to prosecute those who were responsible for committing atrocities during the conflict (UN Doc. S/2000/786).1 Kabbah’s main focus was on prosecutions for the RUF, ‘to try and bring to credible justice those members of the Revolutionary United Front and their accomplices responsible for committing crimes against the people of Sierra Leone and for the taking of United Nations peacekeepers as hostages’ (Interview with former Registrar, Robin Vincent; ICG, 2003). Concerns were expressed by international observers that such a limited focus could cause potential problems, as various other factions were also involved in the violence – not just the RUF. For example, Peter Bouckeart, from Human Rights Watch, commented that for the Court to have credibility, ‘it would have to address responsibility on all sides of the conflict’ (Crossette, 2000). Without broad acknowledgement of responsibility at all levels there was a risk that any prosecutions could be seen as a ‘witch-­hunt’ or selective justice. Under Security Council Resolution 1315, in August 2000 the Security Council requested the Secretary General to ‘negotiate an agreement with the Government of Sierra Leone to create an independent special court’, recommending that the ‘subject matter jurisdiction should consist of crimes against humanity, war crimes and other serious violations of international humanitarian law, as well as crimes under Sierra Leonean law, committed within the territory of Sierra Leone’. The Agreement of the Court was eventually signed in Freetown in January 2002, after lengthy negotiations and funding obstacles. The Court was treaty-­based rather than through resolution, so that it could proceed without committing UN members to funding (Perriello and Weirda, 2006). As will be discussed, this decision placed the Court at a significant disadvantage compared to the ICTY and ICTR. Following the President’s initial request, a legal team representing the Secretary General visited Sierra Leone to conclude the legal negotiations between the UN and Sierra Leone, and to discuss possible site and security implications for establishing the Court in Freetown. Talks on substantive issues with the President, the judiciary and legal professionals, senior government ministers, local civil society organisations, non-­governmental organisations, and international organisations involved with child welfare and the DDR programmes, as

Establishment of the Special Court: Sierra Leone   53 well as members of UNAMSIL, also took place. These wide-­ranging discussions demonstrate the broad level of expectations surrounding the creation of the Court from within Sierra Leone (UN Doc. S/2000/915). The report states that: If the role of the Special Court in dealing with impunity and developing respect for the rule of law in Sierra Leone is to be fully understood and its educative message conveyed to Sierra Leoneans of all ages, a broad public information and education campaign will have to be undertaken as an integral part of the Court’s activities. Outreach is discussed in greater detail in Chapter 5, but it is worth noting here that the necessity of informing Sierra Leoneans about the Court’s limitations and narrow mandate was identified from the outset by the planning team. This continued to be a pivotal part of the Court being based in Freetown; its visibility was tied to its legitimacy. Communication of its principles and process were therefore essential to its acceptance and, thus, addressing impunity. The commitment, enthusiasm and drive to get the Court off the ground were due largely to the arrival of the Chief Prosecutor, David Crane, and Registrar, Robin Vincent, who arrived in Sierra Leone in August and July 2002 respectively, and began preparations in earnest. The Agreement to establish the Court was signed in January 2002, and the Court began functioning on 1 July 2002, with the Officer of the Prosecutor up and running by November 2002. The trials were due to start in November 2003, and it was targeted to complete its work within three years. This was an ambitious projection from the start, and perhaps unrealistic, considering the enormity of the task ahead, as stated by the former Registrar: No one ever said that the Special Court for Sierra Leone would try a large number of people. That it can be done in three years remains to be seen. Statutes do not limit the mandate in time. What limits it is the funding. On a strictly legal point of view there is no reason why these trials could not be completed within three years. We are expecting them to be completed within this deadline. Donors do not want it become another ICTY or ICTR. I think that three years is a reasonable time-­frame.2 The Court building was built in good time, with construction starting in 2003 and finishing in 2004. It was officially opened on 10 March 2004 by former United Nations Secretary General, Kofi Annan. It cost US$3.4 million to build, with Mr Annan citing it in 2004 as being ‘a vital part of the healing process, following a tragic and devastating period of conflict’, and also urging the Court to ‘complete its work expeditiously and, in so far as it is possible, within its three-­ year mandate’. The opening of the second trial chamber in 2005 meant that three trials could run concurrently; thus, the creation of a cost-­effective and expeditious Court model still remained a possibility.

54   The Special Court for Sierra Leone

Statute of the Court The Court was a ‘treaty-­based sui generis court of mixed jurisdiction and composition’ (Linton, 2001). Unlike the ad hoc tribunals, it was not part of the UN system; unlike the domestic trials in Cambodia, it was not part of the domestic legal system.3 The SCSL had concurrent jurisdiction and primacy over the national Courts, who did not have the capacity to prosecute such crimes.4 The main advantages of this, as outlined by Linton, were that it ‘avoids problems caused by reliance on a weak underlying criminal justice system’. Not being part of the UN system also meant that the Court was not subjected to lengthy UN bureaucracy. However, this also meant that the Court’s funding was not guaranteed, and it was not equipped with necessary powers of extradition, as outlined by its lack of Chapter VII enforcement powers.5 Mochochoko and Tortora (2004) highlight that ‘The Security Council envisaged the Court to be financed through voluntary contributions of funds, equipment, and services including offers of expert personnel from states, intergovernmental organisations and non-­governmental organisations’. However, no other tribunal had been financed in this way, and therefore the model had never been tested, so ‘A major concern was ensuring that the Court will not be paralysed by lack of funding’. The financial commitments involved with both the ICTY and ICTR underscored the necessity of having sufficient committed funds to permit the Court to operate effectively for its projected duration, with the UN Secretary General pressing for ‘a viable and sustainable financial mechanism for the Special Court’ (UN Doc. S/2000/915). The Security Council, however, was unwilling to be drawn on the issue of cost, but remained supportive of the establishment of the Court, calling for an oversight committee whose role would be to assist in raising funds, as well as overseeing other administrative concerns relating to the Court.

Management committee The creation of a Management Committee was also a new development for international justice. As with the funding issue, the Security Council remained supportive in theory but not in substance when considering the composition or responsibilities the Committee may undertake. Conceptually, it was not evident if the Security Council’s intention was to take the administration of the Court outside the UN system and the rules and UN financial regulations, or whether the Committee would merely be concerned with fund-­raising for the Court. (Mochchoko and Tortora, 2004) At the request of the UN Secretary General, the Office for Legal Affairs initiated a process of informal discussions with interested states on the practical arrangements for the Court, and implementation of the Agreement for the Court in

Establishment of the Special Court: Sierra Leone   55 March 2001. The Group would be made up of ‘those States that would actually contribute in funds and in kind to the Special Court’. The hope was for the Group to consist of between ten to fifteen states, and to include representatives of the Secretary General and the government of Sierra Leone (UN Doc. S/2000/1234, Pt 2). Negotiations took place, in a relatively short timeframe, for the establishment of the Management Committee and Group of Interested States. This was due in large part to the lengthy negotiations preceding this, and the need to see some tangible progress towards establishing the Court. Mochochoko and Tortora highlight that this haste, due in part to the above-­mentioned factors as well as other issues such as the creation of the Extraordinary Chambers for Cambodia, also scheduled for discussion at this time, served to isolate possible interested states in joining the Committee. For example, Legal Counsel narrowed the criteria for interested parties to those ‘states that actually contribute [support] in funds and in kind’ to the Court; this therefore discounted those states that could not contribute to the Court but were interested in seeing justice done for the people of Sierra Leone. Mochochoko and Tortora also state that: It should be recalled that, several months later, informal consultations held by the Mission of Sierra Leone to the United Nations with possible donors to the Court revealed that numerous Member States had not fully understood the total independence of the Court from the UN regular budget. They point to the concept of a sui generis hybrid tribunal which was not fully understood, and where longer than a week’s reflection was needed to comprehend the idea. The sixty-­day timeframe given by the Secretary General for states to indicate their support and contributions has also been criticised as being too short when ‘Most countries have rigorous procedures for approval of expenditures, hence it must have been difficult for many states to indicate a willingness to be part of a Group while awaiting instructions from Capitals’. This necessity for speed appears to have limited the states who would participate. The biggest contributors were the United Kingdom, The Netherlands, Canada and the United States, with Lesotho and Nigeria also members. However, the issue of Nigeria being a member of the Management Committee whilst simultaneously granting asylum to Charles Taylor was a source of embarrassment and controversy in Sierra Leone (Interview 51). According to Perriello and Weirda (2006), the Management Committee ‘has not carried its political weight’. The Group was made up of mid-­ranking officials who did not carry sufficient political weight to lobby for funds or political support (Mochochoko and Tortora, 2004). This has been clearly evident, with the Court struggling to gain sufficient funds on a yearly basis, and the difficulties in securing Charles Taylor’s extradition.6 The Group was also composed of mainly legal officials, with little experience in administrative matters, and very  busy schedules. Initial consultations were held by members of the

56   The Special Court for Sierra Leone Legal Counsel’s Sixth Committee, all legal experts with no financial or administrative expertise; therefore, the emphasis was on legal issues and policy directions, ‘underestimating the complexity of many of the financial and administrative issues, which were later to haunt them and delay the establishment of the Court’. It was not until later that members of the Legal Counsel’s Fifth Committee, who had expertise in finance and human resources, were involved in planning, thus enabling substantive organisation of key areas of the Court’s establishment. Another oversight during initial discussions was the exclusion of Sierra Leone. After much lobbying the government of Sierra Leone was included in the Committee, but even so no Representatives of Sierra Leone were called to attend the first meeting of the Management Committee (Mochochoko and Tortora). This seemed a significant oversight, particularly considering that one of the driving principles behind the establishment of the Court was for Sierra Leone to see justice being done. The negation of Sierra Leone in these initial talks would appear to have undermined the hybrid aspect of the Court at the outset. The establishment of the Management Committee nevertheless enabled the Court to be established in a timely period and, despite being bound by bureaucracy, it managed to escape many of the UN’s bureaucratic hurdles. The Committee was no doubt an innovative development for the Court and for international justice, but, as outlined above, it has not been without its challenges and shortcomings – particularly the difficulty in balancing political necessity and expedience with demands for justice nationally. This was a major challenge for the Court, as discussions took longer than anticipated regarding decisions, and the shortage of funding was a hurdle for the Court from the outset – something neither the ICTY nor the ICTR had needed to consider to the same degree. Therefore, the SCSL model of justice as a development in the field of international justice may have been a logical progression, but not all steps forward have been positive.

Hybrid status: new and unique As discussed previously, the SCSL was the first hybrid court to be established, but was more international than domestic in character. This is unsurprising, considering the state of the domestic judiciary. The international aspect conferred legitimacy that the process would be transparent and fair. However, it was also necessary to ensure that the Court was not solely seen as an international endeavour and that Sierra Leoneans were connected to the process, given the gravity of the crimes committed. The Court was independent of both the government of Sierra Leone and the United Nations. Article 1 of the Court’s statute states that, The Special Court shall . . . have the power 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 30 November 1996, including those leaders who, in committing such

Establishment of the Special Court: Sierra Leone   57 crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone. (Statute of the Special Court for Sierra Leone, Article 1, para. 1) Despite the Court’s jurisdiction containing two laws pertaining specifically to Sierra Leonean law – offences relating to the abuse of girls under the Prevention of Cruelty to Children Act,7 and offences relating to the wanton destruction of property under the Malicious Damage Act8 – no indictees were eventually charged with either of these crimes. All of the indictees appealed against their indictments (unsuccessfully), citing the ‘blanket amnesty’ granted during the Lomé Peace Accords of 1999.9 The amnesty remained a contentious issue and, despite the UN caveat, it is argued, ‘. . . the pardon in the Lomé Peace Agreement is in full force and must be honoured by the government if it intends to achieve lasting peace in its ravaged country’ (Macaluso, 2001–02).10 This was a challenge for the Court and for Sierra Leone in its attempts to balance demands for immediate justice and future peace for the country. With unemployment high and the threat of drug trafficking a continuing security threat, to revoke the amnesty against former lower- to mid-­level commanders might have jeopardised a hard-­won peace. My research found that the lack of inclusion of Sierra Leonean laws in the indictments did not appear to have generated hostility towards the Court. Most individuals generally seemed unaware of the full indictments for each defendant, meaning that they had even less knowledge of the laws included. What was more significant was the reference to the law of the Court as ‘white man’s law’.11 This was a term used widely, in relation to the SCSL, by people who had little knowledge of proceedings except that it was not a Sierra Leonean institution. Regardless of its hybrid status, its design and make-­up looked distinctly international, and was regarded as such. This evoked two responses from individuals: some were pleased that the Court was not a Sierra Leonean institution due to the corruption and inefficiency of domestic infrastructure, including the judiciary; others were aggrieved that the Court had little relevance to them in bringing justice for war crimes. As will be discussed in Chapters 4 and 5, the small number of indictments issued did little to appease this perception of limited or selective international justice.

Mandate The Special Court was ‘deliberately sharpened in its focus’ by limiting its mandate to those persons bearing the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in that country’s territory in the relevant period, to avoid the spiralling costs of the ICTY and ICTR. The Sierra Leonean government expressed its dissatisfaction with the Court’s lack of Chapter VII powers, believing that this may have hindered the work of the Court. The Security Council remained firm on this aspect, though, and the Sierra Leone government accepted the decision to prevent

58   The Special Court for Sierra Leone further delays in establishing the Court.12 The difficulty in arresting Charles Taylor, however, underscored the difficulty of operating without a Chapter VII mandate, or with a ‘low profile’, as stated by the former SCSL Registrar: In terms of international co-­operation, states have been wary. What the ICTR and the ICTY can expect to obtain, we have to invite. This type of tribunal is politically weaker. We have a problem of legitimacy. I have seriously underestimated the difficulty to achieve recognition and international co-­operation for this Court. I thought it would just follow. But we are different, we are low profile. (ICG, 2003) A key aspect of the Court’s composition was its Statute, which included the investigation and prosecution ‘of those who bear the greatest responsibility’ – different from the Secretariat’s position of wanting to concentrate on ‘those most responsible’ (Beresford and Muller, 2001). The Prosecution’s concentration would allow the focus on a few rather than many, meaning a smaller workload under its limited mandate. However, many did not see the indictees selected as those bearing the greatest responsibility, with the exception of Foday Sankoh, Sam Bockarie, Charles Taylor and Johnny Paul Koroma. Many saw mid- to lower-­level commanders responsible for crimes committed in their towns and communities as being most responsible – in many cases, ex-­combatants who lived in the same areas as their victims (Interview 43). Therefore, such a narrow interpretation of the conflict in Sierra Leone raised significant questions as to the relevance of such a large institution for such a slim focus.

Limited jurisdiction The Secretary General’s report outlined the need for a focused and narrow jurisdiction to avoid overburdening the Court and the Prosecutor with lengthy investigations and trials. The date of 30 November 1996 signified the end of the Abidjan Peace Accord, the first comprehensive peace agreement between the government and the RUF (UN Doc. S/2000/915). This agreement did not last, and the RUF reneged on all its commitments. To place the jurisdiction of the Court at the start of the conflict in 1991 would have meant an extensive workload for the Prosecutor, and the aim of instituting expeditious justice would have therefore been unrealistic. Events occurring after November 1996 did include atrocities committed by all factions; however, the date largely discounted the majority of atrocities that were committed in the rural areas prior to this, thus feeding into a perspective of bias or ‘selective justice’ towards Freetown. Communicating to Sierra Leone that this was not the case was pivotal to ensuring widespread acceptance of this limited justice. The decision of the Prosecutor not to take evidence about crimes committed before 1996 was divisive. Fighting and killing only reached the capital in 1997, following the AFRC coup, and then intensified in the January 1999 invasion. In

Establishment of the Special Court: Sierra Leone   59 contrast, those in rural areas had suffered from RUF fighting since 1991. Despite widespread information campaigns, there was a perception that crimes committed against those in Freetown and towards United Nations peacekeepers took precedence over justice for all Sierra Leoneans (Smith, 2004). This is strongly disputed by the Court, but provides a clear example of the difficulty in the tensions between political necessity and judicial compromise in international justice. In some instances, as will be discussed in Chapter 5, gaining acceptance when this perception exists presents insurmountable challenges, and even when the rationale was accepted, in some cases, the process was rejected as insufficient justice regardless.13 The need for an expedient judicial mechanism trumped that for an inclusive judicial body. The belief that this new smaller ‘model’ would work in Sierra Leone meant that it would set a precedent for future tribunals. The temporal jurisdiction and lack of funds has, however, proven decisive in terms of the Court’s relevance to post-­conflict justice in Sierra Leone: has its mandate been too slim to ensure accountability has been addressed? The Court’s ‘hybrid’ status also posed challenges for its temporal jurisdiction with regard to the 1999 amnesty. The Court found itself in a position whereby it could prosecute individuals for international crimes committed since November 1996, but could only try violations in relation to Sierra Leonean provisions included in the mandate from 7 July 1999; thus ‘The resulting effect of creating a dual start-­date for the Special Court’s temporal jurisdiction is raising serious questions about the legitimacy of the Court in the eyes of the Sierra Leone public’ (Smith, 2004). However, as noted above, many people did not have a complete understanding of the law used at the Court, so such opinion on the Court’s dual jurisdiction would be limited. Nevertheless, it raises questions regarding its legacy and the possible thorny challenges that may arise, and calls into question its legitimacy retrospectively. According to Alison Smith (2004), there were two obvious dates for the Court’s jurisdiction; the start of the conflict in March 1991, or the date of the Lomé Peace Agreement, 7 July 1999. The former was rejected not on political grounds but for creating too heavy a workload for the Prosecutor, within the terms of the Court, to complete work in a timely fashion; the latter would have given credence to the amnesty granted at Lomé in which the UN entered a caveat, at the time of signing, that it did not recognise the amnesty in relation to crimes against humanity and under international law. The date of 20 November 1996 was eventually decided as it was believed to ‘encompass the most serious crimes committed in the Provinces’, as well as those committed in Freetown and the taking hostage of UN peacekeepers in 2000. However, as discussed, the start-­date of the Court’s jurisdiction in the middle of the conflict was questioned as arbitrary within Sierra Leone. According to No Peace Without Justice, many still believed that the Statute favoured Freetown over the provinces. This perception was apparent during my discussions in the provinces, with people seeing little direct relevance between the Court and themselves, particularly with regard to justice: ‘[The Court] needs to come down to a grassroots

60   The Special Court for Sierra Leone level and inform the people’ (Interview 62). Others stated that the Court had not created a regional divide, but instead created ‘a divide between those who saved us and those who were destroying us’ (Interview 54). These statements related to the number of indictments and the prosecution of Sam Hinga Norman (discussed below and in Chapter 4). This relates directly to the Court’s legacy and, in particular, its narrow interpretation of the conflict. The level of interest in the Court throughout the latter stages (2007–08) was low, indicating disinterest in its work and perhaps judgements rendered.14 Smith (2004) found that starting the jurisdiction from the beginning of the conflict would have facilitated greater support for the Court, and engendered greater relevance for the Court to Sierra Leoneans. The government of Sierra Leone had similarly challenged the limited jurisdiction, requesting that the temporal jurisdiction of the Court begin in 1991 (UN Doc. S/2001/857). The possibility of significant delays in the start of Court proceedings prevented this change, and the objection was subsequently withdrawn to allow the Court to begin.

Charges As outlined in the previous chapter, although the majority of atrocities were committed by the RUF, the other factions involved in the conflict also committed human rights abuses against the civilian population. Calls from lobby groups to acknowledge the crimes committed by all sides were observed by the Prosecutor, who issued indictments for the three armed groups. The first indictments were issued in March 2003, including indictments for the high-­level commanders of the Revolutionary United Front, the Armed Forces Revolutionary Council and the Civil Defence Forces. The CDF indictments included Chief Sam Hinga Norman, who was at the time a Minister for Internal Security and former national director of the CDF. He was considered to be a ‘hero’ by many, and instrumental in establishing peace and restoring the government of President Kabbah. Norman’s indictment was a divisive issue, with many people unhappy with this decision, particularly as his arrest was very public and considered humiliating for a man of his stature (Focus Group E). One interviewee stated, ‘Those highly accused persons – Hinga Norman and the others – it has left a sour taste in some peoples’ mouths’ (Interview 54). This initial criticism was pervasive, as many people continued to consider Norman’s arrest and detention a dishonour to his war hero’s status. In total, thirteen indictments were revealed, with two eventually withdrawn due to the deaths of Sam Bockarie, former battle field commander of the RUF, apparently killed under the orders of Charles Taylor in Liberia in 2003,15 and Foday Sankoh, former commander of the RUF, who died of natural causes whilst in the Special Court’s custody.16 The two remaining indictments were for Johnny Paul Koroma, the leader of the AFRC in 1997, who, as of 2009, was still at large, missing presumed dead,17 and for Liberian President Charles Taylor; the latter indictment, revealed in June 2003, was the final indictment to be issued.18

Establishment of the Special Court: Sierra Leone   61 The Prosecution issued an arrest warrant for Charles Taylor on 4 June, as he flew to Ghana for peace talks. At the time he was President of Liberia. This was another highly controversial and political move by the Prosecution, who were criticised at the time for potentially stalling the Liberian peace process. The ­Ghanaian authorities did not arrest Taylor, and instead, embarrassed by the whole episode, arranged a plane to return him to Liberia. Significant international pressure to resign was placed on Taylor, to allow the Liberian peace process to move forward. He left in 2003, with the offer of asylum in Nigeria, thus making it difficult for the Court to secure his extradition to Sierra Leone. It was not until March 2006 that Taylor was finally brought before the Court, after years of international political manoeuvring and negotiations. His trial was subsequently moved to The Hague, as fears for the security in the sub-­region were high should his trial continue in Sierra Leone. This was a divisive issue in Sierra Leone; many wanted Taylor to face justice there for the crimes committed, and, as will be discussed, holding his trial elsewhere undermined the whole reason for situating in the Court in the country where the atrocities had occurred. Debate continued as to whether his removal undermined the Court’s aim of allowing Sierra Leone to see justice taking place.19 Moving the trial to The Hague increased people’s feelings towards the Court. The same criticism levelled at the ICTY and ICTR could be levelled against the SCSL with regard to the Taylor trial. Why claim to want to show Sierra Leone justice, yet subsequently remove one of the key protagonists Sierra Leoneans want to see facing justice? This demonstrates again that, despite the hybrid aspect of the SCSL moving away from the distanced ad hoc tribunals, justice still has its limitations. Satisfying everyone’s demand for a fair and transparent justice that does not disturb the peace presents significant challenges, particularly with this ‘hybrid’ model of justice, in Sierra Leone.

Conclusion The Court’s creation was unique, and a significant development for international justice. The sharply focused mandate, although controversial, was an attempt to create a judicial mechanism that was fast, efficient and could operate successfully in-­country, thus escaping the bureaucratic hurdles faced by both the ICTY and ICTR. However, this limited justice, although posing significant advantages, also involved the challenge of ensuring the process was visible, and the principles upon which it was based were seen as legitimate and accepted by Sierra Leone. The SCSL confronted significant challenges in this regard. The limitations placed on it meant few prosecutions would be conducted, which in itself raised questions regarding the relevance of the Court to satisfy the demand for justice after a conflict involving thousands.

4 Internationalised justice in Sierra Leone

Introduction The thirteen indictments issued by the Court were controversial due to their limited number, as well as raising questions over whether these indictees were actually widely considered as bearing the ‘greatest responsibility’. The decision to prosecute individuals from the three main factions was largely welcomed, as it was broadly recognised that all sides had committed atrocities (TRC Report, 2004: Vol. 2, Ch. 2, Findings). The original request from former President Kabbah focused on a court to prosecute members of the RUF only, but such a narrow focus would have meant impunity prevailing. The subsequent decision to indict only a small number of individuals, even if they were representative of the conflict, was broadly considered as leaving an impunity gap for mid- to lower-­ level commanders. This chapter considers the implications of only prosecuting those few for the crimes of many, and asks how and whether this narrow definition of responsibility has helped to end impunity in Sierra Leone. It looks at the indictments issued for the three main factions, as well as that for Charles Taylor, and looks at the challenges faced by the Court in communicating this scaled-­ down version of justice.

Indictments The former Prosecutor stated, ‘[W]e can only do justice that [. . .] may not be exquisite, but it will not be rough’.1 The thirteen indictments were announced between March and June 2003, following extensive investigations with a specific focus on the ‘masterminds of the war’ (HRW, 2004a). The Prosecution decided that these thirteen key indictees ultimately bore the greatest responsibility for the crimes committed during the conflict. The indictments for all factions focused on the overall factor of ‘Terrorising the civilian population and Collective Punishments’, thus recognising the scale and the extent to which ordinary Sierra Leoneans had suffered. The Prosecutor stated at the outset that no children under the age of 18 would be indicted, as they were not considered as bearing the greatest responsibility; instead, the Prosecution would focus on leadership and those in positions of responsibility. This decision was also based on the fact that so many young people had been

International justice for Sierra Leone   63 involved in the conflict that any indictments would further exacerbate the suffering of a generation that had already lost so much to the conflict. This was a significant decision for the SCSL, particularly as the conflict involved large numbers of child combatants. It also corresponded with the ICC’s jurisdiction of not prosecuting persons under the age of 18 (Rome Statute, Art. 8 (b) xxvi). It was envisaged that a small number of people would be indicted – no more than thirty. As mentioned, thirteen were indicted in total, and these included members of the three main factions: the Revolutionary United Front, the Armed Forces Revolutionary Council, and the Civil Defence Forces.2 Charles Taylor was also indicted for his part in funding and fuelling the conflict. Discussions during fieldwork focus groups raised important questions surrounding the concept of responsibility; if the concentration is on ‘those who bear the greatest responsibility’, then why were those who supplied weapons to the country also not on trial? ‘Why have the manufacturers of the guns not been caught and made to face the Court. Arms not made in Sierra Leone but being brought in from somewhere else, so why have they not been brought into justice?’ (Focus Group H). The prosecution of Charles Taylor goes some way to addressing the supply of weapons, but the limited mandate comes under scrutiny because no other external party was prosecuted for its part in aiding the conflict.3

Revolutionary United Front case Five alleged leaders of the Revolutionary United Front were charged with eighteen counts of war crimes, crimes against humanity, and other violations of international humanitarian law. Foday Saybana Sankoh, Sam Bockarie, Issa Hassan Sesay and Morris Kallon were indicted on 7 March 2003, and Augustine Gbao was indicted a month later, on 16 April 2003. On 28 February 2003 the Trial Chamber ordered the joint trial of Sesay, Kallon and Gbao, and on 5 March 2003 Prosecutors issued a consolidated indictment. The indictments against Sankoh and Bockarie were eventually withdrawn owing to the deaths of the accused. The opening Prosecution statements at the start of the RUF trials underscore the passion with which the former Prosecutor David Crane approached the trials, as well as his conviction of the guilt of the RUF: May it please the Court, this is a tale of horror, beyond the gothic into the realm of Dante’s inferno. They came across the border, dark shadows, on a warm spring day, 23 March of 1991. Hardened rebels trained by outside actors from Liberia, Libya and Burkino Faso. These dogs of war, these hounds from hell. . . .4 Even after numerous objections by the Defence at the use of such metaphors, Crane continued in the same vein, stating that: These rebels consisted of Sierra Leoneans and Liberians assisted by Libyan Special Forces. Among their goals was the diamond fields [sic] of eastern

64   The Special Court for Sierra Leone Sierra Leone. Their motive: power, riches, and control in furtherance of a joint criminal enterprise that extended from West Africa north into the Mediterranean Region, Europe, and the Middle East. Blood diamonds are the common thread that bound together this criminal enterprise. The rule of the gun reigned supreme. The concentration of the Prosecution’s case was on the characterisation of the RUF ‘as a carefully orchestrated criminal enterprise seeking to take over the country by any means necessary’ (Staggs, 2008). It focused on diamonds, especially during Crane’s period as Chief Prosecutor, but, as discussed, this has been criticised for a lack of understanding about the conflict in general: It’s our case that the conflict in Kailahun has been much misunderstood and that the misunderstanding of what happened in Kailahun has arisen because of the atrocities committed by the Liberians. And from that, and those atrocities, including the use of child soldiers, the Prosecution, NGOs, human rights groups – have effectively misunderstood what happened in Kailahun . . . It is the fundamental basis of my client’s case that that misunderstanding has led to a misunderstanding of what the RUF was about. (Defense Counsel for Issa Sesay, Wayne Jordash, on the second day of the Tenth RUF Trial session) The RUF did concentrate its war fighting in the diamond areas in the east and, latterly, southern areas of the country, and for considerable periods throughout the conflict took charge of many of the mines to fund its fighting. But the conflict was not driven by desire for diamonds; as Chapter 2 discusses, the revolutionary goals of the RUF soon turned into greed for resources, but disenfranchisement played a more pivotal factor in fuelling the violence. The movement was initially driven to change the corrupt APC regime in Freetown. Diamonds did play a key role in funding the conflict, as without this revenue source the RUF would have struggled to fund its operations, but the conflict was not solely about controlling the diamonds. The RUF trial concluded in June 2008, with a judgement rendered in February 2009. The three remaining indictees, Issa Hassan Sesay, Augustine Gbao and Morris Kallon, were found guilty on most of the eighteen charges of war crimes and crimes against humanity levied against them.5 They were found guilty of participating individually and as part of a joint criminal enterprise to achieve their goals and cause widespread disruption. Proceedings started on 5 July 2004 and concluded on 24 June 2008. A total of 171 witnesses were called: 86 for the Prosecution and 89 for the Defence.6 This took longer than the originally anticipated three years for the Court to run, but, as Staggs notes, the RUF trial was perhaps the most important trial for the SCSL, because as ‘the accused face an indictment containing the greatest number of charges spanning the largest geographical area of any accused at the Special Court, the case is arguably the most complex the Court will try’ (Staggs, 2008: 9). For many Sierra Leoneans, bringing the RUF

International justice for Sierra Leone   65 leadership to justice was significant in ensuring that those most responsible for the crimes committed during the conflict were held to account: anything less than a guilty judgement, even for these lesser-­known figures, may have undermined the Court’s legitimacy to end impunity. Findings The Court found that the RUF continued its fight against the democratically elected government of Ahmad Tejan Kabbah even after the signing of the Abidjan Peace Accords in 1996.7 It found that despite signing the peace agreement, attacks against civilians at this time continued.8 Enlistment, conscription and use of children as participants in the conflict were common, as was the abduction of civilians and using them for forced labour. The RUF also colluded with the AFRC, who had overthrown the government in 1997, and, using any means necessary, asserted political control over the country – in particular, the mining areas: The Chamber further found that joint AFRC/RUF forces targeted civilians in a widespread and systematic attack, designed to terrorise the population into submission through collective punishment, unlawful killings and sexual and physical violence. In addition, the joint AFRC/RUF forces continued to rely on the forced labour of civilians to generate revenue, used children under the age of 15 years to participate actively in hostilities and generally sanctioned pillage as a means to motivate their fighters.9 Crimes against civilians were a constant throughout the conflict. In 1999, Human Rights Watch reported that: Rebel forces in Sierra Leone systematically murdered, mutilated and raped civilians during their efforts to capture Freetown early this year. The rebels carried out a large number of pre-­meditated mutilations of civilians, in particular the amputation of arms, hands, legs and other parts of the body. All sides targeted civilians, but the RUF was at the forefront of most of the attacks, and for the longest period (see TRC Report, 2004: Vol. 2, Ch. 2, Art. 29). The Court found the accused guilty of forced enlistment of civilians during the conflict, with many children having to kill family members or participate in the burning or destruction of towns and villages to prevent the conscripted from returning.10 In the early days of the conflict two former RUF commanders were killed after trying to moderate the excesses of the RUF – an approach adopted by Sankoh to silence his critics (Brown, 2000).11 The death of Foday Sankoh from natural causes in 2003, before he could face justice at the SCSL, has been seen as granting him ‘a peaceful end that he denied to so many others’, according to former Chief Prosecutor, David Crane. Sankoh was a fallen figure after his arrest by British paratroopers in May 2000, and no

66   The Special Court for Sierra Leone longer commanded the respect of his ‘troops’. Former British High Commissioner Peter Penfold had this to say about Sankoh: Formed in the 1980s, the RUF did not develop into a guerrilla political movement like those in Uganda or Mozambique, but became more like a cult, with Sankoh as its messianic leader. He brainwashed his mainly young followers on a diet of coercion and drugs with unrealistic promises of pots of gold once he became president. Sankoh deliberately severed his devotees’ ties with homes and families by burning down their villages and sometimes even making them kill their own parents. The RUF became their pseudo family. They are now being weaned away from the evil influence of their ‘Pappy’, as Sankoh is called, but it is a slow and difficult process. Few show signs of remorse and most still feel that they did no wrong. (Penfold, 2002) After his arrest in 1997, some of the worst atrocities were committed. Investigations found that after Sankoh was detained in Nigeria, command was passed to Sam Bockarie (alias ‘Mosquito’). Bockarie was notorious for his brutality, and competition for resources did not wane. Attacks against civilians also did not cease; in fact, in many cases they increased. Sam Bockarie also evaded justice at the SCSL; he was killed by Liberian forces whilst trying to enter Côte d’Ivoire in 2003. He died a wanted man, and was responsible for many heinous crimes committed during the conflict in Sierra Leone:12 ‘He was one of the most feared guerrilla fighters to emerge from Sierra Leone’s decade-­long civil war’.13 However, toward the latter stages of the conflict, as tensions emerged within the RUF leadership, Bockarie left Sierra Leone on 15 December 1999 for Liberia, vowing never to return: He made it categorically clear to his fellow commanders that he was leaving the RUF on account of his personal differences with Sankoh. He mobilised a sizeable contingent of combatants loyal to him and crossed into Liberia with the blessing of Charles Taylor. Mosquito vowed never to return to Sierra Leone for as long as Foday Sankoh was the leader of the RUF. (TRC Report, 2004: Vol. 3a, Ch. 3, para. 1131) The three remaining RUF indictees, Kallon, Gbao and Sesay, were considered the most senior commanders left in the field after the Lomé Peace Agreement in 1999.14 Kallon caused hostilities at one of the UN disarmament centres in Makoth, near Makeni, upon hearing that some of his combatants had turned themselves over to the UN as part of the DDR process. This led to the hostage-­ taking of four Kenyan peacekeepers and four UNAMSIL military observers from the UK and New Zealand, who were captured and detained by the RUF at its Brigade Headquarters in Makeni (Ashby, 2003). According to TRC testimony the capture and taking of hostages was undertaken by Kallon and Gbao, who had supposedly duped Sankoh in the process, therefore indicating their senior

International justice for Sierra Leone   67 p­ ositions in the RUF. Investigations also found that ‘Commanders such as Komba Gbondema, Morris Kallon, Issa Sesay and Augustine Bao [Gbao] displayed utter contempt for the ethos of the peace process in their areas of control’ (TRC Report, 2004: Vol. 2, Ch. 2, para. 162). The lack of respect for both the Abidjan and the Lomé Peace Accords underscored the violent nature of the RUF, as opposed to a political drive towards revolution. 15

Judgements The trial delivered its judgements in February 2009: Sessay and Kallon were found guilty of sixteen of the eighteen charges in the indictment, and Gbao was found guilty of fourteen.16 The largely guilty verdict in the RUF trials was an important step in addressing accountability for the crimes committed during the war. The length, breadth and level of crimes committed against civilians by the RUF demanded that impunity must not prevail once hostilities ended, regardless of the amnesty provision granted at Lomé. Michelle Staggs’s report into the conduct of the RUF trials is insightful regarding the final stages of proceedings, as it serves to highlight the importance of the trial for Sierra Leone and the international community, and particularly for international justice. Staggs believes that: The complexity of the case has made the trial procedurally and legally interesting in a number of respects, but will also serve as an interesting counterpoint to the trial of Charles Taylor, given the two cases are linked by a common factual matrix. (Staggs, 2008). Public interest waned during the latter stages of the RUF trials, as the Taylor trial moved to The Hague; the three remaining indictees were not seen as pivotal figures in the conflict by many Sierra Leoneans. International interest also petered out, with many staff relocating to The Hague for the Taylor trial or moving on from Sierra Leone as contracts ended. Also, as other areas of concern in international justice have emerged, such as the Sudanese President Omar al-­ Bashir’s indictment, the focus on these hybrid trials has shifted. Despite this shift, the guilty verdict delivered to the RUF enabled Sierra Leoneans to see justice served, to a degree, in Sierra Leone, but an impunity gap still existed for many mid- to lower-­level commanders, particularly within the RUF. With insufficient communication of the trials and verdicts, the Court risked undermining its legitimacy as a method of ending impunity in Sierra Leone. As discussed in Chapter 5, without clear understanding and knowledge of the trial process, the guilty judgements rendered served to highlight what most people already had knowledge of, and cost the international community millions of dollars to confirm.17

68   The Special Court for Sierra Leone

Civil Defence Forces case The turnover of staff during the Court’s lifespan meant different personalities intervened during various periods in the Court’s operation, including the trials. This point was highlighted by the difference in passion and approach between the former Chief Prosecutor David Crane’s statements during the opening of the RUF trials, and the closing Prosecution statements made in the CDF case (Interview 73). As discussed, Crane’s enthusiasm drove the Court at the outset, and firmly laid the groundwork for the way the Court was received. This was evident from his opening arguments: On this solemn occasion mankind is once again assembled before an international tribunal to begin the sober and steady climb upwards toward the towering summit of justice. The path will be strewn with the bones of the dead, the mounds of the mutilated, the cries of agony of the tortured echoing down into the valley of death below. Horrors beyond the imagination will slide into this hallowed hall as this trek upward comes to a most certain and just conclusion. The long dark shadows are retreated. Pain, agony, the destruction and the uncertainty are fading; the light of truth, the fresh breeze of justice moves freely about this beaten and broken land. The rule of law marches out of the camps of the downtrodden onward under the banners of never again and no more. (The Prosecutor of the Special Court v. Sam Hinga Norman, Moinina Fofana, Allieu Kondewa, Trial Chamber 1, July 2004) Such prose is deftly dramatic, and not unusual from a Prosecutor stating his case. It was also underscored by a firm belief in the Court’s ability to provide justice for Sierra Leone. However, this did not deter tensions surrounding the CDF trials. These were highly controversial indictments, particularly the indictment of Chief Sam Hinga Norman, but also because many viewed the CDF as the restorer of democracy and peace to Sierra Leone. It is perhaps unsurprising that the trials received significant media coverage, which often framed the Court in a negative light. There were continual reports regarding Hinga Norman’s indictment, treatment and events in the Court (The Democrat, 2004). One particular reference regarding correspondence between Norman and another senior member of the former CDF caused him huge consternation. This person had been working for the Prosecutor as a witness, which Norman called a betrayal of the CDF and Mendes, as he had been indicted, and his accuser was also a senior member of the CDF and had not.18 The fact that it was printed in a newspaper highlighted how such information was received and used outside of the Court, demonstrating a challenge for Outreach, but also underscoring the necessity for it to prevent such conflicts from arising.19 Negative media coverage emphasised that, despite Outreach campaigns, the strength of feeling regarding Norman’s indictment remained high three years into proceedings. My interviews in Sierra Leone highlighted that many people

International justice for Sierra Leone   69 appeared to realise that the Court had not ‘killed’ Norman, but some individuals continued to query why he was there in the first place, often referring back to the lack of indictment for Kabbah and Berewa in relation to Norman’s indictment. Despite Outreach informing people that what was known at a popular/community level was different to what could be prosecuted in a Court of law, these feelings had not dispersed. Feelings against Norman’s indictment remained high, as stated by Penfold (2002): Some fear that the prosecutions will not stop with the RUF and SLA. These two groups feel that leaders of the Civil Defence Force should also be prosecuted. Does this mean that Chief Sam Hinga Norman, its accepted leader, should appear before the Court? Now Minister of Internal Security, he was the only government minister to stand up to the AFRC and try to stop the coup at risk to his own life. Norman and the CDF were fighting for the restoration of the legitimate government and were therefore responsible to Vice-­President Joe Demby, and through him President Kabbah. The CDF trial lasted for three years. The case against Hinga Norman was subsequently dropped, following his death in early 2007. There were periods of disruption where the three defendants refused to attend trial for various reasons, including the issue surrounding witness protection. The closed testimony of some witnesses did cause consternation inside the Court, with Norman believing witnesses ‘ought to be exposed to the public of Sierra Leone as a way of enforcing their obligations to tell the truth’ (Staggs and Kendall, 2004). This objection was raised by others during my fieldwork discussions. Many did not see the value of closed and protected witness testimony, believing you should be able to see your accuser, and for this to be public in order to strengthen the validity of the truth behind the testimony (Interview 50). According to monitors at the Berkeley War Crimes Center, this has been a continual balance for Prosecution and Defence, as Prosecution has argued for greater protective methods and Defence has argued that the defendant’s rights were jeopardised with such stringent protection measures. This raises interesting questions for the Court’s legacy, with one of the key initiatives, the Witness Victim Support programme, seeking funds to establish the section in the national judiciary where no such system previously existed. This will be discussed further in Chapter 6, but it is interesting to note that such challenges also arose during trial proceedings, highlighting the tensions between different perceptions and requirements for justice at national and international levels. This is a crucial aspect for any subsequent hybrid/complementary court that may be established. War crimes trials are, by their very nature, highly political; therefore, any justice system needs to balance local needs with international obligations.20 Communicating this clearly at the outset will help dispel potential tensions between a court and a country. The difficulty the Special Court faced with regard to its legacy and the CDF  trials was that its aim of addressing impunity for Sierra Leone would be

70   The Special Court for Sierra Leone undermined if the Court were to be remembered popularly as ‘the place where Hinga Norman died’ (Interviews 43, 61). This is a particularly negative view of the Court, and, despite the hostility regarding Norman’s indictment, there were many who viewed his arrest as a step towards addressing accountability for ‘big men’ (Sriram, 2006). The fact that senior CDF figures had been indicted, and crimes committed by the CDF recognised, showed in many senses that impunity was being addressed. It is also worth noting the observation by the Berkeley War Crimes Center that during periods of Hinga Norman’s protest attendance at the trials dropped significantly, mainly through the absence of friends and family – thus showing that justice for Sierra Leone was inadvertently, albeit decisively, reaching a relatively large audience. Attendance numbers did rise and fall during episodes of particular interest – for example, Hinga Norman’s testimony, or the testimony of General David Richards (present in Sierra Leone during UK operations to help end the conflict from January 1999 to November 2000) and Peter Penfold (former British High Commissioner to Sierra Leone 1997) in support of Norman. This was also reflective of international interest, the daily running of the Court being monitored mainly by the Berkeley War Crimes Center and a scattering of international journalists. The Press Office issued weekly summaries, and monitored international press attention, but again this tended to peak with ‘big’ events such as the death of Hinga Norman (S.Leone [sic] war crimes indictee Hinga Norman dies, Reuters, 22 February 2007; Who killed Sam Hinga Norman?, worldpress.org, 12 March 2007). Generally, the interest in the Court, both nationally and internationally, peaked and waned. For many Sierra Leoneans, the Court was inaccessible due to its security apparatus and formalised legal language. The death of prominent indictees such as Hinga Norman also meant that there was little incentive to stop work and attend: money acted as a further barrier to accessing justice in this regard. Furthermore, the number of closed sessions prohibited some people from attending, with many not aware that trial proceedings would be continuing in closed session until they arrived at the Court. These factors presented challenges for people who had taken time off to attend Court proceedings and were unable to witness the trials taking place. The difference in personalities during the lifespan of the Court also meant a difference in approach to the trials. The closing statements by the Prosecution for the CDF trials in November 2006 are comparable with the opening statements in 2003, although markedly different in tone: Now, it is not alleged that the CDF in itself was an illegal organisation. Its aim of restoring the democratically elected government of Sierra Leone was not illegal. It’s not suggested that it was a crime under our Statute for CDF combatants to engage in armed conflict with combatants of opposing forces. It’s not suggested that every member of the CDF committed crimes within the Statute of the Special Court. However, those who formulated and caused the implementation of a policy that included attacks on civilians and

International justice for Sierra Leone   71 c­ aptured combatants, and the use of child soldiers, crossed the line into the realm of criminality. (Prosecution Closing Statements, 28–30 November 2006) This is considerably toned down and absent the metaphors used in 2003. It is difficult to establish whether this had a significant effect on the perception of the trials, but, as discussed, David Crane’s passion and interpretation of the conflict were often criticised. The death of Hinga Norman in early 2007 also witnessed a marked decline in interest in the remaining trials as the relevance of the remaining indictees was questioned (Interview 43; see also Wlodarczyk, 2009). The dissent of Judge Thompson during the CDF judgements and his ‘opinion that the principle of “necessity” could apply to the situation of the CDF and their leaders’ (Cruvellier, 2007; Kelsall, 2010) underscored the delicate nature of the CDF trials for Sierra Leone, with the Defence arguing, ‘If a sentence is severe and there occurs a rebel war, whether in Sierra Leone or elsewhere, government militias are going to ask themselves the question: Is it advisable for us to intervene?’ This was a question raised during my discussions with Sierra Leoneans who may have supported the principles behind the CDF indictments, but nevertheless questioned the prosecution of individuals such as Hinga Norman. This raised fears for other members of the CDF, or similar groups, who would not take up arms again should the necessity arise (Focus Group K). Similarly, people asked: if war came again to Sierra Leone, then would the Special Court come back? This perception that people may again be held accountable for crimes was a positive for the Court’s rule of law promotion, but perhaps less so for the solidity of the peace process. The Judge’s decision also runs contrary to the Prosecution’s opening statements, which negate the political and criminal dimension of the crimes for which the Defendants were accused: Despite the obvious political dimensions of this conflict these trials – this trial is about crimes . . . war crimes and crimes against humanity . . . the issues before you are not – cannot be political. We have not charged political crimes. The Court of law – this Chamber must focus on the alleged acts of these jointly charged indictees; politics must remain barred from these proceedings. (David Crane, Opening Statement CDF Trials, 3 June 2004) This would be impossible, considering that Allieu Kondewa’s Defence lawyer was Charles Margai, one of the key contenders for the 2007 Presidential election and a critic of former President Kabbah. Ultimately, it was not possible to remove politics from the CDF case, with the decision to indict Hinga Norman seen as a highly controversial and political move by the Prosecution within Sierra Leone. This remained a divisive aspect of the Court’s legacy, and called into question the relevance of the two other CDF indictees, Allieu Kondewa and Moinina Fofana.21 Both were found guilty, with Fofana sentenced to fifteen years

72   The Special Court for Sierra Leone in prison and Kondewa sentenced to twenty years in prison.22 The Appeals Process saw the sentence periods increase from seven and eight years, respectively. The low sentences originally granted and the decision that ‘A manifestly repressive sentence . . . will be counterproductive to Sierra Leonean society’ reflected the need to ‘maintain a delicate balance between its credibility with other international courts and its desire to be understood by the society in which it operates’ (Cruvellier, 2007). However, by taking this position they also partly cleared the name of Hinga Norman. The tensions arising throughout the CDF trial were a microcosm of the political aspects involved in this model of criminal justice and operating in situ. Hinga Norman remained a divisive figure throughout proceedings, with questions regarding the political nature of his indictment overshadowing the judicial process. The challenge of communicating due process and the need for witness protection presented significant difficulties for the Court in informing this widely to Sierra Leoneans, and negative reports received in the press often permeated discussions on the Court more generally.

Armed Forces Revolutionary Council case As discussed in Chapter 3, the trust in the Sierra Leonean armed forces had deteriorated rapidly throughout the 1990s, with many soldiers crossing ranks to join the rebels by night and returning to their duties in the day – the so-­called ‘sobels’ phenomenon: As for the military personnel at that time, except if I knew somebody personally to be a soldier before I could believe he was a soldier. But if I had not seen you anytime before, if I had not known you before that time and I saw you in a uniform then I will take you as a rebel. (TRC Report, 2004: Vol. 3a, Ch. 3, para. 539) The lack of investment and shortage of money from the government for the armed forces facilitated conditions whereby many soldiers willingly participated in hostile actions towards the state. According to the TRC Report, ‘There was obvious disharmony between the largely impoverished soldiers on the front lines and the astoundingly decadent junta leaders, mostly their peers, in Freetown’. The AFRC was formed under the leadership of Johnny Paul Koroma, and comprised a group of former soldiers who briefly came to power in May 1997 following a coup. The relationship between the AFRC and the RUF was born during this time: After the coup, the AFRC called for the release and return of the RUF ’s leader, Foday Sankoh, who had been detained by Nigerian authorities (Nigeria led the West African peacekeeping force in Sierra Leone at the time) in March 1997. Sankoh gave his support to the military coup and RUF forces subsequently arrived in the capital of Freetown to join the AFRC.

International justice for Sierra Leone   73 Sankoh was named as Vice Chairman of the AFRC and prominent members of the RUF were appointed to the AFRC’s ruling council.23 The AFRC were eventually removed from power after the intervention of ECOMOG troops in 1997, with a civilian government installed. The subsequent expansion of the CDF as a security force also underlined the government’s distrust of the army: The CDF was a creation of the army. When the war started, we were not prepared because we did not have enough manpower and arms to effectively fight the war. This was so because the army had largely become a ceremonial army. . . . The Deputy Minister of Defence should not tell the national army to leave a certain area and be replaced by a militia . . . the soldiers felt that the Deputy Defence Minister was not only supporting the Kamajors but was also their chief and it was like somebody was playing the ethnic card. It made one wonder what role he was playing best between Deputy Defence Minister and Kamajor chief. The soldiers felt that they should not leave things lying down. They made a lot of complaints and wrote a lot of anonymous letters. I have the feeling that both Hinga Norman and our bosses did not foresee the danger until it was too late by which time the boys had struck. This was one of the reasons they gave for the coup. (TRC Report, 2004: Vol. 3a, Ch. 3, para. 665) Following the coup, many members of the AFRC junta were captured, stripped of their rank and status, and prosecuted for treason. Many were executed, but those who escaped fled into the bush and later regrouped to lead the attack on Freetown in January 1999, with ranks from the RUF joining the fight later on. This attack was a vicious and bloody assault on the nation’s capital that caught ECOMOG troops off guard. The attack left complete devastation – scores were murdered, mutilated and raped – and facilitated the need for international intervention from British armed forces to restore order. British armed forces arrived in Sierra Leone during 1999 to carry out a non-­combatants’ evacuation order of British personnel; this was soon expanded as conditions with the UN mission, UNAMSIL, deteriorated and the violence continued. The subsequent kidnapping of members of the Royal Irish Regiment also entailed a longer presence in country and led to direct hostilities with rebel groups, mainly the West Side Boys. The indictments issued by the Special Court in 2003 for Alex Tamba Brima (also known as Gullit), Brima Bazzy Kamara (Ibrahim Bazzy Kamara) and Santigie Borbor Kanu (also known as ‘55’ – five-­five) reflect the gravity of the crimes committed. All were eventually indicted on fourteen counts for crimes against humanity, violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II (commonly known as war crimes), and other serious violations of international humanitarian law.24 The initial counts ranged from acts of terrorism, collective punishments, extermination, murder, violence

74   The Special Court for Sierra Leone to physical well-­being of persons, rape and other sexual violence, including sexual slavery, to conscripting or enlisting children under the age of fifteen.25 The indictment for Johnny Paul Koroma, whose whereabouts were unknown, remained active.26 The sentencing was handed down on 20 June 2007, with the final Appeals judgement delivered on 22 February 2008. All three defendants were found guilty of the following counts: [s]ix counts of violations of Article 3, Common to the 1949 Geneva Conventions for the Protection of War Victims and of Additional Protocol II. Four counts of crimes against humanity, pursuant to Articles 2(a), 2(b), 2(c) and 2(g) of the Statute, and a single count of other serious violations of International Humanitarian Law pursuant to Article 4(c) of the Statute. (The Prosecutor of the Special Court v. Alex Tamba BRIMA, Brima Bazzy KAMARA, Santigie Borbor KANU, SCSL-­2004-16-A, February 22 2008, Appeals Chamber SCSL, Freetown) No conviction was given on Counts 7 and 8, which included sexual slavery and other inhumane acts, because ‘A majority of the Trial Chamber held that the charge violated the rule against duplicity and dismissed it for that reason’. Count 8, that of forced marriage, was also dismissed, ‘on the ground that the evidence led in support of that count did not establish any offence distinct from sexual slavery’. Brima and Kamara were also not found guilty on Count 11, charging other inhumane acts, and lastly ‘The Trial Chamber finally held that “with respect to joint criminal enterprise as a mode of criminal liability the indictment had been defectively pleaded” and that it would not therefore consider joint criminal enterprise as a mode of criminal responsibility’. The defendants were subsequently sentenced, Brima and Kanu to a single period of fifty years, and Kamara to a single period of forty-­five years. The upholding of the sentences and judgements by the Appeals Chamber underscores the gravity of the crimes committed. The response to the evidence heard by the judges is lengthy, but worth quoting in full here to indicate the severity and scale with which the sentences were upheld: Brima, Kamara and Kanu have been found responsible for some of the most heinous, brutal and atrocious crimes ever recorded in human history. Innocent civilians – babies, children, men and women of all ages – were murdered by being shot, hacked to death, burned alive, beaten to death. Women and young girls were gang raped to death. Some had their genitals mutilated by the insertion of foreign objects. Sons were forced to rape mothers, brothers were forced to rape sisters. Pregnant women were killed by having their stomachs slit open and the foetus removed merely to settle a bet amongst the troops as to the gender of the foetus. Men were disembowelled and their intestines stretched across a road to form a barrier. Human heads were placed on sticks on either side of the road to mark such barriers. Hacking off

International justice for Sierra Leone   75 the limbs of innocent civilians was commonplace. The victims were babies, young children and men and women of all ages. Some had one arm amputated, others lost both arms. For those victims who survived an amputation, life was instantly and forever changed into one of dependence. Most were turned into beggars unable to earn any other living and even today cannot perform even the simplest of tasks without the help of others. Children were forcibly taken away from their families, often drugged and used as child soldiers who were trained to kill and commit other brutal crimes against the civilian population. Those child soldiers who survived the war were robbed of a childhood and most of them lost the chance of an education.27 The guilty verdicts and lengthy sentences given to the AFRC members reflect a determination to end impunity for the heinous crimes committed. However, the limitations of a war crimes tribunal to satisfy victim’s desire for justice are underscored by the above statement, and indeed all of the trials at the SCSL. Thousands of people endured such brutality, yet only three were prosecuted, potentially four, for the crimes of the AFRC. Although this is addressing impunity at the highest level, with no justice system effectively able to hold all perpetrators to account, it leaves many dissatisfied at the overall outcome. The AFRC trials did not cause as much controversy as the CDF trials, however, where the issue of Johnny Paul Koroma evading prosecution remained a cause for concern. With his outstanding indictment, the Court needed to ensure that, should he emerge after the completion of trials, sufficient preparations were in place to ensure he did not evade justice again.28

Charles Taylor In 2003, Human Rights Watch characterised the Taylor trial as an important moment that sends a strong signal that no one is above the law (see Reynolds, 2006). The issuing of Charles Taylor’s indictment during peace talks in Ghana in 2003 received extensive international criticism for potentially undermining the Liberian peace process. Ghana claimed it had not officially been asked to arrest Taylor, and therefore permitted him to return to Liberia before he could be arrested. After continued fighting in the Liberian capital, Monrovia, Taylor agreed to step down, and was offered asylum in Nigeria by Nigerian President Olusegan Obasanjo. He remained in Nigeria until 2006 before attempting to flee across the border to Cameroon after Liberia’s newly elected President, Ellen Johnson Sirleaf, requested that Nigeria return Taylor to Liberia to be sent to the Court. During his three years in exile, Nigeria had refused all requests for Taylor’s extradition. Pressure from the USA is said to have played an important role in President Obasanjo’s decision. This proved to be a U-­turn for America, as ‘The USA asked Nigeria to remove Charles Taylor from Liberia for peace process to work, now asking to hand him over’ (Interview 3). This indicates the increasingly high profile of international justice, and underscores the inter­ twining of politics within it.

76   The Special Court for Sierra Leone The request from President Sirleaf was agreed to by Nigeria’s President, but Taylor disappeared almost immediately. Obansanjo was said to be very shocked at Taylor’s disappearance, despite claims from the SCSL that Taylor would be likely to abscond, using his vast wealth and source of networks to assist him. His final arrest and transportation to the Special Court in Sierra Leone in March 2006 was considered a significant coup for the Court. Taylor, like Sankoh, Johnny Paul Koroma and Sam Bockarie, was a known senior leader, and Hinga Norman had high status from his government position and association with the CDF. The absence of most of these indictees made it difficult for people to understand why so much money was being spent on the Court for so few people. One interviewee highlighted, ‘SCSL promotes human rights but in an abstract way so it needs to have something tangible – Charles Taylor is something very concrete for people to see’ (Interview 53). The lack of Chapter VII powers for the Court meant that it could not forcibly bring Taylor to stand trial, but was reliant on international partners to apply the pressure. The subsequent debate surrounding where he would be tried took place very quickly, and was also divisive for the Court and Sierra Leone. Taylor’s transferral to The Hague was justified on security grounds, with the Court wary that supporters of the former leader had the potential to re-­start trouble29 – which would have had a devastating effect on Liberia, Sierra Leone and the sub-­region. The drawdown in UNAMSIL peacekeepers also meant a decrease in the international ‘security’ presence in Sierra Leone, and any potential trouble needed to be assessed with this in mind. These factors were considered significant enough to lead to Taylor’s removal to The Hague (McAuliffe, 2008). National views appear to be divided between those who saw the security threat as credible and his removal therefore justified, and those who saw his removal as a bigger affront to Sierra Leoneans than was the small number of indictments. Interviews for my research revealed mixed reactions: ‘Speaking as a Sierra Leonean professional a big plus has been the great satisfaction of seeing Charles Taylor handcuffed and brought to Sierra Leone after saying that “Sierra Leone would taste the bitterness of war” ’ (Interview 41). ‘The perception has shifted greatly. People wanted to forget and now want to bring Charles Taylor and indict more people’ (Interview 36). The removal of Taylor leaves questions with regard to the Court’s legacy in understanding how effective the tribunal has been in helping to show impunity being addressed in the place where the atrocities were committed. Without Taylor in Sierra Leone, how was justice seen by either Sierra Leoneans or Liberians? Although Taylor’s first ever appearance to hear the indictments against him was held in the Court in Freetown, his first proper trial appearance was unable to be screened due to technical difficulties with the equipment in Freetown. Taylor was originally convicted of seventeen counts of war crimes, violations of Article 3 common to the Geneva Conventions and of Additional Protocol II (commonly known as war crimes), and other serious violations of international humanitarian law.30 This was later amended to eleven counts, which included terrorising the civilian population and collective punishments, unlawful killings,

International justice for Sierra Leone   77 sexual violence, physical violence, use of child soldiers, abductions and forced labour, and looting.31 The Prosecutor kept the indictment sealed until June 2003. It took just under three years until Taylor’s eventual arrest. Taylor pleaded not guilty to all counts when he appeared before the Court in March 2006. His first appearance was in Freetown, to the delight of many Sierra Leoneans, on 4 April 2006, where he pleaded not guilty before being moved to The Hague in June 2006, to mixed reactions both nationally and internationally. The trial started in June 2006 but was halted to allow the Defence more time to prepare, and eventually began again in January 2008. Taylor appealed against his conviction, claiming that he had immunity as head of state. This was over-­ruled by the Court, and the indictment of Taylor was the first time a former African head of state would be prosecuted by an international/hybrid tribunal. A central factor for the Prosecution was to determine whether or not Taylor committed the acts he was charged with, or if he ordered, supported, or condoned the said acts. The indictment alleged that the acts were committed by people who were ‘assisted and encouraged by, acting in concert with, under the direction and/or control of, and/or subordinate to the accused’.32 According to Stephen Rapp, former Chief Prosecutor at the SCSL, in an interview with the BBC’s Mark Doyle in 2008, ‘The case will turn on the linkage between him and the forces that directly committed these crimes. We have strong evidence to show that. Witnesses will tie Charles Taylor to the crimes’. The Taylor indictment asserted that the RUF and AFRC shared a common plan and purpose, thus forming a ‘joint criminal enterprise . . . to take any actions necessary to gain and exercise political power and control over the territory of Sierra Leone, in particular the diamond mining areas’. Charles Taylor was believed to have participated in this joint criminal enterprise with the rebel factions. The difficulty will be to establish this link. The connection between the diamonds and Taylor is pivotal to the Prosecution’s case in establishing the link between Taylor and the conflict: Charles Taylor told Foday Sankoh that Benjamin Yeaten was his personal representative with responsibility for bringing back all the diamonds and gold that would be mined from the Kono District as a way to help finance the war about to be started. Taylor also told Sankoh that diamonds and gold would be forwarded to Burkino Faso and Libya to pay for additional weapons, ammunition, food and other supplies. The initial joint criminal enterprise was thus laid out for all to understand. (The Prosecutor of the Special Court v. Issa Hassan Sesay, Morris Kallon, Augustine Gbao, Case No. SCSL-­04–15-T, Trial Chamber 1, 5 July 2004) The Prosecution’s opening statements included Taylor’s links to Foday Sankoh and the supply of weapons to the RUF: Also, at this fateful meeting, Charles Taylor told Sankoh to recruit through involuntary conscription any and all able-­bodied men and women, boys and

78   The Special Court for Sierra Leone girls, within captured areas. Sankoh was told by Taylor to train them and make them part of the fighting forces of the RUF – and this is important – those who refused to be deemed and treated as enemies of the revolution. (The Prosecutor of the Special Court v. Issa Hassan Sesay, Morris Kallon, Augustine Gbao, Case No. SCSL-­04–15-T, Trial Chamber 1, 5 July 2004) One of the key challenges for the Taylor trial was the focus on the conflict in Sierra Leone. However, Liberia would not have a similar war crimes court, making it unlikely that Liberians would see Taylor face justice for crimes committed in Liberia, should he be found guilty of crimes in Sierra Leone and serve a lengthy prison sentence. Although security disturbances did not appear to have been caused by this issue, Taylor was believed to have a significant support base within Liberia. Security fears in the sub-­region were considered sufficient to warrant his transfer to The Hague. Although Liberia had unwavering leadership under the Presidency of Ellen Johnson-­Sirleaf and, similarly, Sierra Leone elected a new Head of State in 2007, Ernest Bai Koroma, thus promising development, the porous borders, unemployment and poverty still remain high, with the possibility of conflict arising. As of the time of writing the Taylor trial was still ongoing, and due to end in early 2011. Communicating the Taylor trial developments and outcomes to both Sierra Leone and Liberia was crucial to dispelling potential hostility. Outreach had focused on communication between the two countries to ensure wide understanding of the indictment and trial process, particularly after Taylor’s arrest in 2006. This was also a key aspect of the Court’s legacy work. With the Court completing trials in Freetown before the trial ended in The Hague, communication between the Court and The Hague was necessary to ensure broad acceptance of judgements rendered. Outreach had been successful in establishing good links between The Hague and West Africa generally, particularly working in partnership with external organisations to train and communicate back to respective audiences. However, my research still found shortcomings in understanding. The impact of this is discussed in further detail in the Chapter 5.

Procedural concerns The SCSL faced the difficulty of having to start from scratch and operate with a limited budget, timeframe and jurisdiction, often meaning the judicial process faced significant challenges. The Staggs Report of 2008 details several difficulties over the course of the tenth session of the RUF trials.33 Issues identified included concerns over alleged interference, by the Office of the Prosecutor (OTP), with Defence witnesses due to testify at the Taylor trial, although the OTP asserted that any breaches were accidental (Staggs, 2008: 21);34 and hopes that the RUF trial would be completed by the end of 2007 did not come to fruition, as the Defence called only four witnesses from a total of 287. Efforts to reduce this number were made by the end of the trial session, with the number of witnesses cut to 196.35 Proceedings during the trial session were also slow in

International justice for Sierra Leone   79 pace for various reasons – notably, the unsecure nature of funding. The Cassesse Report of 2006, independently reviewing the work of the Court, also had a bearing on the RUF trial, calling the operation of the Court ‘just in time’ with regard to its recruitment policy (Cassesse, 2006). According to Staggs this impacted significantly on the Defence, who ‘seemed almost an afterthought at the Tribunal’. Defence Counsel for Issa Sesay stated that: The problem isn’t that we cannot reduce our witness list. The problem is having the time to assess . . . our witness list. If we’d had time two years ago, and resources to investigate in the field properly . . . we would have been in a better position at an earlier stage to know exactly which witnesses to call. (Staggs, 2008) Although not specific to the RUF, issues surrounding funding for the Defence Office were prevalent, with the Registry initially controlling and allocating funds for the Defence Office, thus meaning it did not have its own independent budget (Wilson, 2008). The support of the Defence Office for the Defence teams was also noted as an area of concern in the Staggs Report, with claims that the Defence Office took a reactive stance to the needs of the different teams, as opposed to proactively anticipating needs in advance. The report indicated that the Registrar allocated funds for a Witness Management Office for each of the Defence teams, but remained neutral as to whether this would have the desired effect. The reduction of staff in Freetown appeared also to have slowed down proceedings, with Court reporters reduced from nine to three and from the two Chambers to just one Chamber, thus causing delays in the ‘production of trial transcripts needed for accurate cross-­examination’ (Staggs, 2008). The production of the CDF judgement over five months also slowed down proceedings and caused a delay to the start of the tenth session, with a loss of seven weeks of trial time due to rescheduling: However, the challenges associated with writing a judgement in the CDF case should not be underestimated. Not only had the Chamber to pronounce verdicts on novel charges under international law, it was also considering theories of international criminal liability in what was an entirely novel context – that of a pro-­government civilian militia in West Africa. Added to this was the fact that the judgement was being written in Freetown, certainly not a location that can compare (in terms of resources and facilities) to The Hague. (Staggs, 2008) Two other areas of concern for these stages of proceedings included the lengthy task of seeking names to be spelled out during proceedings. This not only caused significant delays during proceedings, but also led to the loss of large amounts of time, which was a central concern for a trial that need to be

80   The Special Court for Sierra Leone expeditious. The late starting of many trial sessions, typically by twenty minutes, and the scheduling of breaks, which ran for twenty-­five to forty minutes in the morning and afternoon, with a lunchtime extension of twenty minutes, have also been highlighted as being normal routine. Again, for a tribunal built around the necessity of expedience, these two areas appear to run contrary to this.

Satisfactory justice for Sierra Leone? Deciding ‘who bears the greatest responsibility’ was always going to be a complex task for the Prosecutor. This was a highly subjective and divisive issue, particularly for ordinary Sierra Leoneans, who often saw the people that caused harm to themselves as bearing the greatest responsibility for their own suffering.36 Attempts to inform people of the wider aim of the Court, of bringing justice to Sierra Leone by prosecuting ‘big men’, and that this would end impunity below, was essential for the Court to operate effectively and legitimately in-­ country. This message, although apt for fast and effective justice internationally, was difficult to digest nationally, and ultimately impacted upon national perceptions of justice as delivered by the Court. As noted by Penfold (2002): Those supporting the Court cry ‘justice delayed is justice denied’, but is this another example of the international community telling poor Sierra Leoneans what is right for them? Do those involved realise that this is not just the exercise of justice, but something which has profound political and security implications? If the Special Court goes ahead it must be managed most carefully by officials, the government and the international community, otherwise the peace could be seriously undermined and even broken. Similarly, the former Chief Prosecutor’s interpretation of the conflict and its link to Al Qaeda’s terrorist networks led to the belief that David Crane did not have a good understanding of the conflict in Sierra Leone, particularly with the added emphasis on diamonds. The concentration on the ‘business’ aspect of the conflict meant questions were raised regarding the Prosecutor’s wider understanding of the socio-­economic factors that drove the conflict: It becomes very apparent as you follow the evidence that the conflict was not local. It is not just about Sierra Leone, it is regional and international and in some instances it is worldwide, and it boils down to diamonds. (Pape, 2003) This perceived lack of understanding by Crane led to doubts: that the Court was simply following a wider, more US foreign policy-­led agenda rather than justice for Sierra Leone.37 The Prosecutor has steadfastly defended his position on the indictments and evidence, stating that his team had uncovered ‘very specific evidence of Al-­ Qaeda ties to the blood diamonds of West Africa’, as well as wanting ‘to bring

International justice for Sierra Leone   81 attention to the fact that if we don’t pay attention to some parts of the world, it will cause terrible damage’ (Pape, 2003). The zeal with which Crane embarked on his mission in Sierra Leone was relentless, and clearly driven by the belief in the wider aim of the Court in bringing peace and justice to Sierra Leone. However, the manner with which the term ‘greatest responsibility’ was interpreted, and the small number of indictments, caused considerable consternation for ordinary Sierra Leoneans, who questioned why other high-­profile indictees had also not been indicted by the Court – particularly the former President Kabbah and Vice-­President Berewa.38 For them, questions of justice at the SCSL were tied directly to this, thus equalling less than satisfactory justice for many.

Conclusion Removing politics from the international judicial process is an impossible task. As discussed in Chapter 1, politics runs through almost all aspects of the process. Even if a trial process is entirely transparent and fair, questions over motivations for prosecutions may still be raised, as witnessed during the CDF trial (Kelsall, 2010). This was a particular challenge for the SCSL. The need for justice after the conflict was apparent; the crimes committed with impunity during the conflict were heinous, and considered detrimental to peace if not addressed. However, the international response in the form of a limited tribunal, even if it was situated in the country where the crimes occurred, called into question the relevance of these trials to Sierra Leone’s peace process. It also calls into question the focus on bringing perpetrators to justice over concentrating on justice for victims; the tensions inherent within the development demands for international justice. Outreach in this regard was essential to underscore the legitimacy of this process. The presence of the Court in-­country, and knowledge of proceedings, demanded that a communication strategy be employed to ensure there was understanding of the judicial process and trials themselves. This was of particularly importance to a country like Sierra Leone, where the justice system had remained deficient for years, and faith in the rule of law was significantly undermined by rampant impunity.

Part III

Outreach and legacy

5 Outreach

Introduction This chapter considers the activities and work undertaken by the Outreach section at the SCSL. It provides a background to the development and implementation of Outreach, and examines the work undertaken to reach out to Sierra Leone. The precedents set by establishing the Special Court within Sierra Leone, creation of an Outreach Office in the Court, and rhetoric used at its foundation set high hopes for what justice could achieve. But was this ever achievable with the restrictions placed on the Court from the outset? Consistent and clear outreach from the beginning was vital to ensuring initial acceptance of the Court as a post-­conflict judicial mechanism. Various delays in funding and staffing arrangements meant that SCSL staff arrived in Freetown in mid-­2002, and the Outreach Office was not established until 2003. Initial outreach was undertaken by external organisations. An international NGO, No Peace Without Justice, coordinated early outreach efforts for both the Court and the TRC. The Prosecution also conducted early outreach, as this was one of the first sections to be up and running, and the best resourced – which also demonstrates an early indication of where interests in international justice lay. Outreach was brought under the remit of the Registry in 2003, and from this point conducted outreach efforts on behalf of the whole Court, including Defence. This early outreach work, although essential to generate initial acceptance and understanding of the Court, nonetheless meant that a confused message was relayed. The primary focus on prosecution, along with the passionate approach adopted by the Prosecution for its outreach, generated wider expectations for justice by the Court. This was later difficult for the Outreach Office to counter. The low levels of literacy and education in Sierra Leone meant that Outreach faced a significant challenge in communicating the work of the Court. Various approaches were adopted (discussed further below) to overcome these challenges, such as community discussions and forums, and pictorial descriptions of the work of the Court. All were heralded as part of the Court’s innovative approach to outreach. However, despite these widespread information campaigns, my research found that many Sierra Leoneans did not have a good understanding of the Court’s processes, and expectations were raised then

86   Outreach and legacy subsequently dashed as the limitations of the Court became apparent and complex processes were difficult to understand. It could be argued that it is unrealistic for a population with high levels of illiteracy to achieve an in-­depth understanding of the complexities of international law, which is a valid criticism. However, the levels of understanding I refer to here are a lack of awareness of basic functions of the Court, such as fair trial process, the principle of innocent until proven guilty, and international penal standards, for example. Aspects of these are inherently complex, but a basic understanding of such structures and processes was an integral part of the Court’s operations in country. Therefore, questions regarding a lack of understanding are of significance when considering the work of Outreach. My research also found that, despite significant logistical challenges, knowledge of the Court’s existence was high, and generally people were positive about the work of Outreach. Again, given literacy levels, this is not perhaps an unreasonable outcome. However, if we refer back to the Introduction, discussing the wider goals of international justice balanced with the implicit aim of the Court to address impunity, its role and judicial activities must clearly be understood. My research found that understanding was limited, with the majority of interviewees having only a basic understanding of the Court’s developments and procedures.1 Although this does not point to a failing of Outreach, it does demonstrate the limitations of the outreach work undertaken, the impact this has had in tackling impunity, and the complexity in communicating the transitional justice process – particularly in a post-­conflict setting. My research also found that lack of monitoring and evaluation and an apparent closed-­door policy to external review or criticism by the Outreach section had contributed to a poor understanding of the Court nationally. This in turn fuelled resentment that the ‘justice’ dispensed by the Court was not representative; that many had indeed gotten away with their crimes ‘scot-­free’, as many perpetrators remained free from ‘justice’. This had a significant bearing on the perception of whether or not the Court was tackling impunity, and consequently informed much of the discussion on legacy.

Initial outreach efforts No Peace Without Justice (NPWJ hereafter) conducted preparatory outreach work for the Court in 2001–2003.They had identified a need for public sensitisation and education, given the inaccurate media reports circulating about the Court, as well as the coincidental creation of the TRC at this time.2 Public sensitisation and information was necessary to create confidence in the Court as an accountability mechanism, and dispel any rumours concerning a sharing of information from the TRC to the SCSL (Tejan-­Cole, 2002). NPWJ also helped with initial SCSL efforts to work with the local judiciary in promoting knowledge of human rights and international humanitarian law. It was recognised that capacity building was an area where the Court could directly make an impact and thereby help strengthen the rule of law. The central message to emerge from

Outreach   87 this preparatory work was the importance of including Sierra Leoneans in the Court and TRC process to achieve this. NPWJ reports in 2002–03 stated: The participation of Sierra Leoneans is essential in order that the work of the Court reflect the demands of accountability that come from Sierra Leone itself, while setting an example of justice for the whole region. The aim underpinning the project was to increase awareness of human rights and humanitarian law norms within the Sierra Leonean Government and other stakeholders, including legal professionals, civil society and others, and therefore the full spectrum of people and interests they represent, to participate and influence the processes for re-­establishing and maintaining the rule of law, peace and stability. (No Peace Without Justice Sierra Leone Mission, Final Narrative Report July 2002–October 2003: 1) NPWJ recognised the importance of including Sierra Leoneans throughout the transitional justice process (i.e., the SCSL and the TRC) for the wider aims of ending impunity to be addressed. To ensure the Court had legitimacy, and to reinforce its hybrid status, it was important to establish a sense of local ownership by building relations with Sierra Leoneans through its outreach work. Through broad understanding and wide recognition of its principles and aims the Court would contribute directly to impunity, and help rebuild faith in a largely ineffective domestic judiciary. Without this acceptance, the SCSL risked being seen as an isolated structure in the capital, bearing little relevance to Sierra Leone or its future. It was recognised early on by NPWJ that the limitations of the Court needed to be clearly communicated. The narrow interpretation of the Court’s mandate, and the reality that it had to be ‘fast and efficient’, demanded that its limitations be widely known in order to understand what it would and would not do. Thus, the need for greater understanding, rather than only knowledge, of the Court was important to avoid raising expectations. The creation of the Special Court Working Group (SCWG hereafter) in 2001 was designed to help facilitate this.3 This group was created to inform and sensitise Sierra Leone about the SCSL. Over 100 participants, mainly from Sierra Leonean civil society, were involved in the creation of this group, identified over the course of various training workshops and seminars. Discussions with interested parties were based on the inclusion of aspects of traditional and customary justice into the Court and the TRC’s operations, and the interaction of these two institutions (NPWJ, 2001: 3); communicating the work of both required partnership with many national organisations throughout the country from the outset. The SCWG emerged as, ‘a coalition of interested Sierra Leonean civil society groups to conduct the bulk of sensitisation and information sharing about the Court’. In the beginning the Group had a total of thirty-­nine members who met regularly to discuss what information needed to be conveyed about the Court, who should be targeted, and how best to do this.4 Training workshops were

88   Outreach and legacy c­ onducted about the Special Court throughout the country, to inform people, mainly from a diverse range of human rights, civil society and other organisations (including the RUF and CDF ), about the Court. This enabled participating organisations to inform their constituents about the Court’s basic procedures and principles, thus helping with outreach and capacity building. According to NPWJ, over 600 participants took part in these training seminars, from all sectors of Sierra Leone; civil society, human rights groups, the legal profession and human rights monitors, as well as members from the RUF and CDF from the Demobilise Disarmament and Reintegration (DDR hereafter) camp in Lunsar, 80 kilometres north-­east of Freetown. The SCWG became an official legal entity in July 2001, and NPWJ ended its assistance role to the SCWG and became elections monitor for the upcoming elections in 2003, by which time the SCSL had implemented its own internal outreach programme (NPWJ, 2002a). NPWJ continued to assist the SCWG until the end of its work in Sierra Leone in 2003, but during this time there was a significant period where funding stopped for NPWJ’s outreach work. This had a significant impact on the functioning of the SCWG, as it could not assist with funding and, therefore, the activities the SCWG could undertake. From 2003 onwards the SCSL began its own outreach work, and the SCWG stopped work and wound down through lack of financial support. During this period, NPWJ and the SCWG had carried out extensive training, sensitisation and public information activities regarding the SCSL, which helped to counter the initial negative press surrounding the Court, thus ensuring the SCSL had a solid base from which to start its own outreach work.5 The emphasis at this time appears to have been on inclusion and developing the work of the Court to ensure Sierra Leone understood the principles and aims of the accountability processes – i.e., the Court and the TRC. The subsequent limitations of the Court, and frustrations surrounding bureaucratic wrangling and lack of funding for the TRC, somewhat tempered these initial discussions. The high hopes at the outset were soon balanced with the restricted means and narrow focus of international justice, which would prove to be a challenge for outreach in communicating.

Special Court Outreach As mentioned in the Introduction, Outreach has been called the ‘Jewel in the Crown’ of the Special Court, with praise internationally for its contribution to the Court’s work in Sierra Leone. This stands in stark contrast to the paucity of initial outreach work undertaken at both the ICTY and the ICTR, whose geographical distance from the former Yugoslavia and Rwanda, respectively, resulted in an overall detachment from proceedings (Peskin, 2005a; Interview 7). From the beginning, the Special Court recognised communication as a central aspect of its work. However, this work was not consistent with NPWJ and the SCWG undertaking outreach initially, and the Court thereafter, starting with the Office of the Prosecutor (OTP hereafter) before a Court-­wide strategy was undertaken.6

Outreach   89 This early period saw Outreach adopt a gung-­ho approach to communicating the overarching principles and aim of international justice in Sierra Leone, led by the former Chief Prosecutor, David Crane, who declared that impunity would end, and that the country would see, as mentioned already, that the ‘rule of law was more powerful than the rule of the gun’.7 It was in July 2003 that Outreach’s mission was defined to recognise its neutrality towards all organs of the Court.8 This early outreach had, however, served to deliver the message that the Court and the Prosecutor were one and the same. The subsequent establishment of the Office for the Principal Defender (hereafter Principal Defender) meant that Outreach and the Principal Defender had to work hard to correct this. Early outreach efforts impacted upon Sierra Leoneans’ perceptions of the Court. It proved to be a significant challenge to counter the message that emerged of the indictees being staunchly ‘guilty until proven innocent’ (see also Sriram, 2006).

Outreach The SCSL Outreach Office was: established to link the People of Sierra Leone with the Special Court. Outreach’s mission is to promote understanding of the Special Court and respect for human rights and the rule of law in Sierra Leone. . . . Outreach facilitates the participation of all Sierra Leoneans in the judicial processes of the Special Court based on equality and mutual respect. . . . Its relations with the Office of the Prosecutor and the Defence Office are based on the fundamental principles of impartiality and independence. (Outreach Mission Statement) In 2003, NPWJ and the SCSL conducted a series of training seminars from August to October, throughout Sierra Leone, aimed at specific target groups, including women, police, military, youth, teachers, victims and ex-­combatants (NPWJ, 2003). The purpose was to ensure that these key organisations had information about the Court, and to allow for their concerns to be addressed, or, acknowledged. The reason for NPWJ working with the SCSL during these workshops was to hand over responsibility for outreach to the Court, ‘in a way in which we could pass on the knowledge and experiences we had gained conducting outreach on the Special Court since 2001’ (NPWJ, 2003). Over eighty seminars were held, in all district headquarter towns and in the capital Freetown, with approximately 2,000 participants. This was a solid base from which Court Outreach could begin its operations (Interview 6). NPWJ also produced a Memorandum of Understanding, Outreach for the Special Court: Ensuring momentum gained is not lost, explaining the differentiation between the public relations of the OTP and the need for a wide-­ranging and long-­term outreach programme (NPWJ, 2003: 10). This period was designed to reinforce the importance of working with national organisations to ensure timely information dissemination and inclusion of Sierra Leoneans in the accountability processes, to help

90   Outreach and legacy strengthen the rule of law and capacity building, and directly address impunity. Despite the funding difficulties mentioned previously, this initial work by NPWJ was successful and laid the foundation for the SCSL Outreach programme.

SCSL: outreach in the beginning The SCSL Outreach Office began work six months after the Court started operating. It worked with all sections of the Court, and comments from the OTP underscored the generally positive feelings toward the Outreach section within the Court itself: I think Outreach has worked well. Personally, I think it has worked the best when all departments come together – it shows that we are working as an institution, that we are working together. When we come separately, it conveys the message that we are warring factions. It shows that we are committed to the same process. We worked separately initially, but that was due to historical reasons. When the Court first came, there was no defence council – and the view was then expressed that defence should do outreach too. (Interview 42) This showed a marked progression from initial OTP outreach. Comments made since by former Chief Prosecutor David Crane highlight the passion with which he had undertaken these events: How do we know that you are not on the take? I thought it was brilliant. I said, “Who here thinks that I could be on the take?” Some hands rose. “Who here thinks that I wouldn’t?” Some hands rose. “Who thinks maybe?” Some hands rose. It was fascinating. It allowed me to understand how they’re looking at it . . . I consider it an honor and a privilege to, in some small way, seek justice for these people. I see (the damage) everywhere I go, I read about it every day in the evidence. The horror is beyond public description. (Pape, 2003) Although there is no doubting the sincerity of the former Prosecutor, the disjointed nature of outreach in the beginning meant a disjointed message being relayed as the Court advanced, and, unsurprisingly, a raising of expectations as to what the Court would be able to achieve.9 The Court was never intended to be a judicial reform body, but initial statements about the transformative nature of the Court to bring justice to Sierra Leone raised expectations that it would be able to provide wider redress. The emotive language used by the OTP in its outreach work appeared to create expectations of Outreach that were misaligned. This perhaps demonstrates a sense of inevitability in the challenges that emerged for Outreach in providing a balanced picture.10 My research also found that

Outreach   91 earlier outreach work appeared to have raised expectations that the number of indictments would be greater than the limited number that were eventually released (Interview 40). The acknowledgement that the Court’s justice was limited led to disappointment, frustration and, in many cases, apathy towards the Court.11 OTP outreach was criticised for focusing on the narrow application of justice for the few and the perception that the indictees were ‘guilty before being proven innocent’. This was in contrast to the principles underpinning international justice, that individuals are always innocent until proven guilty (Interview 39). A broader explanation of the Court’s mandate and jurisdiction was subsequently carried out by the Outreach section. However, criticism of these initial Prosecution outreach events led to the assumption of guilt of the indictees from the start, and that the OTP raised expectations that the court would identify the guilty, of which there were many, and institute a wider system of justice (Interview 72; ICTJ, 2006: 21). This led to questions over the actual contribution justice, in the form of an internationalised tribunal, could make to peace in Sierra Leone. An interview with a Sierra Leonean academic in February 2006 highlighted that the Prosecution message corresponded well with that of the national legal system, which has long been staunchly ‘guilty until proven innocent’ (Interview 22), thus serving to undermine the Court’s wider aim of rebuilding faith in the rule of law. An initial uncoordinated outreach programme appears to have contributed to this raising of expectations, and relayed confused messages about the purpose of the Court.12 A further important message to emerge from OTP outreach also presented a view that justice was the only way of bringing peace to Sierra Leone,13 which ties in with the belief that justice brings peace, but was subsequently undermined by the narrow interpretation of the mandate ‘those who bear the greatest responsibility’.14 David Crane defended this decision vehemently, and criticised the restricted mandate and funding limitations placed on the Court by the international community as a barrier to more prosecutions. Crane replied to a question from Pape, in March 2003 (not long before the first indictments were released), as follows: Pape: For many people in Sierra Leone, won’t the person who bears the greatest responsibility be the kid who cut off a hand in their village or who raped and killed there? Crane: These are the very same questions we get in town hall meetings and I tell them: ‘I do respect and understand what people saw and suffered, but I am going to prosecute to the fullest extent of the law those who created the plan that caused the conditions to allow this to happen. I will do that vigorously.’ Your justice is that I will go after the ‘big fish’ or, as they like to call them, ‘the Kakatua’ [i.e. those most responsible] – and they understand that. Crane also defended the mandate as a political compromise, arguing that a broader mandate would have been untenable (Berkeley War Crimes Center,

92   Outreach and legacy 2006: 24). This decision however, caused considerable confusion amongst ordinary Sierra Leoneans who did not believe the indictees at the Court to be those most responsible, contrary to the statement above.15 They believed those who were the most responsible were ex-­combatants, the military, etc., who were living in their towns and communities. These were the people that many wanted to see punished. This is what they understood to be justice (Interview 4). Many people interviewed during my research did not understand why such a large institution would only be prosecuting a few individuals, when the need for accountability demanded that many more be brought to ‘justice’. The size of the Court appeared to place it odds with its largely misunderstood mandate. The narrow interpretation of its mandate and limitations of its jurisdiction became a barrier for many. This made it difficult to fulfil the need to address accountability more widely in Sierra Leone, and, therefore, a significant challenge for the Outreach Office to counter (Interview 57).16

The Outreach Office The Outreach section was led and run by Sierra Leoneans to ensure staffs were familiar with, and respected members of, the communities with which they worked. The main office was based in Freetown at the SCSL, with District Outreach Officers (DOOs hereafter) based around the country to conduct outreach in the provinces. Poor access to some rural communities and the appalling condition of the roads in Sierra Leone meant that conducting consistent outreach was difficult. DOOs also had to travel to Freetown regularly to receive updates and have equipment repaired. For many this meant travelling via public transport, which was a lengthy and often arduous process, which also cut down the amount of time left for outreach activities. Rural communities were often difficult to access, and, as discussed further below, it was many of these communities which were deeply affected by the war that needed to know that justice was being delivered.

Engagement programmes The Outreach Office worked with, and tried to engage with, all sectors in Sierra Leone, including the general population, the Republican Army of Sierra Leone (RSLAF ),17 the Sierra Leone Police, students and schools at all levels,18 civil society through bi-­weekly meetings, international and national NGOs, Paramount Chiefs and other government officials.19 By working with the general population and members of the security service, it was hoped that knowledge and understanding of the principles of international law would be engendered and incorporated into the daily workings and training of these essential services. This capacity building was particularly important for the army, which had a history of coups in Sierra Leone and was also responsible for some of the atrocities and violence committed during the conflict.20 Outreach worked with the International Committee of the Red Cross (ICRC) to produce a document on international humanitarian law for

Outreach   93 the armed services, and also undertook various training and information seminars on the principles of international law and the mandate and jurisdiction of the Court. This was heralded as a success, with thousands of documents produced and disseminated to members of the security services (Interview 34).21 A particular challenge for Outreach was the difficult conditions in which the army operated, with poor salary, living conditions and resources impacting upon morale, and therefore remaining a possible security threat. These wider socio-­economic and political issues presented a challenge for the Court. The Court did not have the mandate or jurisdiction to become involved in post-­conflict development activities, being a humanitarian organisation as opposed to one providing development assistance. As was suggested during discussions with former Court employees, it needs to be recognised that attempts were made to forge relationships with the security sector and other development actors by the Court, but a sustained effort was not developed. This enhanced tensions that existed between the Court’s desire to move beyond its mandate, and the reality of a lack of funding and manpower to actually undertake these activities. It also feeds into the wider tension surrounding development and humanitarian assistance; something felt inherently within transitional justice mechanisms. This is important, however, as the Court’s ability to strengthen the rule of law more generally in Sierra Leone was dependent on wider security sector and judicial (i.e., development) reforms taking place as well, which presented significant challenges to the Court being based in-­country. Outreach’s other key programmes included: radio initiatives – a core component of general outreach efforts due to poor access to rural communities; video screenings of the trial summaries shown throughout Sierra Leone; training programmes on the rule of law, including events for customary law practitioners, victims, ex-­combatants, disabled people, police, military, Civil Defence Forces, the military, religious clerics, teachers, women, youths and children; printed material production and distribution, including illustrated booklets for areas with illiteracy levels; consultation meetings – for example, the Special Court Interactive Forum (SCIF ), a coalition of civil society groups working with the Court; conferences – for example, the National Victims Commemoration Conference, although this was facilitated by the Court and organised by the Inter-­religious Council of Sierra Leone and the Forum for African Women Educationalists; special programming for women, youths, etc.; cultural programming, such as theatre and story-­telling of the Court’s processes and aims; networking/partnership, i.e., collaboration with civil society groups; facilitating other group programmes – for example, the ICRC humanitarian booklet; and creating a legacy structure by, for example, the creation of Accountability Now Clubs (ANC) for groups of students interested in human rights, rule of law and transitional justice who would become advocates and hold regular meetings in their universities and colleges, debating justice issues and recruiting new members. This latter initiative, ANC, was extensive, and made a direct contribution to students’ understanding and knowledge of international law and therefore capacity building. However, with literacy levels so low this project had a limited impact and

94   Outreach and legacy p­ resented a possible Freetown bias, as the main university campuses are based in the capital. It perhaps needed to be made more widely accessible across the whole education system to have a wider impact, but lack of funds prohibited furthering this process. The initiative did, however, demonstrate sound engagement with the higher education sector, and, as focus group discussions revealed (discussed in detail below), ANC were successful in generating significant interest and debate on judicial issues, both domestic and international. Outreach’s goal was to inform people that ‘the Special Court started because Sierra Leoneans asked the world to help them try those people who are alleged to bear the greatest responsibility for crimes committed during the war’.22 This indicates that all Sierra Leoneans had a role to play in the Court process. This was emphasised by Outreach in relation to the ending of the Court, and was stated in Outreach’s literature: One day the Court will finish its job. . . . The Court hopes that in the future, leaders will be afraid to order people to commit serious crimes. This will help to create respect for human rights and respect for rule of law. The Court asks all people to join it in supporting peace and justice in Sierra Leone. (Wetin Na Di Specal Kot? 28) This fed directly into the Court’s legacy, but was difficult for many people to become properly engaged with when balanced with the numerous socio-­ economic difficulties faced by the majority of Sierra Leoneans, who lived in abject poverty. Similar to the problems faced by the security sector, Outreach did not have the capacity, or remit, to address many of these problems, let alone the funding. It would therefore encounter hostility when promoting the principle of justice in the singular – i.e., legal justice, not economic or social justice. One interviewee stated that ‘People are bitter about the money spent on the Court – lots of money, not relevant to their lives. [They would] benefit from the money in other ways’, such as providing funding for food, water and housing (Interview 4). The amount of money spent on the Court became an issue of contention in relation to the difficult situation faced by many Sierra Leoneans on a daily basis. The presence of the Court in-­country, as a monolithic, albeit limited, judicial structure in the capital, appeared, in some instances, to overshadow a true understanding of what it was attempting to do. Many interviewees highlighted the need for economic justice as this had a greater bearing on their current situation, often largely a result of the war.23 The Court did not have the means, mandate or capacity for a victims’ compensation fund. The focus of justice at the Court was heavily focused on the perpetrators, not the victims, although the message centred on ‘bringing justice’ to Sierra Leone and the victims of the conflict – implicitly on ‘ending impunity’. This pointed to a certain paradox in the Court’s overall message, when compared with the narrow interpretation of its mandate: bringing justice to Sierra Leone but through limited prosecutions. Many cited the fact that the Court’s jurisdiction was so constrained that it did not, and would

Outreach   95 not, deter lower-­level offenders from committing crimes in the future; with only the most senior commanders targeted, there was little disincentive to becoming involved as a lower-­level participant in future conflict (Interviews 1, 8). Therefore, the Court’s wider goal of addressing impunity in Sierra Leone was called into question, and often compared with the financial costs of maintaining the institution (Interview 3).24 This also poses a direct question regarding the link between justice and peace: if justice is limited, does it bring peace? David Crane’s defence of the small number of indictments highlights the tension between external restrictions placed on the Court (i.e., financial) and trying to satisfy the internal demands of a country that demands justice on a wider scale. Outreach faced similar challenges when conveying the Court’s message. It was criticised for not bringing more people to justice, but was in no position to change the limited mandate or temporal jurisdiction, as defined by its Statute Agreement. Frustration that the Court would not change its mandate, even after discussions with Outreach explaining that it could not do so, often appeared to lead to a perception that Outreach was ineffective in communicating back to the Court. Many individuals interviewed in civil society expressed similar sentiments regarding the small amount of information about the Court being disseminated from Outreach (Interviews 51, 61). The Outreach section was open when discussing the difficulties encountered during such exchanges, and pointed to the fact that for many individuals it would be impossible ever to change their minds, despite presenting numerous counter-­arguments. These feelings appeared to become more entrenched as time progressed and dissatisfaction with the Court continued.25 This was most evident in places where the conflict affected larger numbers of people – i.e., in the east of the country – and for many of the war wounded or displaced who continued to live in camps in and around Freetown.26

Evaluating impact The recorded work undertaken by the Outreach section was extensive, with more than 3,000 events listed for 2004, and over 7,000 events listed for 2006 alone (Outreach Report, 2003–2005: 25; Interview 26). Yet discussions with people throughout Sierra Leone, ranging from local villagers to prominent civil society groups and teachers, presented a different picture. Many people interviewed during fieldwork in April and May 2007, including in the main provincial headquarter towns – Bo (south), Makeni (north), and Kenema (east), as well as Magburaka (the second largest city in the north after Makeni) – had infrequently seen an Outreach event or knew what was happening at the Court. This supported the claims by individuals and organisations across different sections of society that: To some extent we commend Outreach’s efforts [mostly] – but what they have failed to do is to come down to a grassroots and minorities level – only the elite in the township and chiefdom headquarters are targeted. This is what they have failed to do. (Focus Group D)

96   Outreach and legacy This was contrasted with other reports where Outreach events were greatly attended, with one former Court employee informing me that in an event attended in a southern district, ‘children were hanging from the rafters’. Many similar anecdotes were shared and witnessed during my fieldwork. However, the above comment refers more generally to targeted Outreach events. The interviewees felt disenfranchised because they perceived the Court to be operating at a level removed from the ordinary citizen. This points to several factors that challenged Outreach, the first being disengagement, and the second, overt criticism based on little understanding of its work. In many instances, Outreach worked with partner organisations to act as a conduit for Court information (discussed further below), but the difficulty in monitoring and evaluating these organisations meant it was unclear what, if any, messages were being relayed – hence the prevalence of such comments. There was an apparent knowledge differentiation between relatively educated, professional people, who had access to radios and news sources, and those who were less well educated and did not have access to reliable information or news sources about the Court:27 ‘The real challenge is getting the message to remote villages provinces where atrocities occurred’ (Interview 1).28 A division also existed between those in Freetown and those in the provinces, with the former able to access information more easily through attendance at the Court or via radio discussions, which appeared to have greater coverage in the Capital (discussed further in Chapter 6). This was reinforced by the funding limitations placed on the Court, and an inconsistent message from Outreach. Even though the war affected almost the entire country, including people in the rural areas, and particularly in the south and east of the country, the outreach here appeared to have been limited when it should have been targeted more specifically on these regions.29 Similar to Kelsall and Sawyer’s findings, my research found that generally knowledge of the Court was high, but understanding of substantive issues was minimal. An interview with a judge revealed: Most people here know of the Special Court’s existence, but whether they know the Court’s proceedings, appreciate the rulings that they are making, well that is another matter. People know about Charles Taylor being brought to the Special Court, about Hinga Norman and Foday Sankoh this and that, these things that are newsworthy. Of course they hear about these things. But whether they appreciate what the Special Court is all about, that is another issue. That will change only with education, education, education. (Interview 54) For example, women at various displaced persons camps and individuals at the war-­wounded camps on the outskirts of Freetown all requested more information from the Court, or screenings of the trials, to be given more frequently so that they would know what was happening (Focus Groups A, E, F ). These same people often talked of the frustration at not being able to listen to radio shows, as they

Outreach   97 often did not have radios or were unaware of when the programmes would be aired (Interview 38). Similarly, villagers in Bombali District did not know what was happening at the Court, and did not know who to ask for further information (Focus Group H). It should be noted that these same people had all heard of the Court, and if they had not heard of it directly through the Outreach section then they had done so via discussion with others, thus highlighting the residual effects of Outreach. Despite recognising that knowledge of the Court was widespread, a prominent civil society figure in Freetown highlighted that: Outreach has done some good work and tried to get the message to communities but people will just be able to relay the message to you verbatim. They still do not understand the benefits of the SCSL to victims, no clear understanding on the issues, not just impunity but the actual tangible benefits. (Interview 51) Does this denote a failure of Outreach? Is lack of understanding indicative of a failure to communicate its message widely, or does it merely highlight the limitations of outreach in communicating the complexity of international justice? (See Kelsall, 2010, for an astute discussion on the challenges of international justice operating in a largely unfamiliar culture, focused on Sierra Leone.) The challenges confronted when operating in Sierra Leone, logistically and financially, were significant, and therefore it could be argued that the residual effects of discussions on justice are sufficient in themselves in addressing accountability and contributing to the rule of law. However, the lack of any real understanding of the Court started a parallel debate as to the cost–benefit analysis of what was a limited judicial mechanism.

Shortcomings Many of my fieldwork discussions criticised Outreach for not explaining the indictment process properly, particularly in places where illiteracy was high.30 A Sierra Leonean lawyer believed that: The objectives should be better articulated, and what it came to achieve. The changes in the Special Court need to be better explained to illiterate people who do not know. Outreach has not concentrated on explaining why the indictment process happened as it did and why Hinga Norman was arrested. Most see it as political, especially as Kabbah was not indicted, especially in Bo [Hinga Norman’s home]. This presents a security aspect. People can manipulate the reasons – Special Court is responsible. (Interview 41) It is difficult to quantify whether this has had any lasting damage on the Court’s legacy, but it does indicate that it has had a profound impact on the

98   Outreach and legacy overall understanding and acceptance of the Court in this area.31 Although this might be limited geographically, it is undesirable for the Court to have caused any possible divisions within a relatively small, post-­conflict country – divisions that in future might be used for possible political gain.32 Further discussions with a different group of traders identified sound knowledge of the Court, but limited understanding. Everyone had heard of the Court, but no one would/could say what it was trying to do. Answers varied from “Justice the way perpetrators did some crimes that would be a problem now for the country” to identifying that the Court has established the “Truth who did wrong, worst or more than another person”, also highlighting the joining of information about the Court and the TRC. One participant expressed being ‘Gladi for the Court [happy for the Court]’, and another participant stated that the Court used ‘White man’s law, which is fine’, it was ‘improving law and justice business in Sierra Leone’, and, in terms of legacy, ‘Justice has helped and served as a precedent and helped people learn’. A different participant stated, ‘Lucky if not for SCSL there would be criminals living all over the country’ (Focus Group A). This latter comment was particularly instructive, and demonstrated limited understanding about the prosecutions themselves. It was also in stark contrast to the dissatisfaction at the few indictments released. These discussions were organised by a newly recruited Special Court DOO who had clearly engaged the participants with the Court processes, as many understood the purpose of the Court for Sierra Leone. The participants were traders who NPWJ had earlier recognised as having an important role to play in outreach for the Court owing to their role in the community and the number of people that they encountered on a daily basis.33 This particular DOO was enthusiastic in conversations about the Court, and was clearly motivated by the role to inform, but acknowledged the difficulties in conducting consistent and relevant outreach activities for all constituents, with the timings of the trial screenings being a particular source of contention.34 The timings of the screenings by Outreach were highlighted as inappropriate because many did not have time to attend the limited screenings held in their region, as they were working. Participants in these discussions also criticised radio coverage of the trials as inadequate, as they were unaware of the schedules, and if they missed a broadcast they didn’t know how to find out the timing of the next. These discussions also revealed significant gaps in knowledge and understanding about the Court, despite participants acknowledging the residual benefits of the Court for Sierra Leone, such as improving law and justice in the country itself. No one in the discussion groups could actually clarify exactly how law and justice had been improved in Sierra Leone; simply that it had. This highlights an acceptance of the Court’s rhetoric in addressing impunity, balanced with a strong belief in the transformative agenda of international justice – but with little real understanding of how the Court had actually addressed impunity. Expectations for what the Court would do were high, with many believing it would do much more to enhance the national justice sector, and therefore directly benefit them, thus also underscoring the residual benefits of operating in-­country.

Outreach   99 Fieldwork discussions with the various trading groups, war-­wounded individuals and displaced persons took place in camps on the outskirts of Freetown. These individuals had no way of obtaining first-­hand information about the Court, despite their relative proximity compared to people in the provinces. Many interviewees were living in abject poverty, and many would never travel into Freetown, as the need to work in the nearby markets or the requirement to look after their families prevented them from taking ‘a day out’.35 All expressed an interest in visiting the Court, and some had seen the building from the outside. One participant claimed that the security was frightening, leading to the fear of being arrested, and there were ‘so many doors’. Another participant stated that there was no time to go. They listened to the radio, and therefore knew that nobody paid to get in and that you don’t get arrested, but visiting the Court meant you needed to do your hair, wear clean clothes and spend time sitting and listening. They hadn’t got time, as they needed to manage their family (Focus Group A). This was also highlighted previously during fieldwork discussions in Sierra Leone in May 2005: ‘Lots of people are aware but not able to attend farming jobs etc., having to walk, time off a luxury etc., therefore not truly reaching everyone’ (Interview 4). Screenings of the trials were designed to address these shortcomings, but access was limited because the timings were not always appropriate and not everyone could get to them (Focus Group F ). This was a shame, as it may have addressed the deficit in people’s understanding; namely, the screenings needed to be more accessible to larger numbers of people and therefore, provided a direct link between the Court and Sierra Leoneans. Contrasting with this, however, school visits were conducted every Wednesday at the Court. These were mentioned by many Court employees, often with a positive note. Upwards of fifty children was the norm, seen in uniform walking around the Court premises. This in itself would have had a significant impact on the children who visited, despite them perhaps not fully grasping the complexities involved. Yet it also demonstrates the tensions inherent in operating in-­ country and the difficulty of satisfying all, particularly with such limited means.

Barriers An international human rights lawyer stated that personal experience indicated that outreach was not conducted in the poorest places of Sierra Leone because people did not want to visit these places, when in fact these were the places where outreach was most essential (Interview 69). It was difficult to qualify such statements, for the reasons outlined in the book’s Introduction, but reports from Amnesty International on the impact of sexual violence in the far eastern corners of the country indicated that many of these regions saw few or no outside organisations, including the SCSL.36 These places are difficult to access, with very poor infrastructure, but this should not be a reason for neglect. In Sierra Leone, it was particularly the poorest and most marginalised people in society who were greatly affected by the war. Without direct communication from the Court, this presented a risk of further division and the perception that information was just

100   Outreach and legacy for the elite, thus marginalising people further, as shown during discussions with traders. This point was also highlighted by Amnesty International in its investigations into women’s access (or, more specifically, lack of access) to justice more generally in the east of the country (Amnesty International, 2007). Many of these women lived in remote towns and villages, and when asked if they had heard of the Court or seen an Outreach event often had not, and did not know about the Court. A lot of these women were victims of horrific sexual violence crimes during the conflict, and were some of the Court’s key constituents for the message to ‘show Sierra Leoneans that the rule of law was more powerful than the rule of the gun’. Yet these women had a feeling of exclusion from most (if not all) of the post-­conflict processes, including the Court, as many continued to suffer economically and socially as well as physically after the conflict, with little knowledge or understanding of what was happening in Freetown. With limited outreach to these places, this message was yet to resonate. The conflict started in the east of the country, and this region suffered considerable devastation throughout. This was an important area for outreach to be conducted, yet, according to Amnesty International, this was not the case (Interview 68). Travelling around Sierra Leone presented numerous difficulties, as the roads were in atrocious condition and often impassable during the rainy season, which is why networking with local NGOs was crucial to ensure that the Court worked in partnership with people regionally – as shown initially by NPWJ. It was not possible for me to visit the eastern provinces, so it is difficult to verify these claims. Yet fieldwork undertaken in the main provincial headquarter towns in the south and east, Bo and Kenema, respectively,37 shows that outreach in these regions was limited, indicating that such activities further afield were perhaps even less so. With little monitoring or evaluation of the DOOs’ work, it was difficult for Outreach to verify whether this was also the case. However, according to the Outreach section, Outreach officers were successful in all the regions they worked (Interviews 36, 57). This is not to discredit the difficult job faced by many of the DOOs, often with few resources, but it does indicate that greater resources were required for outreach to be conducted far and wide and, most importantly, consistently. My research found that communication of the Court’s work was not as widespread as perhaps perceived, even in important regions. The limitations of the Court due to funding issues were the most significant factor in this.

Partnership, judiciary and divisions Outreach claimed that its greatest success had been the ‘Partnership Project’, whereby the Outreach section, with its limited resources and capacity, worked with partner organisations throughout the country to enable it to reach a wider audience. Outreach stated that there were between forty and fifty meetings (town hall, civil society and community meetings, etc.) per month. There were a total of fifteen Outreach officers in Freetown, and eighteen DOOs and 149 ‘civil society animators’38 based throughout the country (Interview 36).39 As was

Outreach   101 pointed out, that’s thirty-­three Outreach officers, in total, tasked with sensitising approximately 5 million people. This highlights not only the sheer inadequacy of the resources provided for this undertaking, but also the unreasonable expectations placed on them for this work; by the Court and by Outreach, as well as by external organisations.40 When placed in this context, the limitations of Outreach are clarified by the context in which it operated. District Outreach officers came from the particular region where they were tasked to work. This ensured that they spoke the local language, understood local norms and traditions, and were accepted in their communities. A SCSL Outreach officer stated that had he not been Mende and worked in the south, he would not have been accepted; it would have been a barrier to communication (Interview 37). It was highlighted often that there was not a great enough presence in the communities with just one Outreach officer: Outreach officers do not do events regularly. They go one day and not the next. It’s a big Chiefdom with many sections and villages so it is vast, one of the biggest. The man power to conduct regular outreach is not there. Some people feel a part of the SCSL – those who are educated to a standard – but illiterate people do not. (Interview 45) Another interviewer stated: It’s good for people based in the community to disseminate information as they can do this more effectively than people based outside. As part of people’s understanding this would help make it more consistent. The Outreach officer is from this District but it is too big for one person. (Interview 35) Interviews with civil society organisations indicated a less favourable relationship with the Court than was stated officially. Various interviews with civil society organisations over the course of fieldwork in Sierra Leone highlighted a degree of frustration in working with the Court’s Outreach and, from 2007, the Legacy officer based out of the Court’s management section. My later research visits pointed towards a suspension of working relations altogether between many organisations and the Court.41 Perhaps the most perturbing division emerged between the Court and the judiciary, with the Sierra Leone Bar Association disassociating itself entirely from the Court. A Sierra Leone lawyer and head of judicial monitoring organisation pointed out that the national judiciary should have been working with the hybrid Court for training purposes, but instead they were operating as two separate institutions. This was perhaps necessary for the Court in maintaining its impartiality and independence, but, as was noted by both Human Rights Watch and the Berkeley War Crimes Research Center, for the Court to make a substantive contribution in addressing impunity and strengthening rule of law, it needed to engage fully with the Sierra Leonean

102   Outreach and legacy judiciary. This would help to generate understanding and facilitate much needed change. The difficulty in instituting this, however, leads back to funding, and lack thereof, for these legacy issues. It wasn’t until 2007, four years after the Court’s creation, that a Legacy officer was appointed. This speaks again of the agenda for international justice in this regard, guided by the prosecutions as opposed to wider sector reform. A training event organised in 2003 for Sierra Leonean lawyers did not touch on domestic issues, but concentrated solely on international concerns: relationships established during this meeting did not inspire future meetings as the relationship was a very patronising ‘student–teacher’ rather than as equal professionals. Many Sierra Leoneans did not receive it positively. It was a very unfortunate missed opportunity for training and relationship building. (Interview 51) It was also noted that ‘training and inclusion of laws and informal interaction is hardly happening’ (Interview 51) – although, despite this, many pointed to the fact that there were some judges and Sierra Leonean lawyers working at the Court, which they believed may have had a positive impact. However, it was also noted that the newly trained professionals would have no jobs to go to once the Court left, so they would have to look elsewhere anyway: ‘Losing qualified staff once Special Court leaves; brain-­drain, need long-­term thinking’ (Interview 52).42 Thus, the Court finds itself in the unenviable position of being ‘damned if you do and damned if you don’t’. More substantially, this predicament pointed to a much wider dilemma regarding the lack of development and capacity building more generally in Sierra Leone. Seven years after the conflict ended, the lack of advancement was palpable, crossing all sectors from education and healthcare to justice. An international human rights advocate pointed to the shambles in the main court in the capital, Freetown, with many case file missing and hundreds of people held in overcrowded conditions at the main Pademba Road Prison (Interview 63). In an interview, an international defence lawyer at the Special Court commented that as well as being the only one doing any pro bono work outside of the Court (at this time; this changed later, with others getting involved in pro bono work to an admirable degree), such pro bono work had to be kept quiet as it would not be well received if the Court discovered this. The same defence lawyer highlighted that there was no Duty Counsel at Pademba Road Prison, and there was a desperate need for funding to investigate every case in the prison to establish why people were there, and, if charges were necessary, to bring such charges against them. It was claimed that there were no Sierra Leonean lawyers willing to take over this work at Pademba Road. Interviews with other international legal staff at the Court in April and May 2007 highlighted that this work was continuing, with various legal staff from the Court still assisting with various cases at the prison. In November 2007 Human Rights Watch wrote a

Outreach   103 letter to the new President, Ernest Koroma, highlighting the appalling state of the national judiciary, including conditions in the main prison at Pademba Road, which is designed to house 350 prisoners but then held more than 1,000 (HRW, 2007). A Sierra Leonean lawyer expressed surprise that more lawyers from the Court had not got more involved with the national system (when referring to the above assistance provided by a Defence lawyer at the Court): ‘Examples like this that I would like to see the SCSL get more involved in while it is in Freetown. Do not understand why more lawyers have not gotten more involved with domestic cases like this or why the SCSL has not become more involved overall’ (Interview 13). When discussing with interviewees how the Court had influenced the judiciary in Sierra Leone, they stressed frustration at the lack of change with domestic rule of law reform, citing severe delays to cases and corruption prevalent throughout the system. One interviewee claimed that ‘It [the SCSL] should have provided an umbrella for the domestic system but it did not’ (Interview 39). Such responses were indicative of the high level of expectations surrounding what the Court might do, over understanding of what it was actually designed to do. A former Defence Attorney at the Court wrote, on the disparity between international and national justice in Sierra Leone, When the Special Court began operating in Freetown in 2003, half a kilometre away in the Pademba Road maximum security prison, hundreds of ex-­combatants waited for their trials to begin in connection with war related incidents. Their detention and subsequent trials in 2005 were characterised by gross judicial abuses, detention without charges, a lack of defense counsel, the taking of statements under severe duress and physical abuse that resulted in a number of deaths. These lower ranking former rebels, some former child soldiers, faced the death penalty as an outcome of a trial with few, if any, judicial guarantees. Meanwhile, those considered ‘most responsible’ were being tried at the SCSL, an international court where millions of dollars have been invested for prosecution, defense and the proper functioning of trials with no possibility of a death sentence. The disparities were alarming in 2003 and remain the same today. (de Silva, 2007) Similarly, during a visit to the Special Court with a Sierra Leonean acquaintance, the thing that stuck most in his mind was how healthy the indictee looked;43 ‘Look how fat his neck is. It’s because he has been eating well in here’ was the main observation over and above the fact that the man stood accused of bearing the greatest responsibility for war crimes and crimes against humanity. A SCSL Outreach officer highlighted similar difficulties in explaining why the indictees were being looked after ‘so well’: ‘The fact that people are not in jail but have been detained is difficult to understand, especially as they know they have good facilities, meals etc. It’s difficult to understand they’re not in prison but detention’ (Interview 46).

104   Outreach and legacy This separation between what was happening in the Courtroom and the sense of injustice towards the accused was clear. Many people interviewed over the course of fieldwork spoke of how well the indictees were being treated inside the Court, with free access to healthcare, education, food, water, electricity and shelter, even though they were in prison.44 These essential commodities did not exist for many in Sierra Leone; hence the obvious sense of injustice when compared to their own situations, many as victims of the conflict, as well as in comparison to others facing Sierra Leone’s justice within the national penal system. Adding to the mix the fact that so few have been indicted for crimes committed during the war increases the perception that the Special Court serves as an injustice to the victims of Sierra Leone’s war (Interview 43). The lack of consistent information from the Court fed directly into these perceptions, making it difficult to change people’s minds at a later stage. Many of the civil society groups interviewed during the course of my fieldwork had various degrees of interaction with the Court, ranging from substantial (involvement with the Special Court Interactive Forum or working with DOOs) to fairly limited (perhaps watching screenings or observing them in the background whilst working). One particular group of villagers near Makeni, the main provincial headquarter city in Bombali District, northern Sierra Leone, had little contact with Outreach and the Court. This was a chiefdom village, so a fairly large village with many inhabitants. Despite having limited knowledge of what was currently happening at the Court, nearly all outlined that it was here to address impunity and to prosecute the ‘big men’ for bringing war to Sierra Leone, and by doing this it would make people frightened about bringing war to the country again.45 This relates directly to David Crane’s comments about Sierra Leoneans understanding the concept of Kakatua [big fish]. Yet, contrary to these beliefs, people in the south talked of their fears that so few indicted meant many perpetrators were still free, except for Hinga Norman, who had been indicted and ‘killed by the Court’.46 This meant there would be no one left who was brave enough to fight on their behalf if conflict happened again, as people would be scared they would be taken to the SCSL. This was a very real fear for many.47 This highlighted that some people had understood the principles behind the Court’s limited mandate in prosecuting senior figures, and that others perhaps understood but did not accept them, underscoring the difficult position the Court found itself in with regard to its mandate of prosecuting the few over the many. Although it was bringing justice to Sierra Leone, it was not satisfactory justice. As discussed above, criticism levelled at the Court within Sierra Leone included that it had caused divisions between north and south, as most of the indictees came from the south, and not the north, where former President Kabbah came from (Focus Group K).48 ‘Up-­country there is the view that the government is responsible for the arrest of Hinga Norman’ (Interview 4).49 Although this claim was vehemently opposed by the Court, defending its independent status, this appeared to be a fairly widespread perception amongst organisations in the south and a few in the north (Interview 43). The political contentions surrounding the Court’s existence were present at both the international level (who

Outreach   105 to indict) and the national level, and the failure to indict either the former President or former Vice-­President, along with inconsistent outreach, did not help dispel these fears or rumours. However, it should be noted that a local High Court Judge believed that such regional differences did not exist in his view: 50

I don’t think it is about a north/south thing – it is very confusing where the RUF came from – because their first attacks were here in the east, in Kailahun. It was only later that it had a northern/Foday Sankoh aspect. The war started in the south and in the east. That doesn’t come through so much for me as a divide between those who saved us and those who were destroying us. (Interview 54) There is no desire to return to war in Sierra Leone, after the violence witnessed during the conflict; however, possible divisions inadvertently caused by the Court may well have had a lasting damaging effect on the its legacy and its interpretation of the conflict.

Appraising Outreach ‘Raising awareness of transitional justice international law and human rights to all Sierra Leone is not an easy process’ (Interview 6). Communicating the complexity of international law and due process would be a challenge in most stable countries. The difficulty in Sierra Leone, where infrastructure was damaged by the war, the judiciary was largely defunct prior to the conflict, and the many roads were treacherous, made this a particularly complex task. The former Court Registrar nonetheless believed that measuring impact and understanding was important: ‘How effective has the outreach been? The Special Court was the first internationalised court to have an extensive interactive outreach programme audio, video etc. so we need to know how effective this has actually been – understanding not just knowing’ (Interview 7). Again, this underscores the question posed in this book: is having knowledge, as opposed to full understanding, sufficient for the wider goals of international justice to be realised? The Outreach programme had previously undertaken monitoring and evaluation of its own in the form of questionnaires during its earlier Outreach events. It was not clear whether it continued to do this or if it only took questions at the end and evaluated these questions to assess levels of understanding and plan for future work (Interview 36). During discussions in May 2005, Outreach outlined some of the questions being asked. These were: Why not arrest Kabbah? Why are so many white people in the SC? White prosecutor – an American Court. Why don’t you indict more people? Why the Special Court? It was indicated during later discussions with Outreach that these questions were no longer asked, and people’s perceptions had changed (Interview 34). In a discussion with Outreach I explored the change in perceptions, asking whether there had been a difference in people’s opinions over time. Outreach

106   Outreach and legacy responded that, starting with the Special Court Working Group, the widely held feeling was, ‘why are you bringing the Court here? We don’t need it’. This is not asked anymore; the question of trying a few is also not asked as much (Interview 34). The research indicated that questions regarding the small number of indictments were still being raised. The questions relating to the establishment of the Court were not, however, but there was a greater level of acceptance of (or perhaps indifference towards) it. During fieldwork in 2005, comments were made that these questionnaires were available to external researchers, and the Court welcomed the opportunity for external evaluation to assist them in understanding the impact of outreach. During later visits it was made clear that these documents were no longer available for public viewing, as they were ‘currently being archived and therefore inaccessible’ (Interview 36). The timing did correspond with Outreach’s publication of its own commissioned report on the public perception of the SCSL, so there was clearly a need to avoid any conflict of interest. It is, however, disappointing that such information was not more widely available for external parties to view perceptions and queries made about the Court during Outreach events. Such information is invaluable to understanding how the process worked – and if, indeed, it does. As mentioned in the Introduction, a report on public perceptions of the Court and Outreach was carried in 2006–2007. This ‘independent’ review was led by a lecturer at Fourah Bay College.51 The report was titled Nationwide Survey Report on Public Perceptions of the Special Court for Sierra Leone, and was published in March 2007 and released in May 2007. This review was designed to be impartial, but was funded by the European Union via the Outreach activities. It also received extensive support from the Outreach section of the Court and from the Registry, who provided editorial assistance (Nationwide Survey Report, 2007: 5). Although the support of the Court was necessary to undertake such an evaluation, the extent of the support given raises questions as to its impartiality and independent status. One interviewee stated: ‘The perception survey is not very impartial as the Outreach section supervised and drafted the questions, collected and collated the information and helped to draft the report although they did use an external consultant’ (Interview 39). The report was overly favourable towards the Outreach section, and praised its work. Its overall finding was: ‘indicative of a marked positive impact by the Outreach section of the Court in transmitting the principles and understanding of the transitional criminal justice processes to civil society organizations and the people of Sierra Leone’ (Nationwide Survey Report, 2007: 7). Whilst this corresponds to the overall impression that the Court was at least well known, and in places moderately well understood, it does have limited value in so far as informing the extent to which people’s attitudes and understanding of the Court were concerned. The questionnaire used for the study contained questions which appeared vague and somewhat loaded – for example: Do you think the Outreach teams are doing a great job? Yes/No/Don’t know. To what extent do you agree that the TRC has promoted peace and reconciliation in Sierra Leone? Strongly agree/Agree/Disagree/

Outreach   107 Strongly disagree. Do you think the Outreach teams are doing a great job? Yes/ No/Don’t know. To what extent do you agree that the TRC has promoted peace and reconciliation in Sierra Leone? Strongly agree/Agree/Disagree/Strongly disagree. This latter question is a concern, and is a surprise to find it in a survey concerning SC Outreach. It does somewhat beg the question, what will be done with such findings? These questions served to undermine their value as indicators of specific attitudes. Furthermore, concern was expressed during fieldwork about the methodology underpinning this report, and about the validity of the responses.52 The report’s release was delayed, with the main reason cited being the death of Hinga Norman and the negative perceptions surrounding the Court at the time of its scheduled release in March 2007 (Interview 36).53 Copies of the final report and the questionnaire were difficult to obtain from Outreach. The report was disseminated to civil society organisations in Sierra Leone, but little has been reported beyond this. The report did not appear on the Court’s website, which is surprising, considering the overwhelmingly positive nature of its findings. A subsequent report was also conducted by the BBC World Service Trust, International Centre of Transitional Justice, and USA-­based NGO, Search for Common Ground. This report interviewed 1,700 adults throughout Sierra Leone, and found that 96 per cent of participants had heard of the SCSL but only 4 per cent knew of proceedings; one in four knew nothing of proceedings; and two-­ thirds thought the Court had performed well, although more than one-­quarter thought the Court was putting the wrong people on trial (www.sfcg.org/). This also corresponded with my research findings that general knowledge was high but depth of understanding was poor, and that controversy remained over the indictees. In terms of communication, I was informed that ‘radio is everything’ (Interview 74). However, the BBC World Trust and ICTJ Report highlighted that although most people were heavily reliant on the radio, it had limited coverage in the provinces. Kailuhun, Bo and Pujehun in the south and east had the lowest listenership of the radio, and the lowest levels of literacy overall (Lincoln, 2008). Therefore, getting information to people in these regions was tricky – and even more so for people living outside the district headquarter towns. Fieldwork was undertaken in Bo, where my research found that, despite having a highly committed DOO, understanding of the Court remained low and news about the Court was minimal.54 Outreach in Bo was recognised by the Outreach section as being limited and needing to be increased. However, no indication was given as to how and when this would change. It was also stated by individuals in Kenema that they had: Heard a lot about SCSL in radio in Freetown but up here not been so lucky, which is very sad. This region is where the war started so a lot needs to be done here. Never heard in Kenema, sad as people need to know. (Interview 50) The fact that understanding of the Court in Bo (Sierra Leone’s second biggest city) and in Kenema (the epicentre of Hinga Norman’s support base) was limited

108   Outreach and legacy demonstrated shortfalls in the outreach strategy.55 Considering the prominence of these two places, the Outreach section should have been firmly committed to helping people understand the Court’s processes and limitations. This is not to claim a failure of the DOOs, who were incredibly enthusiastic and committed to their work, but rather highlights the difficulty faced by them in conducting consistent outreach with limited means and manpower. It also points to a flaw in the overall strategy, that this was not addressed earlier. This was also highlighted by a civil society worker in Makeni, northern Sierra Leone: ‘People are grumbling now Hinga Norman and others have died so what will happen to the others – do not believe it was a natural death. Would have liked him to stay alive to see the judgement of the Court’ (Interview 59). Discussions with Amnesty International in June 2007 also highlighted the paucity of information reaching places such as Pujehun and Kailahun (south and east, respectively), where people had an overwhelming sense of being forgotten (Interview 68). During April and May 2007 there was no assigned DOO for Pujehun, which meant the job was shared between the two closest DOOs in Bo and Kenema, adding further to their already heavy loads.56 My research also found that although radio was a key method for transmitting information, it was not a communication method accessible to all. Radio coverage was limited beyond Freetown, but the installation of a community radio station in Kenema, eastern Sierra Leone, in 2008 was a positive development in addressing this shortfall (The New Citizen, 2008). My research also found that many people could not afford radios, and if they could, they were not aware of the Court programme schedules and would often miss the relevant broadcast. This was confirmed by some DOOs, who only held radio shows once a month (Interview 46). Although this is perhaps considered standard in terms of broadcasting routines, the fact that the SCSL was considered as a ‘special’ process for the country led many individuals to believe that more shows would be aired informing them about Court developments. This served to enhance feelings of frustration that this was still not a widely accessible form of information dissemination. As with everything, however, there was only so much Outreach could do to address this. It could not, for example, buy lots of radios for wide distribution, although it could work with local organisations to buy/loan radios for them to play to members of the community – again, funding permitting. This would have taken pressure off the DOOs and directly worked with Sierra Leoneans to ensure a sense of ownership of the process, thus ensuring capacity building occurred. Although they had their limitations, radio broadcasts would have ensured that information was made more widely available. Despite these shortcomings, the importance of radio for Court Outreach was identified from the start, as it remained the most widely accessible medium for the majority of people. NPWJ used radio programmes in the beginning to conduct hour-­long radio programmes on Radio UNAMSIL, which proved to be popular, generating a significant following nationwide (Interview 6). These programmes would include guest speakers from the Court and local justice

Outreach   109 c­ ommunity to answer questions from people calling in. This system was subsequently taken over by the SCSL, who, through the Outreach section, conducted similar weekly hour-­long shows on all major radio networks. I was able to attend a recording with Outreach staff discussing weekly developments at the Court and answering calls from the public. The message stemming from these discussions was vehemently ‘Not guilty until proven guilty’, which stood in contrast to the earlier messages from the OTP outreach that that the indictees were, by default, guilty (Radio UNAMSIL Broadcast, Freetown, May 2005). The Outreach section also used the broadcast to encourage people to take part in the Special Court process, including Outreach activities such as attending the trial screenings. It also reaffirmed its neutrality with regard to representing the whole Court, not just Prosecution or Defence. It was impossible to assess how well received these broadcasts were, as there was no system of recording listener figures, but informal discussions with ordinary Sierra Leoneans around Freetown indicate that they did hear the Court broadcasts, and generally they were ‘a good thing’.57 Local Freetown taxis would sometimes have the Court broadcasts on during journeys. This is anecdotal, but indicates the exposure to Outreach’s programmes at a basic level, travelling and communicating around Freetown, and contributing indirectly to its legacy process by generating debate on issues of justice. As discussed earlier, for many the Court remained an isolated structure, but opening the process to people via radio allowed everyone to feel part of the process. The success of these radio programmes generated interest regarding a more permanent fixture when the Court finished. The aim was for the programme to remain a weekly radio show. I was also able to attend another, different, radio show looking at issues of justice. This was an interesting programme considering wider justice-­related concerns from a coalition of civil society groups called, Coalition for Justice and Accountability. Unfortunately the ratings figures were not available for this show either, but the development of other justice-­related programmes highlighted that there was interest in dialogue in this area, and that Outreach had helped to foment this. This was perhaps a natural development, considering the absence of ‘fair’ justice in Sierra Leone and that there was no rigorous system of accountability. Having the Court situated in Sierra Leone enabled discussions on justice to take place, as its presence made it unavoidable – even if the discussions were negatively framed around the limitations of the mandate and process. Continued public debate and discussion on justice, and highlighting the failures of the national judiciary, might have provided the catalyst for permanent change from within. Maintaining this momentum was crucial to instituting national reform, and if the Court could contribute to this through the establishment of radio programmes on justice, then a positive legacy would emerge. This does not discount the complexities involved in overhauling a central pillar of the state, or the need for donor funding, but it does emphasise one potential success for the Court for Sierra Leone, even if it was viewed through one of its failings.

110   Outreach and legacy

How will the Court be remembered in Sierra Leone? When asking interviewees how the Court would be remembered in ten or twenty years time, the responses were varied: •

•

• • •

•

• • • • •

‘They are happy about the Court as it has come to address issues. It is bringing peace by indicting those who bear the greatest responsibility. Sometimes in meetings some say they hope the local Courts will copy the SCSL.’ (Interview 35) ‘Negative impact – not for this country. Something may happen such as rape (i want to marry her that is why i raped her). When SCSL ends, most of international law has been integrated into own laws. Now rape is a serious crime.’ (Interview 46)58 ‘Legacy will be positive pending positive dissemination.’ (Interview 38) ‘People thought everyone would be tried – 1,000s of RUF, 1,000s of CDF. If they try everyone it would take a long time and is not realistic but it took a while for the message to get through.’ (Interview 45) ‘Sierra Leone law courts are crazy – overcrowded, many cases are adjourned consistently. Many SL taken to Court do not have legal representation. Lost confidence during the war in the judicial system so think that SCSL will help to restore faith, give the accused person rights, defend themselves in Court. Personnel; Sierra Leone Defence, lawyers etc. all helped with capacity building.’ (Interview 34) ‘When I do something I know that is bad there is a tendency that the other person could do the same if not punished. Penalty for the crime committed equals no impunity. Making people afraid. It will not just help a particular country but also neighbouring countries. If you do this will be the penalty – come with the same Court as Sierra Leone. Set a precedent. (Focus Group H) ‘It has contributed to the peace. And the structure; when you look at that place, you will remember about those who were put on trial.’ (Focus Group I) ‘Because of the trials of the criminals, if another group in this country want to create a war, they will be afraid, and that will cause everlasting peace.’ (Focus Group I) ‘I agree, because the Special Court has sent a very important message to everyone in this country; that if you do wrong, you will be brought to trial.’ (Focus Group I) ‘This issue of the Special Court, it will always be in our history – we will tell the stories coming out of the Special Court to our children, grandchildren and all the future generations.’ (Focus Group I) ‘Everything that went on during this war, it will be brought into the schools in this country, to teach people how the Special Court has helped make peace. It is just why they didn’t arrest Kabbah. That is what I don’t understand.’ (Focus Group I)

Outreach   111 •

‘It is showing that you cannot commit crimes and get away with it. There was much burning and looting during the war which was committed with impunity. With the key players gone people cannot actually witness justice being delivered.’ (Interview 59).

Such responses were typical, highlighting that the level of knowledge regarding the Court’s mandate was high, but that there were gaps, and questions, that for many remained unanswered. Outreach’s response to these claims was that it was difficult to tell people who were no longer listening, or most importantly did not want to listen, which was a frustrating position for the Court to be in (Interview 36). Many of my conversations highlighted the need to move on and forget, with the Court acting as a barrier to this process. This disconnect between the, widely speaking, ‘cultural’ desire to move forward, pitted against the need of international law to remember the past in order to prosecute successfully, acted at times as a source of tension between justice and the wider peace process (see also Kelsall, 2005, 2006, 2010; Shaw, 2007). This also informs comments made by Outreach that ‘There will always be one person who has never listened so you will probably find this person’ when discussing these claims (Interview 57). This is most certainly always the case when undertaking this type of research, but it does not discount the fact that a large proportion of the people I interviewed did genuinely feel disconnected from the process, either by choice or lack of it, but mainly the latter. I found that people were generally interested to know more, but the perception of the Court not being for them was then compounded by a sense of indifference, and thus reinforced by the need to ‘move on’. It was also explained that the length of time to get outreach up and running meant that a lot of goodwill was lost, with people eventually becoming disinterested by the slow pace of things (Interview 60). What was apparent was that with effective monitoring and evaluation of Outreach’s work, linked directly to the wider impact of addressing impunity (i.e., the Court’s legacy), the Court may have been able to address some of these concerns a lot earlier. The time constraints and funding limitations placed on my research meant that only a relatively small section of groups and individuals could be targeted over a sustained period. However, despite this, my research identified that a greater degree of understanding of the Court’s work than was apparent (as opposed to just knowledge of its existence) might have meant the Court having greater legitimacy and relevance to people’s lives, and, therefore, Sierra Leone’s future. Lack of funding is the main reason for these shortcomings, but we might also refer back to the small number of individuals employed to undertake this enormous task and these criticisms are then placed in context (Interview 36). Outreach did accept that there was a need to devise a constant monitoring programme, but, as this was stated during interviews when there were only approximately two more years to run the programmes, this acknowledgment perhaps came too late. The SCIF was believed to be a form of monitoring and evaluation, whereby civil society organisations working with the Court met

112   Outreach and legacy regularly to discuss various issues and concerns surrounding the Court’s outreach. It was also a chance for the Court to inform external organisations about developments and progress within the Court, so these organisations could then inform their constituents. This forum was established in 2003, with the Court stating that ‘all feedback was good’ (Interview 57), although this stood in contrast to the apparent unwillingness to allow external review of its work during fieldwork.59 My discussions with both civil society and Court staff indicated a difference in opinion as to the attendance levels at these meetings, with some mentioning that attendance at these meetings had reduced over time and others stating they were full to bursting as late as 2007/08. The most commonly cited reason for the reduced attention by organisations was the lack of two-­way communication with civil society and the apparent disinterest from Outreach in taking forward their recommendations (Interviews 39, 43, 61).60 The Court’s response to these claims referred to the lack of finances to undertake more work. It was unable to take forward many of their recommendations, as it did not have the funds, staff or resources to commit to additional work (Interviews 36, 37). This message appears to have been a consistent one from the Court, particularly in the later stages, yet does not seem to have been accepted widely externally to it. This conflicting perception underpinned many relations between the Court and external organisations. It is a notable concern for future tribunals, particularly if funding for outreach is reduced. The limitations of the Court left it wide open to criticism when the realities of its funding arrangements were fully realised (or not), as is demonstrated here. It was also claimed that many in civil society were critical of Outreach for personal reasons. Resentment of the Court’s relative stability, in comparison to the precarious nature of working in civil society, heavily reliant on donor funding and where donor funding prerogatives appear to change every few years, was cited as the reason for this (Interviews 57, 34). I asked members of civil society if they would be willing to work with the Court, and the majority answered with a resounding ‘yes’, but that other respected members of the community should also be involved: ‘Yes, we should be empowered to do it. Reverends, Imams, Pastors – people listen to these people so they should help with Outreach. These are the most respected people in their communities’ (Interview 38). Interviews with Outreach demonstrated that they had engaged with Paramount Chiefs, inviting all the chiefs to attend the Court to understand what it was trying to achieve. This might be part of the earlier criticism that the Court was targeting the elite, but also highlights the engagement the Court was building with influential figures in Sierra Leone.61 It was not possible to verify how many organisations the Court worked with, as discussions between the Court and organisations in the districts indicated varying degrees of participation; however, many interviewees mentioned that the only groups who worked with the SCIF were those hoping to obtain funding from the Court, claiming that there was a financial incentive for them to do so. It was not possible to verify this, and is therefore unclear if this is actually the case. Although it would appear unlikely and is more down to perception, given the

Outreach   113 comments from a prominent figure in civil society from February 2006 who stated that many organisations ‘Struggle for survival. All civil society organisations have to follow donor funding therefore involved in programmes that international community want to support’. However, it should also be noted here that it was acknowledged that: It is part of civil societies work to champion the screenings and make sure people are aware of them and watch them. They have helped a lot. Although many people do not fully support the Outreach strategy and activities many civil society organisations have been helping as they believe in the bigger picture of what the Court is trying to do. (Interview 10) This highlights the often contradictory nature of many organisations’ approach to the Court (Interview 39). This was in contrast to the former Registrar’s approach to the SCIF and civil society more generally: The Special Court has a good relationship with civil society, meeting every month, 28 coalitions. SCIF means anyone with a vested interest in the Special Court has a chance for interaction and feedback. What are the expectations – what can the Special Court do for the people of Sierra Leone? The Outreach conference [Victims Commemoration Conference] – was about understanding how processes and institutions are working, not just knowing about them. (Interview 6) My interviews in the provinces assessing the type of networking taking place between the Court and civil society groups also highlighted a lack of funds as a reason why they no longer worked with the Court. Other reasons cited for disinterest in working with the Court related to claims that many organisations did not support the work of the Court, as it had followed its own agenda rather than working with Sierra Leoneans (Interview 43, Focus Group K). This was a difficult position for the Court to find itself in, with its limited mandate and jurisdiction narrowing exactly what it could do in Sierra Leone. My research points towards high expectations as to the transformative nature of the Court in the beginning, with a slow realisation that the Court would be unable to meet these expectations as the Court progressed, thus feeding into negative perceptions of the Court more generally, and, in many instances, a lack of willingness to continue working with the Court. This again was not the fault of the Court, or of Outreach per se, but does reinforce the message that clear, consistent outreach was a necessity from the start, and may have prevented this. This is a lesson other international judicial outreach efforts could take forward – although, as the IWPR reports highlight, this had not happened with the ICC.62 Complaints from civil society in the Central African Republic and the Democratic Republic of Congo that many people in these countries, particularly in remote regions, had

114   Outreach and legacy no knowledge of what was happening with the investigations and trials for those indicted were made to investigators for the Institute for War and Peace Reporting in July 2009. This is similar to my research findings, thus questioning the claims for success without investigation. The IWPR report states, ‘. . . the outreach team at the Special Court for Sierra Leone worked with NGOs, which knew how to reach people and overcome cultural and language barriers’, and ‘There are certain messages that have to come from the court, but civil society played a crucial role in getting the message out’. This was accurate at the start of proceedings, but, as time went by, this level of interaction appears to have diminished. However, were these failings due to the lack of implementing an outreach programme from the beginning, or to a lack of clear outreach strategy? Or is it simply that the processes and principles are difficult to convey, and inherently political, and therefore divisive? Marieke Weirda, from the International Centre for Transitional Justice (ICTJ), claims that the SCSL had two sets of expectations to fulfil: those of the the affected population, and those of the international policymakers who helped to create it and view it as a potential model to replicate elsewhere (Weirda, 2006). Weirda highlighted the difficulty in balancing demands for expeditious justice from the international community with the necessity of maintaining the support of the local population by satisfying their own demands for justice. This was a difficult challenge for the Court, operating in a country devastated by war, whose institutions and state infrastructure did not function satisfactorily, and where ‘the SCSL has to some extent, become a lightning rod for expectations from the international community’. This was very apparent during my discussions with people who would highlight their lack of access to resources in relation to what they perceived the Court would help Sierra Leone with: ‘feeding is more important than justice. This was the average person on the streets view’ (Interview 63). It was a frustration that Outreach consistently had to address these issues during its activities. As Weirda (2006) highlights regarding the limitations of outreach: ‘while effective and targeted outreach by the SCSL has assisted in managing some of these expectations, others are difficult to manage by means of information alone’. This was raised during informal discussions about the Court with individual Sierra Leoneans, who viewed the building with cynicism, as a reflection of the international community’s response to international justice in Sierra Leone, and the lack of infrastructural improvements that took place in Sierra Leone itself as time progressed. One person opined: Why do we need it? All know that they are guilty. Justice served long before. Only good thing brought is a nice building and some training. Apart from this very little. See SCSL staff in Paddy’s [popular nightclub and bar in Freetown] on Saturday nights. Should bring justice the Arab way [demonstrates by chopping at his left hand with his right meaning an eye-­for-an eye]. Do not believe in killing. Asked me how long continue – after the elections? This is Africa . . .!’63

Outreach   115 Weirda highlights the following as an example: For instance, the Special Court has received numerous informal requests to explore some kind of reparations or to concretely assist the situation in particular villages by rebuilding schools roads or clinics. For observers who have watched the construction of the SCSL from the ground up on a deserted plot of land in the middle of Freetown, within a matter of months, the Special Court has become a tangible symbol for what the international community is able to do when the will is there. In the meantime so much remains to be done in terms of reconstruction in Sierra Leone. Ironically, the Special Court may serve as a reminder of the inactivity of government and the international community in this regard. (Weirda, 2006) This perception was very apparent during interviews, particularly in the later stages of fieldwork. Early research highlighted that many of these frustrations were evident, but were not framed in the general hostility or indifference towards the Court that later became clear during fieldwork.64 For example, a member of a human rights organisation in Freetown commented that there was an ‘Overwhelming international capacity of Special Court – meant to be 50/50 but driven by international community, not much Sierra Leonean input. Government wants independence so not operating or influencing’ (Interview 1). Such comments show the inaccuracy of information regarding the Court. The Court was not meant to be split ‘50/50’, but was a hybrid Court that would include international and national staff; a definite quota was not established. It is difficult to discern how much of the inaccurate information had been disseminated (not necessarily by the Court), or whether many of these inaccuracies were formed as part of a critical narrative about the Court that over time came to be seen as truth – a point for posterity, but an important one for conveying the importance of sustained and supported outreach if such factual errors are to be corrected. As time moved on and Sierra Leone stagnated, despite the continued presence of international organisations in the country, the Court came to symbolise the lack of development or, more accurately, served to define the difference between Sierra Leone and the international community with regard to notions of justice. My research findings reinforced this position: that the Court signified the division between Sierra Leone and the international community – hence the view of ‘white man’s justice’ that emerged consistently in relation to the justice dispensed by the Court, in later fieldwork visits. This is discussed in detail in Chapter 6, but was an insight into first, the challenge for Outreach in Sierra Leone, and second, the legacy of international justice for the country. The intent of my research is not to discount or criticise the work undertaken by Outreach in its attempts to inform Sierra Leoneans about the Court. What perhaps is more open to criticism, as discussed above, is the lack of interest in funding for such activities by the international community, leaving the Outreach section in the precarious position of not knowing whether it had the money to

116   Outreach and legacy finance its staff and initiatives. This was in direct contradiction to the Court’s wider goal of leaving a sustainable legacy for Sierra Leone, and, if anything, highlights the dichotomous relationship between the national desire to inform and transform, and the international concentration on minimal funding: cheap justice yet maximum impact.

Significance of Outreach to the Court’s legacy The Outreach section believed that its activities were a key part of the Special Court’s legacy planning.65Although the Court’s legacy is discussed in detail in Chapter 6, a brief discussion on the relationship between Outreach and legacy is important here due to the direct correlation of Outreach activities with the legacy process, and how this was received and remembered by Sierra Leone. The main question stemming from the debate so far is how much any of these factors matter with regard to the work of the Court in delivering justice: is basic knowledge of the SCSL satisfactory compared to widespread understanding of the process, and what does this mean, if anything, for the legacy of the Court for Sierra Leone? Perhaps most important is the question of defining what legacy is. The idea of legacy, from the perspective of understanding how it has been communicated and received – with regard to Outreach – can be looked at in three ways: weak, moderate and strong (Frutig, 2004–05). Taken as a relatively weak concept of legacy, evidence of general knowledge about the Court was a significant accomplishment for Outreach. People were aware of the Court, and, even with the difficulties it faced, the Court had been able to engage with some key sectors throughout the country. All this points to potential long-­term residual effects and awareness of international humanitarian law, such as fair trial process, presumption of innocence, protection of witnesses, etc., all of which would hopefully trickle down and eventually make an impact at the domestic level, even if no specific attempts were made to undertake substantive, transformative work in the legal sector. The Court had managed to operate within its own restricted mandate and conduct successful war crimes prosecutions. Its job was almost complete, at least in Sierra Leone; therefore, the issue of its legacy was based on the Court’s contribution to international jurisprudence, such as the successful prosecution for the recruitment and use of child soldiers in armed conflict, rather than what the legacy would be for Sierra Leone. More moderate considerations of legacy might point to the weakness in the legacy, as it had not been able to overhaul the national judiciary; although this was not part of its mandate, people’s expectations were that the Court would help with this. Instead, discussions highlighted by Outreach moved to consider the future of the site, the transfer of the Witness, Victim Support unit (WVS) and the moving and storing of the Court’s documentation to the national sector, which superseded any negative critiques regarding the inadequacy of the Court’s more substantive legacy. Although these were not intentional crossover projects, their success had helped to identify what may be applicable to Sierra Leone once the Court ceased operations. This was particularly important for the Witness,

Outreach   117 Victim Support Unit, as no similar national programme existed. This was, therefore, a significant legacy for the Court to leave. The Court buildings were also state of the art and offered many potential uses, not only for Sierra Leone but for the region generally; however, the cost for the fuel bill alone made this a prohibitively expensive option. Considerable hostility was generated during my interview discussions when discussing the building as the Court’s legacy. Although the building was, without doubt, the physical legacy of the Court, the lack of strong relations between the Court and Sierra Leone had generated a perception that to leave as its legacy a building that few could relate to during its lifespan, while the national legal system remained massively inefficient, was insulting (Interview 39). This fed directly into the desire for stronger perceptions and demands for legacy, which seemed to be the most pervasive, and of greater significance, for addressing accountability. It should be noted here, although this is discussed in greater detail in the Chapter 6, that the clear desire for a stronger ‘legacy’ from Sierra Leoneans as compared to an international desire to undertake this was noticeable in its disconnect, and is an important consideration for international trials. Put crudely, although the international community demanded speedy and efficient justice, the desire nationally certainly centred on the idea of ‘more bang for your buck’ in terms of delivering justice. Therefore, importantly, did the international community misinterpret the need for justice in Sierra Leone? This has wider implications when considering the peace–justice nexus. A question for posterity, but a crucial one nonetheless. Leading from this, a stronger concept of legacy would demand that the Court should have facilitated more than a widespread knowledge of the Court via its Outreach section. With the lack of widespread understanding of the Court’s operations and developments, many considered this to be disappointing, a missed opportunity, and, most importantly, damaging to the Court’s legacy. Many interviewees felt that grassroots outreach had been the most unsuccessful aspect of Outreach’s work, thus enhancing a perception that the levels of money spent on the Court were unnecessary. Interviewees stated that: ‘those against think it is a waste of money and time. People have not received anything. The trials have not ended so we still do not know anything’ (Interview 41). ‘Post-­conflict tool but stretching on for too long. Sierra Leone does not want to waste too much time. Need end date so can get on with development issues so long as Sierra Leone constantly thinking about transitional justice issues’ (Interview 1).66 Such claims reinforce the cultural aspect in looking forward that is at odds with the focus of international justice. Criticism is perhaps most vocal from Sierra Leonean civil society on this matter, many of whom claim not to have been included in the discussions on legacy, despite the Court’s claims to the contrary (Interview 65). The National Victims Commemoration Conference held in 2005 discussed the issue of the Court’s legacy, and a Legacy officer was appointed in 2007, with legacy receiving greater attention as the Court reached its completion date. However, there has been a lack of clarity on the part of the Court about what it means by legacy, although there has been plenty of discussion both inside and outside the Court about what it should mean.67 This was particularly evident

118   Outreach and legacy from discussions with individuals and groups in the provinces. District outreach operations acted as the conduit for this dialogue, but many district organisations did not see Outreach officers as being strong members of the community, or as people with whom they engaged regularly (Interviews 74, 38). As discussed earlier, the Court identified evaluation and monitoring of its work as a problem, particularly a funding problem, but these gaps in its own knowledge and awareness in the communities where it worked presented possible setbacks for its legacy. Stronger concepts of legacy were the most evident during discussions throughout Sierra Leone, and involved the desire for the Court to do more than it could to help develop Sierra Leone and ensure justice for the crimes committed during the conflict. This message came through clearly during my research, and has been consistently relayed to Outreach, according to the civil society organisations I held discussions with. However, communication appeared to have been one-­way. The fact that the Court’s mandate, or funding structure, did not permit this level of involvement in the national system also appeared to have been communicated inadequately, or individuals had chosen not to listen to the limitations, thus feeding into the poor levels of understanding. Discussions with Court staff on the inclusivity of the legacy process were met with strong defiance that the legacy process was indeed, and had been, two-­way. Civil society had been engaged, but funding had been the biggest problem in taking forward many of the activities. It had been difficult to obtain money for many of the initiatives.68 This raised questions as to whether or not people were aware of what was currently happening at the Court, particularly with regard to funding. A discussion with a long-­standing civil society organisation revealed that people were aware of the Court, ‘as it is where Hinga Norman was taken’ (Interview 38). But it is debatable whether this was a positive legacy or not; on the one hand it showed awareness of the Court and its work; on the other, it indicated certain hostility towards the controversial indictments. Outreach stated that the issue of Hinga Norman had been the most challenging part of its work, and that some people would never listen to the reasons why he was indicted and reasons why he died (Interview 36). This was a testing role for the Court, and stressed the overwhelmingly political nature of international tribunals. It also highlights the difficulties posed in communicating this to a national audience, who, rightly, demand to know the reasons why these things happen, and what bearing it has on the rest of proceedings. For the Court, whose position as an accountability mechanism was questioned by those who saw the indictments already as inherently political, the death of such a well-­regarded senior figure was always going to leave a separate, questionable, legacy. These also raised questions as to whether the legacy, with regard to remembering the Court, had already been decided from outside of the Court, and, if so, what challenges this posed to the Court’s desire to leave a more substantive legacy of ending impunity. When discussing questions of legacy and outreach during fieldwork, I found that the lack of funding and, importantly, mandate were cited as a reason why the Court had been unable to undertake more substantive legacy work at a national level; however, many saw the lack of funding as unacceptable

Outreach   119 excuse, despite not fully grasping the reality of the Court’s limited jurisdiction and mandate. People’s general perception of the SCSL was that it had money. They were unaware of what was happening inside, and of the bureaucracy of international donor funding requirements. The external view was of a state-­of-the-­art, heavily fortified compound with vast numbers of UN and international staff vehicles driving to and fro. A senior Court official underscored the necessity of Outreach for the Court in this regard: ‘But even though we are in the middle of Freetown, we are an isolated compound and that anyone is free to come and watch the trials, you have to make this known’ (Interview 42). There was a restaurant inside, and healthcare and education provided for the indictees,70 each of whom had their own cell – which was larger, in most instances, than the small tin constructs that a lot of families live in surrounding the Court. The international staff members working inside the Court were often cited as eating and drinking in the local restaurants, hotels and bars, so were therefore clearly well paid, as many Sierra Leoneans could not afford to eat in such places. The perception generally from many of the poorer sections of Freetown was that there was money in the Court, especially when compared with the relative poverty surrounding it. In interviews with members of a conflict resolution organisation, they were very vocal in their criticism about the money spent on the Court: 69

It really is simple for people here with regard to the money spent on the Court. That is all people think of when they see the Court and staff, people driving round in their big air conditioned cars. This goes the same for most NGOs in Sierra Leone. People see international people driving round in big 4 × 4s with [name deleted for sensitivity reasons], for example, emblazoned on the side while sitting on the side of the road with their children thinking why haven’t they saved my child? (Interview 43) For me it highlighted the difficulty in communicating clear, consistent and relevant messages to a largely illiterate, very poor society where money is a real issue. Very few people have it with many in desperate need to of it.

(Interview 43)

Although the Outreach section had suffered from difficulty in obtaining adequate funding, it had greater access to finances than many national organisations, as well as having access to resources inside of the Court – a reliable electricity source being an important one. Lack of funding was consequently perceived as a poor excuse for not conducting greater work on legacy. For others, the lack of funding for legacy seemed to come as a surprise, as they were unaware that there was a lack of funds generally, indicating that certain groups had long since been disconnected with the Court process (Interview 61). The issue of legacy for the Court was a controversial aspect of its work, and what the legacy should be remained largely undefined, as is discussed in Chapter

120   Outreach and legacy 6. Outreach had been at the forefront of the Court’s work, helping to communicate its principles and process to Sierra Leone, feeding directly into how people would remember the Court and understand its wider message of contributing to the rule of law. It is unclear how this impacted upon the legacy work of the Court, but it was clear that the issue remained divisive. Informing people about tackling impunity was often cited by the majority of organisations as Outreach’s contribution to the Court’s legacy, despite the challenges in informing everyone about the complexities of the Court process. The former Deputy Prosecutor stated: You can’t aim to achieve an understanding where everybody understands the complexities of the trials – a lot of people in any country wouldn’t understand a lot of this, not everyone is a lawyer. But we can explain the idea of a fair trial. How much do people need to know? They need to know the purpose of prosecuting war crimes – to deter people to ensure that these crimes are not taking place in the future. (Interview 42) Knowledge that the Court had helped to show that ‘you could not commit crimes and get away with it’ indicated that the issue of impunity was largely understood throughout Sierra Leone. However, this stood in direct contrast to similar observations highlighting the consternation that many lower-­level perpetrators had indeed ‘gotten away with their crimes scot-­free’.

Conclusion Was Outreach the ‘jewel in the crown’ for the Court? The Outreach section had made bold attempts to reach out and inform Sierra Leoneans about the Court. They had undertaken a monumental feat in the face of increasing frustrations, namely poor financing and external support, and logistical difficulties travelling around Sierra Leone. The Court had attempted to start a dialogue with Sierra Leone about what the Court’s legacy was, thus contributing directly to Sierra Leone’s post-­conflict development. But, owing to various financial and personnel constraints, this debate appeared to have stopped, and there were two conversations on legacy taking place in Sierra Leone: one inside the Court as it drew to a close, and another outside, with civil society needing to see a greater return from the Court than the indictment of thirteen individuals and a building. My research found that a lack of inclusion, or perception of lack of inclusion, had generated significant disinterest regarding the Court and issues surrounding it. Nearly all interviewees expressed a desire for greater information about the Court, which indicated a desire to buy-­in to the process, but they did not know how to do this, indicating little crossover between the Court and national organisations and individuals. This should have been addressed by a consistent Outreach programme and greater interaction between the Court and Sierra Leone from the outset, but, as was apparent, the disjointed nature of communication

Outreach   121 had contributed to an incoherent message being conveyed more generally. Despite this, Outreach had contributed a great deal in ensuring dialogue on justice, and the rule of law had remained prevalent during proceedings. Perhaps the Court and Outreach’s greatest achievement was made at the very start, bringing the message to Sierra Leoneans that they were part of a common humanity, part of an international system of justice, which was mentioned during discussions with a long-­standing member of civil society in 2006 (Interview 10). However, as noted earlier, it is a shame that this message did not appear to have been communicated more widely to counter the perception that the Court delivered ‘white man’s justice’, which served to undermine this observation.

6 Legacy

Introduction The former President of the Special Court stated that ‘The SCSL has always recognised, not only the critical importance of leaving a legacy for the people of Sierra Leone but also the unprecedented opportunity to contribute to the restoration of the rule of law’.1 Despite these notable claims, there has been a lack of clarity on the part of the Court about what it means by legacy, although there has been plenty of discussion both inside and outside the Court about what it should mean.2 Funding constraints appear to have been the decisive factor in determining exactly what the legacy would be. In a post-­conflict country, like Sierra Leone, identifying capacity-­building projects is relatively easy compared to finding the funds to implement them. As late as 2010, UN Security Council reports stated that the purpose of establishment (of the SCSL) also included the strengthening of the national judicial system (UN Security Council Report, 2010). Such statements were ambitious, and did not correspond with the lack of funding made available for residual tasks like legacy. It is too early to determine the posthumous impact of the Court, but it is possible to consider the legacy discussions and initiatives undertaken both inside and outside of the Court. These discussions broadly fall into the following thematic areas: proleptic justice (Kamari and Goodale, 2010), therapeutic justice, and capacity building.3 The first addresses impunity and the deterrent nature of international justice; the second looks at aspects of reconciliation and healing, which is arguably what the SCSL had the least focus on with regard to its prosecutorial agenda; and the third focuses on the technical details of knowledge transfer, capacity building and institution strengthening in the national legal sector. This latter category encompasses the practical, from establishing good record-­keeping and judgement writing, and what to do with the court infrastructure, to the more elevated, including strengthening awareness of judicial procedures such as due process, the rights of the accused, human rights law, etc. Analysing the discourse on legacy, it is possible to discern a common narrative framed around confusion regarding what legacy means, and conflict – between the Court and civil society, and between the Court and the international donor community – all of which was underpinned by a lack of resources for legacy work. This chapter examines the

Legacy   123 legacy efforts undertaken by the Court. It begins by examining the discussions surrounding legacy with both Court staff and Sierra Leoneans, including civil society, and then it looks at Court literature, outlining its legacy aims and initiatives. It asks what the legacy of the Special Court is, and what this means for Sierra Leone.

Discussing legacy Legacy as a concern for international justice has largely been a secondary consideration for many who view the basis for war crimes tribunals as solely for prosecuting war criminals; any residual effects are to be applauded, but are not a core concern of the tribunal itself. The lack of funding for legacy programmes, discussed further below, appears to support this analysis. More modest claims for international justice place the physical existence of the Court and its buildings, the public awareness brought by its presence, training of local administrative and judicial staff, and dialogue on rule of law and human rights engendered by its proceedings as its legacy (ICTJ, 2003). However, stronger demands for the Court and its legacy are concerned with capacity building, rule of law reform and, more broadly, greater involvement with post-­conflict development activities. National expectations for legacy in Sierra Leone appear to have placed the issue of legacy in the latter category – the Court as a cure for many of Sierra Leone’s ills – while international concern for the Court’s legacy appears to be much weaker, with few funds pledged for this work. An example of this surrounds the trial of Charles Taylor, with Court staff stating that no donors were interested in funding legacy until Taylor was arrested. After his arrest direct funding was received, albeit for projects directed towards outreach on the trial from The Hague to Sierra Leone and Liberia (Interview 66). Inside the Court, perceptions of legacy appeared largely to be more narrow and pragmatic. Many staff were involved in the visitations to the Court by schoolchildren and other groups, as well as contributing to various Outreach events, but few staff had committed to working outside of the Court.4 Some individuals had undertaken pro bono work, mainly working in the central prison at Pademba Road, but no central programme engaging or supporting staff to work outside their mandates appeared to exist.5 Despite these claims a Legacy Working Group was established in 2005 by the former Registrar, Robin Vincent, whose main objective was to identify and implement a range of projects that would contribute to the Special Court’s lasting legacy. Potential legacy areas for the Court ranged from identifying possible uses for the site, to rule of law and justice sector capacity-­building projects. The transfer of the Witness Victim Support section into the national system had long been envisaged as an achievable goal, as had been the archiving of the Court library and documents. According to Court literature, funding had been found for the initial phase of training national staff involved in the archiving work, but not completely for WVS.6 The plans to convert the site into a functioning human rights court for West Africa, an African Office for the International

124   Outreach and legacy Criminal Court, or offices for the government of Sierra Leone had also been broadly discussed.7 Contrary to this, residents of the New England area, where the Court was based, suggested turning the site into a disco or handing it back to the community who had been removed to make way for the Court’s establishment (Interview 72). This was just one contentious issue surrounding the Court’s legacy domestically. This perception appeared mainly to have been informed by the belief that the Court was a wealthy institution – which, from the outside it was – but, as has been demonstrated through its constant requests for donor funding, it was not. Balancing national expectations for transformation while operating with a restricted mandate and funding highlighted the persistent tensions between international and national demands for the Court’s legacy. This was recognised by staff in the Court, who stated: ‘The completion strategy is directly in the middle of the international communities and Sierra Leone’s civil society expectations, two poles between which the Special Court works’ (Interview 7). Interviews with staff working on legacy at the Court highlighted that balancing these competing demands was made increasingly difficult by the shortage of funds available for undertaking legacy projects.8 Similarly, Sierra Leonean civil society activists stated, ‘There is a tension between the national and international – whose justice?’ (Interview 11). Another discussion highlighted the belief tha, ‘The issue of legacy should be looked at from a Sierra Leonean perspective and not what the Court decides for Sierra Leone’ (Interview 39). These comments underscore the tensions involved in determining what the legacy of the Court should and would be, with the latter comment demonstrating the demand that the Court give more to Sierra Leone than it was able or designed to do. The issue of legacy may have been less contentious if the Court had not declared from the outset its desire to leave a lasting legacy for Sierra Leone and contribute to peace. Reaffirming the role of the Court in Sierra Leone’s peace building, Presiding Judge Doherty, at the opening of the second trial chamber, stated ‘the mission of this Court and the process we are about to continue today is to contribute to the peace and reconciliation within Sierra Leone’ (Trial Chamber II (AFRC Trial), 7 March 2005). The rhetoric speaks more to the theme of ‘therapeutic legalism’ than the prosecutorial focus of its mandate, as well as a grander ambition than it had the capacity to fulfil. My research findings point to the perception that many believed the SCSL would help rebuild the judiciary, or play a key role in developing this fledging sector.9 The lack of clearly articulated debate and discussion surrounding this appears to have reinforced assumptions that the Court would make more substantial contributions to the domestic judiciary. The fact that it engaged with capacity building internally (through employing Sierra Leoneans in each of the Court’s sections), rather than overt transformation, was missed by many during my discussions. Or, as was also the case, many who knew that this took place still did not regard it as involvement enough in contributing to rule of law and justice sector reform. The Court was also criticised for embarking on lengthy consultations and dialogue,

Legacy   125 focusing on planning legacy, rather than getting on with and instituting the projects (Interviews 39, 61). One Sierra Leonean legal official lamented: but that instead the consultative process within the court is starting again. I consider this a big disappointment and a sad waste of precious time. People within the court seem so concerned with the relationship with the national actors and protocol surrounding, that it prevents them taking any action at all, without perhaps realising that lack of action is itself seriously harming the relationship and more importantly the impact that the court could be having on national rule of law reform. (Interview 69) Neither mandate for the ICTY nor that for the ICTR made provisions for national reform, so in this respect the SCSL can be seen as innovative in its attempt to broaden its influence. However, the inclusion of legacy as a core commitment, not a core activity, of the Court meant legacy had to be a secondary consideration for the Court. This ‘afterthought’ is instructive with regard to the role legacy has in the international judicial process (see also Mahoney, 2010). From 2005, discussions on legacy progressed significantly, with it becoming a much discussed aspect of the Court’s work as it finalised its completion strategy (Interview 69; see also Cassesse, 2006). However, discussions with civil society staff in Sierra Leone indicated that an external working group was established in October 2007, which was different from the internal legacy group. This appeared to have caused confusion and tension with the Court, as it was not involved in these discussions. An interview with a senior Court official stated: ‘There is a great deal of controversy about who controls the Special Court legacy . . . an abstract concept, [which is] to the detriment of actual action’ (Interview 69). This perception was apparent through the many discussions and consultations on the issue of legacy, and underscores the confusion and conflict surrounding it. Despite the Court’s efforts to engage with Sierra Leone on the issue of legacy,10 debate in civil society circles demanded that the legacy process be Sierra Leonean driven, as underscored by the previous statements. My interviews revealed that some individuals believed Sierra Leoneans should be informing the Court, rather than the Court telling Sierra Leone what the legacy would be (Interviews 17, 39). These separate discussions appear to have hindered the work on legacy, rather than enabling it. There did appear to be considerable discourse on legacy outside of the Court, but this was happening at a distance, not engaging constructively with the Court, and framed around confusion and conflict. The difficulty the Court faced was that various groups claimed that they no longer worked with the Court for outreach activities, so engaging in constructive dialogue on legacy was difficult. Even those not overtly critical about the SCSL appeared to be indifferent, or else created a relationship where they openly praised the Court for good work or criticised it for making mistakes, but nothing more (Interview 39). This presented a challenge for the Court in communicating its work on legacy. A distinct division was apparent between the Court and the

126   Outreach and legacy various civil society groups that were a vital link between the Court and Sierra Leoneans, thereby making discussions on legacy a difficult, disconnected process. With notable tensions in the communication channels between the Court and Sierra Leone, it is understandable why there was a lack of understanding and confusion regarding the Court’s legacy. This was also viewed as a problem by a student at one of the universities in Freetown, who reaffirmed the importance of understanding the SCSL for Sierra Leone’s future: The knowledge and procedure of the Special Court is very, very low unless you are particularly educated on these issues or you study law. Most people are aware that there is a Court – it might be a problem if steps are not taken on this front. The purpose of the Special Court is to act as a stop to impunity – this will be defeated if people don’t understand it. (Focus Group D) Such a lack of understanding more generally feeds directly into the work of outreach, and demonstrates that without a clear, consistent message from the Court about its role, function, and wider aims, its legacy becomes confused and tensions emerge between the expectations of its beneficiaries and the reality of the Court’s limited mandate and funding.

Legacy and security sector reform discussions: ‘proleptic justice’ Focus group discussions with members of the security sector enabled insight into the debate regarding the contribution of the Court in ending impunity. My questions were concerned with discovering their perceptions as to whether and, if so, how the Court had impacted upon the local judiciary. This helped to assess awareness of how the Court was contributing to ending impunity. The following response was given by a police officer in the east with regard to the Court’s impact on the judicial sector: ‘Yes, this has been negative – dissemination has been poor. . . . Perception is the key issue behind this problem – needs clarification [on the work of the SCSL]. Need to do more sensitisation. Legacy – will be positive pending dissemination’ (Interview 50). A discussion with a prominent civil society worker in the field of conflict prevention was particularly instructive regarding criticism towards the Court and the problems that remain at a national level: ‘Grievances at community level – small things turn into big things. Grievances have not been dealt with sufficiently. If you are going to criticise the Special Court it needs to be constructive – what else [instead of the Court]?’ (Interview 4). Many of the discussions on legacy tended to be quite hostile, or indifferent. Constructive dialogue did not seem to be occurring between the sectors that demanded it. It was difficult to identify why this was the case, but again often revolved around financial difficulties and lack of funds. Despite this, perceptions that the Court was contributing to justice in Sierra Leone were apparent in various parts of the country. The following discussion is

Legacy   127 insightful in this respect. The discussion group consisted of young males in the north of the country; some had been involved in the conflict and others were involved in the rehabilitation process of youths in the community: JML:  What will be the legacy – how will the Court be remembered in ten P1:  Sends a signal that what will happen to those who bring another

years? conflict

therefore it is a good example as this will happen to you. Before the war it was not regarded as part of the rights of people but establishment created a level of understanding/acceptance of the justice system. ES:  So it has helped the justice system? P3:  Yes, treated as human beings, right to trial and right to defence – did help. ES:  So in magistrates court people have the right to a fair trial? P1:  Yes the local system operates much better. AB:  All because of the SCSL? P1:  Yes because of training and building local capacity. Inviting Court Chairman and local magistrates for training. P4:  Example of a local case: someone arrested and put in prison knew that the police do not have the right to hold for longer than 72 hours. Therefore it proves that people are aware of their judicial rights. Through sensitisation of SCSL and youths building on knowledge and understandings. P1:  Few attend and see the way that witnesses are treated. It sends a signal to the law to show the way people should be prosecuted and treated. Attended trials and saw the Defence for the CDF and AFRC trials. Witnessed the prosecution and Defence and it was good to see the interaction and the way that people were defending themselves. P3:  Those that have been indicted will be treated fairly – a good thing. P2:  Thinking of the past and the way people of the law treat criminals was bad but now for the first time they have the chance to go to Court and see relatives and have discussions with him/her. Think SCSL responsible for that.11 P2: 

These discussions highlighted a broad concept of the Court’s legacy with regard to rule of law and impunity, firmly stating them to be part of its wider aims. Apart from the one example cited of the man being held for longer than 72 hours, the other participant’s knowledge on changes in the national judiciary were based on perception rather than factual knowledge, supporting the residual benefits the Court had by being based in Sierra Leone. Interviews with senior members of the security and judicial sector confirmed that very little training or ‘skills exchange’ had actually occurred with the Court, and discussion at the local prison underscored the dire conditions for inmates, with youths and adults mixed, and poor working conditions for the prison guards.12 Many of the latter were paid poorly, if at all, and some stated that they had been left out of the Court prison guard rotation system, which was a cause of much dismay, as it meant missing out on good pay, regular food and better working conditions (Interview 50; Focus Group G). These comments contrast with reports from the Court that it had undertaken a police and prison rotation system throughout the

128   Outreach and legacy country to ensure widespread knowledge and experience of international penal and judicial conditions.13 There is clear evidence of this within the Court, as most of the security officials were Sierra Leonean. By its very nature, however, there were limits to how many people could be included in this training, and, as highlighted, some security officials were angry at not being included in this process. This again underlines the difficulties of working in a country, like Sierra Leone, with high levels of poverty and poor investment in its infrastructure. Many public sector officials received minimal wages, if at all, in comparison with the relative stability of those working for the SCSL. The Court should be highly commended for taking small steps in what was a monumental task. This was often recognised outside of the Court by various civil society and human rights organisations. My research findings also supported the positive contribution made by the Court in its training initiatives, stating that ‘Capacity building – for Sierra Leonean lawyers, police etc., interacting with international staff is therefore helping build an environment for human rights law’ (Interview 1). Although limited, the inclusion of Sierra Leoneans in the security services of the Court can claim to have made an imprint on this national sector.

Legacy and judicial reform discussions: tensions for capacity building Working with the national judiciary was a means of facilitating knowledge transfer and undertaking capacity building. In terms of the Court’s legacy, this is perhaps one of the most significant areas for a coherent strategy to have been developed and revised accordingly. An interview with a High Court Judge revealed particular challenges for the Court in working to help build national capacity and not undermine the system. The judge answered as follows to questions about whether the Court had assisted with capacity building: Sometimes I begin to wonder if we are good enough, as these trials are not taking place in the national courts. Are we not competent enough to deal with these cases – it is just a passing thought sometimes, it is a thought. Sometimes these things come through your mind. Especially when these people are on ten times your salary and they are doing a small percentage of the work you are doing. This shouldn’t overshadow the good that the Special Court is doing. But we have been losing quite a lot of our best professionals to the Special Court – sometimes I get quite furious when these people are not in Court – that they are in the Special Court because that is where the money is, at the Special Court. (Interview 54) My research also found that there was resentment towards national staff working at the SCSL, from a financial perspective. These financial aspects also underlined the lack of domestic provision for lawyers in terms of financial assistance, meaning that there was an even greater shortage of staff operating in the

Legacy   129 national court system, as there was little money to pay them. The 2005 Human Rights Watch report Justice in Motion acknowledges all the work initially undertaken by the Court towards leaving a sustainable legacy for Sierra Leone. At the time it was ambitious, and included attempts to engage with the Sierra Leone judiciary at all levels. However, the report also recommended that the Court should seek greater cooperation than was the case between the Court and national judicial staff (HRW, 2005: 38). The Court faced numerous difficulties engaging with national judges and legal professionals, such as resistance by judges in taking advantage of the Court’s presence, mainly due to their not seeing the relevance or value of sharing experiences and cultural differences; concern that interaction with national Courts could undermine the impartiality and independence of the Court; and, importantly, the shortage of local expertise and staff,14 many of whom had retired or were overseas (HRW, 2005: 38). The report also drew attention to the fact that the Court was discouraged from approaching staff in the national judiciary for fear of ‘draining the local courts of its staff ’ (HRW, 2005: 38). Similarly, the ‘government also reportedly resisted seconding staff to the Special Court due in part to a desire to maintain control over staff ’ (HRW, 2005: 38).15 The perception that the Court was not relevant to their work was also revealed during fieldwork. Interviews with members of the judiciary in the provinces revealed that the SCSL – is hidden from vision, does not deal with ordinary offences. Not doing special thing for Sierra Leone. My view is that most people do not appreciate the Court as such. Do not deal with offences on a daily basis – offences that people have to deal with in their everyday life – robbery, etc. Therefore [we] cannot relate to it. (Interview 54) In July 2007, the Acting President of the Sierra Leone Bar Association stated categorically: it is wrong and misleading for the two gentleman [Acting Registrar and Head of Legacy SCSL] to say the Bar has been working with the Special Court to train lawyers and judges. The Bar Association has not done any business with the Special Court for the last twelve months. I do not deem it appropriate to mention the reasons for that in this address. The Association is however aware that some of its members are doing internships at the Special Court. Although the provision of internship was not our initiative and the Association has nothing to do with it, we recommend the recognition that those young men and women currently with the Court are not just bright enough to be interns, they are good enough for the jobs that have been eluding them.16 Initial concern about the appointment of an international lawyer over a national lawyer for the post of Deputy Prosecutor also caused significant hostility

130   Outreach and legacy between the Court and the Sierra Leone Bar Association. The statute required the government to ‘appoint a Sierra Leonean Deputy Prosecutor to assist the Prosecutor’.17 While the Special Court Agreement allows the government to fill judicial positions with people of any nationality, the Deputy Prosecutor position was explicitly designated as national (ICTJ, 2006: 21). The Agreement was amended quietly, however, by the government through Parliament and via communication with the Court, thus adding to hostility from the local legal community and Bar Association because it appeared that no local professionals were qualified for such a post, reinforcing the Bar’s objections. The government similarly appointed two of its five judges from international posts, rather than selecting Sierra Leoneans (ICG, 2003). These two occurrences contributed to the alienation of certain local legal professionals. Comments were also made that too much emphasis had been placed on the Court’s relations with the Bar Association as opposed to the courts themselves, as well as police and prisons; therefore, they perceived that legacy projects had been limited in their scope and audience (Interview 69). Despite this, there is a widely held perception by ordinary Sierra Leoneans that the Court was having a positive influence on certain parts of the justice sector. My research revealed the following beliefs from various interviewees regarding the ‘justice’ at the Special Court and its impact on the national judiciary: • • •

‘Sierra Leone supposed to have law and order. Special Court improving law and justice business in Sierra Leone.’ (Focus Group A) ‘Yes law good as if did something [illegal] then they would catch me.’ (Focus Group A) ‘In the areas of expertise, it has done a lot – some of the prosecution and defence lawyers are Sierra Leonean and two of the judges are Sierra Leonean. By these people working [national staff] at the Special Court, it has instilled confidence in our own judiciary – it shows that we have Sierra Leoneans that are capable of handling trials of this nature.’ (Focus Group D)

These comments thus reinforced a degree of faith in the process of reforming the national judiciary by the SCSL. Conversely, others believed the following with regard to the Special Court and its wider impact on the judiciary: • •

The structure is not a legacy, still too many internationals and not enough capacity.’ (Interview 39) ‘Rules and precedents are not applicable in the rural areas. It causes confusion about the legal structure of Sierra Leone – what is it about? Sierra Leone or not?’ (Interview 41)

When interviewees (civil society and ordinary citizens) were asked the question, do you think the local courts have learnt anything from the SCSL in terms of

Legacy   131 procedures, law, process, etc.?, several respondents claimed that ‘They have learnt but not putting into practice’. This was supported by discussions with district magistrates, who believed the Court was doing a ‘good thing’ in Freetown but it was not relevant to them in the provinces. Some had been on training workshops, but they were a minority. Many had not interacted with the Court. This did not seem to be a problem for them, as again the question of applicability was raised in relation to their work. The Court by its very nature as a temporary war crimes tribunal was independent from the national legal structure; however, its hybrid status and being based in Sierra Leone conferred expectations of involvement and interaction. The fact that the national judiciary was struggling with a lack of staff and expertise, heavy case loads, lack of money and endemic corruption meant it was in need of overhaul and expertise.18 The shortage of legal professionals in Sierra Leone meant external assistance was needed to undertake this task, and the presence of the Special Court in-­country provided an ideal opportunity to contribute to this. When asked if it was the job of the Special Court to help with national reform processes, the answer was generally ‘Yes, very much otherwise what is the point in bringing these institutions here to help?’ (Interview 39). This was a valid comment, as the enormous achievement in establishing the Special Court, the investment in training and maintenance of the Court for its lifespan, was expected by many to yield more than just contributions to international jurisprudence, as outlined in Chapter 4. It also served to highlight the competing demands placed on international justice in prosecuting war crimes and ensuring wider accountability is achieved.

Legacy literature Examining literature from the Special Court is instructive in identifying how the Court viewed its place in Sierra Leone’s peace-­building process and how it viewed its place in the country’s future: The mandate of the Special Court for Sierra Leone is not simply to try those allegedly bearing the greatest responsibility for the crimes committed during the war. In cooperation with other institutions of the Sierra Leone government and civil society, it also has a duty to teach people about the rule of law.19 The Court’s annual reports state that legacy is a commitment in which the Court is investing for Sierra Leone to ‘strengthen rule of law, human rights and accountability’.20 In the leaflet Wetin Na Di Specal Kot? (What is the Special Court?),21 the outreach section outlines the following: One day the Court will finish its job. By then if people are found guilty of the crimes alleged they will be punished. The Court hopes that in the future, leaders will be afraid to order people to commit serious crimes. This will help to create respect for human rights and respect for the rule of law. The

132   Outreach and legacy Court asks all people to join it in supporting peace and justice in Sierra Leone. (Wetin Na Di Specal Kot? 22) To the question, how can I help the work of the Special Court?, the response in the Outreach document states that: The Special Court is the people’s Court. It exists for the good of all Sierra Leoneans. There are many ways to support what the Special Court does. Learning more about it is a good way to start – by talking to students, local leaders, and other informed people about what the Special Court does. Another way to help is to cooperate if investigators or lawyers from the Special Court come to ask questions about what happened during the war. (Wetin Na Di Specal Kot? 22) Discussions with Court staff between 2005 and 2007 see a notable scaling back with regard to the extent to which the SCSL could get involved in external capacity-­building measures. Although the commitment towards leaving a ‘tangible legacy’ had not wavered, the limitations in what the Court could actually do were more apparent, as funding for the Court’s core functions were still being lobbied for.22 Discussions on the Court’s legacy for Sierra Leone centred on the poor state of the national judicial system, the serious erosion of the rule of law and lack of accountability, both of which contributed to the outbreak of war and remained possible sources of instability. One interviewee stated that ‘If these matters were not given proper attention, then the recurrence of violence remained a stark reality’ (Interview 72). Such stark observations also compare to the report of the Secretary General of the United Nations on The Rule of Law and Transitional Justice in Conflict and Post-­Conflict Societies (UN Doc. S/2004/616). This discusses the numerous benefits stemming from locating the tribunal in country: In the nationally located tribunals, international personnel work side-­by-side with their national counterparts and on-­the-job training can be provided by national lawyers, officials and staff. Such benefits, where combined with specifically tailored measures for keeping the public informed and effective techniques for capacity building, can help ensure a lasting legacy in the countries concerned.23 My research found that, not unsurprisingly, legacy discussions were more cautious in 2007 than earlier debate on the subject. The later work is more practically focused on capacity building rather than the earlier, more optimistic plans, as outlined by a report from the Berkeley War Crimes Center in 2005. These focused on projects based on the rule of law and accountability, human rights and international humanitarian law, civil society, and developing the capacity of the national legal profession. Later legacy initiatives focused on the Court’s need

Legacy   133 to communicate with Sierra Leone and the sub-­region, and with activities that directly contributed benefits to the national judicial system. Although in 2005 there was acknowledgement of the Court’s limitations regarding its mandate, available resources, and awareness of not raising expectations, interviews at this time were certainly more optimistic in scope. This corresponds with the high hopes the Court began with, and the need to make a ‘tangible and lasting contribution’. As outlined in Chapter 5, the promotion of rule of law, accountability, human rights, and increasing the role of civil society in Sierra Leone relied heavily on Outreach to distribute literature and engage with civil society. Funding again placed limitations on this work. The lack of resources to publish extensive amounts of literature also placed limits on where Outreach could disseminate these, while the high levels of illiteracy negated publishing vast amounts of publications. However, despite literacy being a barrier for many, the expectation that people would receive something tangible – such as Court literature, was considerable. An Outreach event I attended in January 2007 highlighted this. After a screening of the trials at the Court at a busy junction in the Freetown rush hour, Wetin Na di Specal Kot? (What is the Special Court?) leaflets were distributed. There were limited copies, and not everyone could have one. This created hostility between Outreach staff and the local population. Many people left disgruntled and disappointed, and the Outreach staff left shaken and aggrieved by the situation.24 This is an isolated incident, and many factors facilitated the outcome.25 However, this should not discredit the work that these and many of the Outreach officers undertook, often with limited resources and manpower, in difficult circumstances. Although this is anecdotal evidence, it highlights the problems caused by a lack of funds and raising expectations of the local population, both of which have a direct bearing of how the Court will be remembered. The lack of tangible outcomes and resources for many people I interviewed appeared to impact upon how they viewed the Court. This again is a thorny issue for the Court, as it was not designed to address many socio-­economic concerns facing the country, yet often found itself involved in these discussions. The perception of the Court as a ‘wealthy institution’ was further compounded as the acute poverty in the country remained.

Legacy: capacity-­building projects The following projects were identified by the Court at various stages as part of its legacy. The size and scope were considerable, and laudable in their attempts to move beyond the mandate of the Court. The tensions surrounding the Court’s funding informed the planning for legacy. The initiatives outlined below demonstrate a moderated focus regarding its legacy ambitions. These were often contrasted with the expectations for what the Court should be doing for Sierra Leone. As discussed in Chapter 5, radio programmes were a successful element of Outreach’s work. Despite their shortcomings, the radio broadcasts still reached a wide audience and generated debate among Sierra Leoneans on issues of justice.

134   Outreach and legacy Interviews revealed that an initiative titled Radio Justice was discussed in early thoughts on the Court’s legacy. This involved establishing a national radio station which would cover much of the trial proceedings, Court announcements and other items relevant to the Court. Consideration of all Sierra Leone’s languages would be undertaken when planning programmes. This would have been an excellent method of communicating the Court’s work and ensuring substantial access to information throughout the country.26 It was also an important aspect of both the trial and completion process, as discussions regarding the Court site, witness protection, and the detainees would need to be communicated widely. Moreover, the removal of the Taylor trial to The Hague meant wider dissemination of proceedings was essential. Radio offered this opportunity. This specific initiative was not undertaken, mainly due to lack of funds, but the Court’s regular radio programming remained, with additional funding awarded to communicate the Taylor trial back to West Africa (see www.communicatingjustice.org/en/about_cases). A collaborative project with the BBC World Service was also established, to train journalists to report on the Taylor trial from The Hague and transmit these weekly broadcasts across Liberia and Sierra Leone (Interview 66). This project is different from the Radio Justice project above, concentrating on the communication of the Charles Taylor trials from The Hague to Sierra Leone and Liberia, with possible expansion to francophone West African countries. Discussions with legacy staff revealed that money for legacy was not forthcoming until Charles Taylor was arrested (Interview 66). This is unfortunate for the Court because, although the arrest and trial of Charles Taylor was undoubtedly a coup for the Court, the SCSL was more than Charles Taylor. To have the focus solely on Taylor towards the end undermined the wider aim of addressing accountability, although it did speak volumes with regard to underscoring the issue of leaders not being immune from prosecution. The challenge for the Outreach section and for legacy had been to ensure that communication from the trial in The Hague was accessible despite its location distant from Sierra Leone, whilst maintaining the importance of the other trials. The death of prominent indictees such as Sankoh and Norman made this a particularly challenging exercise, as public interest waned considerably during the latter stages of the trials in Freetown. This had an impact on the Court’s legacy regarding the role of the Court as an accountability mechanism and ensuring that Sierra Leonean’s felt a part of this hybrid process. With little engagement, and apparent indifference, the legacy risked being underwhelmed, with attention moving elsewhere, and undermined by more pressing socio-­economic concerns, which ultimately took higher precedence for many people once the prominent indictees were no longer there. The joint project with the BBC had trained Sierra Leonean and Liberian journalists to report the trial proceedings on a regular basis. By employing journalists from both countries, the Court was working directly to build capacity in the region. In collaborating with external and well-­respected organisations, the Court could underscore the integrity of the reporting process. The fact that programmes would be aired on many radio stations throughout Liberia and Sierra Leone also

Legacy   135 demonstrated the extent to which the Court was working to contribute to the rule of law in the region (Interview 66). Programmes would be used as a platform for discussions of the trial and its implications for the region. Such training and forums were essential, as indicated by comments from civil society workers, who believed that there was also a need to ‘look at the Special Court beyond Charles Taylor – look at idea behind why it was established and not just concentrate on the Taylor issue’ (Interview 1). The ICTJ and Search for Common Ground also assisted with this initiative by training journalists in five African countries, including Sierra Leone, to become specialist transitional justice and human rights correspondents.27 This was an exciting development for capacity building in the region, and a positive legacy for rule of law and human rights in Sierra Leone. Discussions with a journalist for the BBC World Service Trust in 2007 highlighted that the project was progressing well both in its training capacity and in its relationship with the Court and other partners (Interview 67). This external assistance was vital, with the narrow mandate of the Court not permitting such reform activities. The lack of funds for peripheral activities also made the partnership with these organisations an invaluable contribution to its legacy work. Interviews with Outreach also revealed that the Court was hoping to expand its radio work to the wider sub-­region, incorporating the Mano River Union, comprising Sierra Leone, Liberia and Guinea.28 This project built on the projects with the BBC World Service Trust and Search for Common Ground, and supported the Court’s wider objective of promoting rule of law, accountability, human rights and international humanitarian law in the West African region. This project was essentially an expansion of existing outreach activities undertaken by the Court but with a wider geographical spread, to ensure that the surrounding countries had full access to information and that questions could be answered by experts. This was a necessity for Liberia, as its former President was being tried by a neighbouring country. Concerns were also expressed during my fieldwork that it was not fair for Sierra Leone to try Charles Taylor, as this would mean that he would not face justice for crimes in Liberia.29 It should be noted that the initial appearances of Taylor and the start of trial proceedings were not screened smoothly in Sierra Leone, with technical difficulties preventing Sierra Leoneans from witnessing his first appearance in Court. This led to negative press, with headlines such as ‘Sierra Leoneans denied access to Taylor trial’.30 This did not bode well for wider Outreach activities if problems were encountered at the Court, with its state-­of-the-­art facilities and expertise on hand to rectify problems if they occurred. The poor condition of the roads in Sierra Leone meant that information dissemination was slow and sometimes hampered; if dissemination was slow in the centre, then it could be even slower reaching the provinces. This would create delays in communicating information. It was therefore essential that if regional projects came to fruition, then possible challenges like these were accounted for.31 Interviews in the provinces also explored the poster campaign undertaken by the Court to promote its work in pictorial form, as literacy levels were low. It

136   Outreach and legacy was rare to see Special Court posters around the country, despite Outreach stating that ‘The poster campaign becomes the central talking point during many provincial meetings. Twenty-­two district outreach officers explaining posters and their meaning’ (Interview 6). Another interview with a judicial reform activist revealed, ‘There is a difference between dissemination and understanding. The posters are written in English so are not good for everyone [some were in Krio as well, so this is not wholly accurate]. Radio and public discussions are in Krio and Mende’ (Interview 47). The main places to see these posters were in established NGO offices, and at the main universities and colleges in Freetown. The prison in Makeni also had some displayed in the Prison Guard’s office. Although these were important places to display this material, the lack of material displayed more generally signified a different problem; we were informed that the posters were stolen for wallpapering people’s houses (Interview 38). Although this was not necessarily a negative for Outreach, as the message was being disseminated in creative ways, similar socio-­economic conditions exist in the wider region, so a poster campaign might have the same outcome. It is difficult to say how one might address this problem, as it is not the Court’s fault that poverty levels are so high; however, it could build on its previous experience and ensure that civil society, educational institutions and security services have sufficient copies to ensure they can be displayed prominently within their establishments, and that many more people have access to them. This is again contingent on funding and resources. Comments made in May 2005 by a prominent civil society organisation were that ‘academia is disengaged with transitional justice issues – main interest in Sierra Leone comes from NGO and civil society’. Having spoken to many students at the university, however, they seemed genuinely engaged with the Special Court, and discussions in the Accountability Now Clubs (see Chapter 5) demonstrated significant debate in this sector. Greater resources were needed to help embed this. It highlighted a need for the SCSL to ensure that academia continued to engage with the Court, and that its dissemination materials (and access to them) were available for further research and study inside Sierra Leone. An ongoing discussion for the Court was what to do with the SCSL site. At 11.5 acres the site occupies a large expanse of land in the centre of Freetown, and plans for what to do with the site when proceedings were complete had to be a key consideration from early on. The Court did not have the staff, or the expertise, to address possible uses for the site, instead having to lobby for funds to employ a consultant to assist with the project.32 The Court was state of the art, and would have been a useful contribution to Sierra Leone’s ailing judicial system; however, the running costs made this prohibitively expensive for the government. Staff at the Court spoke of the frustration of not being able to obtain funds for converting the site for other possible uses, such as a regional international legal body; an academic institution focusing on various aspects of international law and transitional justice; a training centre for legal practitioners, civil society members and rule of law stakeholders; or an institution or commission focusing

Legacy   137 on legal reform and good governance. Numerous funding and grant applications were submitted with little success (Interview 66). However, many Sierra Leoneans believed that ‘Structure is not a legacy’ (Interview 12), stating that they ‘Do not want to only inherit the buildings, but want a change in the system. There are still problems in the judicial system and administration of justice, i.e. children still tried in adult courts’ (Interview 20). This again underscores the tensions demanded for transitional justice, balancing humanitarian needs with greater demands for development. If the site were to be the only tangible legacy remaining, while the national judiciary continued to remain defunct, this could potentially undermine the success of the trials and the guilty judgements rendered. Despite the Court identifying and successfully prosecuting those it considered to bear the greatest responsibility, the Court site had the potential to stand as a symbol of injustice if it was not fully utilised once proceedings had been completed. The Witness Evaluation and Legacy Project was a substantive legacy for Sierra Leone’s judiciary. This was also identified early on as a project by which the Court could contribute directly to rule of law reform in Sierra Leone. The project was the first of its kind to be proposed by an international war crimes tribunal that would help to develop the capacity of the national legal profession (Interview 60). Being based in-­country placed added pressure on ensuring not only that witnesses and victims were looked after during their involvement with the Court, but also that the their quality of life and security were maintained afterwards. As mentioned by WVS staff, ‘Moving families of 25 to safe houses is a huge expense’ (Interview 3). The SCSL had faced significant calls for assistance from witnesses, as the communities and towns they came from were relatively small and news travels fast – both rumour and fact.33 The project was committed to ensuring that sufficient follow-­up occurred for all witnesses after their Court commitments had ended. The evaluation of assistance and needs fed directly into the longer-­term objective of establishing a witness protection scheme within the national judicial system as no similar procedures existed (Horn et al., 2008). The Witness Victim Support Unit employed police officers from the Sierra Leone police force as security and protection personnel (Interview 60). Their training, knowledge and expertise would significantly contribute to the capacity building of the Court. The need for continued funding and assistance for witnesses once the Court had left Sierra Leone was paramount to ensuring witness protection and safety, as well as underlining the commitment made to these individuals by the Court in return for their assistance with the trial process. The lack of any national witness protection programme presented numerous challenges in creating something from scratch. It was believed that this project would assist future tribunals in offering support and enhancing the quality of care given to witnesses, and thus was a positive legacy of the Court for Sierra Leone, as well as for international justice.34

138   Outreach and legacy

Symbolism, proleptic justice and therapeutic legalism An interview with a Sierra Leonean academic pointed out that ‘There is a lot of indirect influences and symbolism’ at the Court (Interview 55). Along with addressing impunity, the legacy of the Court is also drawn from it being a distinct symbol of justice. Interviewees stated that ‘No matter the challenges [in Sierra Leone] it will transform ideas of justice, therefore it is having a positive impact irrespective of all challenges’ (Interview 1), and ‘People are even joking about the SCSL “If you slap me I will take you to the SCSL”. This is therefore an unconscious impact; the fact that they are joking means they are aware’ (Interview 1). This is a significant, albeit indirect, aspect of the Court’s legacy. A Sierra Leonean lawyer stated: And there are a number of other targeted legacy programs, in the registry. Judges are taking more focus groups on this issue also. It is showing that you cannot commit crimes and get away with it. There was much burning and looting during the war which was committed with impunity. With the key players gone it therefore means people cannot actually witness justice being delivered. It does set a precedent for high level players. Justice is still the same but the SCSL is symbolic. (Interview 41) The symbolic value of international justice is significant. Comments such as these contrast with early statements regarding what people visibly see of the Court (e.g. full of international staff, delivering ‘white man’s justice’). If the Court can act as a deterrent and symbol of justice for post-­conflict Sierra Leone, then this will have been a significant achievement. It is difficult to quantify whether this has been achieved, and is a question for posterity. The decision by the Appeals Chamber to uphold the sentences for members of the AFRC, as discussed in Chapter 4, underlines the gravity of the crimes committed and the legal, albeit limited, response by the international community to address these crimes. However, what this debate shows so far is that there is no clear idea regarding what the Court’s legacy is, and plenty of discussion demonstrating what it should be. The inherently political nature of these trials in the compromises reached regarding its mandate and jurisdiction made the Court a limited institution. This is evident from discussions regarding outreach and legacy, and the level of confusion over this, and the tension in reaching common ground between the Court and some of its partners. The Court had engaged in capacity building and issues of impunity, albeit with varying degrees of satisfaction. It is unclear whether the Court can claim to have affected the ‘healing’ of Sierra Leone, as the divisions over its role and aims were still apparent during fieldwork. However, the Court had successfully engaged the country in discussions of ‘justice’, which will continue long after the Court completes its final verdicts and the site closes as an internationalised war crimes tribunal. Perhaps this is the most significant legacy in a country where rule of law reform is paramount for lasting peace.

Legacy   139

Conclusion These discussions on legacy bring us back to the question posed at the beginning of the book regarding who transitional justice is for. The desire for a more substantive version of the Court’s legacy was apparent during my research, and was underscored by the inadequacy of Sierra Leone’s national judiciary and need for reform in this sector. As has been shown, however, the difficulty in balancing this with international demands for fast and efficient justice often placed tensions between the Court and Sierra Leoneans. Despite the hybrid nature of the SCSL, it is unclear who the direct beneficiaries were. Substantive contributions have been made to international jurisprudence, with the prosecution of a former African head of state, successful conduct of three consecutive trials, and realisation of forced marriage and recruitment of child soldiers as crimes against humanity. Sierra Leone was able to see justice being done, but it was limited and was overshadowed by other more pressing socio-­economic concerns by the end of the trial process in Freetown. The idea of legacy is therefore inherently complex. As mentioned at the beginning of the chapter, it is too early to determine the Court’s posthumous impact, although there are signs that this might be minimal if funding is not acquired to realise its wider ambitions.

Conclusion Transitional justice, accountability and outreach

According to the TRC Report, addressing the root causes of the war was central to consolidating peace; re-­establishing faith in the judiciary remained a central part of this process (TRC Report, 2004: Vol. 2, Ch. 3, Art. 128–196). As discussed throughout this book, expectations were high that the SCSL would play an important role in this. The establishment of the Court in Sierra Leone guaranteed visibility for the country to see justice taking place, but it also highlighted the inconsistencies between the seeming wealth of international justice and the decrepit state of the national justice system. The noble aim of establishing the Court within Sierra Leone ultimately served to undermine its legitimacy as a method of instituting fair justice in many ways. This book has argued that Outreach at the SCSL faced significant challenges in reaching out and informing people about the Court, mainly as a result of funding constraints and the limitations placed on the Court’s mandate and jurisdiction at its inception. My fieldwork investigations found that despite the Court being placed in Freetown and having a dedicated Outreach section, it still struggled to reach out to Sierra Leoneans. I found that awareness levels generally were high; therefore, Outreach had been successful in increasing knowledge of the Court, or this might also have been due to the Court’s presence in-­country. Many people I spoke with had never seen an Outreach event, so findings point towards the latter. Therefore, there was a pervasive sense that justice, as dispensed by the Court, had not been carried out, and questions remained as to the extent to which the Court had fostered peace and security in post-­conflict Sierra Leone. The individuals I interviewed largely felt no connection with the Court, and, therefore, not integral to the judicial process. This raises questions with regard to the Court’s legacy in helping to end impunity and strengthen the rule of law. Problems seem to have arisen from disjointed initial Outreach efforts, which prevented it from building on the work undertaken by NPWJ. The laudable attempts by the OTP to reach out to Sierra Leone and show that ‘the rule of law was more powerful than the rule of the gun’ in the end served to magnify the sense of injustice when the limitations of the Court became apparent. The initial optimism for this ‘beacon of international justice’ turned to apathy, as many of the social and economic ills that caused the outbreak of war remained. The Court

Conclusion   141 was not in a position to address these external factors, but for many people the limited number of prosecutions announced by the Court, in comparison to its seeming wealth, served to undermine its capacity to deliver justice. The narrow mandate similarly equipped it with competing objectives: to deliver fast and efficient justice, but to leave a sustainable legacy – a significant challenge for Outreach to communicate in a country with poor infrastructure and high illiteracy levels.

The cost of the SCSL President Ernest Bai Koroma stated that ‘There is a great need for the activities of the Special Court, which is a chapter of the war, to be quickly concluded so that the nation can move on’.1 The expectations that the Court would complete its work within a three-­year timeframe were not met. The Court was expected to finish trials and appeals in 2009/10, thus meaning that the Court was operational for seven to eight years, rather than the initially stated three. Costs for the Court spiralled, with the initial total budget of US$140 exceeded, and a further $89 million required for its completion, $25 million of which was for the Taylor trial in The Hague (Savolainen, 2007: 54). In April 2009, the SCSL was in danger of bankruptcy. The system of voluntary funding was a serious hindrance for the Court, and a major weakness of this hybrid model.2 The precarious nature of voluntary contributions is a key lesson arising from the SCSL; guaranteed funding should have been established from the outset to prevent many of the problems the Court faced as it sought funds. However, despite this, the Court successfully completed three consecutive trials of senior individuals considered to bear the greatest responsibility for crimes committed during the conflict in Sierra Leone.3 To conduct trials of this magnitude in a country where the legal system had failed for decades was a monumental feat, and a significant milestone for international justice. This, in itself, can be said to have exceeded all expectations, considering the devastation wrought by the conflict.

Justice for Sierra Leone For Sierra Leone, it would seem that perceptions of justice, and indeed injustice, were variable, and often tied directly to people’s immediate economic and social situation. Mark Malloch-­Brown, former Administrator for the UN Development Programme, stated that ‘the rule of law is an indispensible platform for development because people and economies needed rules and stability if they were to function’.4 This was of vital importance to Sierra Leone, not only domestically, where people required assurance that the security and judiciary were working for them and not against them, but also for international investors to have the confidence to invest in the country once again. The SCSL did play an important role in trying to fulfil these needs, by helping to draw a line under the conflict and ‘offering hope in the phenomenon of ending impunity.’5 Malloch-­Brown also stated that for these

142   Conclusion new laws to be successful in a country emerging from conflict, depends [very much] on their legitimacy, and that in turn is based on whether the local public believe the laws [are] home-­grown or simply imported wholesale from another legal system altogether. (UN Doc. S/2004/616) This was a challenge for the Court towards the end of proceedings, when the legitimacy of the Court as a mechanism for bringing justice to Sierra Leone was called into question, particularly after the deaths of some high-­profile indictees occurred and inefficiencies in the national judiciary remained. It also highlighted the tensions for internationalised trials where on the one hand successful prosecutions for war crimes might be conducted, therefore ensuring people were held to account, but on the other, at a national level the justice system may still remain ineffective. This was the case for Sierra Leone, and questions were constantly asked about the type of ‘justice’ dispensed by the Court when the indictees lived such ‘privileged’ lives in comparison to themselves.6 In this sense, Outreach faced a formidable task in conveying the overarching message that these individuals were being held accountable at the highest level, and therefore justice was working directly to benefit Sierra Leoneans, not against them.

The importance of outreach The development of international justice, from the Second World War trials to the internationalised courts created during the 1990s and early 2000, and the creation of the permanent ICC in 2002, represented a firm commitment by the international community to end impunity for war crimes. Outreach has been identified as essential to ensuring not only that the goals of international justice are communicated, but also that they are understood to ensure that impunity for the worst crimes does not prevail, thus linking justice directly to peace. However, despite the importance of outreach in this process it has remained the poor cousin in international justice, with limited funding available for such work. Reaching out to war-­torn communities with the goals of narrow, limited justice presents significant challenges, particularly in establishing acceptance for the process. The problems faced by the SCSL underscore this, and highlight the necessity of investing in this work if the wider goals of international justice are to be achieved. My research found that the geographical proximity of the Court ensured that people were aware of it as a transitional justice process; news travelled fast in Sierra Leone, and the construction of a highly fortified, well-­supplied compound in Freetown was news in itself. In addition to this, the knowledge that it was a Court to try those responsible for the crimes committed during the war gave the Court a good basis to build on. The SCSL did recognise its limitations in mandate and jurisdiction, but my research found that it was not always successful in communicating this effectively. Similar frustrations vented about the ICC were again made about the SCSL: ‘When someone from the court comes, there

Conclusion   143 are planning sessions but no follow-­up. People then don’t want to hear about the ICC because they don’t believe anything about it anymore’ (Chapter 5, as above). As discussed in Chapter 5, I found that the small number of indictments was the biggest source of discontent regarding the Court, with many not interested in hearing anything about the Court because they believed that the indictments did not mean that impunity had been addressed. This was the biggest challenge for Outreach in breaking down these barriers. The limited knowledge and understanding highlighted during my fieldwork discussions indicates that it was not always been successful in doing this. Interviews revealed, particularly towards the latter stages of trial proceedings and in areas where outreach efforts were not sustained, that the Court was viewed as a judicial, peace-­building mechanism, albeit one that was removed from people’s understanding and need for justice.7 This did help to make the international judicial process distinct from the national judiciary, but it did not address the wider concern that many more perpetrators had evaded justice for the countless other crimes committed during the war. The perception from this is that if more people had been indicted, then discussions about the Court may have continued; but again, changing the mandate of the Court was not something that Outreach could do. Through the course of my fieldwork investigations, questions with respondents regarding the small number of indictments issued by the Court were eventually replaced by questions about the Court’s completion. Although this was perhaps indicative of the timing in relation to the ending of trial proceedings in Freetown, it also served to highlight that where people were discussing the nature of justice dispensed by the Court, they were now also considering what type of justice the Court would leave as its legacy. This helped to strengthen the idea of a legacy of the Court for Sierra Leone. However, as explored in Chapters 5 and 6, this was also a divisive subject, with many demanding more from the Court to transform Sierra Leone than was feasible for it to deliver. Again, Outreach faced an insurmountable task in this regard, particularly when funding was not received for most of the Court’s legacy projects. My fieldwork investigations also found that relations between the Court and civil society in Sierra Leone were initially good, and partnership for Outreach did exist. This helped significantly in reaching out and raising awareness of the Court across the country. This relationship, though, appeared to deteriorate as the Court ‘failed’ to deliver on expectations about what it would and would not do. Outreach was at the forefront of managing these expectations. As discussed in Chapter 5, the number of organisations with which the Court worked decreased over time, meaning that the number of partners to conduct outreach also declined. This, no doubt, had an impact on information dissemination around the country, as my fieldwork investigations highlighted, with general awareness being relatively high, but little understanding or acceptance of what the Court was trying to achieve. This appeared to be particularly acute in the east of the country. The Head of Outreach blamed a shortage of funds as the reason for this, and also lamented that this prevented a number of activities from being

144   Conclusion undertaken. However, despite having a precarious funding stream, as discussed often throughout this book, the perception held by ordinary Sierra Leoneans was of an institution abundant with international donor funds. Therefore, its support, or often lack of it, was tied directly to this. As time went on, and Sierra Leone’s development was painfully slow, with people’s low socio-­economic status not increasing, the Court became a symbol of injustice. The small number of indictments by such a large and seemingly wealthy body raised questions of necessity, when so many had evaded justice and they themselves faced significant injustice both economically and socially. The work of Outreach in communicating justice in this regard was complex, and therefore conveying the work of the Court in these circumstances was no easy feat.

Jewel in the crown: success? The Outreach section of the Court was at the centre of the Court’s successful operation in Freetown, and thus a ‘jewel’ in its own right to make this transition process accepted, but my fieldwork raises significant questions as to the actual success of this leader in the field for outreach in international justice. Was it successful in ensuring that Sierra Leoneans were integral to its process? Was it able to reach out and inform people that impunity had been tackled? These were daunting tasks for a limited tribunal with minimal means. As discussed in the Introduction, the creation of an Outreach Office within the SCSL was a significant precedent for international justice. The recognition that if the wider aim of war crimes trials to end impunity is to become a reality, then reaching out and raising awareness of this is a necessary element of international justice, shows progress in this regard. With no outreach efforts, international justice risked being an expensive undertaking with little relevance, credibility or legitimacy, as evidenced by the criticism towards the ad hoc tribunals and ICC. My research has also questioned the ability of the SCSL in being successful in this endeavour, and, notwithstanding the tremendous challenges posed in doing this, it found that Outreach at the Court was not always, perhaps, the success claimed for it. As discussed in Chapter 5, the Head of Outreach at the SCSL acknowledged that Outreach would have liked to have done more, but the resources and capacity were not available, influencing the level of work eventually undertaken. Money, it would appear, was the prohibiting factor preventing systematic outreach. Even if the will was there, the money was not – a particular reflection for the international community as opposed to the Outreach Office at the SCSL. This was difficult for people outside of the Court to understand, and meant that engagement with the process decreased as time went on. My research also found that the legacy of the Court in Sierra Leone was a divisive issue. This might have been countered had there been an outreach programme from the very start defining the limitations of the Court. Similarly, though, this might not have served to deter negative perceptions about the Court and its seemingly wealthy status. In reality, the Court was a limited international institution and only one part of the peace-­building process in Sierra Leone. The

Conclusion   145 limitations of the Court placed it at odds with the significant social, economic and political problems faced by Sierra Leone. In truth, it could never satisfy the many demands of a nation recovering not only from a violent conflict but also from years of corrupt and inefficient governance. The discussions taking place in civil society outside the corridors and chambers of the Court reflected the demands of society for transformation, but the Court was not in a position to offer this. The fact that this reality was not conveyed widely and consistently was a compound failure of, first, the international community to fund Outreach; second, the Court for not ensuring this message was relayed from the start; and third, those in civil society who did not always adopt a constructive approach to working with the Court. The challenge for the Court regarding its outreach and legacy during the latter stages of proceedings was to secure funding for the ambitious initiatives proposed (as discussed in Chapter 6). It struggled to do this, meaning that the Court’s desire for transformation was not matched by funding. It was therefore unable to move far beyond its mandate.

Conclusion The concept of legacy is abstract, and in many ways the Court has been engaged in its legacy since its inception both by provoking debate on justice through its very existence and by inclusion of Sierra Leoneans working in all sections of the Court. In this respect, the Court could be said to have contributed to the rule of law and accountability through its capacity building and trials, respectively. This is a weak concept of legacy, but a legacy of international justice nonetheless. Whether or not the accountability provided by the Court was perceived as satisfactory remains contentious, however. The length of the trials, the money spent on the Court, and the small number of indictees frequently overshadowed the judicial process. The perception that the Court was delivering ‘white man’s justice’ also indicated that the inclusivity of the Court, and of international justice, had not been realised. However, widespread knowledge of the Court demonstrated that its message had been broadly delivered, and Outreach was successful in this regard. Although this might not have satisfied the demands for a more tangible legacy, the Court certainly crossed its own boundaries by trying to reach out to Sierra Leone.

Notes

Introduction   1 The seat of the Rwanda Tribunal was later moved to Arusha, Tanzania.   2 Building a Better Tomorrow: A survey of knowledge and attitudes toward transitional justice in Sierra Leone, BBC World Service Trust and Search for Common Ground, August 2008. The study was based on a random sample of 1,700 adults across seven districts.   3 I thank Rachel Kerr for these observations and helping to clarify the starting point for these discussions.   4 See, Integrated External Strategy for Public Relations, Public Information and Outreach, International Criminal Court: www.icc-­cpi.int/NR/rdonlyres/425E80BA1EBC-4423–85C6-D4F2B93C7506/185049/ICCPIDSWBOR0307070402_IS_En.pdf   5 The United Nations Observer Mission (UNOMSIL) contributed personnel and technical equipment to the Truth and Reconciliation Commission and Human Rights Commission after the 1999 Lomé Peace Accord. In 1997, 27 NGOs formed a coalition called the National Forum for Human Rights to focus on human rights education for public and social work in both war and non-­war related areas. However, the resumption of violence, lack of proper funding, expertise and institutional support, and fear of retribution meant many were fearful of making public denouncements or taking a stand against the various forces during the particularly violent latter stages of the conflict. Human Rights Watch maintained reports about abuses during this period, and its calls for accountability (www.hrw.org/en/africa/sierra-­leone).   6 This date has proven contentious, as many wanted to see jurisdiction start at the beginning of the conflict in 1991. The Truth and Reconciliation Commission’s jurisdiction was set at 1991 causing greater confusion and discontent, discussed further in Chapter 3.   7 The Truth and Reconciliation Commission emerged from the Lomé Peace discussions, and was charged with writing an historical record of the conflict and promoting reconciliation. The TRC was not granted judicial powers, and the SCSL declared at the outset that it would not use evidence collected by the TRC.   8 My research in Sierra Leone found that despite the doctrine ‘immunity from prosecution’, relating mainly to the Heads of State or senior figures in authority, many interviewees referred to people in non-­leadership positions committing crimes with ‘impunity’, which is why it is referred to in this book as ‘exemption from punishment’ – the literal dictionary definition – as this is how it was interpreted during discussions with individuals and groups in Sierra Leone.   9 These questionnaires have been archived, and were inaccessible to external researchers during 2007–08. 10 It should be noted here that I had discussed with a colleague, Ed Sawyer, the possibility of conducting wider research to the northern and eastern regions of Sierra Leone,

Notes   147 acknowledging the limitations with regard to geographic coverage in my own research. I was unable to travel to these places due to work constraints. Along with further interviews and focus groups, this would have included conducting a few questionnaires to build on this research. This did not happen due to tragic circumstances in May 2007. The loss of a friend and colleague is deeply sad, and the inadequacy of my words here cannot do justice to the passion and enthusiasm which Ed felt for all things ‘justice’-related in Sierra Leone. His death was a great loss. I hope to address the limitations of my research regarding the geographic foci with a further study, examining the role of outreach after justice, at the completion of a tribunal, in the near future. Questions that I know Ed would have pondered, and no doubt travelled the length and breadth of the country with one pair of clean shorts, his camera and notebook to discover the answers. 11 Outreach and Public Affairs: www.sc-­sl.org/ABOUT/CourtOrganization/The Registry/OutreachandPublicAffairs/tabid/83/Default.aspx 12 I thank Tim Kelsall for these astute observations. 1  International Justice: from Nuremberg to Sierra Leone   1 The International Criminal Tribunal for the former Yugoslavia (ICTY) was established in 1993 to deal with war crimes that were committed in the Balkans during the 1990s. The International Criminal Tribunal for Rwanda (ICTR) was created in 1994 after the genocide and serious violations of international humanitarian law committed on the territory between January and December 1994. Neither tribunal is based in its geographic focus; the ICTY is based in The Hague, the Netherlands, and the ICTR is based in Arusha, Tanzania.   2 Franz von Papen, Reich Chancellor prior to Hitler, Vice Chancellor under Hitler, and Ambassador to Turkey, and Hans Fritzsche, Head of the Radio Division, one of twelve departments in Goebbel’s Propaganda Ministry. Fritzsche was later tried and convicted by a German court.   3 The ICC’s jurisdiction states ‘Commanders and superiors will also be held liable for criminal offences committed by forces under their effective command and control or effective authority and control’.   4 Although this was a complex process, with the TRC’s recommendations facing severe criticism and controversy, as it labelled many it believed should face prosecution and recommended that senior politicians who supported the civil war face a thirty-­year ban from office (see Hayner, 2007).   5 . . . genocide of the European Jewry, though it was an important reason for establishing the International Military Tribunal, did not play a predominant role in the trial. Julius Streicher, the publisher of the antisemitic ‘Der Stürmer’, was the only person convicted solely for ‘crimes against humanity’. Where the other defendants were concerned, a conviction for this particular crime was linked as far as possible to convictions for the other charges. Thus, this aspect of ‘crimes against humanity’ remained underdeveloped at Nuremberg. (Martens, 2005)   6 Milosevic used his first appearance at the ICTY to challenge the legal authority of the Court in February 2002. Saddam Hussein similarly challenged the Iraqi Tribunal in 2005.   7 As of 31 July 2009, 110 countries were States Parties to the Rome Statute of the ICC. This includes thirty African states, one of which is Sierra Leone.   8 Transitional justice is a response to systematic or widespread violations of human rights. It seeks recognition for victims and to promote possibilities for peace,

148   Notes reconciliation and democracy. Transitional justice is not a special form of justice but justice adapted to societies transforming themselves after a period of pervasive human rights abuse. (International Centre for Transitional Justice: www.ictj.org/en/index.html)   9 The ICTY was established by the Security Council in accordance with Chapter VII of the UN Charter: ‘Action with respect to threats to the peace, breaches of the peace and acts of aggression’, (www.un.org/en/documents/charter/chapter7.shtml). Similarly, the ICTR was created as the situation in Rwanda was deemed to represent a continued threat to international peace and security. See UN SCR 955 (1994). 10 This micro-­level involvement is crucial to dissipate conflicts that may arise, or grievances that emerge after conflict. Despite macro level interventions at state level for punitive and restorative justice, victims have often been ignored, thus fuelling resentment. See for example, Des Forges and Longman (2004: 49–68) for analysis of the disconnection between the ICTY and Gacaca hearings and reconciliation in Rwanda. This occurred in Sierra Leone, where both transitional justice mechanisms were unable to concentrate efforts on victims of the conflict (although the TRC did this more so than the SCSL) and programmes such as the Disarmament, Demobilisation and Reintegration Programmes (which saw ex-­combatants receive assistance and nothing for the victims) left a perception that perpetrators of the conflict received every­thing while the victims received nothing, leading to an increase in local community initiatives to try to redress this. The Bo Peace and Reconciliation Movement is an example of such an organisation. It has operated in Sierra Leone since 1997, working in local communities to dissipate conflicts and heal rifts (www.c-­r.org/our-­ work/west-­africa/west-­africa-partners.php). 11 The ICTY advocates, ‘Courts across the former Yugoslavia have and will continue to benefit from the Tribunal’s invaluable experience in dealing with war crimes’ (www. icty.org/sid/324). Similarly, the SCSL claims, ‘The international community answered that call (from Sierra Leone for international judicial assistance) because they believed that only by holding people accountable will Sierra Leone know lasting peace’ (Wetin Na Di Specal Kot? – What is the Special Court?), a publication produced by the Outreach section of the SCSL to raise awareness of the Courts procedures: 4. 12 These arguments were made during discussions on the trials at the SCSL, with individuals in Sierra Leone who did not see the indictees as bearing the greatest responsibility. They have similarly been made by the indictees themselves in the case of the RUF judgements whereby the Defence argued that the judgements were political but there were also serious flaws with the process. 13 This is anecdotal, and based on discussions with civil society activists and ordinary citizens over the course of fieldwork in Sierra Leone; the observation was made often. 14 This is noted here, as the issue of economic reparations is highly controversial in the South African context. The fact that amnesty was offered before financial assistance to victims is a highly divisive factor affecting the TRC’s success. In Sierra Leone the TRC has made significant recommendations on reparations to victims, yet this only occurred in February 2009, with the government establishing the National Commission for Social Action to help distribute funds to war victims. Amputee organisations in Sierra Leone gave considerable support to the idea of justice after the conflict, particularly as a group of people who were left with the physical reminders of the war. However, as time has progressed and few ‘tangible’ results have emerged from either process, in terms of assistance for the amputees, support has dwindled. 15 Comments made regarding the TRC process in Magburaka, Northern Sierra Leone, May 2007. 16 The ICTY has indicted 161 people and the ICTR has arrested seventy-­nine individuals (2009). 17 The Akayesu case, decided by the ICTR in 1998, was the first in which an international

Notes   149 tribunal was called upon to interpret the definition of genocide as defined in the Convention for the Prevention and Punishment of the Crime of Genocide (1948) (www. ictr.org/default.html). 18 SCSL-­03-08-PT-­101 – Norman – Decision on the Request by the TRC of Sierra Leone to Conduct a Public Hearing with the Accused – 29 October 2003 (www.sc-­sl. org/norman.html). 19 Rumours flourished that information was being passed between institutions via underground tunnels. Both TRC and SCSL staff made this comment during interviews in May 2005. This rumour was not true, but, in a society with high illiteracy where large amounts of information are communicated via word of mouth, the power of rumour could cause extensive damage to public perception towards both institutions (see Ferme, 2001; Kelsall, 2005). 20 Some TRC investigators emerged as SCSL investigators in some provinces (Interview 21). 21 The disagreement on whether to allow key SCSL indictees to testify before the TRC also served to sever what had previously been an amicable relationship (Interview 9). For a substantive discussion on the understandings of these two institutions by Sierra Leoneans, see Ehret (2007: 73–82). Although the chapter looks more generally at the role of external intervention in supporting the state in Sierra Leone, Ehret explores the hierarchy and division that has emerged between the international and national in Sierra Leone, through the intervention of international agencies, or ‘migrant sovereignties’, as termed by Mariella Pandolfi. The TRC and SCSL are two institutions within this described matrix. The discussion on TRC testimony by SCSL indictees and the granting of amnesty to former combatants at Lomé are two incidences that have drawn Sierra Leoneans into discussion on the Court and Commission. Those who are literate and have time to consider the literature may understand the justifications of the Court in only allowing the testimony under certain conditions, whereas those outside of this will not have the ability to access such information, therefore reinforcing the hierarchy between those in the system and those outside of it – the majority of whom are victims of the conflict. This hierarchy is explored further in Chapters 5 and 6, looking at how the SCSL has effectively communicated the Court’s work, dissemination of norms and values relating to the rule of law, and capacity-­ building in the judicial sector. 2  Sierra Leone: conflict and judicial intervention   1 Sierra Leone has made Great Strides in Seven Years Since War Declared Ended but Government Still Faces Daunting Challenges, Security Council Briefing SC/9592, 6080th Meeting, 9 February 2009, AFR/51/100/2007 – www.un.org/News/Press/ docs//2009/sc9592.doc.htm. The removal of the former Head of the Anti-­Corruption Commission, Valentine Collier, in 2005, underscored the prevalence of corruption throughout the country.   2 Term used by slavery abolitionists to refer to Freetown, as which it later became known (Manson and Knight, 2009).   3 The Colonial Legislative Council and Protectorate Assembly were unified in 1951.   4 Stevens became President in 1971 after a republican constitution was adopted.   5 After seeking refuge in Conakry, Guinea, Strasser moved to the UK. He started studying law at the University of Warwick, but left due to lack of funds after one year. The press discovered his whereabouts in 2000, with the publication of Amnesty’s report, leading to calls for his deportation. He was living in North London with ‘the support of his mother’.   6 There are a total of 149 chiefdoms in Sierra Leone.   7 The colonial authorities maintained rights over the mineral-­rich areas.   8 Charles Taylor was indicted by the SCSL for his alleged role in Sierra Leone’s

150   Notes c­ onflict. Within Sierra Leone, Taylor is widely considered as responsible for supporting the RUF by supplying arms in return for diamonds after his declaration that ‘Sierra Leone would taste the bitterness of war’ for allowing ECOMOG to launch an  attack against his forces in Liberia from within Sierra Leone. See also Davies (2000).   9 Despite Bangura’s lengthy critique of Richards, he does concede that his ‘insights into the historical dynamics that linked the country’s rain forest region to the world market . . . are useful reminders about the problems, which external influences have always posed to the livelihoods and physical security of rain forest communities’. 10 Independent film maker Sorius Samura’s documentary on the attack on Freetown is a graphic illustration of the abuses endured by ordinary citizens at this time (www.cryfreetown.org). Human Rights Watch also reported that ‘Rebel forces in Sierra Leone systematically murdered, mutilated, and raped civilians during their January offensive. The January l999 offensive against Freetown marked the most intensive and concentrated period of human rights violations in Sierra Leone’s eight-­year civil war (HRW 1999b). 11 Libya played a key role in recruiting and equipping the groups that emerged in West Africa with the declared aim of ‘revolution’ for the region. 12 See also Gberie (2005: 59–60): [s]ome observers like Chris Squire (Agony in Sierra Leone, Chris Squire, Freetown 1997), have seen some significance in the timing of the attacks: 23 March 1991, as we have seen, was exactly twenty years after the failed coup attempt for which Sankoh was gaoled and then expelled from the army. This is a tantalising observation – revolutionaries are nothing if not also romantic – but in the case of the RUF war this was almost certainly a tidy coincidence. When he was pointedly asked by a fawning reporter from a pro-­RUF publication about this timing and its coinciding with the twentieth anniversary of his first imprisonment, Sankoh (referring to his period of imprisonment in Freetown in 1998) gave a somewhat confusing answer: ‘I am a man of God. God chose me to lead the revolution that will save Sierra Leone . . . The number 23 has always been a sign to me. On 23rd October 1998 I was sentenced to death. On 23rd December 1998 I was moved from my prison cell . . .’ (Foday Sankoh breaks his silence, The Ninja, 22 April 1999). Confusing perhaps: but clearly Sankoh did not seem to think the timing of the 23 March 1991 attacks specifically significant. 13 Abdullah (1998: 217) states: There was no concrete programme about what was to be done once the military training was over, nor was there any debate about the programme of action to be adopted. The only available document, The Basic Document of the Revolutionary United Front of Sierra Leone (RUF-­SL): The Second Liberation of Africa, copiously quoted in the RUF propaganda booklet Footpaths to Democracy: Towards a New Sierra Leone, vol. I, was essentially a critique of the neo-­colonial regime. It was originally a PANAFU call for a popular democratic front (PDF ), involving a return to multiparty democracy, even distribution of resources, reform of education and an end to mercantilist rule of the Lebanese/comprador bourgeoisie over the economy, which was subsequently redrafted and edited by Abu Kanu and Rashid Mansaray to re-­elect the armed phase of the ‘revolution’. Parts of it were butchered to appear as Foday Sankoh’s words. But the document had nothing to do with Sankoh or the RUF; it predated the formation of the RUF, and was appropriated by the RUF-­to-be before they entered Kailahun in 1991. The document was produced in Ghana before the departure for military training in Libya. 14 Based on discussions during research in Sierra Leone, May 2005. 15 The first peace agreement signed in Abidjan, Côte d’Ivoire, 30 November 1996.

Notes   151 Although never implemented, it remained valid and viable until the Lomé Peace Agreement in 1999. 16 Lomé Peace Accord – Part Three: Other Political Issues: Article IX: Pardon and Amnesty:

17

1. In order to bring lasting peace to Sierra Leone, the Government of Sierra Leone shall take appropriate legal steps to grant Corporal Foday Sankoh absolute and free pardon. 2. After the signing of the present Agreement, the Government of Sierra Leone shall also grant absolute and free pardon and reprieve to all combatants and collaborators in respect of anything done by them in pursuit of their objectives, up to the time of the signing of the present Agreement. 3. 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, ex-­AFRC, ex-­SLA or CDF in respect of anything done by them in pursuit of their objectives as members of those organisations, since March 1991, up to the time of the signing of the present Agreement. In addition, legislative and other measures necessary to guarantee immunity to former combatants, exiles and other persons, currently outside the country for reasons related to the armed conflict shall be adopted ensuring the full exercise of their civil and political rights, with a view to their reintegration within a framework of full legality. Last fall, in a town about 60 miles northeast of the capital of Sierra Leone, I stood in a crowd of cheering members of the Revolutionary United Front and watched as their leader, Foday Sankoh, took the podium. Under Sankoh’s leadership, the RUF had conducted an exceptionally brutal offensive against government troops and civilians. But a peace accord signed by the government and rebels in July 1999 gave Sankoh and his forces a full amnesty for the crimes they’d committed in the eight-­year war . . . But on that day in October, Sankoh sat placidly on stage (in a pair of lizard-­skin shoes) with the military commander of the United Nations in Sierra Leone, and knew that the Nigerian peacekeepers scattered around the room in their camouflage uniforms would not, could not, lay a finger on him . . . Finally Sankoh took the podium, and the crowd went wild. ‘My brothers,’ he began. He reached out his hands and made a gesture of wiping, stroking each palm over the back of the other hand. ‘You have nothing.’ His meaning, to the assembled band of RUF thugs, could not have been clearer: they were getting off scot-­ free for all the atrocities they had committed. In a country where hands have extraordinary symbolism – where the signature human rights abuse of the rebel force was, in fact, the amputation of hands – Sankoh’s gesture was flabbergasting. Behind me I could hear our translator, who had narrowly escaped being murdered by the RUF in its January 1999 offensive against Freetown, gasp and whisper, ‘Oh, my God’. (HRW, 2000a: emphasis added):

18 Comments made after visiting Liberia in 2004 3  Establishment of the Special Court for Sierra Leone   1 See also UN Doc. S/2000/915. The Security Council accepted most of the inclusions, but requested various changes in relation to size, funding and jurisdiction of the Court. See UN Doc. S/2000/1234, UN Doc. S/2001/40; UN Doc. S/2001/95.   2 Statement made during a press conference in Freetown on 20 February 2003: The Registrar, Robin Vincent, also made the following remark during the same press conference: ‘What is also at stake with this Court is to prove that we can

152   Notes

  3

have an efficient court with a much smaller budget than the two other international tribunals’. ICG (2003: 3). The Extraordinary Chambers for Cambodia are located within the Cambodian judicial structure, the ECCC is a mixed or hybrid tribunal and is composed of both Cambodian and international judges, prosecutors, defence teams and administrative support through a complex dual institutional structure. It is located on the outskirts of Phnom Penh, Cambodia’s capital. The ECCC is funded by voluntary contributions from states, either to the Cambodian or UN side. (www.ictj.org/en/where/region3/642.html)

  4 Statute of the Special Court for Sierra Leone, Article 8, Concurrent Jurisdiction: (1.) The Special Court and the national courts of Sierra Leone shall have concurrent jurisdiction. (2.) The Special Court shall have primacy over the national courts of Sierra Leone. At any stage of the procedure, the Special Court may formally request a national court to defer to its competence in accordance with the present Statute and the Rules of Procedure and Evidence.   5 Charter of the United Nations: Chapter VII: Action with respect to threats to the peace, breaches of the peace, and acts of aggression. As enforcement measures under Chapter VII, the life span of each [the ICTY and ICTR] is linked to the restoration and maintenance of international peace and security in the territories of former Yugoslavia and Rwanda. Once the Security Council decides that peace and security have been re-­established, they will be dissolved. Their establishment by a Security Council resolution (as opposed to an international agreement, as in the case of all other international judicial bodies) has three further consequences. Firstly, all member States of the United Nations are bound to comply with the requests and decisions of the tribunals (which makes them the fora with the largest footing and avoids the issue of States’ consent, which cripples fora like the ICJ and the ITLOS). Secondly, unlike the Nuremberg and Tokyo tribunals, neither the ICTY nor the ICTR possess the means to bring an accused to trial of its own. However, non-­compliant or even non-­collaborative States can be referred to the UN Security Council for sanction. Thirdly, the ICTY and the ICTR are subsidiary organs of the Security Council within the terms of article 29 of the Charter. As such they are dependent on the UN in administrative and financial matters, although as judicial institutions, they are independent of any one State or group of States, including their parent body, the Security Council. (Project on International Courts and Tribunals, www.pict-­pcti.org/courts/ICTY.html)   6 The indictment was issued in 2003, and he was not arrested until 2006.   7 1926 (Cap. 31): i. Abusing a girl under 13 years of age, contrary to section 6; ii. Abusing a girl between 13 and 14 years old, contrary to section 7; iii. Abduction of a girl for immoral purposes, contrary to section 12   8 1861: i. Setting fire to dwelling – houses, any person being therein, contrary to section 2; ii. Setting fire to public buildings, contrary to sections 5 and 6; iii. Setting fire to other buildings, contrary to section 6.   9 The Lomé Peace Agreement, signed in the Togolese capital, Lomé, on July 7 1999, contained a controversial blanket amnesty (Article IX Pardon and Amnesty) granting ‘absolute and free pardon and reprieve to all combatants and collaborators in respect of anything done by them in pursuit of their objectives, up to the signing of the present agreement’ (2): To consolidate peace and promote the cause of national reconciliation, the Government of Sierra Leone shall ensure that no official or judicial action is taken against

Notes   153 any member of the RUF, ex-­AFRC, ex-­SLA or CDF in respect of anything done by them in pursuit of their objectives as members of those organisations, since March 1991, up to the time of the signing of the present Agreement. In addition, legislative and other measures necessary to guarantee immunity to former combatants, exiles and other persons, currently outside the country for reasons related to the armed conflict shall be adopted ensuring the full exercise of their civil and political rights, with a view to their reintegration within a framework of full legality. (3) 10 Antonio Cassesse recognises that there is not legislation in Sierra Leone concerning international crimes, so Courts could therefore try persons accused of offences committed during the war, which would include treason (a statutory offence), rape (both a common law and statutory offence), wounding and causing grievous bodily harm (a statutory offence), murder (a common law offence), larceny (a statutory crime), kidnapping (a common law crime), malicious damage to property (a statutory offence). There has been no release of information indicating that the Prosecutor will hand over copies of evidence to the Sierra Leone Director of Public Prosecution for lower–mid-­ level commanders (Cassesse, 2006). 11 It was particularly troubling, as was highlighted by Defence Outreach, that people lost confidence in the judiciary during the war and believed that ‘Only elite can defend themselves in Court – this has been the perception of SL justice “rich man’s justice” ’, (Interview 48). One SCSL Outreach officer was told that ‘you take money from white people (SCSL) to sell your own kith and kin’ (Interview 46). This is discussed further in Chapters 5 and 6. 12 This issue, and how the Court would be funded, caused disagreement within the UN system, leading to delays in the beginning. 13 Outreach highlighted this as a particular challenge for their work. Many people demanded greater justice from the Court, and couldn’t understand why such a large institution had such a narrow mandate. This is discussed in detail in Chapter 5. 14 This observation is taken from my fieldwork interviews, discussions and observations in Sierra Leone. 15 SCSL-­2003-04-PT Withdrawal of Indictment – Sam Bockarie 16 Foday Sankoh died on 29 July 2003. SCSL Press Release, Prosecutor Withdraws Indictments Against Sankoh and Bockarie, 5 December 2003, Freetown: ‘The withdrawal of these indictments does not mean that there will not be a record of what Sankoh and Bockarie did to the people of Sierra Leone,’ Mr Crane emphasised. ‘The whole story of the alleged crimes committed by Sankoh and Bockarie will be brought to light,’ Mr Crane said. 17 Johnny Paul Koroma, former leader of the Armed Forces Revolutionary Council, was indicted on 7 March 2003 on 17 counts of war crimes and crimes against humanity. Koroma fled Freetown in January 2003. His fate and whereabouts are unknown, and he is considered to be at large. In May 2008, the Plenary of Judges amended the Rules of Procedure and Evidence to allow a case where a person had been indicted by the Special Court to be referred for trial to another jurisdiction. Prosecutor vs. Johnny Paul Koroma (SCSL website, www.sc-­sl.org/CASES/JohnnyPaulKoroma/tabid/188/ Default.aspx). 18 SCSL-­03-01-PT, www.sc-­sl.org/LinkClick.aspx?fileticket-­lrn0bAAMvYM%3d&tabid =107. 19 By moving the Trial to The Hague, the increased distance affected people’s feelings towards the Court. Outreach had to work hard to ensure that the trial was accessible to Sierra Leoneans. This was a challenge, particularly as his first appearance in The Hague was missed due to technical faults with the Court’s equipment – something that was reported on in the local press.

154   Notes 4  Internationalised justice for Sierra Leone   1 Prosecutor v. Norman, Kallon and Gbao, SCSL-­2003–08, SCSL-­2003-07 & SCSL-­ 2003-09, Decision on the Applications for a Stay of Proceedings and Denial of Right to Appeal, 4 November 2003, para. 25. In: Guibert and Blumenstock (2007: 391).   2 Although the TRC Report (1994: Vol. 2, Ch. 1, Findings, para. 368) identified that ‘Some ECOMOG soldiers engaged in human rights violations during its defence of Freetown. These included the summary executions of suspected AFRC and RUF fighters and collaborators’, they did not fall under the Competence of the Court. Statute of the Special Court, Art 1, para. 2, reads: Any transgressions by peacekeepers and related personnel present in Sierra Leone pursuant to the Status of Mission Agreement in force between the United Nations and the Government of Sierra Leone or agreements between Sierra Leone and other Governments or regional organisations, or, in the absence of such agreement, provided that the peacekeeping operations were undertaken with the consent of the Government of Sierra Leone, shall be within the primary jurisdiction of the sending State.   3 As stated during fieldwork in May 2008, ‘there is an abundant supply of arms in West Africa’ (Interview 72).   4 SCSL-­04-15-T, Prosecutor of the Special Court v. Issa Hassan Sesay, Morris Kallon, Augustine Gbao, Trial Chamber 1, 5 July 2004 (www.sc-­sl.org).   5 The three were charged with eight counts of crimes against humanity, seven counts of war crimes, and two counts of other serious violations of international humanitarian law. Judgement Summary, 25 February 2009, SCSL Freetown (www.sc-­sl.org/LinkClick.aspx?fileticket=AoknUKBsH50%3d&tabid=53).   6 Judgement Summary, 25 February 2009, SCSL Freetown (www.sc-­sl.org/LinkClick.a spx?fileticket=AoknUKBsH50%3d&tabid=53).   7 Article 1.1 Establishment of the Special Court: Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone   8 Article 14 Judgement Summary, 25 February 2009, SCSL Freetown (www.sc-­sl.org/ LinkClick.aspx?fileticket=AoknUKBsH50%3d&tabid=53).   9 Article 21 Judgement Summary, 25 February 2009, SCSL Freetown (www.sc-­sl.org/ LinkClick.aspx?fileticket=AoknUKBsH50%3d&tabid=53). 10 At all times relevant to this Indictment, AFRC/RUF engaged in widespread unlawful taking and destruction by burning of civilian property. This looting and burning included the following: Trial Chamber 1: Judgement against accused Sessay, Kallon and Gbao, Count 14: Looting and Burning (77), 2 March 2009. 11 The TRC final report also states that, ‘The Commission holds Foday Sankoh and Sam Bockarie (alias “Mosquito”) responsible for the torture and summary executions of up to 40 RUF members in the Kailahun District in 1993’. This set of executions eliminated some of Sankoh’s most envied personal rivals within the movement, including the erstwhile second-­in-command Rashid Mansaray (TRC Report, 2004: Findings, para. 155). 12 Once the amputations began, Mosquito said, each side retaliated against the other. ‘It started as revenge. If some have done it to your relatives, you will go back and do this. To boys who had their hands cut . . . . when you see this with your own eyes, you want to take revenge on their families’. Mosquito tells his men he is protected from bullets by magic powers. As we talked late into the night, he stood and stripped off his shirt to show scars across his shoulders and arms-­from bullets that have bounced off him, he said. He pulled down his jeans to show similar wounds on his thigh. . . . . Yet the longer we talked, the more it became clear that,

Notes   155 superpowers or no, Mosquito at 35 lacked a convincing vision of his own future. Last spring, he said, Lebanese intermediaries working for the US government offered him $2.5 million to leave Sierra Leone and settle peacefully in Nigeria. He said he asked the negotiators to bring the case to the Liberia–Sierra Leone border. ‘I was going to ambush them, deal with them ruthlessly and spend the money on arms,’ he said. They refused to come. Afterward, he told that story repeatedly to his followers and vowed never to be bought off. Still, as the night wore on, he talked wistfully of Paris or America, even though he knew he would be vulnerable to arrest in such places. Other times he talked of his desire to lead Sierra Leone’s army after the next election. And then, over and over, he waved his arms and threatened angrily to retreat from Buedu to the rain forest and start the war all over again. If he were provoked by the United Nations or Freetown’s government, he said, ‘I’m envisaging another serious battle in Sierra Leone. I told all my men to clean their barrels and wait.’ (www.washingtonpost.com/wp-­srv/photo/galleries/sierra_leone/part_4.htm) 13 ‘Bockarie Died A Wanted Man’, BBC News Online, 8 May 2003. He once said in an interview: ‘I cannot tell how many people I have killed. When I am firing during an attack, nobody can survive my bullets. I never wanted myself to be overlooked by my fellow men’. http://news.bbc.co.uk/1/hi/world/africa/3006851.stm 14 Divisive comments were made during fieldwork that Gbao was indicted by the Court solely for his role in capturing the UN peacekeepers (Interview 64). Such allegations are fiercely denied and disputed by the Court. However, this is a particular quandary for the Court, and hard to accept for many in Sierra Leone, as an equally notorious character in the conflict, Gibril Massaquoi, has subsequently been co-­opted as a key Prosecution witness (Interview 72). This also came up during discussions with a prominent civil society organisation in Freetown which operated near the Court. They commented that the safe house used by the Court for this particular witness was close by, and that everybody knew he was there with his family. This was a cause of significant hostility, as many of the people living nearby were ‘victims’ of the conflict and could not understand why this person was being financially supported by the Court and living a ‘good life’ when they were struggling. This perception of justice as being an injustice is then quite logical, as the Court was supposed to be bringing ‘justice’ for Sierra Leone, not providing for the perpetrators of the conflict. The principles of the Court, such as witnesses and protected witnesses, are just a few of the many issues that the Court has had to attempt to explain through its Outreach section. However, my research shows that this message does not appear to have been understood, or, perhaps more likely, not widely accepted. This is discussed in greater depth in Chapters 5 and 6, looking at Outreach and Legacy. 15 Based on testimony given to the TRC by Gibril Massaquoi, senior figure in the RUF leadership, who enjoyed the direct counsel of Foday Sankoh (TRC Report, 2004: Vol. 3a, Ch. 3, para. 1148). 16 Gbao was found not guilty against Count 12, Enlisting of Children under the Age of 15; Count 16, Murder as a Crime Against Humanity; and Counts 17 and 18, Violence to Life, and Taking of Hostages, respectively. He was found guilty under Count 15 of intentionally directing attacks against peacekeepers. Disposition Judgement Summary, 25 February 2009, SCSL Freetown (www.scsl.org/LinkClick.aspx?fileticket=AoknU KBsH50%3d&tabid=53). 17 Although this is a cynical observation, it was a claim made consistently during fieldwork discussions by people questioning the expense of the Court for the small number of indictments. This is a source of contention that internationalised war crimes tribunals will have to consider if they are to be placed in a post-­conflict setting, particularly where the conflict has been devastating and the country has extensive socio-­economic problems – as is the case in Sierra Leone.

156   Notes 18 Alhajamy Daramy Rogers was the Chairman of the Appointments and Promotions Committee, and the Base Zero War Council. As stated in the The Democrat article (29/10/04), the TRC also found Rogers to be Regional Coordinator of the CDF (Southern Province) and Executive Officer/Member of the War Council at Base Zero (Base Zero was established at Talia in September 2007 and, along with Base One at Gendema/Bo Waterside, formed the main operating bases for the CDF command and coordination. See Hoffman (2007: 639–662, particularly 658–659). 19 Articles detailing Norman’s testimony and claims that he received orders directly from President Kabbah were numerous during February 2006: ‘Norman Raps Special Court: ‘President Kabah [sic] ordered Kamajors to attack towns and villages’, Awareness Times, Freetown, 7 February 2006; ‘Big Boost for Norman’s Defence as British General Flies in to Testify’, Christian Monitor, 7 February 2006; ‘Kabbah was my boss . . .’, Hinga Norman Exclusive, Freetown, 7 February 2006; ‘Norman Denies Giving Command to Kamajors’, Concord Times, Freetown, 7 February 2006. These issues were still discussed during interviews carried out in 2007, so were clearly an unresolved issue for some in Sierra Leone, despite Outreach attempts to counter these negative reactions. The issue of why Kabbah was not indicted when Hinga Norman was also caused much consternation throughout the trials. Again, Outreach conducted information campaigns explaining the Prosecution decision and investigation process, but the highly political and divisive nature of this indictment meant that opinions were hard to change. Norman’s death in 2007 also received extensive coverage nationally: ‘Kabbah Regrets Norman’s Death’, Awareness Times, 28 February 2007; ‘Special Court is Not Helping Peace Process’, PMDC Scribe, Awoko, 28 February 2007; ‘Special Court Should Pack and Go’, The African Champion, 28 February 2007; ‘Norman’s Death is a Disaster for the SLPP’, The African Champion, 28 February 2007; ‘Totally Ungrateful Government!!! [sic] Norman Hounded to Death. Who Benefits??? [sic]’, Positive Change, 28 February 2007. 20 Tim Kelsall (2009) offers an excellent and insightful discussion on this very topic with regard to the CDF trials. 21 Although these indictments were politically (and at times emotionally) divisive, this does not mean that from a legal standpoint they are ‘bad indictments’. It does, however, underscore the inherently political nature of war crimes trials and the difficulty in disaggregating this from the judicial process. I thank Chandra Sriram for these astute observations. 22 The Appeals Chamber, by a majority, overturns Kondewa’s conviction on Count 8 (Enlistment of Child Soldiers, and convictions for both Fofana and Kondewa on Count 7 (Collective Punishments). The majority of the Judges entered new convictions on Counts 1 and 3. The majority sustained convictions on Counts 2 and 4, and increased the sentences. Fofana is now sentenced to a total of 15 years and Kondewa has been given a 20-year sentence ( www.sc-­sl.org/CASES/CivilDefenceForcesCDFCompleted/tabid/104/Default.aspx). 23 The Memorial Institute for the Prevention of Terrorism (www.tkb.org/Group. jsp?groupID=3013). 24 All were indicted on 17 counts, but they were later amended to 18 counts and, on 18 February 2005, further amended to 14 (www.sc-­sl.org/AFRC.html). 25 SCSL-­04-16, Prosecutor Against Alex Tamba BRIMA, Brima Bazzy KAMARA, Santigie Borbor KANU (www.sc-­sl.org/documents/AFRC/SCSL-­04–16-T-­628A.pdf ). 26 SCSL-­03-I, Prosecutor Against Johnny Paul Koroma (www.sc-­sl.org/Documents/ Other/SCSL-­2003–03-I.pdf ). 27 www.sc-­sl.org/LinkClick.aspx?fileticket=cXQsdyBfVgg%3D&tabid=173 28 ‘In May 2008 the Plenary of Judges amended the Rules of Procedure and Evidence to allow a case, where a person had been indicted by the Special Court, to be referred for trial to another jurisdiction.’ SCSL-­03-I, The Prosecutor vs. Johnny Paul Koroma (www.sc-­sl.org/CASES/JohnnyPaulKoroma/tabid/188/Default.aspx).

Notes   157 29 SCSL-­2003-01-PT, Decision of the President on Defence Motion for Reconsideration of Order Changing Venue of Proceedings, Case No.SCSL-­2003–01-PT, Special Court for Sierra Leone, 12 March 2007. 30 See William Schabas’s critique of the AFRC judgements and the Prosecution’s interpretation of Joint Criminal Enterprise for potential outcomes for the Taylor trial in this instance (www.charlestaylortrial.org/2007/06/25/professor-­william-schabas-­onafrc-­decision/). 31 SCSL-­03-01-PT, Prosecutor v. Charles Ghankay Taylor. 32 SCSL-­03-01-PT, Prosecutor v. Charles Ghankay Taylor. 33 This referred to the RUF trials from 4 October 2007 to 6 December 2007. 34 See also SCSL-­04-15-T, Prosecutor v. Issa Sesay, Morris Kallon and Augustine Gbao, ‘Confidential Prosecution Response to Sesay Motion to Initiate Contempt Proceedings’, 30 October 2007). 35 Staggs (2008: 21): ‘Based on a review of the transcript from the proceedings, the Defence witness list, which by that time had already been reduced to 238, seemed likely to be reduced by a further 22 witnesses (for Sesay) and 20 witnesses (for Kallon), reducing the number of witnesses on the core witness list to 196). Counsel for Gbao has a witness list of 20 core witnesses and estimates his case will take approximately 2 weeks, largely due to the assistance afforded his client by the witnesses called by Sesay’s Defence.’ (Unofficial Transcript, Status Conference, 27 November 2007, 15–28).’ 36 Analysis based on interview discussions over the course of fieldwork. For example an interviewee stated, ‘SCSL good but number of indictees is still a cause for concern.’ ‘Perpetrators are still free but not indicted’ (Interviews 10, 11, 12). 37 ‘. . . . the Prosecutor’s oft heard statement that “al qaeda is here” does not help to defuse the perception that the work of the Special Court is to a certain extent undertaken through an American prism or, as some suggest, that the Court is being used to gather intelligence on international terrorist networks unrelated to its mandate. David Crane says that his office “is not looking at al qaeda” since “there is no link at all between al qaeda and the criminal enterprise [underlying the war in Sierra Leone]. It’s just not there, not even close’ (ICG, 2003: 17). 38 This was raised many times during discussions with Outreach (based on interviews with the Outreach section, as well as separate interviews with Sierra Leoneans). Some of these individuals understood the decision process, but were still unwilling to accept the lack of indictments. The decision was illogical to many: if ‘those who bore the greatest responsibility’ were the senior figures, then why had these two evaded justice? This is discussed further in Chapter 5, looking at Outreach. 5  Outreach   1 This was acknowledged by the Head of Outreach during discussions: The response has been positive. There is awareness but not a deep understanding. Some people are very critical but unconstructively. Some people do not want to hear so no matter what you tell them they will always believe negatively about the SCSL. (May 2007)   2 NPWJ Sierra Leone Mission, Narrative Status Report December 2001. NPWJ is an international non-­profit organisation working for the establishment of an effective international criminal justice system and in support of accountability mechanisms for war crimes, crimes against humanity, and genocide, with a view to strengthening

158   Notes democracy and the rule of law worldwide (www.specialcourt.org/SLMission/NPWJStatusReport.html).   3 A key recommendation from the ‘Freetown Conference on Accountability Mechanisms for Violations of International Humanitarian Law in Sierra Leone’ (hereafter Lagoonda Conference) organised by NPWJ in February 2001. The meeting was held at the Lagoonda Hotel, and is formally recognised as this.   4 It is not known if these organisations were trained in international humanitarian law practices prior to forming this group, or if they emerged as interested parties within the area of human rights and traditional/customary justice, and therefore had an interest in furthering their own knowledge in order to inform their constituents.   5 Interviews with SCSL outreach staff indicated that in the beginning the Court received a difficult reception, as it coincided with difficulties at the TRC and funding shortages. A common perception in the country was that the SCSL had taken much needed funds away from the TRC. This was incorrect, but took a while to counter. ‘A very hostile press in Sierra Leone’ (Interview 3).   6 First Annual Report of the President of the Special Court for Sierra Leone for the period 2 December 2002–1 December 2003: 15.   7 David Crane, first Prosecutor, Special Court for Sierra Leone, 2002–2005. See also ICG (2003: 14): ‘A number of Sierra Leone and International NGOs and journalists based in Freetown have privately expressed great frustration at Crane’s statements’; and ‘The Special Court for Sierra Leone Under Scrutiny’, March 2006, International Centre for Transitional Justice: 39. The latter report highlights that ‘some in Freetown have said that the former Prosecutor, who is often the most public face of the Court, “sounds like George Bush” when he “oversimplifies the conflict”, talks about good and evil, and makes references to Al Qaeda’s presence in the region.’   8 Interim Report on the Special Court for Sierra Leone, War Crimes Studies Centre, University of California, Berkeley, April 2005: 17.   9 ‘Perception that the Prosecutor has an American agenda – SL and Al Qaeda = diamonds’; ‘Blinkered by diamonds and other factors’ (Interview 1). 10 I thank an anonymous reviewer for these astute comments. 11 A general malaise existed in many interviews discussing the Court, with people generally fed up with talking about it or thinking about it. 12 This is contrary to the belief expressed in the OTP, which recalls the events thus: ‘Crane took the message out to the public town hall meetings etc. Response was very good and they were well attended’ (Interview 3) 13 ‘Impunity – Special Court has helped but these things are not always about justice but about helping those who suffered not financially but in other ways. For example, [name of organisation removed to preserve anonymity] is working with other organisations to . . . as the victim’s memorial day’ (Interview 39). The need for a victims’ commemoration day, for victims to be remembered, was also highlighted by a national paralegal organisation in Magburaka, ‘It does not just need to be remembered judicially’ (Interview 62). 14 ‘Junior commanders were not involved in the strategic decision making process’ (Interview 3). 15 ‘Special Court is a waste of money – these people who do bear the greatest responsibility are still walking the streets’ (Interview 8). This point was raised consistently during interviews and fieldwork visits to Sierra Leone. It was interesting to note that whereas in 2005 and 2006 this dominated discussions, it was not as prominent during discussions in 2007. This indicates a general acceptance of the Court’s limited mandate, or, more cynically, an acceptance that at this stage the decision will not be changed so there is little point in continuing to raise the matter. This is speculation, however, on my part. Another civil society figure stated that ‘It is not Special Court’s fault that key RUF people died but this is a big source of discontent among the population, key perpetrators have evaded justice’ (Interview 10).

Notes   159 16 It was also highlighted that many of these people’s minds were already made up and, no matter what they read or were told, they would never support the work of the Court. 17 This is called Military Refresher Training, and included a talk on what the Court was all about, status, updates, video screening of the trials and leaving of literature in the barracks afterwards (Interview 34). 18 Outreach organises school visits to the Court every Wednesday afternoon: Perhaps the most memorable occasion was when Binta [Mansaray] was talking to a group of these school children, and she said to them: ‘I know what you all are thinking – you are witnessing history being made. You will be telling your grandchildren that I was there at the Special Court when these people were on trial.’ This kind of thing really makes a difference. (Interview 42) 19 ‘All material is accessible to people with disabilities, amputees, deaf, blind’ (Interview 6). 20 ‘Also targeting military to ensure they are aware of the Geneva Conventions (ratified in SL in 1996)’ (Interview 6). An interview with a Sierra Leonean academic in February 2006 highlighted the poor conditions the RSLAF were still in: Two months’ IMATT (International Military and Training Taskforce) salary equals two years’ salary for the equivalent in RSLAF. Housing is insufficient. Rice has been fixed. Now given money for rice, not the rice, therefore cannot sell on. No risk of coup as long as IMATT are here or there is an international presence. Possible temptation if the election results are rigged – mass protests. (Interview 22)

This presents significant challenges for the Court working in this unstable environment. However, the armed forces appear to be developing well with the assistance from IMATT headed by the British Army, despite shortfalls in funding, and corruption remaining rife through the entire infrastructure of Sierra Leone. A major problem for the security sector remains the under-­development in the police force. A full discussion on this goes beyond the parameters of this study, but is, however, considered in Chapter 6, looking at legacy. 21 It was not possible to verify this, as the author was unable to meet with anyone from the RSLAF, but discussions held with a British officer in the International Military Training Task Force (IMATT) highlighted that significant difficulties still existed for the armed forces in Sierra Leone, such as the lack of funding from the government, and poor resources. This is possibly detrimental to any training undertaken, as poor investment in the armed forces more generally could lead to widespread dissatisfaction, as has occurred in the past. This is the worst-­case scenario, but should not be discounted (Interview 30). It is also a factor out of the Court’s control, as with most of the work it does its success is often limited to the socio-­economic conditions of Sierra Leone itself, which has left many disenfranchised and dissatisfied with the state and at times, by default, the Court as it has not come to cure all of Sierra Leone’s ills. 22 Wetin Na Di Specal Kot? (What is the Special Court?), a leaflet produced by SCSL outreach in conjunction with NPWJ to inform people at the village level about the work of the Court (p. 10). According to the Court website, over 35,000 leaflets have been produced and distributed to schools and educational institutions throughout the country. Although such widespread dissemination cannot be criticised, the leaflet states that it is ‘especially for those at village level’ (p.  7); one would therefore assume the main audience for the leaflets to be villages and communities. This is not to say that such distributions have not taken place, but they are not listed on the website, and visits to various villages in the provinces indicate that these leaflets have not made it to many. In one instance, Court literature was left for the village as they

160   Notes had not seen or had the opportunity to read these documents. This was in a village not far from the provincial headquarters town of Makeni, in April 2007 – more than four years since the Court started operating. 23 Many people were displaced during the conflict, with some still living in Internally Displaced Persons camps on the outskirts of Freetown. I met with people living in Grafton, Lower-­Allentown, and the war-­wounded camp in Freetown, and everyone complained bitterly that they had been forgotten about and lived in awful conditions, believing that the Government did not care what happened to them. Many of these people expressed concern that the rains were due from May onwards, and they would suffer greatly in their flimsy homes covered in tarpaulin. I spoke with a development NGO activist about this, and he suggested that these people had been offered relocation options but had chosen not to take them, mainly because it meant returning to their original homes, and they did not believe it was safe to do so. It was not possible to verify either account, but the people in the camps expressed a deep desire for assistance to be able to return to their old lives. The issue of compensation was also raised, with many believing that they were entitled to some form of monetary recompense. This is a contentious issue, but is something that has been a long time in developing, with Victims Compensation finally established in 2007, with financial assistance to be distributed through the National Association for Community and Social Action in Freetown in 2009. 24 The OTP revealed an analogy for explaining this concept to people: Well, the way I always try and express this, is say you have a large organisation like a bank. The bank tellers – they were all helping themselves to money from the till. Not a lot, but a few thousand Leones every day – not too much so that it would get them found out. And above them, you have the supervisors, who all know that it was happening, but were ignoring it because they were given a percentage of it. And this was happening across all the bank’s branches. And there is another level of this. You could trace it up all the way to the Vice President of the bank, but not to the President, who knows nothing about the thefts. This is a simplistic analogy – but if we had had sufficient evidence against President Kabbah, we would have indicted him. But of course, there will be people with very entrenched views on this. This was the first and the only time I had heard this analogy, so it is difficult to state whether or not it was a useful way of understanding the Court within the wider population (Interview 3). 25 This was particularly evident in the course of fieldwork conducted over the course of two years, from 2005–2007. Interviews were held in many cases with the same individuals and organisations over this period, and the change in opinion was in some cases significant, and in others more of a gradual disappointment that the Court would not do more to help transform Sierra Leone’s failing legal system, as well as in other key sectors. For many, the fact that there were still significant failings in the national legal system pointed to a failure of the Court; the fact that the Court was never mandated to do this appears not to have been related, or perhaps accepted. (Interviews held in January and April 2007, which also refer back to discussions held in May 2005 and February 2006.) 26 Comments made by Amnesty International, West Africa staff during discussions in London, July 2007, which relate to fieldwork undertaken by AI in Eastern Sierra Leone in 2007. 27 ‘There is no justice for people at community level. Justice also needs to be a social good’ (Interview 22). Discussions with members of a conflict prevention civil society organisation also indicated that ‘there were lots of radio discussions at town level but not at village level – no sensitisation on role of SCSL, why people were indicted, time length, impact’ (Interview 38).

Notes   161 28 It was also highlighted by a civil society worker in Magburaka that the screenings were difficult for people to understand, as illiteracy was so high (Interview 45). 29 Interviews with former SCSL staff highlight the incidence of OTP outreach at the beginning stages of the Court, where SCSL staff flew into a remote diamond mining region in the east of the country to inform workers about the work of the Court. There was little room for questions from the audience, and the event was kept brief before the whole contingent flew out again, leaving people to wonder at what had just happened: questions of relevance and inclusion bearing heavily over such incidences (Interview 69). 30 ‘Illiteracy is the biggest problem – majority of the Provinces are illiterate’ (Interview 46). 31 An interview with a local senior member of the judiciary in the eastern region was particularly enlightening in this respect: Those highly accused persons – Hinga Norman and the others – it has left a sour taste in some people’s mouths. Why I say that is because when you see people who are local heroes – the court system in this country is ‘adversarial’ – if you look at the educational background of the people in this country in terms on International Humanitarian Law, and you compare it with the trials in other countries, at the ICTY, people like Milosevic and Saddam Hussein – people don’t know about these things here. In terms of International Humanitarian Law, people are trying to enhance these principles here, but there is a knowledge gap. They see that their heroes are going through this grilling – they don’t understand the processes like others do. Should we come to the same predicament as we found ourselves in a decade back and if you are faced with this evil – and that is the word I use to describe the RUF – it will deter people to come forward and protect others. This monster needs another sort of monster inside people to face the monster. Fine democratic responses won’t work – you need a bit of ‘villain-­ary’ [sic] if that is what it takes, if that is what it has to be to face these people. That is not my personal view, but this is how people in this country see things. I have no personal vendetta against the Special Court – this is just how the law works. But to be honest with you, sometimes there is this part of me that thinks in this kind of way, and it is only my knowledge and my legal background and my knowledge of international law and humanitarian law, that stops me thinking like this. It is quite apparent that other people think like this when you are talking about legacy and impact. For me, the Special Court in the long term is a good thing. But here, none of the people are informed – people need to be given more knowledge of these things. It is the judge in me that is accustomed to looking at things in both ways. But how many people here are like that? The knowledge base here is that people see their heroes and the assailants grilled together – putting them in one bag together. This sort of thing worries me. If something like this happens again, how many people will come forward to face the devil? But for the educated, these people take the long-­term view. (Interview 54) 32 Although this is speculative, given the country’s tumultuous political past, it is not unreasonable to assume that such divisions might be exploited at a later date. 33 ‘It is anticipated that training of the Market Women, who meet people in every sector of the society by virtue of the nature of their trade and standing in Sierra Leone society, on the Special Court will have a positive run-­on effect’ (No Peace Without Justice Sierra Leone Mission, Narrative Status Report January–March 2003: 3). The Court also recognised the importance of working with market women, as they suffered a lot during the war ‘so it is important for them to know what is happening’ and to inform them ‘that the Special Court is making sure those who attacked you are being punished’ (Interview 28).

162   Notes 34 Outreach highlighted that ‘Women have been targeted specifically, gender training, traditional medicine, initiation, nurses, birth attending. All trained in crimes court is prosecuting, which is all part of the legacy training to ensure women are aware of international human rights law etc.’ I was able to attend an Outreach event targeted at market women that concentrated on International Humanitarian Law and the SCSL. The morning was spent going through the principles of International Humanitarian Law and the mandate and jurisdiction of the Court, rights of the accused, detention and sentencing. Most of the women were engaged and asked questions. These centred on the number of indictees and, particularly, the whereabouts of Johnny Paul Koroma, who everyone vehemently agreed needed to be prosecuted for the crimes he committed. The later sessions looked at banking and finance issues, with external speakers from the Bank of Sierra Leone outlining the available options for market women to keep their earnings secure. This was of greater interest to the women, who all participated in the discussion and asked extensive questions. It was a good way for Outreach to incorporate their activities with those direct needs of the women, and appeared to be well received. The Outreach officer for market women was a dynamic and energetic lady, and clearly a good partner for Court Outreach. (Sierra Leone Market Women Association, Seminar on Transitional Justice and the Special Court for Sierra Leone, Freetown, January 2007.) 35 This point was raised by a woman who expressed a desire to visit the Court, but could not foresee when such an opportunity may arise unless someone helped her to do this – and even then she would miss a day’s work, so the visit would be economically detrimental to her and her family (Focus Group A). 36 Discussions during a seminar with AI at KCL War Studies in 2007 37 To travel to the eastern areas of the country you need to travel through either or both of these towns along the Bo-­Kenema highway. 38 Animators complement the work of the Outreach officers. They live in the headquarter towns of the chiefdoms. Do not know, but are kept up to date by Outreach officers with literature etc. Go to villages, also monitor but not to penetrate. Process has worked well. It has helped prepare people’s minds before OR arrive. (Description provided by Interview 46.) 39 Outreach officials also informed me about the need to translate information about the Court into the various different languages and dialects and how Outreach and the Court worked together to do this: Mandate – different ways of explaining this and Outreach is helped with this by the language unit (at the Court) who have helped with the different languages and dialects to explain the legal concepts. This was initially done during a two-­day workshop and they needed to reach a consensus on these definitions by all working together. Some of the key issues are not easy to translate and require significant input to ensure the translation is accurate and makes sense. (Interview 36)

Equally a SCSL Outreach worker highlighted the language difficulties: Firstly the language, Mende, having to translate these concepts into Mende accurately has been very difficult. My background is in West African linguistics and lecturing but it has been challenging translating Western concepts into Mende. The language unit at the Court helped with this. (Interview 46)

40 Again, I thank an external reviewer for these perceptive observations. 41 It should be noted here that there are many different civil society organisations working throughout Sierra Leone, all with varying degrees of reliability. It was stated to me by SCSL staff that some have been known to work with researchers, orienting their beliefs and opinions in certain directions, believing it may hold them

Notes   163 in a favourable light for future funding. Being aware of this, I sought to work with organisations that were recommended by peers on the basis of work conducted and length of time in operation. For example, the Campaign for Good Governance has been operating in Sierra Leone since 1998, and has worked with numerous national and international organisations, presenting its reports in an unbiased and professional manner. At the other end of the spectrum is a relatively new organisation that I had no prior knowledge of, and where I was introduced to the Chairman during an interview in Freetown, January 2007; I was later informed that Chairman and Secretary had been imprisoned for embezzling thousands of US dollars of donor funds very recently. I used an existing source of national and international colleagues working in Sierra Leone to verify sources as reliable. This is perhaps not a subjective mode of analysis, but in a country where there is a dearth of literature on institutions of the state and beyond, word of mouth and recommendation is the best means of conducting empirical research. A senior Outreach official also cautioned against some organisations: ‘People do not always speak positively about the Court to researchers as they see them as potential donors.’ She used the example of an organisation which spoke very critically to a researcher about the Court and how it never got involved with the Court; when the researcher asked her about this, she showed them a copy of the report that the organisation had produced for Outreach and the work they had done: ‘Many people just telling you what you want to hear’ (Interview 36). I was aware of this and verified information where possible, and only worked with trusted and recommended contacts. 42 Although it should be highlighted that the appointment of former Deputy Prosecutor, Joseph Kamara, as the Anti-­Corruption Commissioner in 2010 proves such statements are not necessarily doomed to pessimistic outcomes. 43 Refers to the Issa Sessay Prosecution case in April 2007 44 Based on discussions over the course of fieldwork to Sierra Leone from 2005–2007 45 This was mentioned in various focus group discussions on the outskirts of Freetown and in the provinces. 46 This was a widely held belief. Even those who know the Court did not kill him; that he died as a result of his illness, believe the court was still responsible. 47 This was perhaps exacerbated by the spate of village burnings in the south of the country leading up to the elections. There were a few isolated incidents by groups of so called ‘ninjas’, as they covered their faces and committed their crimes at night. The acts were believed to disrupt and scare people to frighten them from fighting. 48 It was also highlighted that ‘Most of the indictees are Mende from the south and east – Hinga Norman, Gbao, Kallon, Fofanah, Kondiewa, Sesay is from Freetown’ (Interview 37). 49 See also, ‘Northerners Brought War to Salone . . . says Kamajor Boss’, Exclusive Newspaper, Freetown, 1 December 2004; ‘War in Sierra Leone: Northerners Not  Guilty’, The Democrat Newspaper, 3 December 2004 (response to previous article). 50 The decision to indict Charles Taylor of Liberia, as opposed to Ghaddaffi from Libya. 51 The author is based in the Peace Studies Department at Fourah Bay College, and was difficult to track down. Despite numerous telephone and email attempts, no contact was made to discuss the key findings of the report. Communication was attempted from December 2006–May 2007, with no success. This was also the case in trying to obtain a copy of the report. Despite numerous requests to Outreach, there was always a reason why a copy was not available. I was eventually able to get hold of a copy through contacts in Freetown, who emailed a copy when it was finally released in May 2007. 52 I was informed that certain of the organisations to whom the questionnaire was sent were more concerned with how their answers would appear to the Court in respect of future funding opportunities than in giving honest answers to the questions. They also

164   Notes did not distribute the questionnaires to their own constituents, but rather completed themselves (Interview 72). 53 There had been a considerable amount of rhetoric since the indictment of Hinga Norman, with many believing a conviction would result in a mobilisation of former CDF fighters to take up arms again and fight against any such decision: ‘If Hinga Norman is found guilty instigators will follow, CDF will mobilize’ (Interview 4). No such violence happened during his trials or subsequently after his death. Neither did any violence flare up in the light of the verdicts or sentencing of the remaining CDF indictees, Fofana and Kondewa. This is not to say that the chance for violence had diminished, but the apparent mass mobilisation threat did not materialise. Discussions with an SCSL outreach worker highlight that questions were raised by constituents after the death of Hinga Norman, with the perception being that his death was politically motivated: ‘Kabbah killed him’. When people ask me this I read them the post-­mortem report and show them that Joe Demby the former VP was present at the autopsy (trusted figure and confidant to Hinga Norman apparently). I only tell them facts as their brother. I would not betray them.

A different interviewee stated that, after Hinga Norman’s death, he had gone on the radio to inform people why he was taken out of the country: ‘During the phone-­in people called me a rebel, thief, traitor – betraying own people. Similar experiences especially in South and East because of CDF. Different slightly from Northern regions (Interview 37). A report in the Cocorioko Times from a man claiming to be part of the disbanded CDF stated that ‘the militia had no plans to disturb the peace over the trials of Chief Hinga Norman and other Kamajor officials . . . the militia was law-­abiding and still loyal to the SLPP Government of President Kabbah’ (Freetown, 13 December 2004). 54 Travel to the provinces was limited to three weeks, due to work commitments in the UK. The difficulty of travelling around Sierra Leone meant that Kailuhun and Pujehun were too far east for me to get to. A colleague was due to travel to these regions and was willing to report back findings, but was sadly killed in a road accident soon after my return to the UK. It has not been possible to establish subsequent links with other researchers to establish the extent to which the Outreach section had been working these regions. However, discussions in the UK with regional experts from an international human rights NGO established that this was still the case (Interview 68). 55 It should be reiterated here that any criticism relates to Outreach strategy and not the workers themselves, who displayed great tenacity and passion in undertaking outreach activities. There has generally always been negative press and misinformation published about the indictment of Hinga Norman and the conditions in which he has been held. For instance, his daughter was responsible for the claim that Norman was being made to live on bread and water. Outreach countered this by distributing copies of the menu of food eaten by detainees around the country (Interview 3). Although this was an effective counter-­strategy, it did little to dispel people’s beliefs that the indictees had better living conditions than themselves. 56 This was made clear during discussions with SCSL Outreach workers who had conducted extensive outreach work, often at the expense of their own health. One particular officer did not seem to mind, and was clearly passionate in what he did, but he did outline the extensive physical damage he sometimes suffered in visiting remote villages, driving for weeks on end, having to take enough food and water to sustain himself and having to rely on the hospitality of villages for places to sleep. It is unclear whether other DOOs had to endure the same. This was certainly the only person to outline his travails. It should be noted, however, that this was never cited as a criticism of the Court. They were clearly aware of the difficulties faced by the

Notes   165 ­ utreach section in funding and assistance, and were passionate about their own work O in this regard. 57 Anecdotal evidence based on discussions with Sierra Leoneans travelling around Freetown in public transport (often taxis and poda podas). 58 This is not entirely accurate, as Noeleen Heyzer points out: The women of Sierra Leone look to the SCSL as an emblem of hope for ending impunity. But beyond the high-­profile cases that the Court is mandated to take on, it is also hoped that it will help bolster the capacity of local courts to convict the thousands of lower-­ranking rapists who walk free. This is indeed the best hope for resurrecting the rule of law in the war-­ravaged nation. (Rape and Post-­Conflict Justice, August 2 2007, www.thestar.com) The instances of rape prosecutions reported and successfully prosecuted also remained very low. 59 This came through in interviews with Outreach workers during January and April 2007, and was a difference in approach from the initial discussions held in May 2005. The fact that the Court had come in for quite extensive criticism from Sierra Leone is perhaps the reason for much of this. There was a definite sense of a closed-­door policy for Outreach, but again this may be due to the need to attract funding, and anything other than glowing recognition could hinder this. This is based on anecdotal conversations with individuals outside of the Court, but there is possibly a relationship between the two. 60 The Special Court Interactive Forum members are groups and orgs who are friendly to the Special Court. Any decisions regarding Outreach are already made before the meetings. The members of the SCIF are reliant on funds from the Special Court so many CSOs and NGOs compromise on what they would like to do in order to make sure they get the money. Any independence in this respect is difficult. (Interview 43) 61 It was also explained to me as a strategic decision, and was done out of cultural respect. Whenever field missions were undertaken by the Court to a particular district, they would need approval from the district chief. Without this permission, they would not have had the authority to operate in the region. Therefore, ensuring the support of Paramount Chiefs was important in getting to the real people. 62 NPWJ, ‘ICC Seen as Struggling to Communicate’, (2009) see supra note 5. 63 Based on an informal discussion with a Sierra Leonean acquaintance in April 2007, Freetown. 64 ‘Just more jobs for internationals; SCSL good but number of indictees is still a cause for concern’. ‘SCSL has made the effort (to conduct outreach)’. ‘Do not want to only inherit the buildings want a change in the system. Problems in judicial system and administration of justice, i.e. children still tried in adult courts’. ‘There has been training but would like to see more Sierra Leoneans in all sectors of the SCSL. Outreach television and radio discussions need more’. ‘Still much more international than it is national. Government still continues to be the biggest violator of h/r in the country – Minister of Justice and Attorney General – very political’ (Interviews 1, 39 and 61). 65 Special Court Outreach Report 2003–2005, Special Court for Sierra Leone, published March 2006: 23. 66 An interview with a long-­standing member of staff at the Special Court in April 2007 stated that they: Do not hold sway with those who say the money could have been spent on better issues. No one gives that argument for people who spend lots of money on AIDS instead of malaria which kills more people. Question of priorities and this is what was supported at the time. For Sierra Leone justice was a priority. (Interview 58)

166   Notes 67 I thank Tim Kelsall for his clarity on this matter. 68 This was the case in May 2007 and in March 2008, but may have changed with the appointment of a Sierra Leonean legacy official. No details were listed on the Court’s website. 69 This was particularly evident with a judicial reform NGO who appeared to be at the forefront of calls for greater debate and discussion with the Court on legacy (Interview 61). 70 These latter two are within the required standards of international law. 6  Legacy   1 Third Annual Report of the President of the Special Court for Sierra Leone, January 2005–January 2006: 28   2 I thank Tim Kelsall for his clarity on this matter.   3 Again, I must thank Tim Kelsall for drawing my attention to these three ways of defining and exploring the issue of legacy at the SCSL.   4 Outreach has organised Wednesday afternoons for open days, and invites groups of schoolchildren to visit the Court and ask questions (Interview 42).   5 It should be noted here that I am not advocating that everyone working for the Special Court, or indeed an international tribunal, should engage with work outside of their remit – i.e., prosecuting war crimes. However, it was pointed out during fieldwork in February 2006 and May 2007, by SCSL staff, that this was not something the Court had actively encouraged, and they and other staff did not feel they could engage in external work, or would be supported if they requested assistance. It was not possible to confirm this with senior Court officials.   6 Special Court for Sierra Leone, Legacy Overview, copy obtained September 2010.   7 All references referred to during discussions with Court staff on this subject over the course of fieldwork in Sierra Leone.   8 As of May 2007, also Interview 65.   9 See also Sriram et al. (2009), for discussions on the importance of distinguishing between the technical delivery of rule of law assistance and access to justice as perceived by the local population. 10 The Court facilitated the National Victims Commemoration Conference, June 2005. 11 Transcript based on Focus Group J: JML (Jessica Lincoln), ES (Edward Sawyer, colleague working on similar issues in Sierra Leone independently), AB (Andrew Bernard, Sierra Leonean translator). 12 An Outreach officer stated that they had been told not to go inside and tell detainees about their rights, as it would make their jobs much harder. ‘If you’re going to give prisoner XYZ then what will you do for us? Their living conditions are poor, salaries are small, no vehicles so what about us?’ (Interview 46). The poor conditions of the police and prisons were also underscored by discussions with UK Police Sierra Leone (an FCO initiative whereby eight UK police officers are posted throughout Sierra Leone to monitor elections and provide assistance where possible). The officers stated that police were operating with very basic facilities – the cells are cracked, no log books, etc. A normal salary is just £14 per month for the police. Police are very enthusiastic but little money or facilities. There is an enthusiasm for change. Salaries are so small that if you do not have enough money to buy a bucket then how does this appear if you need to buy something (a bucket) and have to pay them later. This is especially bad for the police as again it undermines their authority and morale, which could lead on to corrupt practices. The police on the ground might have to be doing this for their bosses so it’s a vicious cycle: the boss wants the money and forces his workers to get it, who then trouble ordinary people/workers for the money. Or, they may just be corrupt. (Interview 44)

Notes   167 13 See SCSL Annual Reports from 2002 to 2007, available on the website www.sc-­sl. org. Each report cites its involvement with the police and security services to ensure understanding and wider knowledge of international working practices, including rights of the accused, and prison conditions. 14 ‘Would be good to have a forum where these problems (judicial) are addressed but the Special Court is international and do not want to interfere with sovereignty of state’ (Interview 12). 15 Interviews also revealed the following: ‘Government very insensitive to issues at stake’, and ‘Majority of Sierra Leoneans believe the Special Court and TRC is driven by the state’ (Interview 12). 16 Comments made by the Acting President of the Sierra Leone Bar Association during the welcome address to the Annual Conference of the Sierra Leone Bar Association, July 2006 (http://news.sl/drwebsite/publish/printer_20056014.shtml). 17 Agreement on establishment of the Special Court, Art. 3, para. 2. 18 ‘Justice (in Sierra Leone) is not changing – assault cases are still not going forward in the Courts’. The interviewee had been following the cases and highlighted that some cases against women are not even going to trial as the police are being un-­cooperative, telling women one thing and perpetrators another. ‘Totally inefficient police, court and record management system. Few changes taking place’ (Interview 21). 19 Wetin Na Intanashanol Umaniterian Lo? (International Humanitarian Law Made Simple), a pamphlet produced by the Outreach section with help from the Office of the Principal Defender, the Office of the Prosecutor and the Registrar’s office. Contributions also from the International Committee of the Red Cross and the Sierra Leonean Red Cross Society, 2005. 20 The 2005–2006 and 2006–2007 Annual Reports devote a section to discussing this (www.sc-­sl.org/DOCUMENTS/tabid/176/Default.aspx). 21 Krio phrase for What is the Special Court? (The Special Court Made Simple), a pamphlet produced by the Court for wide distribution to try to explain the principles and procedures of the Court. Produced jointly with the Outreach Section and No Peace Without Justice, 2003, Sierra Leone. 22 ‘Special Court faces funding crisis as Charles Taylor trial gets underway, Security Council told today by Senior Court Officials’, 8 June 2007, SC/9037 (www.un.org/ News/Press/docs/2007/sc9037.doc.htm). 23 Report of the Secretary General of the United Nations: The Rule of Law and Transitional Justice in Conflict and Post-­conflict Societies, S/2004/616, para. 44. 24 The frustrating element to this event was that there were more copies of the booklet available but the Outreach staff refused to hand them out, believing that many people would sell them and had not attended the screening and were therefore not deserving enough of the literature – a fair observation. They also highlighted that they could not hand out copies to everyone who wanted them, as they did not have a huge supply, which is more understandable position. 25 Feeding into the lack of overall strategic approach and funding shortfalls. 26 Interview 57, and also attendance at a radio programme with the Coalition for International Justice, 5 May 2007, and SCSL UNAMSIL weekly broadcast, January 2007. 27 ‘Communicating Justice in Africa’ (www.bbc.co.uk/worldservice/trust/whatwedo/ where/africa/2008/03/080219_africa_justice_project_overview.shtml). 28 Expanding activities to this area was essential for the Court to ensure that information is widespread in the region. Comments made by civil society in 2005 highlighted the fluidity of the borders and the fragile nature of the peace process: ‘Boys are moving around West Africa – Côte d’Ivoire, Togo, Burkina Faso etc. to fight’ (Interview 8). 29 It should be noted that this was only expressed a few times during discussions with ordinary Sierra Leoneans, civil society and human rights groups. The majority of people were happy to see him brought to justice.

168   Notes 30 Sierra Leone Court Monitoring Programme, The Analyst, 7 July 2007 (www.analystliberia.com/sleoneans_denied_july07_07.html). 31 It was not possible to verify if this had occurred as of 2010. There is a link to radio broadcasts on the Court’s website, however. 32 A grant from the Oak Foundation enabled the employment of a consultant to look into possible uses for the site. The Fifth Annual Report of the Special Court for Sierra Leone, June 2007–May 2008: 40. 33 This was highlighted during discussions with an established civil society organisation in Freetown in January 2007. The office was based relatively close to the SCSL, and both interviewees discussed the hostility engendered towards one of the Court’s witnesses who had been placed in a house very near. They all knew that the witness and his family were there, and also knew that the witness was involved in/perpetrated crimes during the conflict (the author could not verify or deny this). This had only angered local residents, who viewed the witness as being protected by the Court when witnesses should have been facing justice themselves. The concept did not marry well with many people’s idea of justice. As discussed earlier, this was also highlighted during discussions in February 2006 by various civil society activists: ‘It’s difficult to understand – witnesses. RUF example – class A witness Gibril Massaqoi – controversial. This is questionable to people and therefore the Transitional Justice process’. Such difficulties were also highlighted by police officers in the south east: In SCSL, hardly ever see the witnesses, out here everything is quite open – here is the witness, here is the accused. Not a relevant legacy. Need to see who you are prosecuting, this is the person who cut my limb, burnt my house. . . . Are we really prosecuting the right person? Strange phenomenon – quite a strange process – should be open. (Interview 50) 34 Annual Report of the President of the Special Court for Sierra Leone, January 2007– January 2008. Conclusion: transitional justice, accountability and outreach   1 ‘President, Ernest Bai Koroma, Sierra Leone War Crimes Court to Issue Verdicts’, Associated Press, 24 February 2009 (www.google.com/hostednews/ap/article/ ALeqM5iQKVQ9T1T6HyzXV4TWDS3HmLqirQD96I11S81).   2 Funding was found to carry the Court through until June 2009, and pledges for the remainder of the year were made according to the Registrar, Hermann von Hebel. Sierra Leone: Special Court Receives Funding Reprieve, Irin News, 14 April 2009 (www.irinnews.org/Report.aspx?ReportId=83924, accessed 17 April 2009).   3 As of July 2009, the Taylor trial was ongoing in The Hague.   4 ‘Annan says UN working on new tools to foster rule of law and transitional justice’, UN News Centre, 6 October 2004 (www.un.org/apps/news/story.asp?NewsID=12145 &Cr=rule&Cr1=law, accessed 13 July 2009).   5 As stated by Annan in relation to the ICC (UN Doc. S/2004/616).   6 As discussed in Chapter 5, where observations about the living conditions of indictees, in comparison to the poverty of the many victims of Sierra Leone’s war, caused anger towards the Court.   7 I refer here to the discussions held with various civil society workers in the south and east, who claimed to have received little interaction with the SCSL, and as a result were hostile, or indifferent, to what was happening.

Bibliography and sources

Interviews and Focus Groups   1 Development NGO activist, Freetown – May 2005   2 Special Court Staff, Freetown – May 2005   3 Special Court Staff, SCSL, Freetown – May 2005   4 Senior conflict prevention NGO activist, Freetown – May 2005   5 Special Court Staff, Freetown – May 2005   6 Special Court Staff, Freetown – May 2005   7 Special Court Staff, Freetown – May 2005   8 Youth NGO activist, Freetown May 2005   9 Special Court Staff, Freetown – May 2005 10 Development NGO activist, Freetown – February 2006 11 Development NGO activist, Freetown – February 2006 12 Youth NGO activist, Freetown – February 2006 13 Special Court Staff, Freetown – February 2006 14 Senior public affairs official UNAMSIL – Freetown, February 2006 15 Women’s rights NGO activist, Freetown – February 2006 16 Sierra Leonean lawyer and legal NGO official, Freetown – February 2006 17 Former TRC worker, Freetown – February 2006 18 Former TRC worker, Freetown – February 2006 19 Justice sector reform activist, Freetown – February 2006 20 Youth NGO worker, Freetown – February 2006 21 Special Court Staff, Freetown – February 2006 22 Sierra Leonean academic, Freetown – February 2006 23 Trader, IDP Camp, Freetown – January 2007 24 Sierra Leonean academic, Freetown – January 2007 25 Special Court Staff, Freetown – January 2007 26 Special Court Staff, Freetown – January 2007 27 Special Court Staff – January 2007 28 Special Court Staff – January 2007 29 Senior conflict prevention NGO activist, Freetown – January 2007 30 IMATT officer, Freetown – January 2007 31- Development NGO activist, Freetown – January 2007

170   Bibliography and sources 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76

World Food Programme official, Freetown – January 2007 Justice sector reform activist, Freetown – January 2007 Special Court Staff – April 2007 Development NGO activist, Magburaka – April 2007 Special Court Staff, Freetown – May 2007 Special Court Staff – May 2007 Conflict prevention NGO activist, Kenema – May 2007 Development NGO activist, Freetown – April 2007 Development NGO activist, Magburaka – April 2007 Justice sector reform activist, Makeni – April 2007 Special Court Staff – May 2007 Conflict prevention NGO activist, Freetown – April 2007 UK security sector reform assistance officials, Makeni – May 2007 Development NGO activist, Magburaka – April 2007 Special Court Staff – May 2007 Justice sector reform activist, Moyamba – May 2007 Ministry of Justice official (UK), Freetown – May 2007 Special Court Staff, Freetown – May 2007 Senior security sector official, Kenema – May 2007 Sierra Leonean lawyer, Freetown – April 2007 Justice sector reform activist, Freetown – April 2007 Sierra Leonean Judiciary, Makeni – April 2007 Sierra Leonean Judiciary, Kenema – May 2007 Academic, Fourah Bay College, Freetown – April 2007 Community leader, Makeni – May 2007 Special Court Staff, Freetown – May 2007 Special Court Staff, Freetown – April 2007 Development NGO activist, Makeni – April 2007 Special Court Staff, Freetown – May 2007 Development NGO worker, Freetown – May 2007 Paralegal NGO specialist, Makeni – April 2007 International NGO, Freetown – May 2007 Special Court Staff, Freetown – May 2007 Special Court Staff, SCSL – April 2007 Special Court Staff, Freetown – May 2007 International journalist, Makeni – May 2007 West Africa specialist, international human rights NGO, London – May 2007 UK barrister – May 2007 Former outreach worker, ICTY (telephone interview) – February 2007 UK academic, Bristol – January 2007 Former TRC SL researcher, human rights lawyer, Freetown – May 2007 Special Court Staff (telephone interview) – May 2007 Journalist, UK – November 2007 UK army and former IMATT officer in Sierra Leone, UK – March 2009 UK academic (West Africa and transitional justice expert), UK – May 2006

Bibliography and sources   171 77 78 79 80

ICTJ New York – March 2006 Sierra Leonean, Freetown – February 2006, January, April–May 2007 Sierra Leonean, Freetown – April–May 2007 UK academic, Freetown – January 2007 and April–May 2007

Focus groups A B C D E F G H I J K

Mixed civilian group, War-­wounded Camp – April 2007 Youth NGO workers, Freetown – May 2007 Youth NGO workers, Makeni – May 2007 Students, University, Freetown – April 2007 Mixed civilian group, IDP Camp – April 2007 Mixed civilian group, War-­wounded Camp – April 2007 Male security sector workers, Magburaka – April 2007 Mixed civilian group, Mapaki Village – April 2007 Mixed civilian group, University, Freetown – April 2007 Young males, including ex-­combatants, Magburaka – April 2007 Conflict resolution NGO, Bo – May 2007

Official documents •

• • • •

• • • • •

Access to Justice in Sierra Leone: A review of the literature, World Bank Report, Justice for the Poor Programme, March 2007 – http://siteresources. worldbank.org/INTJUSFORPOOR/Resources/SierraLeoneBackgroundPaper.pdf Appeals Chamber Upholds Sentences of Convicted AFRC Leaders, SCSL Press Release, Freetown, 22 February 2008 Appeals Judgement: The Appeals Chamber Dismisses Appeals and Upholds the Sentences Handed Down by the Trial Chamber (February 2008) A Unique Decade: 1994–2004, International Criminal Tribunal for the Former Yugoslavia Publication Background Notes: Sierra Leone, USA Department of State; Under Secretary for Public Diplomacy and Public Affairs, Bureau of Public Affairs, Bureau of Public Affairs: Electronic Information and Publications Office – www.state.gov/r/pa/ei/bgn/5475.htm Fifth Report of the Secretary General on the Mission in Sierra Leone (New York: United Nations, 31 July 2000), UN Doc. S/2000/751 First Annual Report of the President of the Special Court for Sierra Leone for the period 2 December 2002–1 December 2003 Human Development Indices: A statistical update 2008 – HDI rankings – http://hdr.undp.org/en/statistics/ Letter dated 22 December from the President of the Security Council addressed to the Secretary-­General, UN Doc. S/2000/1234 Letter dated 12 January 2001 from the Secretary-­General addressed to the President of the Security Council, UN Doc. S/2001/4

172   Bibliography and sources • •

• •

• • • • • • • • • • •

• • • •

Letter dated 31 January 2001 from the President of the Security Council addressed to the Secretary-­General, UN Doc. S/2001/95 Lomé Peace Agreement, Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone signed at Lomé, 7 July 1999 – www.usip.org/library/pa/sl/sierra_leone_07071999_ toc.html Nationwide Survey Report on Public Perceptions of the Special Court for Sierra Leone, March 2007, by Memunatu Baby Pratt Peace Agreement between the Government of the Republic of Sierra Leone and the Revolutionary United Front of Sierra Leone, signed at Abidjan on 30 November 1996 – www.usip.org/library/pa/sl/sierra_leone_10301996. html Promotion of National Unity and Reconciliation Act, 1995, www.doj.gov. za/trc/ SCSL-­03, Prosecutor Against Johnny Paul Koroma (March 2003) – SCSL website, www.sc-­sl.org/CASES/JohnnyPaulKoroma/tabid/188/Default.aspx SCSL-­03-01-PT, Prosecutor vs. Charles Ghankay Taylor (November 2006 SCSL-­03-04-PT, Withdrawal of Indictment – Sam Bockarie. SCSL-­03-08-PT-­101, Norman – Decision on the Request by the TRC of Sierra Leone to Conduct a Public Hearing with the Accused, 29 October 2003 – www.sc-­sl.org/norman.html SCSL-­04-15-T, Prosecutor v Issa Sesay, Morris Kallon and Augustine Gbao ‘Confidential Prosecution Response to Sesay Motion to Initiate Contempt Proceedings’, 30 October 2007 SCSL-­04-16-T, Prosecutor Against Alex Tamba BRIMA, Brima Bazzy KAMARA, Santigie Borbor KANU (June 2005) SCSL-­2003-01-PT, Decision of the President on Defence Motion for Reconsideration of Order Changing Venue of Proceedings, Case No. SCSL-­200301-PT, Special Court for Sierra Leone, 12 March 2007 SCSL-­2004-16-A, Prosecutor of the Special Court v. Alex Tamba BRIMA, Brima Bazzy KAMARA, Santigie Borbor KANU, 22 February 2008, Appeals Chamber SCSL, Freetown UN Security Council Resolution 1315 UN SCOR, 4186th meeting at 2 UN Doc. S/RES/1315 (2000) Sierra Leone has made Great Strides in Seven Years Since War Declared Ended but Government Still Faces Daunting Challenges, Security Council Briefing SC/9592, 6080th Meeting, 9 February 2009, AFR/51/100/2007 – www.un.org/News/Press/docs//2009/sc9592.doc.htm Special Court for Sierra Leone Legacy Projects (confidential document – on file with author) Special Court for Sierra Leone Legacy White Paper, 26 September 2005 Special Court Outreach Report, 2003–2005, Special Court for Sierra Leone, published March 2–6: 23 Statute of the International Criminal Tribunal for Rwanda – http://69.94.11.53/ENGLISH/basicdocs/statute/2007.pdf

Bibliography and sources   173 • • • • • • • • • • • • •

The Fifth Annual Report of the Special Court for Sierra Leone, June 2007– May 2008 The Legacy of the Special Court for Sierra Leone, 2007 The Prosecutor v. Omar Hassan Ahmad Al Bashir’, ICC-­02/05–01/09 The Witness Evaluation and Legacy Project, 20 March 2007 Third Annual Report of the President of the Special Court for Sierra Leone, January 2005–January 2006 UN Doc. S/2000/786. See also Report of the Secretary-­General on the Establishment of a Special Court for Sierra Leone (4 October 2000), UN Doc. S/2000/915 UN Doc. S/2001/857, 11th Report of the Secretary General on the United Nations Mission in Sierra Leone (7 September 2001) UN Doc. S/2004/616, United Nations Security Council 23 August 2004, The Rule of Law and Transitional Justice in Conflict and Post-­Conflict Societies, Report of the Secretary General United Nations Security Council Resolution 955 (1994) S/Res/955/1994, 8 November 1994 United Nations Security Council Resolution 1315 (2000) S/Res/1315/2000, 14 August 2000 Wetin Na Di Specal Kot? (What is the Special Court?) Outreach Document (on file with author) Wetin Na Intanashanol Umaniterian Lo? (International Humanitarian Law Made Simple) Outreach Document (on file with author) Working Paper: A Consolidation of Options, Legacy Working Group, SCSL, 12 March 2008

Internet resources • • • • • • • • • • • •

Afghan Independent Human Rights Commission – www.aihrc.org.af/ Armed Forces Revolutionary Council, Knowledge Terrorism Database, The Memorial Institute for the Prevention of Terrorism –www.tkb.org/Group. jsp?groupID=3013 Centre for Civil Society, London School of Economics –www.lse.ac.uk/collections/CCS/what_is_civil_society.htm) CIA World Factbook – https://www.cia.gov/library/publications/the-­worldfactbook/geos/sl.html Conciliation Resources – www.c-­r.org Human Rights Watch – www.hrw.org/en/africa/sierra-­leone ICTR – www.ictr.org/default.html ICTY Office of the Prosecutor – www.icty.org/sid/95 International Centre for Transitional Justice – www.ictj.org Justice Sector Development Programme – www.britishcouncil.org/jsdp Kimberley Process – www.kimberleyprocess.com/ Promotion of National Unity and Reconciliation Act, 1995 www.doj.gov.za/ trc/

174   Bibliography and sources • • •

The Centre for the Study of Violence in Africa – www.csvr.org.za/ Truth and Reconciliation Commission of Liberia –www.trcofliberia.org/ Truth and Reconciliation Report – www.trcsierraleone.org/drwebsite/ publish/index.shtml

Filmography • •

Gacaca: Living Together Again in Rwanda (2002) Anne Aghion, documentary film – www.anneaghionfilms.com/2002/index.html Sorius Samara – www.cryfreetown.org

Books and articles Abdullah, Ibrahim, Bush path to destruction: The origin and character of the Revolutionary United Front Sierra Leone’, The Journal of Modern African Studies, 36(2), 1998: 203–235. Abdullah, Ibrahim (ed.), Between Democracy and Terror: The Sierra Leone Civil War, Pretoria, South Africa: UNISA Press, 2004. Abrams, Jason S. and Ratner, Steven R., Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy, Oxford, UK: Oxford University Press, 2001. Adebajo, Adekeye, West Africa’s Security Challenges: Building peace in a troubled region, New York, NY: International Peace Academy, 2002. Alie, Joe D., A New History of Sierra Leone, Oxford, UK: Macmillan Publishers, 1990. Alvarez, José E., ‘Crimes of state/crimes of hate’, Yale Journal of International Law, 24, 1999: 365–484. Amnesty International, ‘The Statute of the Special Court must make all recruitment of children under 15 a crime’, New York, NY: Amnesty International, 20 October 2000. Amnesty International, ‘Sierra Leone: Recommendations on the draft statute of the Special Court’, New York, NY: Amnesty International, 14 November 2000. Amnesty International, ‘Iraq: Iraqi Special Tribunal – fair trials not guaranteed’, 13 May 2005, AI Index: MDE 14/007/2005. Amnesty International, ‘Sierra Leone: Getting reparations right for survivors of sexual violence’, New York, NY: Amnesty International, November 2007. Amnesty International, ‘Sierra Leone: Despite guilty verdicts today, impunity is still the rule’, London, UK: Amnesty International UK, 25 February 2009. Ashby, Philip, Unscathed: Escape from Sierra Leone, London, UK: Pan Books, 2003. Bangura, Yusuf, ‘The political and cultural dynamics of the Sierra Leone War: A critique of Paul Richards’, in Abdullah, I. (ed.), Between Democracy and Terror: The Sierra Leone Civil War, Pretoria, South Africa: UNISA Press, 2004. Barnes, Catherine and Polzer, Tara, The Sierra Leone Peace Process: Learning from the past to address current challenges, An Expert Seminar Report, London, UK: Conciliation Resources, September 2000a (available at www.c-­r.org/resources/occasional-­ papers/sierra-­leone-peace-­process.php). Bass, Gary, Stay the Hand of Vengeance, Princeton, NJ: Princeton University Press, 2000. Bassiouni, M. Cherif (ed.), Post-­Conflict Justice, Ardsley, NY: Transnational Publishers, 2002.

Bibliography and sources   175 Berdal, Mats and Malone, David (eds), Greed and Grievances: Economic agendas in civil wars, Boulder, CO: Lynne Reinner, 2000. Beresford, Stuart and Muller, A.S., ‘The Special Court for Sierra Leone: An initial comment’, Leiden Journal of International Law, 14(3), 2001: 635. Berkeley War Crimes Center, Interim Report on the Special Court for Sierra Leone, Berkeley, CA: University of California, April 2005. Berkeley War Crimes Center, Second Interim Report by the University of California Berkeley War Crimes Research Centre, ‘Bringing Justice and Ensuring Lasting Peace’: Some reflections on the trial phase at the Special Court for Sierra Leone, Berkeley, CA: University of California, April 2006. Brecke, William and Long, Peter, War and Reconciliation: Reason and emotion in conflict resolution, Cambridge, MA: MIT Press, 2003. Bright, Dennis, Lome is Dead! Long live Lome! London, UK: Conciliation Resources, 9 August 2000 (available at www.c-­r.org/resources/occasional-­papers/lome-­is-dead. php). Bright, Dennis, Implementing the Lome Peace Agreement, London, UK: Conciliation Resources, September 2000b (available at www.c-­r.org/our-­work/accord/sierra-­leone/ implementing-­lome.php). Brown, Derek, ‘Who is Foday Sankoh?’, Guardian, 17 May 2000. Campaign for Good Governance, Campaign for Good Governance poll on attitudes toward the Truth and Reconciliation Commission and the Special Court for Sierra Leone, Freetown, Sierra Leone: March 2003. Cassesse, Antonio, Report on the Special Court for Sierra Leone, submitted by the Independent Expert, Antonio Cassesse, 12 December 2006. Chikwanha, Annie Barbara, ‘The Criminal Justice System in Sierra Leone Issue Paper’, Nairobi, Kenya: African Human Security Initiative, November 2008 (available at www.africanreview.org/docs/sierraleone/sierrapaper27112008.pdf ). Chuter, David, War Crimes: Confronting atrocity in the modern world, Boulder, CO: Lynne Reinner, 2003. Clark, Janine N., ‘International war crimes tribunals and the challenge of outreach’, International Criminal Law Review, 9, 2009: 99–116. Cockayne, James, ‘The fraying shoestring: Rethinking hybrid war crimes tribunals’, Fordham International Law Journal, 28, 2004–2005: 616. Conflict Security & Development Group, A Review of Peace Operations: A Case for Change, London, UK: King’s College London, 2003. Connaughton, Richard M., ‘Organizing British Joint Rapid Reaction Forces’, Joint Forces Quarterly, Autumn 2000. Crane, David, ‘Dancing with the Devil: Prosecuting Africa’s warlords – current lessons learned and challenges’, Colloquium of Prosecutors of International Criminal Tribunals, Arusha, 25–27 November 2004. Crossette, Barbara, ‘Sierra Leone asks UN for role in war court’, New York Times, 21 June 2000. Cruvellier, Thierry, ‘CDF: A legitimate cause’, International Justice Tribune, 22 October 2007. Cryer, Robert, ‘A “Special Court” for Sierra Leone?’, International and Comparative Law Quarterly, 50, 2001: 435. Dalliere, Romeo, Shake Hands with the Devil: The failure of humanity in Rwanda, London, UK: Arrow Books, 2005. de Silva, Clare, ‘Justice for Sierra Leone?’, Washington Times, 1 June 2007.

176   Bibliography and sources Davies, Victor A.B., ‘Sierra Leone: Ironic tragedy’, Journal of African Economies, 9(3), 349–369. Des Forges, Alison, Leave None to Tell the Story: Genocide in Rwanda, New York, NY: Human Rights Watch, 1999. Des Forges, Alison and Longman, Timothy, ‘Legal Responses to Genocide in Rwanda’, in E. Stover and H. Weinstein, My Neighbour, My Enemy: Justice and Comminity in the Aftermath of Mass Atrocity, Cambridge, UK: Cambridge University Press, 2004, pp. 49–68. Diamond Industry Annual Review 2006: Sierra Leone (available at www.pacweb.org/e/ images/stories/documents/annual%20review%20sl%202006.pdf ). Dicker, Richard, ‘Murders, tortures and crimes against citizens go unfettered in Sierra Leone’, Human Rights Watch, 11 August 1999 (available at www.hrw.org/en/ news/1999/08/11/murders-­tortures-and-­crimes-against-­citizens-go-­unfettered-sierra-­ leone). Dicker, Richard and Keppler, Elise, ‘Beyond the Hague: The challenges of international justice’, New York, NY: Human Rights Watch, January 2004, Global Policy Forum Report. Dickinson, Laura, A. ‘The promise of hybrid courts’, The American Journal of International Law, 97(2) 2003: 295–310. Dorman, Andrew, ‘The British experience of low intensity conflict in Sierra Leone’, paper presented at BISA, Cork, December 2006. Dougherty, Beth, ‘Rightsizing International Criminal Justice: The hybrid experiment at the Special Court for Sierra Leone’, International Affairs, 80(2), 2004: 311–328. Ehret, Rebekka, ‘Post-­War contributions to inequality in Sierra Leone: Transitional justice, linguistic market and intercultural encounters’, in Thomas Bearth, Afrika im Wandel, Zurich, Switzerland, 2007: 73–82. Elster, J., ‘Coming to terms with the past: A framework for the study of justice in the transition to democracy’, European Journal of Sociology, 39(1), 1998: 7–48. Fanthorpe, R. ‘Neither citizen nor subject? Lumpen agency and the legacy of native administration in Sierra Leone’, African Affairs, 100, 2001: 400. Fanthorpe, R., ‘On the limits of liberal peace: Chiefs and democratic decentralisation in post-­war Sierra Leone’, African Affairs, 105, 2005: 27–49. Ferme, Mariane, The Underneath of Things, Berkeley, CA: University of California Press, 2001. Fletcher, Laurel E. and Weinstein, Harvey, ‘Violence and social repair: Rethinking the contribution of justice to reconciliation’, Human Rights Quarterly, 24(3), 2002: 573–639. Flourney, Michelle A., ‘Dealing with demons: Justice and reconciliation’, The Washington Quarterly, 25(4), 2002: 111–123. Forna, Aminatta, The Devil that Danced on the Water: A daughter’s memoir, London, UK: Flamingo Publishers, 2003. Fritz, Nicole and Smith, Alison, ‘Current apathy for coming anarchy: Building the Special Court for Sierra Leone,’ Fordham International Law Journal, 25, 2001: 391. Frulli, Michaela, ‘The Special Court for Sierra Leone: Some preliminary comments,’ European Journal of International Law, 11, 2000: 857. Frutig, Brian, Pulling the Shoestring Tight, Perhaps a Little Too Tight? Managing the capabilities and expectations gap of the Special Court for Sierra Leone, London, UK; Department of War Studies, King’s College, MA thesis, 2004/2005. Futumura, Madoka, Revisiting the ‘Nuremberg Legacy’: Societal transformation and the

Bibliography and sources   177 strategic success of international war crimes tribunals – lessons from the Tokyo Trial and the Japanese experience, London, UK: King’s College, PhD thesis, 2005. Futumura, Madoka, War Crimes Trials and Transitional Justice: The Tokyo Trial and the Nuremberg Legacy, London, UK: Routledge: 2007. Fyfe, Christopher, A History of Sierra Leone, Oxford, UK: Oxford University Press: 1962. Gberie, Lansana, Briefing: The Special Court of Sierra Leone, African Affairs, 102, 2003: 637–648. Gberie, Lansana, A Dirty War in West Africa, London, UK: Hurst Publishing, 2005. Gibson, James A., Overcoming Apartheid: Can truth reconcile a divided nation? Cape Town, South Africa: HSRC Press, 2004. Gourevitch, Philip, We Wish to Inform You that Tomorrow We Will be Killed with Our Families: Stories from Rwanda, London, UK: Picador: 2000 Gow, James, Triumph of the Lack of Will: International diplomacy and the Yugoslav War, London: C. Hurst and Co. Publishers Ltd, 1997. Gow, James, ‘A revolution in international affairs: Governance, justice and war’, International Relations, 15(1), 2000: 1–10. Gow, James, The Serbian Project and its Adversaries: A strategy of war crimes, London: C. Hurst and Co. Publishers Ltd, 2003. Gready, Paul, ‘Reconceptualising transitional justice: embedded and distanced justice’, Conflict Security and Development, 5(1), 2005: 3–21. Griffin, Stuart, Joint Operations: A short history, London, UK: Ministry of Defence, 2000. Guibert, Nolwenn and Blumenstock, Tilman, ‘The first judgement of the Special Court for Sierra Leone: A missed opportunity?’ The Law and Practice of International Courts and Tribunals, 6(3), 2007: 393–406. Gutman, Roy and Rieff, David (eds), Crimes of War: What the public should know, London: W.W. Norton & Company, 1999. Hayner, Priscilla, Negotiating Peace in Liberia: Preserving the Possibility of Justice, Geneva, Switzerland: Henry Dunant Centre for Humanitarian Dialogue, 2007. Henham, R., ‘The philosophical foundations of international sentencing’, Journal of International Criminal Justice, 1(1), 2004: 64–85. Hill, Stephen, ‘Human rights and peace: To prosecute or not?’ The World Today, 56(8), 2000: 35–37. Hirsch, John, Diamonds and the Struggle for Democracy, Boulder, CO: Lynne Reinner, 2001. Hoffman, Danny, ‘The meaning of a militia: Understanding the Civil Defence Forces in Sierra Leone’, African Affairs, 106(425), 2007: 639–662, particularly pp. 658–659). Horn, Rebecca, Charters, Simon and Vahidy, Saleem, ‘Witnesses in the special court for Sierra Leone: the importance of the witness–lawyer relationship’, International Journal of Law, Crime and Justice, 36(3), 2008: 135–210. Human Rights Watch, Sowing terror: Atrocities against civilians in Sierra Leone, New York: Human Rights Watch, Vol. 10, No. 3(A), 1998. Human Rights Watch, ‘Shocking war crimes in Sierra Leone’, 23 June 1999a (available at www.hrw.org/en/news/1999/06/23/shocking-­war-crimes-­sierra-leone). Human Rights Watch, ‘Getting away with murder, mutilation and rape: New testimony from Sierra Leone’, 24 June 1999b (available at www.hrw.org/en/reports/1999/06/24/ getting-­away-murder-­mutilation-and-­rape). Human Rights Watch, Sierra Leone rebels forcefully recruit child soldiers’, 30 May 2000

178   Bibliography and sources (available at www.hrw.org/en/news/2000/05/30/sierra-­leone-rebels-­forcefully-recruit-­ child-soldiers Human Rights Watch, ‘Oh, my God’, World Class Crimes, 6 June 2000 (available at www.hrw.org/en/news/2000/06/06/world-­class-crimes). Human Rights Watch, ‘Sierra Leone: Defending human rights’, World Report, 2001. Human Rights Watch, ‘The Jury is still out’, Briefing Paper on Sierra Leone, July 2002. Human Rights Watch, ‘Bringing justice; the Special Court for Sierra Leone’, 7 September 2004a. Human Rights Watch, ‘Combating war crimes in Africa’, 25 June 2004b. Human Rights Watch, ‘Justice in motion’, 2 November 2005, p. 38. Human Rights Watch, ‘Charles Taylor trial must be accessible to West Africans’, 21 June 2006. Human Rights Watch, ‘Pinochet held on torture charges’, 31 October 2006 (available at http://hrw.org/english/docs/2006/10/31/chile14491.html). Human Rights Watch, ‘Letter to H.E. Ernest Bai Koroma: recommendations following the 2007 Presidential elections, 14 November 2007. Human Rights Watch, ‘UN Secretary General Ban Ki-­moon: Address justice for past crimes in Liberia and Côte d’Ivoire’, 18 April 2008. International Centre for Transitional Justice, The Legacy of the Special Court for Sierra Leone, New York, NY: International Centre for Transitional Justice, 2003. International Centre for Transitional Justice, Iraqi Voices: Attitudes Toward Transitional Justice and Social Reconstruction, New York, NY: International Centre for Transitional Justice, 2004. International Centre for Transitional Justice, Forgotten Voices: A population-­based survey on attitudes about peace and justice in Northern-­Uganda, New York, NY: International Centre for Transitional Justice, 2005. International Centre for Transitional Justice, Hybrid Courts Case Study: The Special Court for Sierra Leone Under Scrutiny, New York, NY: International Centre for Transitional Justice, March 2006. International Crisis Group, ‘The Special Court for Sierra Leone: Promises and pitfalls of a “New Model” ’, Africa Briefing, Freetown/Brussels, 4 August 2003. Jackson, Nyamuya Maogoto, War Crimes and Realpolitik: International Justice from World War 1 to the 21st Century, Boulder, CO: Lynne Reinner, 2003. Jaspers, Karl, The Question of German Guilt, Dial Press, 1947 (2nd rev. edn, paperback, New York, NY: Fordham University Press). Kamari, Maxine Clarke and Goodale, Mark, Mirrors of Justice: Law and Power in the Post-­Cold War Era, New York, NY: Cambridge University Press, 2010. Kaplan, Robert, ‘The coming anarchy: How scarcity, crime, overpopulation, tribalism, and disease are rapidly destroying the social fabric of our planet’, TheAtlantic.com, February 1994 (available at www.theatlantic.com/doc/199402/anarchy). Keen, David, Conflict and Collusion in Sierra Leone, Oxford, UK: James Currey Publishing, 2005. Kelsall, Tim, ‘Truth lies ritual: Preliminary reflections on the Truth and Reconciliation Commission in Sierra Leone’, Human Rights Quarterly, 26(2), 2005: 361–391. Kelsall, Tim, ‘Politics, anti-­politics, international justice: Language and power in the  Special Court for Sierra Leone’, Review of International Studies, 32, 2006: 587–602. Kelsall, Tim, Culture Under Cross-­Examination: International justice and the Special Court for Sierra Leone, Cambridge, MA: Cambridge University Press, 2010.

Bibliography and sources   179 Kelsall, Tim and Sawyer, Edward, ‘Truth vs justice? Popular views on the Truth and Reconciliation Commission and the Special Court for Sierra Leone’, Online Journal of Peace and Conflict Resolution, 7.1, 2007: 36–68. Kerr, Rachel, ‘International Judicial Intervention: The International Criminal Tribunal for the Former Yugoslavia,’ International Relations, XV(2), 2000: 17–26. Kerr, Rachel, Prosecuting War Crimes: Lessons from the ad hoc Tribunals, British International Studies Association Conference paper, London: King’s College, 2004a. Kerr, Rachel, The International Criminal Court for the Former Yugoslavia: An exercise in law politics & diplomacy, Oxford: Oxford University Press: 2004b. Kerr, Rachel and Mobekk, Eirin, Peace and Justice: Seeking accountability after war, Cambridge, UK: Polity Press, 2007. Krog, Antjie, Country of My Skull, New York, NY: Vintage Books, 1999. Kuperman, Alan J., ‘Rwanda in retrospect’, Foreign Affairs, 79(1), 2000: 94–118. Levert, Suzanne, Cultures of the World: Sierra Leone, London, UK: Marshall Cavendish, 2007. Lincoln, Jessica, Report on the Local Media in Sierra Leone and Coverage of the Special Court, United States Institute of Peace Project, February 2008 (available at http://kcl. ac.uk/schools/sspp/ws/research/groups/wc/sierraleone.html). Linton, Suzannah, ‘Cambodia, East Timor and Sierra Leone: Experiments in international justice’, Criminal Law Forum, 12, 2001: 185–246. Macaluso, Daniel, J., ‘Absolute and free pardon: The effect of the Amnesty Provision in the Lome Peace Agreement on the Jurisdiction of the Special Court for Sierra Leone’, Brookings Journal of International Law, XXVII(1), 2002, 347. Magbaily-­Fyle, C., The History of Sierra Leone: A concise introduction, London, UK: Evans Brothers Limited, 1981. Mahoney, Chris, The Justice Sector Afterthought: Witness protection in Africa, South Africa: Institute for Security Studies Publications, 2010. Maier, Charles S., The Unmasterable Past: History, holocaust and German national identity, Cambridge, MA: Harvard University Press, 1988. Malamud-­Goti, Jamie, ‘Transitional governments in the breach: Why punish state criminals?,’ Human Rights Quarterly, 12(1), 1990: 1–16. Mani, Rama, ‘Balancing peace with justice in the aftermath of violent conflict’, Development: Peacebuilding through justice, 48(3), 2005: 25–34. Mani, Rama, Beyond Retribution: Seeking justice in the shadows of war, Cambridge, UK: Polity Press, 2002. Manson, Katrina and Knight, James, Sierra Leone. Chalfont St Peter, UK: Bradt Travel Guides, 2009. Maogoto, Jackson Nyamuya, War Crimes and Realpolitik: International Justice from World War 1 to the 21st Century, Boulder, CO: Lynne Reinner, 2004. Marks, Kathy, The Rwanda Tribunal: Justice delayed, New York, NY: International Crisis Group, 7 June 2001 (available at www.globalpolicy.org/intljustice/ tribunals/2001/0607icg.html). Martens, Thomas, ‘The Eichmann Trial: Hannah Arendt’s view on the Jerusalem Court’s competence’, German Law Journal, 2, 2005: 407–424. McAuliffe, Padraig, ‘Transitional justice in transit: Why transferring a Special Court for Sierra Leone trial to the Hague defeats the purposes of hybrid tribunals’, Netherlands International Law Review, 55, 208: 365–393. McDonald, Avril, ‘Sierra Leone’s shoestring Special Court’, International Review Red Cross, 84, 2002: 121.

180   Bibliography and sources McEvoy, Kieran, ‘Beyond legalism: Towards a thicker understanding of transitional justice’, Journal of Law and Society, 34(4), 2007: 411–440. Meernik, James, ‘Victor’s or the law? Judging and punishing at the International Criminal Tribunal for the Former Yugoslavia,’ Journal of Conflict Resolution, 47(2), 2003: 140–162. Meernik, James, ‘Justice and peace? How the International Criminal Tribunal affects societal peace in Bosnia,’ Journal of Peace Research, 42(3), 2005: 271–289. Meron, Theodor, War Crimes Law Comes of Age, New York, NY: Oxford University Press, 1998. Minow, Martha, Between Vengeance and Forgiveness: Facing history after genocide and mass violence, Uckfield, UK: Beacon Press, 2000. Mochochoko, Phakison and Tortora, Giorgia, The management of the Special Court for Sierra Leone, in Romano, C.P.R., Nollkaemper, A. and Kleffner, J.K. (eds), Internationalised Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia, Oxford, UK: Oxford University Press, 2004. Muna, Bernard, ‘The Rwanda Tribunal and its Relationship to National Trials in Rwanda’, 13 American University International Law Review (1997–1998) pp. 1469–1494. Naqyi, Yasmin, ‘Amnesty for war crimes: Defining the limits of international recognition’, International Review of the Red Cross, 85, 2003: 583–626. Nesbitt, Michael, ‘Lessons from the Sam Hinga Norman decision of the Special Court for Sierra Leone: How trials and truth commissions can co-­exist,’ German Law Journal, 10, 2007: 977–981. Neuffer, Elizabeth, The Key to My Neighbours House: Seeking justice in Bosnia and Rwanda, London, UK: Bloomsbury Publishing, 2003. Newsweek, ‘A New Breed of Tribunal’, Newsweek, 4 March 2003 (www.newsweek. com/2003/03/03/a-­new-breed-­of-tribunal.html#) Nino, Carlos Santaigo, Radical Evil on Trial, London, UK: Yale University Press, 1996. No Peace Without Justice, Sierra Leone Mission, Narrative Status Report, December 2001. No Peace Without Justice, Sierra Leone Mission, Narrative Status Report, 2002a. No Peace Without Justice, Sierra Leone Mission, Final Narrative Report, July 2002– October 2003. No Peace Without Justice, ‘Briefing paper on the relationship between the Special Court and the Truth and Reconciliation Commission: Legal analysis and policy considerations of the Government of Sierra Leone for the Special Court planning mission’, 7–18 January 2002b (available at www.specialcourt.org/documents/PlanningMission/BriefingPapers/TRC_SpCt.html). Olonisakin, Funmi, Peacekeeping in Sierra Leone: The story of UNAMSIL, Boulder, CO: Lynne Reinner, 2008. Onishi, Norimitsu, ‘Africa Diamond Hub Defies Smuggling Ban’, New York Times, 2 January 2001. Opotow, Susan, ‘Reconciliation in times of impunity: Rethinking social justice’, Social Justice Research, 14(2), 2001: 149–170. Orentlicher, Diane, ‘Settling accounts: The duty to prosecute human rights violations of a prior regime’, Yale Law Journal, 100, 1991: 2537–2615. Orentlicher, Diane, ‘“Settling Accounts” revisited: Reconciling global norms with local agency’, International Journal of Transitional Justice, 1(1), 2007: 10–22. Osiel, Mark J., ‘Ever again: Legal remembrance of administrative massacre’, University of Pennsylvania Law Review, 144, 1995: 463.

Bibliography and sources   181 Pape, Eric, A New Breed of Tribunal, Newsweek Web Exclusive, 3 March 2003 (avail­ able at www.newsweek.com/2003/03/03/a-­new-breed-­of-tribunal.html). Penfold, Peter, ‘Will Justice Help Peace in Sierra Leone?’, World Today Essay, Observer, 20 October, 2002. Perriello, Tom and Weirda, Marieka, ‘The Special Court for Sierra Leone under scrutiny’, International Centre for Transitional Justice Prosecution Case Study Series, 15, March 2006. Peskin, V., ‘Courting Rwanda: The promises and pitfalls of the ICTR Outreach Programme’, Journal of International Criminal Justice, 3(4), 2005a: 950–961. Peskin, V., ‘Beyond victor’s justice: The challenge of prosecuting the winners at the International Criminal Court’, Journal of Human Rights, 4(2), 2005b: 213–231. Polman, Linda, We Did Nothing: Why the truth doesn’t always come out when the UN goes in, London, UK: Penguin Books, 2004. Reno, William, ‘Political networks in a failing state: The roots and future of violent conflict in Sierra Leone’, International Politics and Society, 2, 2003: 44–66. Reynolds, Paul, ‘Charles Taylor: The trial begins’, BBC News Online, 4 June 2006 (available at http://news.bbc.co.uk/1/hi/world/africa/6707551.stm). Richards, David, ‘Expeditionary operations: Sierra Leone – lessons for the future’, World Defence Systems, 3(2), 2001: 134–136. Richards, Paul, Fighting for the Rainforest: War, youth & resources in Sierra Leone, Oxford, UK: James Currey Publishing, 1996. Richards, Paul, ‘Book Review: “Peacekeeping in Sierra Leone: the story of UNAMSIL by Funmi Olonisakin” ‘, African Affairs, 108(433), 2009: 696–697. Roht-­Arriaza, Naomi, ‘Institutions of international justice, ‘Journal of International Affairs, 52, 1999: 473–491. Roht-­Arriaza, Naomi, ‘Reparations in the aftermath of repression and mass violence’, in Stover, E. and Weinstein, H. (eds), My Neighbour, My Enemy: Justice and community in the aftermath of mass atrocity, Cambridge, UK: Cambridge University Press, 2004. Romano, Cesare P.R., Nollkaemper, André and Kleffner, Jann K. (eds), Internationalised Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia, Oxford, UK: Oxford University Press, 2004. Rosenbaum, Allan and Rojas, Maria V., ‘Decentralisation, local governance and centre– periphery conflict in Sierra Leone’, Public Administration and Development, 17, 1997: 529–540. Roth, Kenneth, ‘The case for universal jurisdiction’, Foreign Affairs, September/October 2001. Rudolph, Christopher, ‘Constructing an atrocities regime: The politics of war crimes tribunals’, International Organisation, 55(3), 2001: 655–691. Savolainen, Sylvain, ‘Special Court for Sierra Leone: Taylor, last chance for the Sierra Leone model’, in ‘2007 Year of assessment, issues and prospects at the closing of the first international courts’, International Justice Tribune, 69, 2007 (see also www. infosud.org/spip.php?article1960). Sawyer, Edward and Kelsall, Tim, ‘Truth vs justice: Popular views on the Truth and Reconciliation Commission and Special Court for Sierra Leone’, Online Journal of Peace and Conflict Resolution, 7(1), 2007: 36–38. Saxon, Dan, ‘Exporting justice: Perceptions of the ICTY among Serbian, Croatian and Muslim communities in the Former Yugoslavia’, Journal of Human Rights, 4(4), 2005: 559–572.

182   Bibliography and sources Schabas, William, ‘The International Criminal Court: The secret of its success’, Criminal Law Forum, 12(4), 2001: 415–428. Shaw, Rosalind, Rethinking Truth and Reconciliation: Lessons from Sierra Leone, Washington, DC: United States Institute of Peace Special Report No. 153, February 2005. Shaw, Rosalind, ‘Memory frictions: Localizing the Truth and Reconciliation Commission in Sierra Leone’, International Journal of Transitional Justice, 1, 2007: 183–207. Scheffer, David, ‘International judicial intervention’, Foreign Policy, 102, 1996: 34–51. Shklar, Judith, Legalism: Law, Morals and Political Trials, Cambridge, MA: Harvard University Press, 1964. Sibthorpe, A.B.C., History of Sierra Leone (4th edn), London: Elliot Stock, 1970. Sieff, Michelle, ‘Prosecuting war criminals: The case for decentralisation’, Conflict Security and Development, 2(2), 2002: 103–113. Simonovic, I., ‘Dealing with the legacy of past war crimes and human rights abuses’, Journal of International Criminal Justice, 2(3), 2004: 701–710. Smith, Alison, ‘Sierra Leone: Law, policy and practice’, in Romano, Cesare P.R., Nollkaemper, André, and Kleffner, Jann K. (eds), Internationalised Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia, Oxford, UK: Oxford University Press, 2004. Snyder, Jack and Vinjamuri, Leslie, ‘Advocacy and scholarship in the study of international war crime tribunals and transitional justice’, Annual Review of Political Science, 7, 2004: 345–362. Sriram, Chandra Lekha, ‘Wrong-­sizing international justice? The hybrid tribunal in Sierra Leone,’ Fordham International Law Journal, 29(3), 2006: 472–506; University of Maryland Legal Studies Research Paper, No. 2005–49. Sriram, Chandra Lekha, ‘Justice as liberal peacebuilding and strategies of transitional justice’, Global Society, 21(4), 2007: 579–591. Sriram, Chandra Lekha, Olga, Martin-­Ortega and Herman, Joanna, Just Peace? Peacebuilding and rule of law in Africa: Lessons for policymakers, London, UK: The Centre on Human Rights in Conflict, University of East London, January 2009 (available at www.uel.ac.uk/chrc/documents/CHRCJustPeaceAfricaFinal.pdf ). Staggs, Michelle, Report on the Tenth Session of the RUF Trial, Special Court for Sierra Leone, 17 January, Berkeley, CA: University of California, Berkeley, War Crimes Centre, 2008. Staggs, Michelle and Kendall, Sara, Special Court Monitoring Update No. 5, Trial Chamber 1 – CDF Trial, Berkeley, CA: University of California, Berkeley, War Crimes Centre, 24 September 2004. Stewart, Andrew, ‘An enduring commitment: The British Military’s role in Sierra Leone’, Defence Studies, 8(3), 2008: 351–368. Struett, Michael, ‘The legitimacy of the International Criminal Court and the ad hoc tribunals’, paper presented at the Midwest Political Science Association, April 5 2000, Chicago, IL. Stover, Eric and Weinstein, Harvey, My Neighbour, My Enemy: Justice and Community in the Aftermath of Mass Atrocity, Cambridge: Cambridge University Press, 2004. Taylor, Telford, The Anatomy of the Nuremberg Trial, Boston, MA: Little Brown and Co. Publishers, 1993. Teital, Ruti, ‘Transitional justice genealogy’, Harvard Human Rights Journal, 16: 2003, 69–94. Tejan-­Cole, Abdul, ‘The Special Court for Sierra Leone’, Inter-­rights Bulletin, 14, 2002: 37–39.

Bibliography and sources   183 The Democrat, ‘Betrayal! Hinga Norman Writes From Jail’, The Democrat, Freetown, 29 October 2004. The New Citizen, ‘Tongo Fields to get Radio Station soon’, The New Citizen, Sierra Leone, 18 February 2008. Thompson, Alison, Special Court Monitoring Programme Update No. 70, Trial Chamber 1 – CDF Trial, Berkeley, CA: University of California, Berkeley, War Crimes Centre, 24 February 2006. Truth and Reconciliation Commission, Witness to Truth: Report of the Sierra Leone Truth and Reconciliation Commission, Freetown: Sierra Leone Truth and Reconciliation Commission, 2004 (available at www.sierra-­leone.org/TRCDocuments.html). Turay, Thomas M., Civil Society and Peacebuilding: The Role of the Inter-­Religious Council of Sierra Leone, London, UK: Conciliation Resources (available at: www.c-­r. org/our-­work/accord/sierra-­leone/inter-­religious-council.php). Uvin, Peter and Mironko, Charles, ‘Western and local approaches to justice in Rwanda’, Global Governance, 9, 2003: 219–231. Vinjamuri, Leslie and Snyder, Jack, ‘Trials and errors: Principles and pragmatism in strategies of international justice,’ International Security, 28(3), 2004: 5–44. Weirda, Markieka, International Centre for Transitional Justice, Clingendael Publication, Chapter 8 – Transitional Justice in Sierra Leone. On file with the author, obtained during fieldwork to the ICTJ in New York, March 2006. Weirda, Marieka, Hayner, Priscilla and Van Zyl, Paul, ‘Exploring the relationship between the Special Court and the Truth and Reconciliation Commission of Sierra Leone’, New York, NY: International Centre for Transitional Justice, 24 June 2002. Weschler, Lawrence, International Humanitarian Law: An overview, New York, NY: W.W. Norton & Company New York, 1999 (www.crimesofwar.org). West, Richard, Back to Africa, London, UK: Jonathan Cape Ltd, 1970. Wilson, Richard J., ‘Emaciated defense or a trend to independence and equality of arms in internationalised criminal tribunals?’, Human Rights Brief, 15(2), 2008: 6–10. Wlodarczyk, Nathalie, Magic and Warfare: Appearance and Reality in Contemporary African Conflict and Beyond. Houndmills, UK: Palgrave MacMillan, 2009. Wolfe, Robert, ‘Flaws in the Nuremberg legacy: An impediment to international war crimes tribunals’ prosecution of crimes against humanity’, Holocaust and Genocide Studies, 12(3), 1998: 434–453. Zacklin, Ralph, ‘The failings of the Ad hoc tribunals,’ Journal of International Criminal Justice, 2, 2004: 541–545.

Index

Abdullah, I. 35, 36, 42, 43, 44, 45 Abidjan Peace Accord 58 accountability 21, 26, 48 Accountability Now Clubs (ANC) 93–4, 136 ad hoc tribunals 18, 20–1, 28, 30 administrative organisation 39 Akpata see Margai, Albert Alie, J.D. 34 All People’s Congress (APC) 35–6, 40 amnesty 57 Amnesty International (AI) 21–2, 23, 100, 108 Annan, Kofi 52 Anti-Corruption Commission 33 Anti-Corruption Revolutionary Movement 35 Arbour, Louise 48 archiving 123 Argentina 25 Armed Forces Revolutionary Council (AFRC) 36–7, 40–1; court case 72–5; indictments 73; judgements and sentencing 74; relationship with RUF 72–3 atrocities 46–8 attitudinal studies 20 authority, abuse of 39 Bangura, Brigadier Amadu 35 Bangura, Brigadier John 44 Bangura, Y. 43 Bass. G. 21, 22, 29, 44 BBC World Service 134–5 BBC World Service Trust 107, 135 Berdal, M. 40 Beresford, S. 58 Berkeley War Crimes Center 69, 70, 91, 132–3 bias 27

Bockarie, Sam 60, 66 Bosnia 28–9; domestic war crimes courts 25 Bouckeart, Peter 52 Brima, Alex Tamba 74, 75 Brown, D. 65 capacity building 122, 128–31, 133–7 capital, foreign possession of 37 cases: Armed Forces Revolutionary Council (AFRC) 72–5; Charles Taylor 75–8; Civil Defence Forces 68–72; media coverage 68–9, 70; Revolutionary United Front (RUF) 63–7; see also Revolutionary United Front (RUF); Special Court, Sierra Leone (SCSL) cash crops 37 Cassesse, A. 125 Cassesse Report 79 cease fire 36 Central African Republic 113–14 Centre for the Study of Violence in Africa 22 Chamorro, Violeta 25 charges 60–1 children: abuse of 45; not indicted 62–3 child soldiers 75 Civil Defence Forces 79; abuses and atrocities 46–7; court case 68–72; creation 73 civilians, abuse of 46–8 civil society 101, 104, 112–13, 143–4; role in post-conflict justice 25 commissions of enquiry 21 communication 28, 85–6 complexity, of transitional justice 32 conciliation 26–7 conciliatory model, of social justice 20 conflict: basis of 39; beginning 44; centreperiphery 39–40, 42; economic theories of 40; Sierra Leone 36–7

Index   185 Convention on the Abolition of the Statute of Limitations on war Crimes and Crimes Against Humanity, 1968 16 corruption 39, 42 cost, SCSL 141 Court building: as legacy 117; possible future uses 123–4, 136–7 courts, local 130–1 Crane, David 37, 42, 53, 63–4, 65–6, 68, 70–1, 80–1, 89, 90, 91–2, 95 criminal responsibility, individualisation 16–17, 23–4 crisis of modernity thesis 43–4 crossover projects 116–17 Cruelty to Children Act 57 Cruvellier, T. 72 decentralisation 39–40, 41 Defence Office 79 Democratic Republic of Congo 113–14 democratisation 39–40 depoliticisation, of international prosecutions 18 Deputy Prosecutor 129–30 Des Forges, A. 24 de Silva, C. 103 deterrence 23 diamonds 37–9; and Charles Taylor 77; role in conflict 42, 64 Dicker, Richard 18–19 disconnection, sense of 111 displaced persons 40 District Outreach Officers 92, 100–1, 108, 118 Doherty, Judge 124 domestic courts, working with 24 domestic war crimes courts 25 drugs 45 ECOMOG 37, 47, 73 economic justice 94 economic theories of conflict 40 ECOWAS 37 elections, 1996 36 Elster, J. 26 ethnic groupings 41 ex post facto law 17 Extra Chambers, Cambodia 23 Fanthorpe, R. 39–40, 41 Fletcher, L.E. 19 focus groups 126–7 Fofana, Moinina 71–2 Footpaths to Democracy 45

former Yugoslavia 27, 28–9 Forna, A. 44 Freetown 34 Fritz, N. 21 frustration 115 Frutig, B. 116 funding: lack of 118–19; for Outreach 31, 88, 133; Special Court, Sierra Leone (SCSL) 51, 54 Futumura, M. 17, 18 Fyfe, C. 35 Gacaca courts 25 Gbao, Augustine 66–7 Gberie, L. 34, 35, 37, 38, 39, 42, 46 Genda, Colonel Ambrose 35 Geneva Convention on the Laws and Customs of War, 1949 16 Genocide Convention, 1948 16 Gibson, James 20, 27 girls, abuse of 57 Goodale, M. 122 government of national unity 36–7 Gready, P. 28, 29 grievances 40 Group of Interested States 55 Gutman, R. 16 healing 26–7 Hill, S. 25 Hirsch, J. 37 Holocaust 17–18 hostilities, outbreak 1991 42–4 hostility 115 human rights organisations 21–2 human rights, reporting of abuse 29 Human Rights Watch (HRW) 21–2, 30, 44, 45, 62, 65, 75, 102–3, 129 Hussein, Saddam 18 Hut Tax War 39 hybrid courts 21, 25, 56–7, 58, 61 ideology, RUF 45 impunity gap 24 inclusion 120 independence, SCSL 56 indictees, treatment of 103–4, 119 indictments: Armed Forces Revolutionary Council (AFRC) 73–4; overview 62–3; SCSL 60; small number 95; see also Special Court, Sierra Leone (SCSL) individualisation, of criminal responsibility 16–17, 23–4 information: inaccurate 115; for outreach 86

186   Index Information Centre, Kigali 28 Institute for War and Peace Reporting (IWPR) 113–14 institution strengthening, in national legal sector 122 International Centre for Transitional Justice (ICTJ) 20, 21, 107, 114–15, 135 International Committee of the Red Cross (ICRC) 92–3 International Criminal Court (ICC) 15, 18 International Criminal Tribunal for fomer Yugoslavia (ICTY) 21, 27, 28–9 International Criminal Tribunal for Rwanda (ICTR) 29–30 International Criminal Tribunals, locations 28 international justice: and legacy 123; origins 16–17; symbolic value 138 Iraqi High Tribunal 23 Japan 18 Jaspers, Karl 16–17 Jordash, Wayne 64 journalists, training 135 judicial legacy 137 judiciary, engaging with 101–4 jurisdiction 57, 58–60 justice 141–2; national and international 103; and peace 19; proleptic 122, 126–8, 138; therapeutic 138 Justice in Motion 129 justice therapeutic 122 Kallon, Morris 66–7 Kamajors 41, 46–7, 73 Kamara, Ibrahim Bazzy 74, 75 Kamari, M.C. 122 Kanu, Santigie Borbor 74, 75 Kaplan, R. 43 Keen, D. 36, 37, 39, 40, 41–2, 45 Kelsall, T. 27, 96, 97, 111 Kendall, S. 69 Keppler, Elise 18–19 Kerr, R. 18, 24, 28 Kimberley Process 38 knowledge transfer 122 Kondewa, Allieu 71–2 Koroma, Ernest Bai 78, 141 Koroma, Johnny Paul 36, 46, 60, 72, 74, 75 Kosovo 25 Krios 34–5 Krog, A. 26

languages, in Outreach 136 Lansana, Brigadier David 35 law, and politics 17–20 legacy 116–20, 143, 144–5; capacity building 133–7; debates 123–6; lack of resources 122, 123; overview 122–3, 139; weakness 116–17 legacy literature 131–3 Legacy officer 117 Legacy Working Group 123 Legal Counsels’ committees 56 legalism 22–4 legitimacy 111; Nuremberg trials 19 Levert, S. 34 Liberia 48 Lincoln, J. 38, 107 Linton, S. 54 literacy 85–6, 93–4, 97 local courts 130–1 local governance 40–1 local militia 41 local ownership, sense of 87 logic of emotions 22 Lomé peace agreement 30, 47, 57 London Charter, 1945 17 Longman, T. 24 Maada Bio, Brigadier Julius 36 Macaluso, D.J. 57 Magbaily-Fyle, C. 34 Mahoney, C. 125 Maier, C.S. 17 Malamud-Goti, J. 23 Malicious Damage Act 57 Malloch-Brown, Mark 141–2 Malone, D. 40 mandate, SCSL 57–8, 131 Mani, R. 23 Margai, Albert 35 Margai, Charles 71 Margai, Sir Milton 35 Martens, T. 17 McAuliffe, P. 76 McEvoy, K. 15 Meernik, J. 27, 28–9 Meron, T. 23 military coup 35, 40–1 Milosevic, Slobodan 18 mineral resources 37 mining 38 Mironko, C. 29 Mobekk, E. 28 Mochochoko, P. 54, 55, 56 Momoh, Major Gen. Joseph 36

Index   187 monitoring, Outreach 111–12 Muller, A.S. 58 Muna, B. 20 Naqyi, Y. 26 national institutions, support for 25 national judiciary 130–1 national legal sector 122 National Provisional Ruling Council (NPRC): brutality and corruption 36; coup 1994 46 National Reformation Council (NRC) 35 Nationwide Survey Report on Public Perceptions of the Special Court for Sierra Leone 106–7 New Barbarism thesis 43 Nicaragua 24–5 non-judicial measures 25–7 No Peace Without Justice (NPWJ) 85, 86–7, 88, 89 Norman, Sam Hinga 41, 60, 68, 70–1, 72 normative approaches 22 north–south divisions 104–5 NPFL 44 Nuremberg Charter 16 Nuremberg principles 16 Nuremberg trials 16, 17–18; short-term impact 19 Obasanjo, Olusegan 75, 76 Office of the Prosecutor (OTP) 88, 90, 140; criticisms of Outreach 91 Olonisakin, F. 38 Onishi, N. 38 Outreach 28; access 92, 99–100; barriers 99–100; beginnings 90–2; communication 85–6; engagement programmes 92–3; evaluation 95–7, 105–9, 144; funding 31, 88, 133; goal 94; grassroots 117; importance of 142–3; inclusion 120; initial efforts 86–8; lack of resources 111, 119, 133, 143–4; mission statement 89; monitoring 111–12; office 92; overview 85–6, 120–1; partner 92; Partnership Project 100–1; programmes 93; SCSL, overview 88–90; seminars 89; shortcomings 97–9; significance in legacy of SCSL 116–20; summary 140; women’s access 100; working relationships 101–3 Outreach for the Special Court: Ensuring momentum gained is not lost 89 ownership, creating sense of 87

Pademba Road Prison 102–3 Pape, E. 80, 90, 91 Paramount Chiefs 39, 40 Partnership Project 100–1 peace: declaration of 47; and justice 19 peace building 20 Penfold, Peter 66, 69, 70, 80 Perriello, T. 52, 55, 56 Peskin, V. 20 political violence 42 politics, and law 17–20 Polman, L. 29 post-conflict reconstruction 33 poster campaign 135–6 poverty 33, 37, 94 pragmatism 22, 24–5 principle of ‘necessity’ 71 proleptic justice 122, 126–8, 138 public sensitisation, for outreach 86 radio 107, 108–9, 134 Radio Justice 134 rape 45–6 Rapp, Stephen 77 rationality 43 rebels: impunity 47; initial group 43 relevance 129 repatriation, of slaves 34 resentment 128–9 responsibility 80, 91–2 restorative justice 31–2 retributive justice 31–2 Revolutionary United Front (RUF) 36–7, 38; court case 63–7; court findings 65; impunity 33–4; indictments 63–4; judgements 64, 67; origins of 43, 44–6; renege on peace agreement 47–8, 58 Reynolds, P. 75 Richards, General David 70 Richards, P. 40, 43–4 Rieff, D. 16 Roht-Arriaza, N. 21 Rojas, M.V. 40–1 Rome Statute, 1998 15 Rosenbaum, A. 40–1 Royal Sierra Leonean Armed Forces (RSLAF) 42 Rudolph, C. 28 rule of law reform 137 Rwanda 27–8, 29–30; Gacaca courts 25 Sankoh, Foday 44, 47, 60, 65–6, 72–3; links to Charles Taylor 77–8 Sawyer, E. 96

188   Index Saxon, D. 27 SCIF 111–12, 113 score settling 39 Search for Common Ground 107, 135 security issues 33 Sergeant’s Revolt 35 Sesay, Issa Hassan 67 sexual assault 45 Shaw, R. 26, 111 Sibthorpe, A.B.C. 34 Sierra Leone: British involvement 34, 39; history 34–5; hybrid courts 25; independence 35; overview of conflict 33–4 Sierra Leonean Army (SLA) 41; abuses and atrocities 47 Sierra Leone Bar Association 129–30 Sierra Leone Company 34 Sierra Leone People’s Party (SLPP) 35, 36, 40–1 Simonovic, I. 27 Sirleaf, Ellen Johnson 75, 76, 78 slavery 34 Smith, A. 21, 58–9 Snyder, J. 22–3, 25 sobels 42, 72 social damage 46 social justice, conciliatory model of 20 ‘so-did-you’ defence 17 South Africa 20, 27 South African Truth and Reconciliation Commission 27 South America 24–5 Special Court Agreement 130 Special Court, Sierra Leone (SCSL): charges 60–1; cost 141; creation 52–3; Defence Office 79; establishment 30–1, 48; expectations for 51, 140; focus and scope 52, 58–9; funding 31, 51, 54; hybridity 56–7, 58, 61; jurisdiction 58–60; lack of resources 118–19; legacy 94; legacy and memories 110–16; limitations 87; limitations of scope 94–5; management committee 54–6; mandate 57–8, 131; as next generation tribunal 51–2; north-south divisions 104–5; Outreach. See separate headingoverview 81; political contentions 104–5; political context 51; procedural concerns 78–80; public perceptions of 118–19; relations with TRC 31; as satisfactory justice 80–1; significance of Outreach in legacy 116–20; statute 54, 56–7, 58; Witness

Management Office 79; working relationships 101–3; see also cases; indictments Special Court Working Group (SCWG) 87–8 Sriram, C.L. 18, 19, 22, 70, 89 Staggs, M. 64, 69 Staggs Report 78 Stevens, Siaka 35–6 stigmatisation 46 Stover, E. 19–20, 21, 23–4 Strasser, Valentine 36, 46 student protests 36 survivors, focus on 22 Swaray, Alhaji Mohamed 38 symbolism 138 Taylor, Charles 60–1, 63, 67, 123; conviction 76–7; court case 75–8; links to Foday Sankoh 77–8; radio coverage of trial 134 Taylor, T. 17 Teital, R. 15 Tejan-Cole, A. 86 Tejan Kabbah, Ahmed 36–7, 40, 41, 46, 48, 52 television 135 ‘The coming anarchy’ 43 therapeutic justice 138 The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies 132 Thompson, Judge 71 Tokyo trials 16, 17, 18 Tortora, G. 54, 55 training workshops 88 transitional justice 21–2; attitudinal studies of 20; complexity of 32; responses to 21–2 transitional justice regimes 19–20 TRC Act, 2000 48 trials: politicisation of 18; post-Second World War 15 trial screenings 98, 99 Tribal Authorities 40 Truth and Reconcilation Commission, Sierra Leone 66, 72; creation 48; establishment 31–2; findings 46–7; relations with Special Court 31; Report 140 truth commissions 21, 25–7 truth-telling 20, 25–7, 48 tu quoque 17 twin approach, to peace building 31–2

Index   189 UN 15 unemployment 33 UN Human Development Index 33 Universal Declaration of Human Rights, 1948 16 universalism 22 universal standards, liberal democratic basis 23 UN peacekeeping force 38 UN Security Council Report 48 UN Security Council, Resolution 1315 48, 52 Uvin, P. 29 Victims Commemoration Conference 113, 117 victims, focus on 22 victor’s justice 17, 27 Vincent, Robin 52, 53, 123 Vinjamuri, L. 22–3, 25

violence: following conflict 42; indiscriminate 47; nature of 45, 74–5; reporting of 29 visibility 140 war, Sierra Leone 36–7 Weinstein, H. 19–20, 21, 23–4 Weirda, M. 52, 55, 114–15 West Side Boys 47–8 Wetin Na Di Specal Kot? (What is the Special Court?) 131–2 Witness Evaluation and Legacy Project 137 Witness Management Office 79 Witness Victim Support (WVS) 69, 116–17, 123, 137 young people 42 Zacklin, R. 27