The idea that perpetrators of human rights abuses should be made accountable for their action has gained currency in international law and practice. (1) Nascent from the general principles of human rights protection and state obligation decreed by international instruments such as the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, (2) the 1949 Geneva Conventions, (3) and the International Covenant on Civil and Political Rights (ICCPR), (4) the idea has crystallized into an expanded scheme of action that calls for the avoidance of blanket amnesties for past violations, imputation of individual criminal responsibility, and the exercise of extraterritorial jurisdiction to try and punish human rights violators. (5) The argument that past violations may be excusable for reason of democratic consolidation, for societal healing or for merely bringing the belligerents to a negotiation table is becoming unpopular even within nations that have experienced great political and social upheaval. (6) However, the development of appropriate enforcement mechanisms that would be in tandem with the unrelenting mood of the international community against human rights violations has been very slow. (7) The difficulty of marshalling the consensus necessary for treaty formation and the general political suspicion against the diminishing sovereignty privileges has impacted negatively on such an enterprise. (8) The result has been a pathetic recourse to ad hoc measures meant to bridge the gap between the genuine concerns for the eradication of human rights abuses and the political desires to retain sovereignty and block interference with so called "internal affairs." (9)
One area in which such a policy has become evident is with the prosecution and punishment of war criminals through the ad hoc international war crimes tribunals. (10) The tribunals are a compromise between two competing forces--a creature of convenience crafted to satisfy the overwhelming demand for response against massive violations of human rights, but with restricted temporal and substantive jurisdiction to match the cynicism of the western political influence. (11) As one scholar has observed:
The Yugoslav and Rwanda Tribunals were not established because of the United Nations, or the powerful states that control it. They were not established because of an intrinsic value on punishing war criminals or upholding the rule of law. Rather, the mobilization of shame by non-governmental organizations and especially the grisly pictures beamed to the world by the television camera created a public relations nightmare and made liars of the centers of Western civilization. (12) Because of the restrictions placed on them by their constitutive statutes, lack of uniformity and the fact of their temporary presence, the tribunal's practical effect as a deterrent measure has been negligible--a fact conceded by even their most ardent of supporters. (13) Despite this, the United Nations Security Council has persisted in this endeavor, making such tribunals the most preferred method of dealing with international crimes and human rights abuses. (14) The Nuremberg and Tokyo tribunals have thus created an enduring framework for a watered down international response to gross violations of human rights. (15) The Yugoslavia and Rwanda tribunals have followed in this tradition and the proposed Sierra Leone tribunal/court may be no different. (16)
Whereas the institution of war crimes tribunals in relatively "peaceful" times has achieved some measure of "success," the viability of such schemes in the face of an ongoing civil war, as well as their perceived incompatibility with peace processes, reveals a consistent contradiction in the implementation of international human rights law. (17) One reason could be the unpredictability of outcomes, given the inherent weaknesses in the normative structure of the current web of international human rights regimes. (18) Obviously, these weaknesses are augmented by the incongruent policy objectives of the determinate authorities and by the exigencies of international politics. (19) The other could be that the threat of punishment as an object of an international criminal process excites emotions and evokes fear amongst warring parties, thereby diminishing any chances of seeking a negotiated solution to a civil war. (20) But perhaps what is germane to this discourse is whether the propagation of these international schemes, especially those that investigate, prosecute, and punish individuals responsible for international crimes, is consistent with the overall objective of creating peace. While conceding that the punishment of human rights violations is essential to the promotion of international peace and security, (21) designing an appropriate mechanism for its enforcement, especially in conditions of conflict, is a task that has received very scant normative attention. However, one fact remains undisputed: for societies in turmoil, the promotion of human rights as part and parcel of a holistic framework for peace, reconstruction, and overall societal development presents a better opportunity for its enforcement than the piecemeal approach favored by some powerful nations.
This article questions whether the establishment of a hybrid war crimes tribunal is an appropriate response to the current civil war in Sierra Leone. It analyzes the Sierra Leone problem in the context of its historical evolution and draws the conclusion that what is best for the country is an integrated program of action that will address the peremptory factors inhibiting the maturation of the peace process. Further, this article discounts the ad hoc interventionist programs propagated by the UN and its collaborators upon their obvious inability to bring the war to an end, bolster development of institutions of democracy, and eradicate violations of human rights abuses. (22) The article examines the relationship that exists between the peace process and human rights so as to provide context to the discussion on the nature of the proposed 'special international criminal court' now in the process of being established in Sierra Leone.
BACKGROUND TO THE SIERRA LEONE CONFLICT
In 1961, Sierra Leone gained its independence from the British. (23) The dispensation of power was not immediately followed by elections, but rather adopted the political structure that had been in place since the 1957 election. (24) This created tension between the powerful Sierra Leone Peoples Party (SLPP) led by Sir Milton Magai, who, by virtue of being a majority leader in the colonial legislature, had assumed the post of prime minister, and the bulwark of opposition leaders. (25) This was indeed a false start in the long path towards democratic self-governance. The uneasiness generated by squabbling amongst political leaders and the fear that such morose political atmosphere may erode public confidence in the government, prompted Milton Magai to dissolve parliament on April 17, 1962 and to call for general elections on May 25 of the same year. (26) It was not surprising that the mainstream political parties were unable to secure majority votes. (27) In fact, the independent candidates secured 42.6 percent of the votes against the SLPP 34.7 percent, All Peoples Congress (APC) 17.2 percent, Sierra Leone Progressive Independence Movement (SLPIM) 5.2 percent and UPP 0.3 percent; SLPP was, however, allowed to form the government because it had the majority of seats amongst the organized political groups. (28)
On taking leadership, the SLPP sought to consolidate its hold on power by intimidating and weakening opposition groups. (29) Rural chiefdoms were encouraged to harass and intimidate opposition politicians. (30) At the same time, the SLPP enticed leaders of opposition parties to abandon their parties and join its ranks. (31) Though the long-term benefit of this strategy was doubtful, it succeeded in temporarily eliminating threats against its leadership. (32) Magai pursued policies aimed at cutting the electoral base for the opposition parties, as well as debilitating their efforts to consolidate their internal structures. (33) By the time of his death on April 28, 1964, Magai had created a strong central government controlled by a small clique of wealthy African elites. (34) His management style had encouraged and indeed sanctioned the use of the state instrumentality to convert political power and positions into economic wealth for the privileged minority group. (35) To a large extent, this explains the decay of state economic power in the years that followed, despite the abundance of mineral and other natural resources within the territory of Sierra Leone. (36) It also explains why the endemic problems of corruption and other malfeasance became defining characteristics of successive regimes, let alone a justifying epithet for the military coups the country was to endure in the following decade. (37) In many ways, the stage had been set for Sierra Leone's descent into turmoil and political quagmire. (38)
After Milton Magai's death, his brother, one Albert Magai, thence occupied the office of the Prime Minister. (39) His reign was characterized by high levels of corruption, mismanagement, and political highhandedness, an all too familiar pattern of postcolonial administration in most African countries. (40) Freedom of speech was nonexistent as the government cracked down hard on pro-opposition newspapers. (41) Political rallies were strictly regulated by law: (42) before any gathering could be allowed, the conveners were required to obtain licenses from regional government officials. (43) The judiciary was equally muzzled. (44) In 1965, the Chief Justice of Sierra Leone, Sir Samuel Bankole-Jones, was removed from office and appointed the President of the Court of Appeal. (45) His removal was attributed to his unwavering belief for the independence of...