Washington, DC — A Discussion with Former Chief Prosecutor David Crane
The world was shocked and appalled by the human rights abuses - child soldiers, mass rapes and murders, and forced amputations - that rebel forces and warlords committed in Sierra Leone throughout the 1990s. The small West African country suffered turmoil as President Charles Taylor of neighboring Liberia backed the Revolutionary United Front in Sierra Leone in order to gain control over the country's diamond mines. The RUF and other rebels collapsed the Sierra Leonean government, before the international community intervened to stabilize the former British colony with major and aggressive peacekeeping efforts, leading to the end of fighting in 2002. Today, Sierra Leone – though fragile - enjoys stability and a developing democracy.
In 2002, the government of Sierra Leone and the United Nations formally agreed to the creation of the Special Court for Sierra Leone, a so-called 'hybrid court,' to bring justice and reconciliation to the country and region. This followed a 2000 request by the Sierra Leonean government of the international community that it try in court those responsible for a decade of human carnage. American lawyer David Crane, with nearly 30 years of distinguished service in the U.S. government, became the Special Court's founding Chief Prosecutor, serving until 2005. In its decade of operation, the Court secured 16 convictions for war crimes and crimes against humanity, including of Charles Taylor, who became the first former head of state convicted by an international tribunal since the trials of Nazis after World War II.
Earlier this year, David Crane's book, Every Living Thing: Facing Down Terrorists, Warlords, and Thugs in West Africa – A Search for Justice, was released. This accounting of the Special Court's founding and lessons learned, long-anticipated, has been well-received. David Crane spoke with Tom Sheehy, a long-time staff member on the Committee on Foreign Affairs in the U.S. House of Representatives, addressing the Special Court, its lessons, relevancy for today, and the state of contemporary international justice. What follows is Sheehy's interview with Crane.
In 2002, you showed up in war-shattered Freetown, Sierra Leone and had to build the Special Court for Sierra Leone pretty much from scratch. What were the biggest political and other challenges you faced in establishing and then running the Special Court?
First: United Nations interference and lack of support. The Special Representative of the Secretary General, a Nigerian, was dead set against the Special Court and refused to cooperate with our work for the first several months. This eventually caused his removal, but the Special Court was largely on its own during 2002.
Because Charles Taylor was a former U.S. intelligence asset, the American government tried to quash the work of the Court.
Second: Health. Almost every known disease exists in Sierra Leone. My concern was to ensure that my office was healthy so staff could do their work. At any given time during my tenure I had several people sick with malaria, typhoid, or cholera.
Third: Security. This was my number one priority. We set up the Special Court shortly after a ten-year conflict ended that saw 90 percent of the country destroyed. We were beginning our investigations while those we would eventually indict and arrest were walking around us to include the sitting Minister of the Interior, Hinga Norman.
Fourth: U.S. interference. Though the United States was key in setting up the Special Court and was one of its principal financial backers, the U.S. Ambassador was never supportive of the Special Court, very much like the Special Representative of the Secretary General. He too was eventually removed. After I indicted and took down Charles Taylor in the summer of 2003, the U.S. fought me every step of the way in getting him handed over, even up to 2006.
As Taylor was a former U.S. intelligence asset, whose case officer was working in the National Security Council, this caused the U.S. to attempt to politically quash our work. As an aside, we also found out fairly easily the location of the individuals who blew up the U.S. embassies in East Africa, all Al Queda, living in a hotel in Monrovia, Liberia under the protection of President Charles Taylor. I personally handed this evidence to FBI Director Bob Mueller in November of 2003. He spent years trying to disprove this as they were all terribly embarrassed that these individuals were literally living under their noses. It was pressure by key members of Congress, including Congressmen Frank Wolfe, Ed Royce, and Chris Smith that forced the FBI to admit their error and to expand their presence in West Africa. Alas, the FBI never forgave me for this.
You describe the very personal bond you developed with Sierra Leoneans who had been victimized by the Revolutionary United Front and others in the most gruesome and appalling ways. As the world watched, little boys and girls had their limbs chopped off. How well did the Special Court help provide a sense of justice to these abused individuals and societies?
Our Outreach Program, through town hall meetings, allowed a sense of trust and opened up avenues of dialog throughout the country. Additionally, I had created a victims advisory council with whom I met once a month for tea and biscuits. During those meetings, I would answer questions, listen to their issues and commentary, and give them a sense that their opinions mattered and were useful. I also had a quarterly meeting with all of the civil society organizations of Sierra Leone to discuss their perspectives on justice, the Special Court, and various related issues. They made me an honorary Paramount Chief the week before I left the Special Court in a very moving ceremony.
How did the Special Court build the trust with victims that was needed to secure their participation in its proceedings?
Part of my General Strategy was that we would focus our work for and on behalf of the victims. I felt that the setting up of the Special Court was for and about the victims of the atrocities there. I reminded my office weekly as to why we were in Sierra Leone. Overall, the UN had not done a very good job taking care of victims. They still aren't doing very well. We also set up in my office a Witness Management Unit to monitor and care for victims who were going to be witnesses at trial. It was headed by two Royal Canadian Mounted Police officers. Part of our legacy program was to train Sierra Leonean police on witness management, a program that continues to this day.
Were transitional justice measures taken in addition to the Special Court aimed at providing a sense of healing to shattered communities? If so, were they effective?
I felt in putting together my General Strategy that the Special Court for Sierra Leone was only one star in a galaxy of stars working together to bring peace to that war-torn land. I approached our work there humbly and with a sense of respect for what other organizations were doing and had done to assist. One of the first things I did was to meet with every international, regional, and local organization to introduce myself and to ask for their help where they could. These organizations had tremendous contacts, information, and perspectives that proved invaluable to our work. I met regularly with all of them and developed long term friendships and arrangements which greatly assisted us in that work.
What are your thoughts on the Truth and Reconciliation Commission in Sierra Leone?
In my General Strategy in setting up the Special Court, I factored in a robust program of support and collaboration with the new TRC. There were many naysayers who did not believe that truth and justice mechanisms could work together. I was determined to prove them wrong. In July, a few weeks before I headed towards west Africa, I announced to the world that I would not use any evidence or information that the TRC obtained in my investigations of those who bore the greatest responsibility for the international crimes in Sierra Leone. Upon my arrival, I set up a monthly meeting with the head of the TRC, Bishop Joseph Humper, had regular lunch meetings with the Executive Director, and hosted a dinner for all the commissioners on a quarterly basis.
Truth (the Truth & Reconciliation Commission) plus justice (the Special Court) equals sustainable peace
We worked hard to ensure that we did not get in the way of each other and in large part we worked in conjunction with the other. In my townhall meetings, I encouraged Sierra Leoneans to come forward to tell their stories to the the TRC publicly or privately, as they so chose. I coined the phrase, and I truly believe this, that truth (TRC) plus justice (the Special Court) equals sustainable peace. I believe we showed the world that is does. We laid the groundwork for future truth and justice models to seek justice for the victims of an atrocity.
Your mandate was to try 'those with the greatest responsibility' for international crimes during the conflict. How did you arrive at this standard, and how did you implement it? Did this mean that some people responsible for terrible atrocities, many against women and children, went unprosecuted? How does a society heal when people who committed atrocities do so with impunity?
'Greatest responsibility' has now become the standard by which the international community approaches an atrocity scenario. Any lesser mandate has proved to be unworkable. Having the broader mandate of 'those responsible' precluded the two ad hoc tribunals –Rwanda and Yugoslavia - from completely succeeding in their work. Greatest responsibility was the standard by which the Special Court for Sierra Leone was established. It was a first, and frankly an experiment, to see if international criminal justice can be delivered more effectively. I think it was one of the reasons the Special Court for Sierra Leone was so successful.
It certainly gave me an ability to focus on those individuals who were the leaders of the three warring factions in Sierra Leone. It was workable and allowed me to take the mandate and create a management strategy that was efficient and effective, as history now shows. The challenge was what did 'greatest responsibility' actually mean? That was left to me to figure out. I met with dozens of international, regional, and local persons and organizations to get their thoughts, but ultimately it was up to me to decide. After listening to all of these important perspectives, I used the model of the International Military Tribunal at Nuremberg, investigating, indicting, and arresting the leaders of the warring factions in Sierra Leone. It worked and is now the new standard for future international mandates.
Why was it so important to apprehend, try, and convict for war crimes former Liberian president Charles Taylor?
It was absolutely critical that then President Charles Taylor be held accountable for what he had done to the people of Sierra Leone. It's important to remember that he was individually criminally responsible for the murder, rape, maiming, and mutilation of over 1.2 million people. He was one of three heads of state who were directly involved in the destruction of Sierra Leone, as well as most of west Africa. Presidents Muammar Gaddafi of Libya and Blasé Compaore of Burkino Faso also were culpable, particularly Gaddafi whose idea it was to take over the diamond fields of Sierra Leone. I looked closely at all three of these presidents to indict, but chose only Taylor as I felt politically the international community would not stomach the indictment of three African heads of state.
Taylor had to be held accountable for what he did to the Sierra Leone people. Qadaffi & Compaore also involved but I felt the international community would not stomach the indictment of three African heads of state.
It must be noted that no sitting head of state had ever been indicted for international crimes, and I thought that the UN would not be able to hold together any support for the Special Court if I indicted three heads of state, so I took down the most culpable, President Taylor.
As an aside, it must be noted that the bright red thread of modern international criminal law is politics. Tribunals are creatures of political events and their establishment is based on political compromise. Politics is in the DNA of all modern tribunals and must be taken into consideration. I did so in Sierra Leone, to our success. Most others did not, to their detriment. During my town hall meetings in our Outreach Program, I asked the people of Sierra Leone early on who I should indict and President Charles Taylor was always high on their list.
With Taylor, besides the issue of justice that you mention, there was also the real possibility that he'd return to the battlefield, and throw Liberia and Sierra Leone back into war, right?
Yes, indeed. Our intelligence assets in Liberia and throughout west Africa were monitoring and watching Taylor and his allies after I took him down in June 2003. We had a better intelligence network than the CIA/FBI or MI6. We frequently reported our information to them without letting on who our assets were. We reported these activities to the appropriate ambassadors and to the various committees in the U.S. Congress.
Taylor still harbors a hope hope of 'coming back' even as he serves an essentially life sentence.
Taylor announced at the base of the stairs of the airplane that was taking him into house arrest in Calabar, Nigeria in August of 2003 that 'God willing, I will be back.' He kept trying, but we would be alerted and counter his every move. Frankly, he still harbors a hope of 'coming back,' even as he serves out what essentially is a life sentence in a maximum security prison in England.
Yet the Special Court's indictment of Charles Taylor wasn't universally welcomed. You describe being put in some pretty hot water for issuing the Taylor indictment. What was the nature of the resistance to bringing Charles Taylor to justice?
In retrospect, the only resistance I received during the entire time of my work in getting Charles Taylor handed over for a fair and open trial was the United States. The Bush administration fought me at every step. The only support I received was from the U.S. Congress. The support was bi-partisan and effective. It forced the Bush administration to support my work to include the take down of Charles Taylor.
The Bush administration fought me but members of the U.S. Congress provided critical support.
Recall at the time the U.S. never supported an international tribunal's power to take down a sitting head of state. It is one of the major reasons why the U.S. is not a states party to the ICC [International Criminal Court]. It is important to highlight how critical the international/foreign relations committees of the House and Senate were in ensuring the support of the Special Court politically, financially, and practically. Without them and their staffs, I could not have taken Charles Taylor down or even continued the work of the Special Court mandate. The U.S. Congress was critical to our success.
The apprehension of Charles Taylor and the delivery of him to the Special Court was high drama. The outcome was far from certain and there was plenty of intrigue. What lessons did you learn in pursuing Taylor?
The lesson learned is the importance of building coalitions of friends, colleagues, and like-minded leaders in moving towards a reasoned and practical resolution. Operation Rope, as it was called, was a two-year effort by my office to build a political coalition of international and regional organizations, as well as UN member states, to call for Taylor to be handed over. Again, the problem child was the U.S., but in the end the political coalitions worldwide were just too much for the Bush administration. Key to a U.S. decision to get Taylor handed over to the Special Court was the leadership of Congressmen Hyde, Royce, and Smith and Senators Gregg and Leahy. They were relentless in their quest to get Taylor handed over to the Special Court.
Sometimes it's argued that it's better to allow dictators and others who have committed war crimes to live in exile rather than face justice for their crimes. If they face accountability, this thinking goes, abusive leaders will never leave office voluntarily when their country desperately needs them to depart. What do you think of this 'practicality over principle' argument?
This is now old thinking but the question was asked in my work in developing the political coalition to get dictator and warlord Charles Taylor handed over to the Special Court. During the 'age of accountability,' 1993 to 2015, this all worked. Now in the 'age of the strongman,' there is no political or practical avenue for accountability of any strongman, dictators or thugs as they now control the political paradigm regarding atrocity accountability. The majority of the five permanent members of the UN Security Council oppose key elements of international justice, and it's hard for me to say this, that includes the United States. As discussed in the 'third wave of accountability,' local and domestic efforts will continue the struggle against impunity.
The Special Court for Sierra Leone was considered a 'hybrid' or 'mixed' court. What were its unique characteristics, and presumed benefits?
The Special Court was the world's first hybrid international tribunal. It was a bold new experiment to see if international justice could be handled more efficiently and effectively. At the time of its creation, the two other ad hoc tribunals in Yugoslavia and Rwanda were largely failing and too expensive. The concern was that international accountability was not working. A hybrid tribunal's unique feature is that it is made up largely of internationals with important additions of domestic personnel to augment the court in key areas such as a deputy prosecutor, judges etc. In my office, over 30 percent of personnel were from Sierra Leone. In the eyes of the victims, always the reason why a court exists, this was their Court.
What key lessons can we learn from the Special Court? How do they relate to issues of international and transitional justice today?
Historians are now saying the the Special Court for Sierra Leone was the most successful international tribunal. It was the last of the major tribunals to be created and the first to accomplish its mandate. This was due to many reasons, but at the end of the day the Special Court had a General Strategy and Prosecutorial Strategy which I put together in 2002 that worked. The Special Court knew in large part how we were to begin, where we were going, and how we were going to finish before we even set foot in Sierra Leone. This international tribunal was the first, and for a long while, the only tribunal that had a plan of any kind. The tribunals in Yugoslavia and Rwanda did not have any real strategy until around 2005 when the UN Security Council demanded one. The keys to success: an overall strategy for success; location of the court at the scene of the crimes, in Freetown; a workable mandate of greatest responsibility; and, taking the Special Court out of the UN administrative/personnel system.
Moving into more recent times, the government of Sudan at least at one point was considering turning-over former Sudanese dictator Omar Bashir to the International Criminal Court for war crimes prosecution for his actions in the western region of Darfur. Some say Bashir should instead be tried by a Sudanese court, or a hybrid court, like the Special Court for Sierra Leone. What are your thoughts regarding Sudan?
Sudan is a tragedy at many levels and the ICC was part of that. The naive actions by the first chief prosecutor to indict Omar Bashir without considering the political, diplomatic, and practical ramifications of that initial indictment created a series of circumstances that weakened the entire foundation of the ICC.
The indictment of Sudan's Bashir weakened the ICC, which may never recover. But arrest of Bashir by the Sudanese may have saved the ICC's reputation, ironically.
That foundation is now built on sand and that court may never recover from that fatal decision, sadly. It is encouraging that the current Sudanese regime has opened up a real possibility of holding Bashir accountable, but that remains to be seen. The ICC may get to try him despite their actions. The arrest of Bashir by the Sudanese may have saved the ICC's reputation ironically. Because of the missteps by the ICC early on, it is critical for the sake and existence of the ICC that it try the case. It is interesting to note and consider that a hybrid court like the Special Court for Sierra Leone could be a successful model to try Bashir in the Sudan.
Many have criticized the International Criminal Court for being too focused on prosecuting Africans, as a vast majority of its cases have targeted African human rights abusers. Is that a valid criticism? If so, what are the implications for the ICC?
That criticism is not really valid. The ICC has a poor track record at many levels, but this is not one of them other than how the ICC politically handles its work in Africa. Most case referrals have been by the African states parties themselves, giving jurisdiction to the ICC for the alleged crimes. The ICC's missteps politically and diplomatically have caused serious practical and legal problems in Africa related to holding heads of states there accountable. The important indictment, arrest, and prosecution of former Liberian President Charles Taylor by my office was hoped to be a beginning of accountability in Africa, yet the ICC has done such a poor job in dealing with the political, diplomatic, and practical ramifications of its work on that continent that now the African Union has all but given African heads of state immunity for their actions against their own people. A tragic result to be sure.
Many are concerned by rising nationalism worldwide. There seems to be a growing questioning of, and opposition to, international institutions and norms. How concerned are you about this trend's impact on international justice?
I am very concerned. We now live in an 'age of the strongman,' which has almost completely stopped the work we all have done over the past twenty years or so. International peace and security under the rule of law has gone by the wayside. This is worrisome and the nationalistic trend smacks of the same trend we saw in the 1930s. We are in the 'third wave of accountability,' a term I have coined.
In this 'age of the strongmen', international peace and security under the rule of law has gone by the wayside.
The first wave was the cornerstone laid at the International Military Tribunal at Nuremberg. The second wave was the 'age of accountability' which saw the establishment of modern international criminal law, from 1993 to 2015. The third wave is where we see grass roots efforts and domestic initiative to continue to investigate and hold accountable those who commit atrocities.
With no international tribunals working, other than a weakened International Criminal Court, the shift has gone to local efforts supported by UN states parties and nongovernmental organizations. The 'mechanism system' for Syria and Myanmar is a positive international step forward, but it will be awhile before we see any regional or international court or tribunal. There is no political appetite for them right now.
International politics are very different today than when you headed the Special Court. I was struck in reading your book that the Chinese embassy in Freetown leant you support, including furnishing Special Court facilities. And China backed the Special Court in the U.N. Security Council. Do you think you'd get that type of Chinese backing today?
China was supportive of our work because I became friends with the Chinese ambassador, who I met regularly. This mutual respect and friendship paid off over three years of open discussion and dialog. This friendship continued with the Chinese Permanent Representative at the UN. China felt that President Charles Taylor was a direct threat and destabilizing force to Chinese economic interests in the region.
My success working with the Chinese is a good example of how critical personal diplomacy can be.
This was my theme throughout and it paid off when China voted to have Taylor handed over to the Special Court for Sierra Leone in 2005. Would they do it today? Perhaps, but my success with China in 2002-05 was personal. I suspect that given the opportunity again, I could get China to support our work. This is just a good example of where personal diplomacy was so critical in seeking justice for the victims of the atrocities in West Africa.
Yes, it comes through well in your book that your personnel diplomacy was absolutely key to your success. In fact, you were as much a diplomat as lawyer. But you have recognized that China's attitudes towards international justice, driven by not wanting accountability for its own human rights abuses at home, have hardened?
China approaches human rights from a business point of view. If it harms their business or economic interests, human rights is not on their agenda. If it assists, then they will support a particular human rights initiative. The Court greatly improved the business and economic opportunities not only in Sierra Leone, but in all of West Africa, thus they assisted us in our work. I know this and used it to our advantage. But, over time I developed close personal ties with the Chinese ambassadors in Sierra Leone and at the UN. They helped because they were my 'friends.'
Your book is an outstanding and inspiring recounting of your time at the Special Court. How has the response to it been? Any surprises in reactions?
I wrote my book for and on behalf of the people of Sierra Leone, my wonderful office who supported me those many years, and for my family who I thought I may never see again. It's a testament to their courage and bravery. I was proud to write the book for them. The book has done well, and I am getting supportive feedback. Most commentators are struck at the detail and how many moving parts there were, all of which had to work, to bring justice to West Africa. There are rumblings that it may be made into a movie or a cable series.
Thank you very much David for sharing your insights on these critical issues of justice. Sierra Leone enjoys a peace today that was unimaginable in the dark days of the 1990s. That is only because of the intervention of the international community, certainly including the Special Court. As we've heard today, and as reported in your important book, you were central to this success.
David Crane had a nearly 30-year, highly distinguished career in the United States federal government, including serving as Director of the Office of Intelligence Review, assistant general counsel of the Defense Intelligence Agency, and the Waldemar A. Solf Professor of International Law at the U.S. Army Judge Advocate Generals School. Crane served as founding Chief Prosecutor of the Special Court for Sierra Leone from 2002 to 2015. After leaving the Court, he taught at the Syracuse University School of Law from 2006-18. He now researches and writes on issues of international law. He is the founder of the Global Accountability Initiative, which houses the Syrian Accountability Project, the Yemeni Accountability Project, and the Venezuelan Accountability Project.
Tom Sheehy served on the Committee on Foreign Affairs staff from 1997-2018. He was staff director of its Africa subcommittee, chaired by Representative Ed Royce (R-CA), from 1997-2003, when the subcommittee focused closely on Liberia, Sierra Leone, the Special Court for Sierra Leone, and its pursuit of Charles Taylor. From 2013-2019, Sheehy served as staff director of the full Committee on Foreign Affairs, then chaired by Royce. He is now a Senior Advisor at KRL International and principal at Quinella Global.
