The complementary and conflicting relationship between the Special Court for Sierra Leone and the Truth and Reconciliation Commission.

• Date: 01 January 2003
• Author: Tejan-Cole, Abdul

Most countries in transition from civil war face limited choices when imposing accountability for past atrocities. Some, like Mozambique, opt to grant unconditional amnesty. Other countries, like South Africa, have instituted a truth and reconciliation commission and granted limited amnesty, while get others, like Rwanda, prosecute perpetrators of genocide, war crimes, and crimes against humanity. These solutions are not mutually exclusive. Following a ten-year, bloody war characterized by widespread killings, amputations, rape, slavery, enforced prostitution and extensive use of child soldiers, Sierra Leone has chosen a unique blend of institutional mechanisms. At first, the government purported to grant an "unconditional" amnesty to the perpetrators while establishing a Truth and Reconciliation Commission. When the agreement establishing the latter foundered, the government established a Special Court in addition to the Commission. Amnesty pardons all, the Commission seeks truth, reconciliation and healing for past wrongs, and the Court aims at prosecuting the most culpable perpetrators. This Note examines two of these seemingly conflicting mechanisms--the Truth and Reconciliation Commission and the Special Court. The Note compares the mandates of the respective bodies, as well as their basis, composition and jurisdiction and discusses their respective roles in Sierra Leone. The Note highlights several areas in which these bodies need to cooperate while maintaining their independence and emphasizes the need to define the relationship between the two institutions in order to preserve their effectiveness.

1. INTRODUCTION

   Societies emerging from political turmoil and civil unrest associated with gross violations of human rights and humanitarian law face the crucial questions of how to deal with these atrocities and how to come to terms with the past. (1) Since the 1980s, this problem has been a major preoccupation of international law and scholarship. The traditional responses include international intervention pursuant to Chapter VII powers of the United Nations Charter, grants of conditional amnesty to perpetrators of war crimes and crimes against humanity, grants of some form of unconditional amnesty, and prosecution of those responsible.

   Nowhere is the difficulty of dealing with the past more pressing than in Sierra Leone, which recently emerged from a ten-year civil war characterized by systematic, serious, and widespread violations of human rights and international humanitarian law. (2) The government of Sierra Leone needed to make a choice among these four traditional strategies for dealing with pervasive human rights violations. Many discussions on post-conflict accountability mechanisms weigh the merits in choosing among a truth commission, national or international criminal prosecutions, or some other form of establishing accountability. Sierra Leone is unique in trying almost all of these options in attempting to address its post-conflict situation.

   In Sierra Leone, both rebel and government forces committed atrocities in the period after the conflict began in March 1991. Members of the Revolutionary United Front (RUF), (3) with the military and material support of the National Patriotic Front of Liberia (NPFL), (4) quickly gained control over a fifth of the territory of Sierra Leone and engaged in a campaign of violence whose only motivating factor seems to have been the control of Sierra Leone's abundant diamond wealth. In a counter-offensive, the army hastily conscripted hundreds of recruits, the enlistment rising from 3,000 to 14,000 men in the first two years of the conflict. Most of the new government recruits were disaffected--the army was mismanaged and underpaid. In April 1992, a group of soldiers arrived in Freetown from the war front to demand better pay and conditions. They soon overthrew President Momoh's Government in a coup. The coup was extremely popular, particularly because social conditions had rapidly deteriorated, labor and student unrest had heightened, and elections had approached, which the opposition parties alleged the government was preparing to rig.

   Over the next four years, the RUF continued to fight to overthrow the successive governments. Elected president in 1996, Ahmad Tejan Kabbah was overthrown in a May 1997 coup by the Armed Forces Revolutionary Council (AFRC), (5) a group created by a cadre of senior military officers. The AFRC then supported Johnny Paul Koroma, who initiated an alliance with the RUF. During the period of RUF/AFRC rule, the rule of law and the economic situation in the country completely deteriorated. In February 1998, the Economic Community of West African States Monitoring Group (ECOMOG), which had been defending the Freetown airport, drove the RUF/AFRC out of Freetown and restored Kabbah to office. Foday Sankoh, leader of the RUF, returned to Sierra Leone after being arrested in Nigeria and was tried, convicted, and sentenced to death for treason. By the end of 1998, however, the rebels had gained control over half the country, particularly in the major diamond mining areas.

   In January 1999, the AFRC/RUF entered Freetown and commenced "Operation No Living Thing." The subsequent human rights violations were among the worst of the conflict. After several weeks, ECOMOG was able to push the AFRC/RUF out of Freetown, but many children were abducted in the RUF retreat, and the RUF continued to control much of the country. Many Sierra Leoneans were displaced as a result of the RUF's occupation.

   In May 1999, under the auspices of ECOWAS, (6) a cease-fire agreement was signed. Sankoh was released from prison in July in order to attend negotiations with Kabbah in Lome, Togo. On July 7, the Lome Accord was signed. (7) To general dismay, Sankoh was appointed Chairman of the Board of the Commission for the Management of Strategic Resources, National Reconstruction and Development--giving him control of the diamond mines--and also vice-president of Sierra Leone, making him answerable only to the President.

   The Lome Accord provided for the creation of a Truth and Reconciliation Commission (TRC) to aid in reconciling the various factions and to provide a forum for victims and combatants to tell their stories, with a hope toward beginning a healing process for all Sierra Leoneans. The Accord also provided, however, a complete and unconditional blanket amnesty to all combatants for activities occurring after 1991. The U.N. made it explicit that the amnesty and pardon provisions would not apply to crimes of genocide, crimes against humanity, war crimes, and other serious violations of international humanitarian law committed during the conflict. (8)

   In October 1999, the Security Council established the United Nation's Mission in Sierra Leone (UNAMSIL) to assist in carrying out the Lome Accord. Although disarmament began and peacekeeping troops were present in Sierra Leone, the peace was tenuous. Despite the signing of the Lome Agreement, hostilities did not cease, and the factions continued to commit atrocities. (9) In May 2000, the government of Sierra Leone reassessed its stance toward a full amnesty after the rebels took United Nations peacekeepers as hostages (10) and Sankoh's security guards killed several people during a demonstration by civil society groups in front of his residence. (11)

   President Kabbah wrote to the U.N. Secretary-General requesting the establishment of an independent Special Court for Sierra Leone to address the violations committed during the war. In August, the Security Council passed Resolution 1315 mandating the Secretary-General to negotiate an agreement with the Government of Sierra Leone to create an independent Special Court. (12) On October 4, 2000 the Secretary-General submitted his report to the Security Council, annexing the draft agreement between the U.N. and the government of Sierra Leone and the draft statute for the establishment of the court. (13) Several letters between the president of the Security Council and the Secretary-General from December 2000 to July 2001 made revisions to the Statute. (14)

   In July 2001 the Security Council approved plans for a court that would 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." The Security Council endorsed the establishment of a special tribunal and on January 16, 2002, Hans Correll (15) for the United Nations and Solomon Ekuma Berewa (16) for the government of Sierra Leone signed the agreement establishing the Special Court for Sierra Leone.

   Consequently, Sierra Leone will have both a national TRC and an international, U.N.-sanctioned Special Court. This situation is unique as it is the first time a court and a truth commission with related jurisdiction have been established with the assistance of the United Nations. The institutions will operate contemporaneously with concurrent and somewhat overlapping jurisdiction.

2. BASIS, COMPOSITION, AND JURISDICTION OF THE COMMISSION AND THE SPECIAL COURT

   1. Legal Basis

      The Special Court for Sierra Leone will function under a unique mandate. Unlike the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY), the Special Court for Sierra Leone was established by an agreement between the government of Sierra Leone and the U.N. under Security Council Resolution 1315 (2000), and not pursuant to Chapter VII of the U.N. Charter. (17) The agreement determines, inter alia, the competence, jurisdiction, and organizational structure of the Special Court. No reference is made in either the agreement or the statute to Chapter VII of the U.N. Charter. Article 1 of the agreement merely states: "There is hereby established a Special Court for Sierra Leone ..." and the statute traces its authority to an agreement...