October 2004

Africa: The Laboratory of Justice By Thierry Cruvellier

The latter’s existence can be understood only in the light of the experience of the former. For the Special Court in Freetown has been constructed largely in response to the perceived failings of the Arusha Tribunal. The Special Court’s ambitions mirror the setbacks that the Arusha Tribunal has suffered. Three essential points define the relationship between the two bodies and will probably shape future comparisons between them: the connection (or lack of it) between the tribunal and the society affected by the crimes it is considering; the strategy of the Prosecutor’s office; and the cost and length of the process.

A Return to the Local

Based in Tanzania, a few thousand kilometers from Kigali, the ICTR has never succeeded in bridging the gap between itself and the Rwandan people. More than seven years after trials began in Arusha, they remain a largely esoteric process for the majority of the Rwandan population, who are unable either to follow the hearings or to understand their workings. As the effort of international justice after the genocide of 1994 is weighed down by both geographical distance and the exclusion of all Rwandans from the key mechanisms of the judicial process (no Rwandan may occupy a post of any importance in the chambers, the Prosecutor’s office, the Registry or even, de facto, the Defense Office), its impact is likely to prove derisory, particularly where reinforcement of the national legal system is concerned.

To the extent that a legal culture has started to grow, however tentatively, in Rwanda over the last ten years, this is due to the trials heard by the national courts - which have passed judgment on around 9,000 people in seven years - rather than the influence or supposed example of the UN tribunal. The ICTR is not the only tribunal to show such sorry results: its counterpart in The Hague has also been severely criticized for its isolation from the populations of the former Yugoslavia. The lessons of these experiences clearly led to the establishment of the Special Court within Sierra Leone’s territory itself rather than in a different country. They were also crucial to the development of the Court’s ‘mixed’ constitution, which must include Sierra Leoneans at every level and in all organs. The aim is to make international justice locally relevant.

Strengths and Limits of the Hybrid Approach

The Special Court for Sierra Leone has been in place for almost two years and, practically speaking, is only halfway through its term of existence. More particularly, the trials have not yet started. But a few judgments can be made on the basis of its experience so far. Open directly to Sierra Leonean society, the Court has shown a greater awareness of its duty to explain its workings to the population at large. In the first five months of their presence in the country, the Chief Prosecutor and Registrar held public meetings in almost every province in the country, a procedure which may be largely symbolic, but is a real innovation in relation to the ad hoc UN tribunals. In its staffing - and its regular budget - the administration has also made provision for outreach teams whose task is to keep the wider public informed, both in the capital and the rest of the country. There is an evident contrast here with the ICTR which, apart from opening an information centre in Kigali in 2000, has carried out no action of this type, arguing that there was no funding for it.

Another noteworthy feature of the Special Court for Sierra Leone is its “hybrid” character. Across all categories, more than half its staff are Sierra Leoneans. However there is a clear imbalance between national and international staff in posts of responsibility. Although one of the three Trial Chamber judges is Sierra Leonean, the Appeals Chamber has only one Sierra Leonean judge out of five and there are no Sierra Leoneans at management level in the other organs of the Court. To some extent the Sierra Leonean government itself contributed to this imbalance by appointing foreigners to the few key posts left to its discretion, such as that of the Assistant Prosecutor.

However, despite these limitations, a quarter of the managerial staff in the Court are Sierra Leonean and it is generally acknowledged that in the long term their involvement will represent the most significant legacy for the country. The presence of Sierra Leonean investigators in the Prosecutor’s teams has been noted as a key factor for quality and speed. This observation is all the more significant when we remember that in Arusha the Prosecutor’s office of the ICTR instigated a small revolution in this regard in May 2003, by appointing three Rwandans to advise it in its work. These were the first Rwandans to take up such posts, eight years after it began its investigations and a year after some devastating errors in its indictments.2

Redefining Prosecution Strategy

In September 2003, Carla del Ponte, who had for four years been Chief Prosecutor at the courts of The Hague and Arusha, lost half her functions with the appointment of a separate prosecutor for the Rwandan tribunal. At the time del Ponte made no secret of the fact that she believed she had been ousted from the ICTR because she had sought to prosecute members of the Rwandan Patriotic Army (RPA), the military wing of the Rwandan Patriotic Front, which had been in power in Kigali since 1994. There is no doubt that the Rwandan government demonstrated its unwillingness to see some of its soldiers appear before the international tribunal, using, with particular success, access to witnesses in Rwanda as a means of influencing the Tribunal. But Carla del Ponte’s comments masked two more disagreeable realities: her own part in the de facto abandonment of investigations into the RPA and the wider condemnation of her prosecution strategy, marked by an inflated number of investigations and indictments. In its last report on the ICTR, published in September 2003, the International Crisis Group’s recommendation was to “immediately stop the filing of new charges on genocide dossiers,”3 in other words definitively to bury Carla del Ponte’s plan in order to forestall a “deadly overburdening” of the tribunal. More recently, on April 6, 2004, the judges of the war crimes tribunal for the former Yugoslavia granted themselves the new and highly significant power to throw out charges that did not concern those “most responsible for crimes within the jurisdiction of the tribunal.”

It was against this background of failure - that of a prosecution policy that was ill-defined and, hence, subject to a broad interpretation by the Chief Prosecutor - that the Special Court for Sierra Leone was established. Its sponsors - headed by the United States - wanted to be sure that the Prosecutor’s office would understand its mandate in an extremely restricted sense. Two years after his appointment as Chief Prosecutor, David Crane must surely satisfy them in this respect. To date thirteen persons have been charged by the Special Court.4 All can legitimately be regarded as people with major responsibility in the different forces that fought during the ten years of civil war. Nothing suggests that the Prosecutor intends to deviate from a rigorous interpretation of his mandate, and in all likelihood the idea that the action of a tribunal of this kind should be confined to a very limited number of cases will be seen as a positive legacy of the Sierra Leonean experience.

The most serious failure of the Prosecutor’s office at the Special Court thus far has been of a quite different nature: its inability to bring criminal charges against representatives of the business community who profited from the civil war and, as a result, from crime. This was one of David Crane’s major ambitions and many people expected the Court to open a new front in the struggle against crimes against humanity by attacking the financial networks that underwrite them. According to his recent statements, the Prosecutor has had to accept that he has not yet succeeded in establishing a judicial link between the businessmen and the crimes that fall within the jurisdiction of the Court.

Swift Justice, Economical Justice

A limited number of trials in a limited time and for limited cost: this was the pragmatic task given to the members of the Special Court for Sierra Leone by those who supported its creation and, above all, provide most of its funding: the United States, the Netherlands, the United Kingdom, and Canada. In its nine years of existence the Rwanda tribunal has passed judgment on only 21 of the 80 people it has indicted and already it has cost around $600m. When - constrained by its donors - it closes its doors, it will have been in existence for around fifteen years and probably swallowed up $1.4 billion. By contrast the Freetown Court was set up on the understanding that it must complete its work in three years with a total budget of around $60 m, less than two thirds the annual cost of the ICTR.5

Washington also insisted that the Special Court should be free of the United Nations bureaucracy. So the Court runs on voluntary contributions from states and its budget is closely monitored by a management committee composed of the main donors, a UN representative and a representative of the Sierra Leonean government. A clear advantage of the Freetown Court’s emancipation from the UN has been its infinitely greater flexibility in recruitment. A greater handicap is the precariousness resulting from its mode of finance: the promises of states lack the certainty of the annual budget of the United Nations.

Judges in Question

“The new model of Sierra Leone may well be the right one. [Its] advantages could be used elsewhere,” said the President of the Special Court, Geoffrey Robertson, in January 2003.6 Even before it has accomplished anything at all, the Special Court for Sierra Leone has been promoted by both its members and several elements of the U.S. media as a model that could be applied elsewhere. Clearly this is taking things rather fast. Apart from the questions raised about the interaction between the Court and the society around it, the necessary focus of prosecutions or the cost and duration of the process, the Special Court for Sierra Leone has yet to prove its capacity to deliver trials that are both swift and fair. At the moment, after a convincing launch, the Court seems to be looking for its second wind. The first trials began in June, fifteen months after the first arrests, and it remains to be seen whether the Court will avoid the procedural complexities in which the ICTR became rapidly and fatally embroiled.

The role of the judges is crucial here. In March, faced with a first crisis that undermined their president, the Appeals Chamber judges sent out a rather disturbing message. Justice Robertson’s impartiality was questioned by defense lawyers on the basis of what he had written about the rebels of the Revolutionary United Front (RUF) in a book published in 20027. Justice Robertson’s peers eventually decided to keep him on, but forbade him to hear the cases of RUF members - in other words a third of the trials.8 This inevitably gave the impression that personal considerations override “the superior interests of justice,” to use the lawyers’ wonderful phrase. For how, in the context of so limited a mandate as that of this jurisdiction, is it possible to justify keeping a judge in post when he is prevented from hearing at least one case in three?9 At the same time, in a plenary session, the judges made opportune modifications to the regulations, by reducing the presidency of the Court to a non-renewable term of one year, thereby making it possible to replace Justice Robertson immediately in this post. The bizarre combination of the functions of judge and legislator given to the judges of the ICTR and ICTY clearly led to these tribunals’ sliding worryingly off-course. Here the Freetown judges have ventured onto the same slippery slope.

Dealing with Defense

The Special Court for Sierra Leone also has yet to deal with the question of legal aid and, more generally, the place of the defense within the institution. At both the ICTY and ICTR, the defense costs of the accused have been a matter of lively debate. In addition to the fact that they have generally spun out of control, these expenses have been subject to widely-recognized abuse by a minority of teams of lawyers, with the at least passive complicity of the tribunals’ administrators. At a more institutional level, the defense has always felt excluded or denigrated as an integral, fundamental element in the trials. The countries financing the Freetown Court are particularly worried about budgetary matters, so it is important for this new tribunal to innovate and protect itself from the financial mismanagement and corruption that has undermined the ICTR.

The mechanism selected has now become apparent. Drawing on the British model, the establishment of a Defense Office led by a ‘Chief Defender’, and a ceiling on lawyers’ fees, should guarantee budgetary control and a greater participation by the defense in the functioning of the Court.10 It is crucially important that this initiative should prove successful if the Court is to become a model for future judicial initiatives.

Assessment of a Dual Process

Another lesson can now be learned from the Sierra Leonean experience concerning the possible relationship between a criminal court and a truth and reconciliation commission. The two institutions functioned simultaneously throughout 2003. Many fears were expressed concerning the potential conflicts arising from their parallel operation; however these have largely been calmed, notably as a result of the positions adopted by the Prosecutor. In May 2003 the Canadian William Schabas, one of the foreign commissioners of the Truth and Reconciliation Commission, said, “I note that the two institutions function in synergy rather than in a competitive way. We are currently proving that the two institutions can co-exist, responding to the same problem in different ways, although we may not have explored the limits of possible conflicts due to problems with the functioning of the Commission.11” A year later, when the Commission was in the final stage of drawing up its report, David Crane reinforced this view, saying that “it has largely succeeded. It wasn’t perfect, but mainly positive.”

1. Such as the case of the former president of Chad, Hissène Habré.
2. In May 2002 the ICTR provoked astonishment by prosecuting General Rusatira, regarded as the best-known and highest-ranking officer of the former Rwandan armed forces who had opposed the genocide in 1994. Three months after his arrest in Belgium, the high-ranking Rwandan officer was released when Carla del Ponte, the ICTR’s Chief Prosecutor, withdrew the charges.
3. Link: http://www.crisisweb.org
4. Nine of the thirteen accused are currently detained in Freetown, two others have died since being indicted, and two have not yet been called for questioning.
5. Initially the planned budget was $57 m. However if the Court’s recent requests were accepted, this could rise to $75 m. See the report of the International Center for Transitional Justice, 9 March 2004, www.ictj.org
6. Hard Talk, BBC, 27 January 2003.
7. Crimes Against Humanity, the Struggle for Global Justice, Geoffrey Robertson, 2002.
8. See International Justice Tribune, 15 March 2004, link: http://www.justicetribune.com
9. Here it should be stressed that other defense teams may try to put forward similar arguments in other cases besides those involving RUF members, and notably that of the former Liberian president Charles Taylor, indicted before the Special Court and also criticized in Judge Robertson’s book.
10. See International Justice Tribune, 19 April 2004.
11. Amnesty International, Chronique de la section française, October 2003.