Sierra Leone's Special Court: Will it Hinder or Help?

21 November 2002

Washington, DC — Post-war Sierra Leone is being used as a kind of guinea-pig. Following in South Africa's footsteps it will have a Truth and Reconciliation Commission which is intended to allow the society to hear in anon-punative context the truth of what went on in ten years of bitter and vicious conflict, and through that process, to heal.

But the country will also, simultaneously, be host to the Special Court of Sierra Leone, a tribunal mandated to try a small number of key players in the war (perhaps two dozen individuals), deemed by the prosecutors to bear the greatest responsibility for war crimes and atrocities during the conflict.

It is the first time that such an experiment has been tried. Unlike comparable courts focused on the conflicts in Yugoslavia and Rwanda, the Sierra Leone court is a hybrid, the result of an agreement between the UN and Sierra Leone government; the Court will use UN procedures but operate on Sierra Leonean soil and include Sierra Leonean judges on the internationally-appointed bench. This will be the first time a war crimes tribunal has been held in the country where the crimes were committed.

Although international observers, especially the United States, who were outraged by the exceptionally brutal nature of the conflict argued forcefully for the creation of the Court, many Sierra Leoneans are quietly expressing anxiety about the destabilising impact it might have on their still fragile peace.

They fear that if powerful former war commanders are put in the dock for war crimes, angering their erstwhile supporters, embers of the conflict might be fanned back into flames and war might return, particularly once the UN's peacekeeping force, Unamsil, is no longer present to keep watch. Several of the country's most important political players could prove vulnerable to being hauled before the Court. There are also concerns that few people will choose to make full disclosure to the Truth Commission if they know that a diligent prosecutor from the Court could be listening in.

The choice between reconciliation and retribution aside, there is also some uncertainty over the Court's jurisdiction. According to some legal opinion, its writ will not extend beyond Sierra Leone's borders making it impossible to try any one outside the country; in the view of others, the necessary protocols are available; for those who see Liberia's president Charles Taylor as directly responsible for fuelling the Sierra Leonean conflict, this is a key question.

Two of the Court's most important players are the Special Prosecutor, David Crane, and the Chief Investigator, Alan White, both U.S. citizens. The Court got under way in July; to find out how it will operate, allAfrica's Charles Cobb Jr. spoke with Alan White while he was on a short visit to Washington, DC.

What's involved in being the chief investigator?

I'm the one responsible for all of the investigations referred to the court; all criminal allegations regarding those who bear the greatest responsibility which is really what our mandate is - to prosecute those who bear the greatest responsibility for the atrocities that occurred in Sierra Leone starting from November 30, 1996 to the present.

What do you see? You presumably tramp around to villages and the like looking for evidence? We have been sent some photographs of "killing houses", for example - buildings used for punishment beatings and executions.

I can't go into great detail since this is an ongoing investigation. We became operational in the middle of August. We have made our rounds throughout the country; we have talked to people. We're gathering evidence to support the ongoing criminal investigations.

Could you take us through how you investigate? Is language a problem? Do you knock on doors?

A third of my staff are Sierra Leonean criminal investigators. I was able to get four criminal investigators that the Sierra Leonean police had. Generally, most of the Sierra Leoneans I've dealt with speak English. When language does become a problem there is someone on staff who can speak - in Creole or another language.

Generally, investigation is no different than it is in any other country. People are the best source of information and your best source of evidence. In this case, our best evidence is going to be good, credible witness testimony. There will be some physical evidence that we will collect, we went up to a mass grave site at [the Kono District mining town of] Tombodu. We will look at things like that to support the criminal investigation. But just as it has been at other tribunals, the most compelling evidence that you have are the first hand, eye-witness accounts of the atrocities that occurred that are under our jurisdiction to investigate and prosecute. So what generally happens is getting out and talking to people, letting them know what our mission is and soliciting their support. Many many Sierra Leoneans wanted this special court; they wanted people to be held accountable. I tell them, 'now is your time to step forward.'

Are you looking for particular things? Do you have a list of suspects?

Well, we have a good idea of who we plan to prosecute. We are developing evidence to support those cases and we will follow the evidence wherever that takes us. We think that is very important so that it doesn't get lost on people. This isn't just about a couple of individuals or a specific group. That has been a misnomer from day one. This is about identifying and investigating and prosecuting those who do bear the greatest responsibility for the atrocities.

What does a statement like that mean in terms of, say, something Sierra Leone's conflict became notorious for, the use of child soldiers? The RUF, for example, kidnaps a twelve-year-old, perhaps drugs him, arms him, or perhaps even brainwashes him. Terrifies him anyway. And that child becomes a killer. Is he a war criminal subject to prosecution?

Technically that is correct but [Special Prosecutor] Mr.David Crane has gone on record saying that it is not his intention to prosecute children. Again - without mentioning any names or specifics - we would be looking for those individuals who organized and directed that type of activity. This is what would be in our best interest, the best interest of the court. Many of these kids were victims themselves. They were abducted and conscripted at an early age. Some of them witnessed their parents put to death right in front of them.

Nobody's hands are particularly clean it seems to me. Johnny Paul Koroma's Armed Forces Revolutionary Council (AFRC), once an ally of the Revolutionary United Front (RUF), could just as easily be accused as Foday Sankoh's RUF - if you will accept a reporter's observation and not a prosecutor's - of committing rape, atrocities and a whole list of other things, ranging from using child soldiers to terror. We now see the integration of some RUF and AFRC forces into the regular army. There is a question about these people who could presumably be hauled before the Court but who, instead, are a part of this emerging civil society: What happens to them? Should anything happen to them?

We have said all along, nobody is above the law and we will follow the evidence wherever it takes us. It doesn't matter what position the individuals are in. If the evidence supports the prosecution of any official we will pursue that. We want to make it very clear to people that, as hard as this may seem, we will follow the evidence wherever that may take us. That's what people need to know. For operational security reasons we can't name names or specific targets of investigations at this time. We particularly want to assure the people of Sierra Leone that we have no hesitation about pursuing whoever is involved.

And let me mention that one of the things that makes this special tribunal unique. Gender crimes will be emphasized as a war crime and will be pursued from the onset. It will not be an afterthought. We are making gender crimes a top priority of our investigation and prosecution because rape, and sexual assault used as a tool of war needs to be prosecuted.

What about the broader regional implications of this? Hardly anyone following Africa or West Africa would deny that much of the terror and atrocity that unfolded in Sierra Leone during the civil war can be tracked back to the Liberia governed by Charles Taylor. He armed and perhaps helped create the RUF. What's the Court's mandate in terms of somebody like Taylor?

This is not just a domestic conflict. Our mandate is broad enough that, again, we will follow the evidence wherever it takes us. We're not limited to Sierra Leone. We have international jurisdiction. We fully expect to utilize that jurisdiction. This is an international war crimes tribunal and those involved who we can show have direct linkage to aiding, abetting or participating in the crimes that occurred during our temporal jurisdiction, can certainly be prosecuted by the Special Court in Sierra Leone. And we certainly intend to do that.

But how will you exercise that jurisdiction? Would UN troops be at your disposal for that? You don't have police powers.

Here's the way it would work, just as it does in the other tribunals, particularly this one. An individual would be indicted for war crimes, Articles 2-4. An international arrest warrant would be issued for that individual. This would be honored, generally, by any country. Wherever the individual is located, we would ask the authorities - and this would be so even if a head of state is involved - we would ask the head of state to surrender. And if he didn't we would ask the UN Security Council to intervene, which the court has the authority to do. If in fact the warrant cannot be executed locally or the country refuses to execute the warrant the court has the authority to take it directly to the United Nations Security Council and seek their intervention.

Well, I'm trying to imagine Charles Taylor - to stay with that example - honoring such an arrest warrant. I can't.

That's why we have the United Nations. In this hypothetical situation if the individual didn't surrender voluntarily then we would have to seek their intervention.

Is the Sierra Leonean experience important enough for that? After all this is a much smaller project than Rwanda both in terms of budget and numbers of people.

There are a couple of things that make this Special Court very unique. It is the first time a court has been created by the United Nations by agreement with the government involved. In this case, this was an agreement signed by the United Nations Office of Legal Affairs andthe government of Sierra Leone. But it does have the full weight of an international war crimes tribunal.

This is the first time ever that this kind of court has been set up in the country where the crimes have been committed. For example, Yugoslavia's tribunal is in the Hague. There is not a real sense of justice or feeling of justice by the victims because they don't see it, unless you have the opportunity to go from the Yugoslavia area to the Hague. Same thing in Rwanda; the trials are in Arusha, Tanzania. It is not easy to get there. people don't see it.

We are in Sierra Leone. The court is in Freetown. We are in-country, dealing with the people on a regular basis and it is our hope to have the trials broadcast live on radio. We will have to have the President's permission to do that but these are some of the things that we hope will allow the country to feel that justice is being carried out.

The prosecutor not only has international jurisdiction but he also has domestic jurisdiction. For example, Article 5 allows us to charge [under] certain Sierra Leone statutes should we decide to do that. The other tribunals do not have that authority. There is a mix of judges. Of the three trial chamber judges, one is from Canada, one is from Cameroon and the other is appointed by or nominated by Sierra Leone. He was born and raised in Sierra Leone and is also currently a professor of law at Eastern Kentucky University in the U.S. The same thing is true of the five judges in the appellate chamber. Two are from Sierra Leone. The Deputy Prosecutor was also nominated by the government of Sierra Leone. Unlike the other tribunals which are open-ended, this tribunal has a mandate of three years. So you're right, it is much more scaled down in the sense that there are a finite number of dollars and resources, a finite period of time.

Why? What's the reason for this? I can't fail to note that Rwanda's war crimes tribunal with its much larger budget and resources has only managed to prosecute eight or nine people. So what are the implications for Sierra Leone's tribunal operating with much less?

Nine indictments and one acquittal in Rwanda. There are sixty or so pending prosecutions and they are looking to indict twenty four more.

So you anticipate what, in Sierra Leone?

The donor nations wanted to see some structure. The other two tribunals [in former Yugoslavia and Rwanda] have been going on for a significant amount of time and they're looking like in some cases they might go on for another seven, eight or even ten years. If you are a donor and are getting assessed for these kinds of tribunals it can be rather disconcerting when you don't see the results you expect to be achieved in a shorter amount of time. Perhaps this will be a more effective and efficient model that can be used in the future.

You also have in Sierra Leone, a Truth and Reconciliation Commission (TRC). What's the relationship between the Special Court and the Commission? And isn't there a kind of conflict of interest? You want, on the one hand, people to testify truthfully before the Commission, as in South Africa, without fearing penalty or prosecution, On the other hand, you do have going on at the same time these prosecutions.

It is my understanding that this is the first time that this has ever occurred, where you have these two organizations coexisting at the same time. However, I can tell you that from the Special Court's perspective, we have gone on record from the very beginning that both organizations need to succeed. We strongly support the TRC. We are on record saying that we do not plan to use any information at all from the TRC. We do want to encourage people to come and tell their story so the nation can begin the healing process. In fact as I understand it , David Crane and [TRC Chairman] Bishop Joseph Humper will be doing a joint press conference at the end of this month articulating this very point that both need to succeed; we do support one another and that the office of the prosecutor is not planning to use any information that the TRC produces and therefore we encourage people to come forward without that concern.

Does testifying before the Truth and Reconciliation Commission exempt you from prosecution by the Court?

No. It does not. There is no amnesty or immunity if you come before the TRC. However, we will not concern ourselves if you come before the TRC. Nor do we necessarily want to know who comes before the TRC. It is a separate and distinct operation, and it should be. We do not plan on asking the TRC for any information whatsoever. We don't!

Tell me something about yourself. How does someone like you become a chief investigator for the Special Court in Sierra Leone? Are you a lawyer? Private investigator? Or what?

I was a federal law enforcement officer with the United States government. I was a former senior executive with the Department of Defense. Both Mr. Crane and I served with the office of the Inspector General of the Department of Defense. He was the director of the office of Intelligence Review and I was the director of Investigative Operations for the Defense Criminal Investigative Service. We had known each other for many, many years and I have conducted a wide variety of crime cases - white collar crime - bribery, corruption, crimes against person, crimes against property, sexual assaults. I've had a wide variety of experience. I have a masters degree in management and a PhD in criminal social justice. I've been in law enforcement for 30 years. So, as far as I was concerned, when I was asked by Mr. Crane to assume this position, I was honored because I really felt that we could truly make a difference by holding people accountable who were literally able to engage in activities with impunity.

This is my first experience in Africa.

As someone coming to the continent for the first time, particularly in this sort of ugly situation, what's etched in your mind?

It has been such a unique experience, both the good and the bad. To witness such a beautiful country in such a state of disrepair because of the war for the past ten years, to see the toll the war has taken. However, one of the things I have enjoyed about Sierra Leone is the people. The people are resilient, very forgiving, a very, very friendly people.

One worry expressed by some Sierra Leoneans is that in some ways this entire process is happening a bit too fast, too early, in the sense that they are trying to get a stable political and civil system in place and having a war crimes prosecution underway at the same time, with all that this might unleash, really undermines stability. RUF rebels who say they disarmed, for example, with the understanding that they would not be prosecuted, are angry at what they might consider a 'double cross'. Stated broadly, I guess the idea is that it might be better to talk of reconciliation rather than prosecution. What's your response?

Truly, it depends on who you talk to. The bottom line is, the mandate exists, the statute exists, and our obligation is to move forward. The personal response I have to that is, if not now, when? This is cyclic. History has repeated itself time and time again. Civil war has been going on here since March of 1991. [Rebels] may have put down their arms, but after the Lome Peace Agreement [July 1999] 500 UN peacekeeping troops in May 2000 were taken hostage by the RUF; some were killed. That was [soon after] the Lome peace agreement. You cannot expect to turn in your weapons after you have made that commitment in Lome, continue to engage in criminal activities and be exempt from prosecution. Until disarmament in January 2002, there were still ongoing activities by the RUF in Sierra Leone.

But keep in mind this is not solely and exclusively about the RUF. That's what I want to make clear, without mentioning names. This is not just about a specific individual or a specific group.The war keeps repeating itself here every two years or so. This is really all about diamonds. If people aren't held accountable now, you will never have a stable government.

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