Transitional Justice: The UN and The Sierra Leone Special Court

AuthorAmbassador Richard S. Williamson
PositionAmbassador Richard S. Williamson - United States Representative to the United Nations
Pages1-10

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I thank Tali Arbusman for that kind introduction. It is a real pleasure for me to be here at the Cardozo School of Law. This afternoon I want to talk about the contribution that the United Nations ("UN") is making to transitional justice, and in particular, about the recent developments in Sierra Leone.

One of the good things the UN is doing to help nations emerging from conflict addresses the issue of transitional justice. Unfortunately, too often during armed conflicts today war crimes are committed. How accountability for war crimes is handled after the reconciliation of a nation can be critical to creating an environment in which democracy can take root.

For the United States, human rights and democracy (personal liberty and representative government) are core values. These principies are in our Declaration of Independence and our Constitution. Those same values are enshrined in the UN Charter and the UN Universal Declaration of Human Rights. As President Ronald Reagan said over twenty years ago at Westminster Abbey, "Freedom is not the sole prerogative of a lucky few but the inalienable and universal right of all human beings."1 Therefore, the values of America compel us to have policies that are faithful to and respectful of human rights and democratic principies.

But that is not the only reason American foreign policy should be informed by these principies. It also is in the interest of the United States to promote human rights and democratic values.2 Countries that respect the human rights of their own citizens are less likely to violate the rights of their neighbors. As Secretary of State George Marshall Page 2 observed in remarks before the opening session of the UN General Assembly in Paris fiftyfive years ago, "Governments which systematically disregard the rights of their own people are not likely to respect the rights of other nations and other people and are likely to seek their objectives by coercion and force in the international field."3 Democratic countries are less likely to go to war.

It is very difficult to amass support for war in a democracy.

Last month President Bush said, "The world has a clear interest in the spread of democratic values, because stable and free nations do not breed their ideologies of murder. They encourage the peaceful pursuit of a better life."4

Furthermore, we should be mindful of the new era in which we live. The organizing principies of the Cold War are gone. Without the standoff between Washington and Moscow, countries are not compelled to choose sides by the gravitational pull of a bi-polar world. National interests are no longer restrained by the logic of the Cold War. New and shifting relationships have emerged. New coalitions are forming. International institutions created during the Cold War and shaped by the Cold War dynamic are adjusting to these new realities or are becoming marginalized. Therefore, I suggest that the shared values of respect for human rights and democracy are good organizing principies as we move forward.

Therefore, since transitional justice is important for the national reconciliation, is conducive to respect for human rights, and is necessary for democracy to take root, promoting transitional justice is important to the United States.

The United Nations recognized the direct link between justice and peace in creating the International Criminal Tribunal for the former Yugoslavia ("ICTY"). Chapter VII of the UN Charter authorizes the Security Council to pass resolutions binding on all states if it determines that enforcement measures are necessary to bring an end to a threat to international peace and security. In May 1993, the Security Council created the ICTY5 under its Chapter VII authority. In 1994, at the request of the Rwandan Government, the Security Council made a simi-Page 3lar decision to create the International Criminal Tribunal for Rwanda, where civil war had led to a genocide in which 800,000 Tutsis were killed in less than three months by the Hutu majority.6

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After the killing stops, what works? Sometimes, stopping the killing requires a limited or blanket amnesty.7 That was the opinion of Nelson Mandela in 1993. The South African Peace Agreement, he and others felt, would not have been possible without granting conditional amnesty. On becoming the first president of the new democratic South frica, President Nelson Mandela said that amnesty was bound up in the "renewal of our country," as an integral part of the effort to "act together as a united people for national reconciliation, for nation building, for the birth of a new world."8

In circumstances such as those in South frica, the delicate balance of power and the fragility of a peace agreement have resulted in amnesty. While amnesty, in the right circumstances can contribute to the reconciliation necessary for establishing a legitimate legal system for longterm justice and democracy, the impunity it grants is troubling.

Military victories that end wars, however, can facilitate the pursuit of justice through international tribunals and special courts. Experience suggests that the better course in these battlefield victory situations is to prosecute only the main perpetrators of atrocities, and to do it relatively promptly. Otherwise, the pursuit of justice can impede national reconciliation and consolidation of the peace process. It is important not only that justice be done, but also that justice be seen to have been done by the parties to the conflict. That reasoning is behind the International Criminal Tribunals for the former Yugoslavia and Rwanda.9

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Sierra Leone

In Sierra Leone, the issue of transitional justice is being addressed with both a Truth and Reconciliation Commission and a Special Court.

Since Sierra Leone's independence from the United Kingdom in 1961, the country has been racked by frequent instability and civil war.10 In the 1990s, there was a particularly bloody civil war between the Revolutionary United Front ("RUF") rebel group and the government. Liberian President Charles Taylor supported the RUF. Thousands died and terrible crimes were committed.11 In May 2000, the Security Council voted a new robust mandate for UN Peacekeepers in Sierra Leone.12 The United Kingdom enlarged its commitment to bring peace to Sierra Leone, and neighboring Guinea's military struck back at the RUF. Together these developments defeated the RUF and created an opportunity for peace.

The principie upon which a Truth and Reconciliation Commission rests is that the public and official exposure of the truth is itself a form of justice. As Richard J. Goldstone, former Chairperson of South Africa's Commission,13 has written, "The public exposure of the perpetrator's deeds affords important acknowledgment for the victim, and the public admission of criminal conduct by the perpetrator is a significant Page 6 punishment."14 Judge Goldstone goes on to list the following benefits from a Truth Commission; one, it helps establish the truth; two, it can begin public and official acknowledgment to the victim of abuses; three, history is recorded more accurately and faithfully than would otherwise have been the case; four, it exposes the nature and extent of human rights violations and may reveal a systematic and institutional pattern of gross violations of human rights; and five, it may act as a deterrence of human rights violations.15

Sierra Leone's Truth...

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