Conflict in West Africa: Dealing with Exclusion and Separation

Conflict in West Africa: Dealing with Exclusion and Separation WILLIAM O NEILL 1 Introduction The civil wars in Sierra Leone and Liberia have generated large refugee flows and created thousands of internally displaced persons. Sierra Leoneans comprise Africa s largest refugee population. At least 300,000 now reside in camps in Guinea and thousands more have fled to Liberia, the Gambia and other neighboring states. The nature of the conflicts in the sub-region raise important questions and challenges for applying the exclusion clauses of the 1951 Refugee Convention and the 1969 African Convention. The wars have been especially brutal; combatants are largely ill-trained and specifically target civilians, systematically violating the law of armed conflict. Extrajudicial executions, torture, rape and disappearances are common tactics. Thousands of child soldiers have not only witnessed such brutalities but have committed them, sometimes under the influence of drugs or extreme duress. This article will provide a brief, general overview of the conflict in Sierra Leone and then analyze the challenges posed to its neighboring states, Guinea and Liberia, in applying the exclusion clause to this massive flow of refugees. It will also examine the role of UNHCR, the peacekeeping force of the Economic Community of West African States (commonly called ECOMOG ) and the question of separation. Some gaps in international law will be identified along with some recommendations to adapt refugee law and the laws of armed conflict to the realities of modern wars. 1 William O Neill is a freelance consultant who was retained by the Lawyers Committee for its study of the application of the exclusion clauses. This article is based in part on field missions conducted to Guinea by William O Neill and Sibylle Kapferer and to Liberia and Sierra Leone, by Sibylle Kapferer and Guglielmo Verdirame, in July and August 1998. International Journal of Refugee Law Vol. 12 Special Supplementary Issue Lawyers Committee for Human Rights 2000. All rights reserved

172 William O Neill 1. The conflict in Sierra Leone Sierra Leone has suffered from prolonged instability and conflicts in the region, in particular, the civil war in Liberia. The election in March 1996 of Ahmad Tejan Kabbah as President in the first democratic elections for nearly three decades was welcomed by most Sierra Leoneans as a chance to break with their past. Yet the Revolutionary United Front (RUF) insurgency and the army s unreliability undermined Kabbah s presidency. There were three attempted coups before the May 1997 coup that overthrew Kabbah. The rebel uprising had begun in the south and southeast of the country in 1991. In the initial period, the rebel movement had some support from the local population, enraged at the corruption and authoritarian rule of then President Momoh s Government. Contacts with movements involved in the civil war in Liberia were soon established and some observers hold that Liberians created the RUF. Charles Taylor, who was heading the main fighting faction in Liberia in the early 1990s, used southern Sierra Leone as a sanctuary for his troops and exploited the country s gold and diamond mines to finance his war in Liberia. One of the major tasks that Kabbah s government faced in 1996 was to improve the security situation in the country and defeat the RUF. The RUF dominated large swaths of the countryside, including the major diamond-producing regions. Kabbah tried using a mixture of political initiatives and military operations to improve the security situation but did not have the full support of his own army. Owing to the unreliability and ineffectiveness of the army, Kabbah s Government became dependent on the Kamajors, 2 who are traditional hunters. They gradually evolved into the Civil Defence Forces (CDF). 1.1 The RUF/AFRC Junta (May 1997 February 1998) The suspected collusion between the army and the rebels was confirmed by the May 1997 coup. The Armed Forces Revolutionary Council (AFRC) took power with the RUF. For the following nine months, Freetown and parts of the country were under the control of AFRC/RUF. Yet there was widespread opposition to the junta by a large segment of the population. After the coup, disorder and violence, which Freetown had generally been spared in the previous years, moved to the capital. The junta 2 Kamajor means traditional hunter in Mende, the language spoken by one of the two main groups in Sierra Leone (the other is Temne). The Kamajors organized themselves spontaneously in the early 1990s in order to protect their villages from the attacks of the RUF. Their exact number is not known, but it was estimated at some 30,000 in April 1998. Lansana Fofana, Facing the Future with the Military, BBC World Service Report (April June 1998) <http://www.bbc.co.uk/worldservice/ focus/9804fut.htm>.

Conflict in West Africa 173 released some 600 common criminals that were held in the Pedemba Road Prison and then rampaged throughout the city causing some of the worst looting ever suffered by Freetown. Mosquito, an infamous RUF commander, who may be Liberian and associated with President Charles Taylor, 3 was put in charge of the defence of Freetown. Those who managed, in particular the elites, the well-off and the politicians, fled to Guinea. The forces of the Economic Community of West African States Monitoring Group (ECOMOG), mostly Nigerian, controlled the international airport. Most of Freetown s population engaged in civil disobedience against the junta, deserting offices and schools. On at least one occasion, on August 18, 1997, there were also demonstrations which were quickly dispersed that called for an end of the junta regime and the return of the civilian authorities. 4 One important consequence of the junta s unpopularity is that individuals the population perceive as having worked with the junta later became the victims of mob-justice after ECOMOG troops captured Freetown in February 1998. Civil servants who did not participate in the campaign of civil disobedience and continued to work in government agencies during the junta period were often accused of being collaborators; some of those who continued to work in that period, however, claim that they did so under duress. 5 Once the Nigerian-led ECOMOG forces gained control of Freetown, President Kabbah and his government were reinstated in March 1998. International agencies returned to Freetown in May 1998. The United Nations also increased its presence in Sierra Leone and added a small human rights unit to its Observer Mission in Sierra Leone ( UNOMSIL ). 1.2 Human rights abuses during and immediately after the Junta Regime The RUF/AFRC were responsible for systematic and widespread human rights abuses, including extrajudicial executions, torture, rape and other violations of civil and political rights (freedom of association, freedom of speech, arbitrary arrests and detention, right to property). The law of armed conflict was routinely violated, especially with respect to child 3 Interviews with the British High Commissioner, Peter Penfold, Freetown, 30 Jul. 1998, and with the US Chargé d Affaires, Ann Wright, Freetown, 31 Jul. 1998. 4 Victor Syler, Here Until the Year 2001, BBC World Service <http://www.bbc.co.uk/ worldservice/focus/9710sleo.htm>. 5 Interview with Solomon Berewa, Attorney General, Freetown, Sierra Leone (28 Jul. 1998).

174 William O Neill soldiers and to the treatment of prisoners. 6 The question of whether some of these abuses constitute excludable crimes must be assessed. The activities of the so-called collaborators in the months of the AFRC/RUF rule in Freetown present important questions for the application of the exclusion clause. Whilst there may be some basis for prosecuting them as offenders under Sierra Leonean criminal law, whether their conduct can actually constitute an excludable crime under Art.1F depends on the specific acts performed by the person collaborating with the junta. Many such activities, such as appearing for work each day or implementing government programs fail to meet the definition of war crimes or crimes against humanity defined in Art.1F. The months that followed the liberation of Freetown also witnessed a dramatic increase in the reported number of acts of violence perpetrated against civilians in parts of the country still under the control of the RUF/AFRC. In March April 1998 some of the worst atrocities reportedly occurred. The RUF initiated a campaign of amputations and mutilations against civilians. 7 Information collected by Médécins sans Frontières (MSF)/Holland reveals a common pattern in these abuses. The rebels both RUF and AFRC remnants would normally begin with a raid on a village, after which they would round up the civilians. 8 Then, they would mutilate civilians; some died as a result of intense bleeding, others, presumably the minority, would manage to survive and reach an ECOMOG military post, from where they would go to a hospital in Freetown or to a refugee camp in Guinea. As a way of inflicting further humiliation and suffering on its victims, the rebels would sometimes tie a group of civilians together after amputating their limbs, and direct them towards an ECOMOG post with a message for the Kabbah Government or the ECOMOG forces. 9 6 Statements by RUF commanders stated that they do not take prisoners. Sam Bockarie, the infamous Mosquito threatened to destroy every living thing if anything happened to Foday Sankoh, AFP reported, quoting the Sierra Leonean daily For Di People. The report quoted Bockarie: I am ready but I am waiting until something happens to Sankoh adding that when I take Freetown, I shall clear every living thing and building. He added that only Sankoh could give orders to stop the mayhem. Sankoh was sentenced to death in October for treason. IRIN-WA Update 342 of Events in West Africa, 19 Nov. 1998 <http://wwwnotes.reliefweb.int/websites/rwdomino.nsf/ VIRINByCountry>. 7 In fact, in the course of the electoral campaign in 1996, the RUF tried to discourage people from voting by cutting off their hands. This was reported in the press at the time and by Amnesty International. 8 The information collected by MSF-Holland has also been the basis for the reports by Human Rights Watch, Refugees International and UN reports to the Secretary General. MSF-Holland s methodology was based on the rapport that its staff members developed with patients who had suffered from the atrocities, and data were collected from them often over a long period of time. Interview with the Representative of MSF-Holland in Sierra Leone, Freetown, Sierra Leone (30 Jul. 1998). 9 These messages range from President Kabbah, give me my arm back to ECOMOG must leave Sierra Leone, etc.

Conflict in West Africa 175 Agencies and the government alike found it difficult to establish the extent of violations. Neither MSF nor any other NGO had a significant presence in the countryside during the junta s rule. The total number of victims of the amputations and killings can only be reached by speculation given that the agencies direct knowledge is limited to the 600 or so cases of survivors that managed to reach Freetown, or one of the refugee camps in Guinea. 10 Christian missions have also helped gain information on the situation in the more remote areas in the country. Amputations and mutilations were only one type of atrocity perpetrated by the RUF/AFRC. Other human rights abuses for which they were responsible in this period include the abduction and forced recruitment of children, the enslavement of minors and adults often with a sexual purpose, and rapes. RUF has been accused of committing most of these abuses virtually since the inception of its military campaign in 1991. 1.3 The December 1998/January 1999 RUF/AFRC offensive The RUF/AFRC launched an offensive in late December 1998. To the astonishment of the ECOMOG forces and UN military observers, the rebels swept into eastern Freetown after taking several suburbs. They burned houses and used civilians as human shields. Freetown residents were put in an impossible position: rebels told them to come out on the streets to show their support or else their houses would be burned. ECOMOG prohibited all public gatherings and threatened to shoot on site anyone violating a total curfew. ECOMOG planes bombed residential areas where rebels were hiding. RUF/AFRC fighters continued their atrocities, mutilating, raping and killing anyone suspected of having opposed them in the past or not supporting them now. The Connaught Hospital in downtown Freetown had received so many wounded and dead that bodies lying in the driveway had drawn dogs and vultures. By the weekend, hospital officials had recorded 2,768 dead in Freetown. 11 The RUF/AFRC also released all the prisoners held at the Pedemba Road prison, including several dozen who had been convicted of treason for collaborating with the junta in 1997 98 and others awaiting trial on similar charges. Many of the rebels are young men or boys, some as young as 12. 12 The Social Welfare Ministry reported that about 2,000 children between the ages of five and fourteen have gone missing since rebels invaded the capital Freetown... 13 Officials believe the rebels abducted many of the 10 Again these data were collected by MSF Holland and then echoed in various UN reports. 11 Norimitsu Onishi, A Brutal War s Machetes Maim Sierra Leone, N.Y. TIMES, 26 Jan. 1999, at A1,6. 12 Il mattatoio in mano a soldati-bambini, Stefano Citati, La Repubblica, 1 Feb. 1999. 13 Sierra Leone ministry says 2000 children missing with rebels : <http://news2.thlsbbc.co.uk/ hi/english/world/africa/newsid 286000/286104.stm> (visited 25 Feb. 1999).

176 William O Neill children as they fled the capital. The rebels targeted churches and mosques, abducted numerous priests and nuns, including the Catholic archbishop, killing several while others managed to escape. 14 If anything, the RUF/AFRC s war crimes and crimes against humanity only intensified during the first six weeks of 1999. ECOMOG troops violated the laws of armed conflict. A UN report documented cases of summary executions of rebels captured by ECOMOG. 15 While noting the extreme provocation created by the rebels abominable behaviour and that ECOMOG violations did not approach the level of rebel atrocities, ECOMOG bear responsibility for summary executions, including an 8-year-old boy caught with a pistol. 1.4 The profile of the perpetrators The organizational structure and profile of the RUF are hidden. More information will be material to any process to determine excludability. The undisputed leader of the RUF is Foday Sankoh. He was returned to Sierra Leone by the Nigerians and has now been sentenced to death. 16 In addition to Sankoh, names of other RUF commanders and leaders recur. They are not usually referred to by their real name but rather to their noms de guerre like Nasty Killer, Commando, Rambo and Mosquito. Many analysts believe that a significant proportion of the RUF command is Liberian. RUF commanders rely on the Liberian Government, frequently finding refuge there. 17 More uncertainty characterizes the rank and file of the RUF. It is not known exactly how many people still fight for RUF and how many are child soldiers. Some analysts believe that up to 50 per cent of the RUF/ AFRC are child soldiers. 18 The RUF uses drugs to control soldiers and has a strict command structure. The RUF foot soldiers are mainly responsible for committing atrocities. AFRC remnants also played a role not only in the abuses that were perpetrated during their informal power sharing, but also after the ousting of the junta from Freetown in May 1997. Both the Attorney General and UNICEF officials have remarked that there have been cases of child soldiers confessing that they participated in killings and amputations. 14 Sierre Leone rebels target Christians, Moslems, places of worship, AGENCE FRANCE-PRESSE, 3 Feb. 1999. 15 Judith Miller, U.N. Monitors Accuse Sierra Leone Peacekeepers of Killings, N.Y. TIMES, 12 Feb. 1999 at A12. 16 Foday Sankoh had been under house arrest in Nigeria pending his deportation to Sierra Leone. 17 See the section below on Liberia. The presence of RUF commanders in Liberia has been reported by different sources, including witnesses who saw the arrival of Sierra Leoneans in Liberia in February/March 1998 and who confirm that RUF soldiers, including Mosquito, arrived in Liberia and travelled freely. 18 Jan Goodwin, Sierra Leone Is No Place To Be Young, N.Y. TIMES, 14 Feb. 1999 at Sunday Magazine, p. 48.

Conflict in West Africa 177 The collaborators, that is, individuals who, albeit not part of AFRC/ RUF, aided or abetted the junta during its eight months of rule in Freetown are also difficult cases to evaluate. Examples of activities regarded as collaboration include continuing to work during the junta rule. For example, civil servants, journalists broadcasting on the state radio (Hilton Fyle, a former BBC journalist who was arrested and charged with treason), and even contracting with the junta in commercial deals, were all seen as collaboration and thus treasonous. Both the Government and public opinion are keen on bringing at least some of these individuals to justice. This sentiment may only increase after the horrors perpetrated by the rebels in early 1999. Whether the exclusion clause applies depends on identifying the degree of involvement, support or participation in excludable activities to determine whether these individuals are accomplices in an excludable crime. Courts martial are only for soldiers and officers who participated in the coup or aided and abetted the AFRC junta or the RUF. The denial of the right to appeal court martial s verdict violates Article 14 of the International Covenant on Civil and Political Rights. One court martial resulted in thirty-four death sentences (thirty-three men and one woman), twenty-four of whom were executed in October 1998. In applying the exclusion clauses, individuals who would face court martial upon return would have no right of appeal and could face the death penalty. This would be an important element in any balancing test in applying exclusion. Those who were freed from the Pedemba Road prison in January 1999 could face this prospect if located outside Sierra Leone and forced to return. The Government s position with respect to child offenders is that they ought to be regarded as victims of AFRC/RUF and receive specialized rehabilitation. The Government, before the January 1999 RUF offensive, said it did not intend to prosecute child soldiers. Re-integration in the child s original community is difficult. Hostile suspicion surrounds these children if returned. Children, who have fought for the RUF, even if they did so against their will, are often seen as possible spies. Cases of aggression against these children have been reported, including some cases of mob justice where children were killed. 19 Killings of suspected child RUF collaborators has increased since the January 1999 offensive. 1.5 Return of excludees The co-operation between Sierra Leonean authorities and other countries for the return of those involved in the junta has been good, with the 19 Reference to these instances of mob justice was made in the interviews with UNICEF and with the Campaign for Good Governance. Some cases of mob justice against children in Freetown happened in the immediate aftermath of the fall of the junta. UNICEF, in particular, expressed some concern at the situation in the countryside, in areas where international or local humanitarian agencies do not operate.

178 William O Neill exception of Liberia. Some individuals, who had been AFRC members, have been returned from Guinea. These do not apparently include individuals identified by Sierra Leonean refugees in the camps in Guinea, but people arrested by the authorities independently of formal asylum determination procedures and are not, therefore, technically excludable. Some seventy-seven AFRC supporters were reported to have been handed over by the Guinean authorities to ECOMOG. 20 The case of Foday Sankoh, who was extradited from Nigeria, is the most notorious case of return/extradition. The Attorney General has observed that he is reluctant to institute extradition proceedings because of the political exception limitation in extradition cases. He noted that co-operation through ECOWAS and Interpol had been fruitful and that names of wanted people had apparently been inserted in the databases of various countries, including the US. 21 In the fall of 1998 several cases of return of excludees from Guinea were reported, including an AFRC Secretary of State, Captain Paul Thomas. 22 Some potentially excludable individuals have apparently applied for asylum in western countries, for instance a former Minister in the United Kingdom. 2. Guinea Guinea now hosts at least 430,000 refugees from Sierra Leone and Liberia. 23 Most live in camps in the far northeast and southeast of the country in areas bordering Sierra Leone. A large number also live in the capital city, Conakry. UNHCR administers the camps. Meanwhile, Guinea has its own tensions; a military coup in 1996 failed but left the country tense and unstable. A mass trial of the alleged coupplotters is underway and legislative elections finally took place in December 1998; several opposition candidates and journalists were arrested during the campaign. Guinea has traditionally been a generous host; refugees 20 IRIN-WA Weekly Roundup of Main Events 60 for West Africa, Sierra Leone, 7 Aug. 1998: <http:// wwwnotes.reliefweb.int/websites/rwdomino.nsf/virinbycountry>. 21 Interview with the Attorney General, Freetown, 28 Jul. 1998. A high-ranking Sierra Leonean official from the junta period was denied asylum in the US because his name appeared in a Presidential Proclamation denying entry to certain individuals from Sierra Leone classified by the US State Department as human rights violators. See In the Matter of Sesay, Executive Office for Immigration Review, 25 Sept. 1998. His case is currently on appeal to the Board of Immigration Appeals. 22 IRIN West Africa, 9 Nov. 1998 and interview with the Sierra Leonean delegation at the UNHCR Executive Committee, Geneva, October 1998. 23 Sierra Leone News Archives, Feb. 12, 1999 <http://www.sierra-leone.org/slnews0299.html>. Sierra Leoneans comprise the great majority of this figure.

Conflict in West Africa 179 comprise about 10 per cent of its population. 24 Yet the combination of regional and internal strife has put the refugees in a delicate, exposed position. The months following the overthrow of the AFRC junta by ECOMOG in February 1998 saw an influx of more than 180,000 people into the forest region of North-Eastern Guinea, in particular the préfectures of Gueckedou, 25 Kissidougou, Faranah and Macenta. They sheltered in camps that had been used before and since abandoned by refugees, or in settlements, which sprang up as extensions of existing villages in these areas, where many of the refugees have family or ethnic ties. 26 A large number of these settlements are located close to the border with Sierra Leone. Access to the camps from the rest of Guinea is difficult, especially during the rainy season. During the early summer of 1998, small groups of refugees resettled from the forest to camps in the region of Forecariah, an area bordering Sierra Leone south-east of Conakry, where they joined some 65,000 Sierra Leonean refugees who had arrived in Guinea before February 1998 and were awaiting repatriation. These refugee groups reportedly wished to leave the forest region out of discontent with the general situation in the camps there and/or security concerns, that is, fear of further attacks by RUF/AFRC forces on the refugee settlements close to the border. 27 A number of such attacks had taken place in June and July 1998, and again in early September 1998, causing civilian casualties. 28 In response to such attacks, the Guinean security forces had closed off the entire border region near Gueckedou from mid-june to mid-july 1998. After an attack in early September 1998 resulted in the killing of seven Sierra Leonean refugee women and three Guineans by RUF fighters 24 UNHCR, Flash Appeal Emergency Assistance for Sierra Leonean Refugees (Recent Arrivals) in Guinea and Liberia, (1998). In addition, Guinea was still host to 128,000 Liberian refugees. See Human Rights Watch, Sowing Terror, Atrocities against Civilians in Sierra Leone, Vol.10, No.3, at 26 n. 53 ( July 1998) <http://www.hrw.org/hrw/reports98/sierra/>. 25 This préfecture, which extends in the shape of a peninsula into the Kono and Kailahun districts of Sierra Leone, received the largest share of the refugee influx; the refugees there reportedly outnumber the local population. See Human Rights Watch, above n. 24, at 26. 26 Some sites were planned and set up by UNHCR. See Human Rights Watch, above n. 24, at 26 n. 54. 27 There have also been cases where individuals moved from the forest regions to Forecariah on their own initiative. Refugees in the camp subsequently recognized one of them as a RUF fighter who had participated in the atrocities against civilians (see below). 28 Reportedly, these attacks were carried out with the aim of obtaining food and other materials, or in revenge; a contingent of Guinean soldiers was participating in ECOMOG. The Guinean army was also reported to have engaged the RUF/AFRC in military encounters on Sierra Leonean territory in 1998. The Guinean contingent in ECOMOG has taken an even more active combat role in Sierra Leone in 1999 following the rebel offensive.

180 William O Neill who raided local food stores, the authorities were reported to have taken steps to seal the border. 29 As fighting in Sierra Leone intensified again in late September/early October 1998 and in December 1998/January 1999, several thousand more refugees crossed into the Forecariah region. 30 2.1 Excludable crimes presence of excludable elements in the camps Consistent and reliable reporting shows that the RUF/AFRC have committed war crimes and crimes against humanity and have made these a central element in their political/military strategy. Such acts clearly come within the prohibitions of Article 1F of the 1951 Convention and Article I(5) of the 1969 OAU Convention. Among the refugees in the camps in Guinea there are numerous victims or witnesses of crimes and abuses committed by RUF/AFRC fighters in Sierra Leone. 31 In July 1998, Human Rights Watch counted eighty-two refugees in Guinea who had suffered and survived mutilations at the hands of RUF/AFRC fighters. Many of them reportedly knew the attackers (in some cases, they were from neighboring villages) who were led by RUF commanders whom they heard being called with nicknames such as Lt. Blood, Commando, Superman, Rambo or Mosquito. UNHCR collected the testimony of a number of refugees who had been mutilated back in Sierra Leone. Few perpetrators of these abuses infiltrated the refugee camps in Guinea because they feared recognition by the refugees and indeed, in a number of cases refugees have identified individuals in the camps as having participated in attacks and abuses against them. Guinean security forces screening of arrivals at the border also makes entry difficult for the RUF/AFRC. Some child soldiers from both Liberia and Sierra Leone were reported to have come to Guinea. As of late July 1998, they were allowed to remain in refugee camps. 2.2 Screening of arrivals For a long time, there was no control mechanism in place at the border between Guinea and Sierra Leone the border was completely open and refugees, as well as others, could pass without any screening. In July 1997, the Guinean security forces were deployed along the border to 29 Three other refugees including a baby boy were seriously wounded during the attack. See UNHCR, Briefing Notes (4 Sept. 1998); IRIN-WA Update 291 of Events in West Africa, 19 Sept. 1998 <http://wwwnotes.reliefweb.int/websites/rwdomino.nsf/virinbycountry>. 30 See IRIN-WA Weekly Roundup of Main Events 69 for West Africa, 9 Oct. 1998 <http:// wwwnotes.reliefweb.int/websites/rwdomino.nsf/virinbycountry>; UNHCR, Briefing Notes, (9 Oct. 1998), mentioning 7,500 Sierra Leonean arrivals in two weeks. 31 See generally, First Progress Report of the Secretary-General on the U.N. Observer Mission in Sierra Leone, UN doc. S/1998/750, at para. 34.

Conflict in West Africa 181 prevent incursions by RUF/AFRC forces. 32 They were not tasked to screen arriving refugees, and they were specifically ordered not to deny them entry into Guinea. 33 Screening took place, if at all, once the person had entered the country. 34 However, during the refugee influx following the overthrow of the junta by ECOMOG in February 1998, the Guinean security forces did control the arrivals at border crossing points in the forest region. A number of people were either denied entry into Guinea or arrested and returned to Sierra Leone on account of their involvement with the junta, both in the forest region and at the port of Conakry. In addition, the Guinean security forces arrested and detained several people whom they identified as RUF/AFRC fighters or who were recognized by Sierra Leonean refugees as having participated in atrocities. The Guinean military considers the refugee issue a matter of national security. Only the President makes final decisions on refugee matters; nothing is decided or acted on without his approval. The head of the agency responsible for refugees admitted freely that he was not privy to all the information regarding refugee arrivals and detentions. He said that the police and security services controlled this kind of information and that his statistics were not complete. In the words of a diplomatic observer: Anything related to military/security questions in Guinea is a complete mystery. After the RUF offensive in December 1998/January 1999, the United Nations High Commissioner for Refugees (UNHCR) reported that it had instituted more rigorous screening of refugees arriving in Guinea in order to screen out rebel infiltrators. Normally, the UNHCR interviews each person, takes a picture, and creates individual files. The Guinean Government, however, has asked the UNHCR to conduct more in-depth interviews with the refugees about the circumstances surrounding their departure. 35 2.3 Junta members The Guinean authorities relied on an agreement reached by the Member States of ECOWAS at a summit meeting in Abuja in August 1997 to decide whether to admit or return Sierra Leoneans. who had formed part of, or exercised certain functions under the junta. This agreement provides that Member States shall prevent from entering their respective 32 The security forces were also deployed along the border with Liberia. 33 Reportedly, this order was given after UNHCR had protested against some cases of refoulement of asylum seekers from Sierra Leone. 34 A representative of UNHCR in the Forecariah region reported a case in October 1997: four former police officers were arrested in one of the camps in the area. After investigating their role and a verification of their claim that they had laid down arms, the Guinean authorities released the police officers and they were readmitted into the refugee camp. 35 Sierra Leone News Archives, 12 Feb. 1999 <http://www.sierra-leone.org/slnews0299.html>.

182 William O Neill territories, all members of the illegal regime, as well as military officers, members of their families, and other entities directly or indirectly connected with the regime... 36 The UN Security Council, in Resolution 1132 (1997) of 8 October 1997, echoed this provision, deciding that... all States should prevent the entry into or transit through their territories of members of the military junta and adult members of their families... 37 Those whose names were included in a list which was said to have been distributed to all border posts 38 were arrested by the Guinean authorities and returned to Sierra Leone during the first few weeks after the overthrow of the junta. No information could be obtained whether any other type of evidence was used to determine if someone would be allowed to enter Guinea. 39 Many of the arrests took place at the port of Conakry, in the presence of UNHCR: the military screened the new arrivals, and those who were screened in were then referred to UNHCR for registration purposes. 40 According to its Representative in Guinea, UNHCR was satisfied that the measures taken by the authorities had their legal basis in the ECOWAS agreement and the aforementioned Security Council Resolution. UNHCR was not present at border crossing points in the forest region in early 1998 and was therefore not in a position to monitor instances of arrest and return to Sierra Leone. The exact number of persons arrested for their alleged involvement with the junta is not known. One well-placed source asserted that 180 people had been repatriated to Sierra Leone by boat in February 1998. A second independent source confirmed this estimate, saying that between 100 200 were identified as RUF/AFRC in February 1998. The names of those returned could not be obtained. It was equally impossible to find out whether any of them were among those tried in Sierra Leone on 36 Article 2 (b) of the Decision on sanctions against the junta in Sierra Leone taken at the Abuja summit of ECOWAS Heads of State and Government on 28 and 29 August 1997. 37 Security Council Resolution 1132, 8 Oct. 1997, at para. 5, UN doc. S/RES/1132 (1997). The same resolution established a Security Council Committee tasked, inter alia, with the designation of those whose entry or transit should be prevented. On 28 January 1998, the Committee issued a list of 35 members of the Supreme Council of the AFRC, 18 Secretaries of State and four others. See Press Release, UN doc. SC/6472 (28 Jan. 1998). 38 It was not possible to obtain a copy of this list, nor did it become entirely clear which authority had established it. Some of the Government officials interviewed in Guinea referred to a list made up and used by the AFRC itself. According to others, the list had been compiled by ECOMOG and contained only the names of high-ranking people (the décideurs ). 39 The military was reported to have told the staff of an international agency: They are soldiers, we are soldiers we know what questions to ask. 40 In one incident in March 1998, a Sierra Leonean gunboat was said to have reached Conakry. The military crew wished to surrender to the Guinean authorities. However, all of them were arrested and returned to Sierra Leone. The civilians on board were reportedly accepted as refugees. According to one Sierra Leonean refugee, Sierra Leoneans were on the dock in Conakry pointing out to the Guinean military who was a member of RUF or who was a soldier among those arriving.

Conflict in West Africa 183 charges of treason and/or conspiracy. It is not known whether these people filed an application for asylum, or whether they were given an opportunity to do so. 2.4 RUF/AFRC fighters In the border regions of the forest, the Guinean security forces reportedly arrested a number of people whom they suspected of being RUF or AFRC fighters. In 1998, solely the Guinean army and related security forces did screening at the forest borders. UNHCR had little or no access to the screening procedure. Reportedly, Guinean soldiers decided whom to arrest solely on their own assessments and from denunciations by other refugees. There was no independent investigation or attempt to discover other forms of evidence. The Bureau National de Coordination pour les Réfugiés (BCR) is not involved in screening activities either, nor does it appear to carry out investigations to follow-up on such cases. 41 Those arrested were said to have been held for some time at detention facilities in the region (gendarmerie or police posts as well as prisons at town and préfecture level, respectively), before being transferred to an unknown location. Some believe that they were taken to Conakry; others suggest that they may have been returned to Sierra Leone. Estimates obtained in late July 1998 on the number detained ranged from none at all 42 to possibly as many as 400. 43 It is not clear what criteria the Guinean military applied in denying access to people fleeing Sierra Leone. Anyone coming across the border with a gun was arrested. Unarmed people were also said to have been arrested, apparently on the basis of their appearance or deportment indicating a military background. According to information received, young and healthy-looking men were arrested notwithstanding their claim that they were students or farmers and had nothing to do with the fighting. In other cases, people who were identified by other refugees were transferred to other camps for their own safety. These cases have not been monitored: neither UNHCR nor any other agency working in the area was present at border crossing points at the time of the arrests, 44 nor have they been granted access to those held in 41 According to a Government official, screening is complicated, it is police work for which the Bureau is not equipped; it is also a problem of resources. 42 Some Government officials denied the existence of such detainees. Others said that there might be some, but not more than ten. One official explained that there were detainees, but the Guinean authorities had not really arrested them. Rather, they were detained at the request of the Sierra Leonean embassy, therefore not within the responsibility of the Guinean authorities. Another official stated that 100 soldiers and 200 paramilitary had been identified. 43 This was the figure suggested by an international organization, based on the number of detainees who were known to have transited through detention facilities up-country. 44 During a period of approximately one month, the whole Gueckedou border region was closed off for security reasons. However, UNHCR did not have a presence at the border crossing points before or after either.

184 William O Neill detention. 45 Consequently, it is not known whether, and where, they are being held, whether or not they have been given an opportunity to apply for recognition as refugees, and, if so, whether they have done so. UNHCR has not been in a position to determine the identity of those detained and ascertain whether they have a well-founded fear of persecution if returned to Sierra Leone, and whether or not there are grounds for the application of Article 1F. Similarly, no precise information could be obtained as to whether the authorities had initiated, or concluded, investigations to determining whether any of those detained were in fact involved in abuses against civilians, 46 and whether or not the application of the exclusion clauses was taken into consideration. Information received from Sierra Leonean Government officials in September 1998 suggests that at least some of those arrested by the Guinean security forces in the border regions have been returned to Sierra Leone. 2.5 Identification of RUF/AFRC fighters by refugees: Camp Committees Refugees in camps have recognized perpetrators of abuses against civilians in Sierra Leone. In one incident, a tailor was said to have recognized in the camp the man who had cut his hand off back in Sierra Leone. He called out his name and the accused responded. The alleged attacker was then arrested and removed from the camp to the town of Kissidougou. 47 Human Rights Watch reports of another case in Fangamadou which involved six persons suspected of being RUF fighters responsible for abuses. 48 Another took place on 21 July 1998 in Kaleah camp, Forecariah. There, refugees from the Kono district identified a man who had come to the area from the forest region as a RUF fighter known under the nickname of Nasty Killer whom they accused of having participated in atrocities against civilians. They reported him to UNHCR and the authorities, who arrested him and initiated investigations. In this case, as in others, the camp s Refugee Committee the elected representation of the refugees within the camp played an important role. In some cases, the Committee has questioned the accused and then has also questioned the accuser and other possible witnesses. The potential for personal vendettas as a motivation to make such an accusation is considered, probed and evaluated. One person s assessment is not enough, the entire Committee reviews the information and decides. The 45 Both UNHCR and ICRC have repeatedly requested the authorities to grant them access so as to enable them to fulfill their respective mandates. 46 One of the Government officials interviewed said that people were arrested on the basis of INTERPOL search warrants for offenses such as theft of vehicles. 47 Information provided to Lawyers Committee researchers by a Guinean Government official in July 1998. 48 See Human Rights Watch, above n. 24, at 29.

Conflict in West Africa 185 Committee has then recommended to Guinean security forces to remove the person from the camp when the Committee concludes that the person has committed atrocities in Sierra Leone based on its weighing of the evidence. Reportedly, UNHCR had access to some of the persons concerned prior to their arrest; in the above-mentioned case of the suspected RUF fighter arrested at Kaleah camp in July 1998, UNHCR had access to him in Forecariah prison. As with the other categories, it was not possible to obtain information concerning the exact number of such cases, where they were being held (with the exception of the above-mentioned case in Forecariah) and what kind of investigations were being carried out. 2.6 Recommendations regarding the exclusion clause arising from Sierra Leone caseload in Guinea Given the nature of the abuses committed and the availability of testimony from victims and witnesses, Article 1F of the 1951 Convention may apply to some of the RUF/AFRC fighters arrested and detained in Guinea. However, it is not clear whether they have in fact been subjected to an exclusion procedure. The arrests and instances of refoulement that occurred at the forest border areas and at the port of Conakry raise serious questions about Guinea s compliance with the 1951 Convention and, possibly, with Article 3 of the United Nations Convention Against Torture. Neither UNHCR nor ICRC nor any other agency operating in Guinea has been allowed to monitor the screening and/or arrest of those suspected of involvement with the junta nor have they been granted access to those detained. Under these circumstances, it is difficult to assess the conformity of the measures taken by the Guinean authorities with international law. Such an assessment would require much closer monitoring. UNHCR should have access to all those arrested and detained in order to determine whether they claim to have a well-founded fear of persecution and to ensure that they be given an opportunity to have their claim examined in a fair and transparent procedure before being forced to return to Sierra Leone. The Guinean authorities have also refused to allow the ICRC access to detainees from Sierra Leone. International donors, UNHCR and NGOs should advocate for ICRC access; it is in the Government s own best interest to grant access. The relationship between visa and travel restrictions for individuals like those contained in the ECOWAS decision and Security Council resolution concerning sanctions against those involved with the military junta in Sierra Leone, and their right to apply for asylum must be clarified. The scope of the sanctions regime may be wider than that of

186 William O Neill the exclusion clauses, and it may cover activities which do not fall within Article 1F of the 1951 Convention and/or Article I(5) of the 1969 OAU Convention. The question arises whether a Security Council resolution or a resolution from a regional entity like ECOWAS can circumscribe rights or procedures created by international treaty law. A risk exists that those excluded and returned to Sierra Leone may face the death penalty if convicted of treason and other high crimes committed during the 1997 coup and the ensuing military rule. Questions of individual responsibility and guilt by association, the defences of duress and necessity and mitigating circumstances are also of particular relevance. UNHCR should clarify whether treason or other crimes against the state come within Article 1F s definition of excludable acts. Refugee Committees may offer help in assessing the grounds for exclusion. Such Committees, if properly constituted, should be able to interview carefully those concerned, have a natural understanding of the culture, language and history of the country of origin in a way that could never be duplicated by either UNHCR or by an international or foreign tribunal. Camp Committee members are often highly educated and key interlocutors with the rest of the refugee population. However, these very advantages may pose possible dangers to the integrity of any fact-finding process led by other refugees. Feuds and rivalries from home could be exported to the camps and cloud the objectivity of the Camp Committee. UNHCR should continue offering seminars and workshops on the exclusion provisions and basic refugee law for Guinean soldiers, gendarmes, police and national refugee authorities. UNHCR could also offer such training for the Refugee Committees in the camps. This would have to be done carefully, since the issue of atrocities and mutilations in the camps, understandably, is an emotional one and the possibility of people taking justice into their own hands cannot be ignored. However, a thorough understanding of the legal basis for exclusion should encourage everyone, Guinean officials and the refugees themselves, to approach the issue in a neutral, objective and less-impassioned manner. UNHCR should also distribute essential texts like the 1951 Convention and the 1969 OAU Convention. UNHCR also might create profiles of the alleged perpetrators of atrocities in Sierra Leone (Lt. Blood, Lt. Commando, Mosquito, Superman, and Nasty Killer) and others whose names come up repeatedly in interviews and distribute them to UNHCR protection officers. UNHCR should train ECOMOG soldiers in Sierra Leone on refugee law, including exclusion. Guinean soldiers serving in Sierra Leone could help to confirm information or lead investigations on those detained in Guinea accused of atrocities in Sierra Leone. Witnesses and survivors in Sierra Leone could be interviewed and their testimony transmitted to

Conflict in West Africa 187 Guinea for further action. UNHCR, with its dual presence and expertise, could expedite these initiatives. 3. Liberia Throughout the 1990s, persons fleeing the civil strife in Sierra Leone have sought refuge in Liberia. According to UNHCR, 49 there were some 127,000 Sierra Leonean refugees in Liberia prior to ECOMOG s intervention in Freetown in February 1998. After the junta s defeat, approximately 55,000 Sierra Leoneans arrived in Lofa County in March and April 1998. During the last week of March, these refugees were arriving at a rate of up to 5,000 a day. 50 The refugees arrived at a camp in Vahun, 8 kilometers from the border. 51 Sierra Leoneans were recognized as refugees prima facie and as a group. The registration recently carried out by UNHCR shows that the majority of the refugees are women and children, and that their families accompany most of the men. All those in the camps in Vahun and Kolahun are unarmed. Unlike in Guinea, no victims of mutilations had been received as refugees in Liberia as of July 1998. 52 When the influx into Lofa County began, armed men and women were seen crossing into Liberia with the refugees. Among them were the commander of the Daru barracks (AFRC), his deputy and his adjutant. Civilians seeking refuge in Liberia reported rapes and shootings during the flight. 53 3.1 Combatants among the refugees: excludable elements? The majority of the refugees are civilians; some combatants also fled to Liberia. Their exact number is unknown but estimates range from several hundred to over 2,000. 54 They include Sierra Leonean security forces and RUF rebels (some child soldiers). Their command structures remained intact in the camps. Some of the former combatants were pointed out to aid agencies by fellow refugees. However, no one reported that the RUF/AFRC had abused them in Sierra Leone. Vahun and particularly Kolahun contained 49 UNHCR Flash Appeal, above n. 24. 50 Ibid. 51 This camp already existed. UNHCR had been assisting refugees there since 1993. 52 This is explained with reference to the timing of the influx into Liberia: most refugees arrived there soon after the junta was overthrown, and before the remnants of the AFRC/RUF forces began their campaign of atrocities in Sierra Leone. 53 International aid agencies provided medical treatment for a number of persons with shotgun wounds, which resulted from the fighting or appeared to be the result of punishment shootings. 54 According to Human Rights Watch, many of them are thought to have slipped away from the camps; they are said to have moved either somewhere else in Liberia or returned to Sierra Leone. See Human Rights Watch, above n. 24, at 31.

188 William O Neill at one point a sizeable group of persons who served in AFRC forces. They arrived with their families. A group of several hundred came forward in Vahun, stating that they wanted to stop fighting and asked to be returned to Sierra Leone to be demobilized. 55 The group was given the opportunity to relocate to Kolahun. Reports in January 1999 show that the RUF have recruited fighters in the Vahun camp and it is now largely empty. 56 Another self-proclaimed group consisted of twelve former police from the Kenema region, some of them reportedly very senior. They had been working during the junta period and fled after ECOMOG took over in February 1998. They did not want to stay in Kenema because they were afraid of being attacked by civilians. They did not want to remain in the camps in Vahun or Kolahun, for fear of being coerced to go back to Sierra Leone to fight for the AFRC/RUF. There are also reports of the presence of RUF members in the camps. 57 International agencies had identified fifty-nine RUF child soldiers in Vahun camp prior to February 1998. The youngest among them was twelve years old. After the refugee influx, twenty-two of them were known to be in Kolahun. 58 Ten others went back (allegedly coerced by their commanders) to fight in Sierra Leone where five of them were said to have been killed. 3.2 Security in the camps Up to July 1998 there were no reports of military activities within the camps. However, RUF fighters came to Vahun during the RUF offensive of December 1998/January 1999 to recruit. RUF fighters including Mosquito and other senior commanders have been seen repeatedly in Lofa County. Both RUF fighters and AFL soldiers are said to engage in cross-border trafficking of diamonds and looted goods in exchange for food and arms. The presence of ex-combatants in the camps and the possible threat this may constitute for the civilian refugees is a matter of great concern to the Liberian Government, UNHCR and the international donor community. The latter was reportedly reluctant to provide food for general distributions during the early stages of the refugee emergency, out of concern that a similar scenario as in Eastern Zaire might be 55 According to one source, they are AFRC personnel who were involved in fighting with the RUF. 56 See Sierra Leone News Archives, 10 Jan. 1999 <http://sierra-leone.org/slnews0199.htmlhttp:// sierra-leone.org/slnews2>. 57 RUF presence is said to be particularly strong in Vahun. 58 Some of these child soldiers came forward themselves. They then identified others, who gradually approached the agencies, which began activities for them together with other unaccompanied minors.