TRANSITIONAL JUSTICE: THE UN AND THE SIERRA LEONE SPECIAL COURT

Transcription

1 TRANSITIONAL JUSTICE: THE UN AND THE SIERRA LEONE SPECIAL COURT Ambassador Richard S. Williamson* 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 whi.ch democracy can take root. For the United States, human rights and democracy (personal liberty and representative government) are core values. These principles 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."' Therefore, the values of America compel us to have policies that are faithful to and respectful of human rights and democratic principles. But that is not the only reason American foreign policy should be informed by these principles. 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 United States Representative to the United Nations. Ronald Reagan, Address to the British Parliament (June 8, 1982), available athttp:llwww.ford hiamtr.ediilha~satstrodi1982,eagd.h (Last visited Nov. 23, 2003). See ao Wei j!itsheng, Human Rights: Not Merely an Internal Affair, in REALIZING HuMAN RIGHTS: MOVING VROM INSPIRATION -o IMPACT (Samantha Power & Graham Allison eds., 2000). 2 See generally William F. Schulz, IN OUR OWN BEST INTEREST: How DFFENDING HuMAN RIGHTS BENEFITS Us ALL (2001).

2 2 CARDOZO PUB. LAW, POLICY & ETHICS J [Vol. 2:1 observed in remarks before the opening session of the UN General Assembly in Paris fifty-five 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 principles 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 principles 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 ICTY 5 under its Chapter VII authority. In 1994, at the request of the Rwandan Government, the Security Council made a simi U.S. DEP'T ST. BULL. 432 (Oct. 3, 1948). 4 President George W. Bush, Discusses the Future of Iraq at the Washington Hilton in Washington, DC, 2003 WL (Feb. 26, 2003). 5 SCOR Res. 827, U.N. SCOR, 3217th mtg., U.N. Doc S/RES/827 (1993), available at ods-dds-ny.un.org/doc/undoc/gen/n93/306/28/img/n pdfopenelement (last visited Nov. 23, 2003) reads in part:

3 2003] KEYNOTE ADDRESS lar 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 Expressing once again its grave alarm at continuing reports of widespread and flagrant violations of international humanitarian law occurring within the territory of the former Yugoslavia, and especially in the Republic of Bosnia and Herzogovina, including reports of mass killings, massive, organized and systematic detention and rape of women, and the continuance of the practice of 'ethnic cleansing,' including the acquisition and holding of territory, Determining that this situation continues to constitute a threat to international peace an security, Determining to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them, Convinced that in the particular circumstances of the former Yugoslavia the establishment, as an ad hoc measure by the Council, of an international tribunal and the prosecution of persons responsible for serious violations of international humanitarian law would enable this aim to be achieved and would contribute to the restoration and maintenance of peace, Believing that the establishment of an international tribunal and the prosecution of persons responsible for the above-mentioned violations of international humanitarian law will contribute to ensuring that such violations are halted and effectively redressed. For a discussion of the Balkans war see DAVID HALBERSTAM, WAR IN A TIME OF PEACE: BUSH, CLINTON, AND THE GENERALS (2001). See also Aryeh Neier, Rethinking Truth, Justice, and Guilt After Bosnia and Rwanda, in HUMAN RIGHTS IN POLITICAL TRANSITIONS: GETTYSBURG TO BOSNIA (Carla Hesse & Robert Post eds., 1999); David Rieff, Murder in the Neighborhood, in THE NEW KILLING FIELDS: MASSACRE AND THE POLITICS OF INTERVENTION (Nicolaus Mills & Kira Brunner, eds., 2002). 6 Recognizing that serious violations of humanitarian law were committed in Rwanda, and acting under Chapter VII of the United Nations Charter, the Security Council created the International Criminal Tribunal for Rwanda (Int. Crim. Trib. for Rwanda) on November 8, 1994, see SCOR Res. 955, U.N. SCOR, 3453rd mtg., U.N. Doc S/RES/955 (1994), available at doc/undoc/gen/n95/140/97/pdf/n pdfopenelement (last visited Nov. 23, 2003). The purpose of this measure is to contribute to the process of national reconciliation in Rwanda and to the maintenance of peace in the region. On February 22, 1995, the Security Council decided that the seat of the Tribunal would be located in Arusha, United Republic of Tanzania, see SCOR Res. 977, U.N. SCOR, 3502nd mtg., U.N. Doc S/RES/977 (1995), available at doc/undoc/gen/n95/050/66/pdf/n pdfiopenelement (last visited Nov. 23, 2003). The International Criminal Tribunal for Rwanda established for the prosecution of 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 It may also deal with the prosecution of Rwandan citizens responsible for genocide and other such violations of international law committed in the territory of neighboring States during the same period. See S/RES/955 (1994). See generally ELIZABETH NEUFFER, THE KEY TO My NEIGHBOR'S HOUSE: SEEKING JUSTICE IN Bos- NIA AND RWANDA (2001); Bill Berkley, Road to a Genocide, in THE NEW KILLING FIELDS: MASSACRE AND THE POLITICS OF INTERVENTION (Nicolaus Mills & Kira Brunner, eds., 2002).

4 4 CARDOZO PUB. LAW, POLICY & ETHICS J. [Vol. 2:1 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 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 Africa, 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 Africa, 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 7 Many commentators look at amnesty as a last resort. They argue that past crimes should be punished if at all feasible. But sometimes it is not. Sometimes a new government emerging from conflict "lack[s] the power to bring" past malefactors to justice because attempts to do so might provoke the overthrow of a "fragile democratic government." Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 YALE LJ. 2537, 2546 (1991). 8 Nelson Mandela, Glory and Hope: Let There Be Work, Bread, Water and Salt for All, in 60 VITAL SPEECHES OF THE DAY 486 (June 1, 1994). 9 The two tribunals are separate entities charged with distinct mandates. While both have the power to investigate and prosecute serious violations of international humanitarian law, the jurisdiction of the Int. Crim. Trib. for Yugoslavia is limited to violations committed in the former Yugoslavia since 1991 (Int. Crim. Trib. for Yugoslavia Statute, Art. 1), whereas the Int. Grim. Trib. for Rwanda jurisdiction is limited to violations committed in Rwanda between January 1, 1994 and December 31, 1994 (Int. Crim. Trib. for Rwanda Statute, Art. 1). The Int. Crim. Trib. for Yugoslavia, based in The Hague, Netherlands, and the Int. Crim. Trib. for Rwanda, based in Arusha, Tanzania, have separate staffs and trial judges but share a chief prosecutor and appellate judges. While their statues are almost identical, their substantive provisions refer to different provisions of international law, since the Int. Crim. Trib. for Yugoslavia is dealing with an international conflict and the Int. Crim. Trib. for Rwanda is concerned with an internal conflict.

5 2003] KEYNOTE ADDRESS 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. 1 " 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. 1 ' 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 principle 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 10 For an interesting discussion and analyses of the colonial imprint on the African post-colonial state, see MAHMOOD MAMDANI, CITIZEN AND SUBJECT: CONTEMPORARY AFRICA AND THE LEGACY OF LATE COLONIALISM (1991). See also Art Hansen, African Refugees Defining and Defending Human Rights, in HUMAN RIGHTS AND GOVERNANCE IN AFRICA 139 (Ronald Cohen et al. eds., 1993). 11 See generally A REPORT BY PHYSICIANS FOR HUMAN RIGHTS, WAR-REtATED SEXUAL VIO- LENCE IN 'SIERRA LEONE' (2002). 12 On February 7, 2000, the Security Council passed Resolution 1289 which enhanced the U.N. Mission in Sierra Leone's mandate in providing security, in addition to expanding it to 11,100 personnel, see SCOR Res. 1289, U.N. SCOR, 4099th mtg., U.N. Doc S/RES/1289 (2000), available at (last visited Nov. 23, 2003). On May 19, 2000, the Security Council expanded military personnel to a maximum of 13,600, but did not change U.N. Mission in Sierra Leone's mandate substantially, see SCOR Res. 1299, U.N. SCOR, 4145th mtg., U.N. Doc S/RES/1299 (2000), available at (last visited Nov. 23, 2003). On August 4, 2000, the U.N. further strengthened the mandate, to include such tasks as deterring and countering "the threat of [Revolutionary United Front] attack by responding robustly," SCOR Res. 1313, U.N. SCOR, 4184th mtg., U.N. Doc S/RES/1313 (2000), available at hrtp://ods-dds-ny.un.org/doc/undoc/gen/noo/591/96/pdf/no pdfopenelement (last visited Nov. 23, 2003). 13 From 1991 to 1994, Richard Goldstone was the Chairperson of South Africa's Commission of Inquiry regarding Public Violence and Intimidation. He also served as a member of the International panel established in August 1997 by the Government of Argentina to monitor the Argentine Inquiry into Nazi activities in the Argentine Republic since 1938.

6 6 CARDOZO PUB. LAW, POLICY & ETHICS J. [Vol. 2:1 punishment." 1 4 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. 1 5 Sierra Leone's Truth and Reconciliation Commission had its roots in the 1999 Lome Peace Agreement between the Government of Sierra Leone and the RUF. 16 A special Act of Parliament created the Truth and Reconciliation Commission in March With improved stability in the country, serious efforts were made to get the Commission up and operational. It was functioning by July The official beginning of the statement taking process began in Bomaru in the Kailahun District in December In the spirit of national reconciliation, the Commission is to deal with the question of human rights violations and abuses from the beginning of the Sierra Leone conflict in 1991, to the signing of the Lome Peace Agreement in July Its mandate includes: to create an important historical record of the violations and abuses of human rights; to address impunity; to respond to the needs of victims; to promote healing and reconciliation; to prevent a repetition of abuses suffered; to investigate and report on the causes, nature and extent of the violations and abuses to the fullest degree possible, including the antecedents; to investigate the context in which the violations and abuses took place; to investigate whether the violations and abuses were the result of deliber- 14 Richard J. Goldstone, Advancing the Cause of Human Rights: The NeedforJustice and Accountability in REALIZING HUMAN RIGHTS: MOVING FROM INSPIRATION TO IMPACT 195, 203 (Samantha Power & Graham Allison eds., 2000). 15 Id. at See also ALEx BORAINE, A COUNTRY UNMASKED: INSIDE SOUTH AFRICA'S TRUTH AND RECONCILIATION COMMISSION (2000). From , Mr. Boraine served as deputy chairperson of the South African Truth and Reconciliation Commission. 16 The Lome peace process quickly collapsed. Resumption of hostilities delayed the Truth and Reconciliation Commission formation. 17 The Truth and Reconciliation Act of The Commission is made up of five national commissioners and three international commissioners. The commissioners were appointed with the assistance of the U.N. Office of the High Commissioner for Human Rights, the Special Representative of the Secretary General of the U.N. in Sierra Leone and the Office of the President of Sierra Leone. 18 Bombaru is significant because it was that community in which the first shot in the armed conflict was fired.

7 2003] KEYNOTE ADDRESS ate planning, policy or authorization by any government, group or individual; and to determine the role of both internal and external factors in the conflict. 19 It is the hope that this truth process will help restore the human dignity of victims and promote reconciliation by providing an account of violations and abuses suffered, and an opportunity for perpetrators to relate their experiences. Hopefully, this will create a climate that fosters a constructive exchange of experiences between victims and perpetrators. The Truth and Reconciliation Commission is important because hiding the truth may be dangerous and may delay the healing and reconciliation process. 2 The Sierra Leone Special Court is an international body that is a hybrid of national and international courts, and is independent of any government or organization. On June 12, 2002, Sierra Leone President, Aihaji Ahmed Tejan Kabbah, wrote a letter to United Nations Secretary, General Kofi Annan, asking the international community to try those who were responsible for crimes committed during the country's violent conflict. President Kabbah said that he believed that the crimes were so grave as to be "of concern to all persons in the world." 21 After considering the letter, the UN Security Council adopted Resolution 1315 in August 2000,22 requesting the Secretary-General to start negotiations to create the Special Court. 23 On January 16, 2002, the Government of 19 Briefing by the Sierra Leone Truth and Reconciliation Commission on the Making of Submissions to the Commission on Monday, December 2, 2002, available arhttp:lwww.sierra-leone.org/trc briefing html (last visited Nov. 23, 2003). 20 THE NATIONAL COMMISSION FOR DEMOCRACY AND HUMAN RIGHTS, SIERRA LEONE, THE TRC AT A GLANCE, Series No , available at (last visited Nov. 23, 2003). A number of traditional conflict resolution mechanisms are also being used in Sierra Leone: cleansing/purification rituals; customary trauma healing; community/village councils; symbolic reburial of victims; religious services; monuments; humanitarian assistance and psychosocial projects for victims, survivors and the family; drama and oral history projects; truth panels in displaced persons and refugee camps; reparation by returning perpetrators; human rights training; and citizenship education. See generally INTERNATIONAL CRISIS GROUP, SIERRA LEONE'S TRTH mand RECONCILIATION COMMISSION: A FRESH START? (2002), available at web.orgl/library/documents/reportarchive/a400858_ pdf (last visited Nov. 23, 2003). 21 Letter from Alhaji Ahmed Tejan Kabbah, President of The Republic of Sierra Leone, to Kofi Annan, Secretary General, United Nations (June 12, 2000) (on file with the Cardozo School of Law Public Law, Policy and Ethics Journal). 22 SCOR Res. 1313, U.N. SCOR, 4184rh mtg., U.N. Doc S/RES/1313 (2000), available at (last visited Nov. 30, 2003). 23 SCOR Res. 1415, U.N. SCOR, 4546th mtg., U.N. Doc S/RES/1415 (2002), available at (last visited Nov. 23, 2003). See also Press Release, United Nations, Council Asks Secretary-General, Si-

8 8 CARDOZO PUB. LAW, POLICY & ETHICS J [Vol. 2:1 Sierra Leone and the United Nations signed an agreement establishing the Special Court. In March 2002, Sierra Leone's Parliament approved the Special Court Ratification Act that made the Special Court official under Sierra Leonean law. In April 2002, the Registrar and Prosecutor were appointed. 24 The Special Court will try "those who bear greatest responsibility" for crimes committed in Sierra Leone during the country's violent conflict after November 30, 1996, when the Sierra Leone Government and the RUF signed the Abidjan Peace Agreement. 25 The Special Court will try various categories of crimes under international humanitarian law, including "war crimes," such as murder, rape, and mutilation committed by armed groups against civilians. This category may have been committed by non-combatants if they planned or ordered such atrocities and if they had links to armed groups. Another category of crimes is "crimes against humanity." These do not have to be linked to war. They include acts of murder, rape, and torture when committed as part of a widespread or systematic attack against a civilian population. The Special Court also may try other serious violations of international law such as conscripting children into armed groups. In addition, the Special Court may try certain crimes under Sierra Leone law such as abuse of girls. With proper evidence, the Special Court may pursue anyone responsible for serious crimes committed in Sierra Leone, including military commanders, financiers, businessmen, and politicians, top erra Leone to Negotiate Agreement for Creation of Independent Special Court, SCI6910, (Aug. 14, 2000), available at 10.doc.html (last visited Nov. 23, 2003). 24 See Press Release, United Nations, Appointment to Sierra Leone Special Court, U.N. Doc SG/ A/813, AFR/44, (July 26, 2002), available at htm (last visited Nov. 23, 2003). The head of the Registry is Robin Vincent, a British national, appointed by the UN Secretary-General, the Prosecutor is David Crain, an American national, appointed by the Secretary General, and the Deputy Prosecutor is Desmond de Silva, a British national, appointed by the Government of Sierra Leone. The Court has a total of eight judges. Three are trial judges, two of whom are appointed by the UNA, two by the Government of Sierra Leone. The president of the Court is elected from among the judges. 25 In February 1996, Parliament and presidential elections were held and the army relinquished power to the winner, Ahmed Tejan Kabbah. The Revolutionary United Front, who did not participate in the elections, would not recognize the results and conflict continued until the Revolutionary United Front and Kasbah's government signed the Abidjan Accord in November 1996, which recognized the Revolutionary United Front as a political party and called for a cease-fire, disarmament, demobilization, and the withdrawal of all foreign forces. The cease-fire, however, was broken in January 1997 when serious fighting broke out, culminating with a coup by the Armed Forces Revolutionary Council led by Major John Paul Koroma on 25 May 1997.

9 2003] KEYNOTE ADDRESS government officials in Sierra Leone or in other countries, Sierra Leoneans who live in other countries, and non-sierra Leoneans who supported or directed atrocities from either within Sierra Leone or from a foreign country. The Statute of the Special Court states that no amnesty applies to these violations of international law. There is no impunity. No one is above the law. Those found guilty may be sentenced to teims of impyisonment or could have their assets seized if found to be acquired unlawfully. The Sierra Leone Special Court may not impose the death penalty. Many Sierra Leoneans had grown impatient with the Special Court and had questioned whether it offered comprehensive justice. Supporters of the Special Court believe that it still has an opportunity to contribute to transitional justice and hold responsible the national political and military leaders who bear the greatest responsibility for crimes with no distinction between the government side-its army and allied militias-and former insurgents. In March 2003, the Prosecutor handed down his first series of indictments. Among the eight individuals indicted were Foday Sankoh, the political and military leader of the Revolutionary United Front and the principal architect of the RUF's "terror" policy, as well as Hinga Norman, the sitting Minister of Internal Security and Defense, who was formerly the commander of the Civil Defense Forces, the irregular militia forces that opposed the RUF during the fighting.26 The United States has been a major supporter of the Sierra Leone Special Court financially and politically, because we believe in the importance of transitional justice. This first group of indictments suggests that our support has been well founded. Like others, we will follow the prosecutions with keen interest. Justice should help Sierra Leone's national reconciliation. It should give Sierra Leone's fledgling democracy a firmer footing. It should help establish a firmer foundation for a better future in Sierra Leone. 27 This should provide those of us who are 26 For more details about all the indictments see Press Release, Special Court of Sierra Leone, SIERRA LEONE: First indictments before the Special Court for Sierra Leone (Mar. 3, 2003), available at ?open&of=ENG-SLE (last visited Nov. 23, 2003). 27 Beyond national reconciliation, Sierra Leone has many problems that remain unresolved. The national government in Freetown cannot yet project its authority throughout the country. This is a particular problem in the diamond areas, Also, there continues to be high levels of corruption, a weak and compromised judicial system, widespread poverty and regional insecurity.

10 10 CARD OZO PUB. LAW, POLICY & ETHICS J [Vol. 2:1 committed to transitional justice with lessons which we can draw on going forward. Thank you.