One
of the major advantages of the Special Court over the standing UN
Tribunals is that, security permitting, it will be located in Sierra
Leone. The ICTY's proceedings in The Hague, and ICTR's proceedings
in Arusha have made it nearly impossible for ordinary Bosnians and
Rwandans to follow the Tribunals' cases. Not surprisingly, the Tribunals'
rulings have had little impact on the wars' victims, whom the courts
are allegedly supposed to serve. Because Sierra Leone's Special
Court will be located in country, it will be much easier for victims
to follow the court's proceedings. At the same time, diplomats hope
the court's location will facilitate the diffusion of legal knowledge
from international to local judicial officials, which will assist
in rebuilding the country's judicial system. In fact, the
Security Council resolution explicitly notes the "pressing
need for international cooperation to assist in strengthening the
judicial system of Sierra Leone."
However,
one potential drawback is that, because it is not directly established
by the Security Council, the court cannot assert primacy over the
national courts of third states. As a result, it will lack the authority
to order the surrender of an accused residing outside of Sierra
Leone. Although many war crimes suspects, including Sankoh, are
already in custody in Sierra Leone, others have fled to Liberia
and other West African states. To resolve this problem, the Secretary-General
recommended that the Council endow the court with the power to request
the surrender of suspects in third states.
The
absence of a Chapter VII mandate will also prevent the court from
extending its jurisdiction to prosecute war crimes now being perpetrated
in neighboring Guinea. In September, militias armed and trained
by President Charles Taylor of Liberia, the same leader who supported
the RUF, began massacring civilians in yet another brutal campaign.
To date, about 600 people have been killed and 60,000 forcefully
expelled from their homes. Intelligence analysts fear that the region
is headed towards full-blown war. Although a UN tribunal with a
Chapter VII mandate might have been able to prosecute these crimes,
the Special Court will be limited to atrocities committed in Sierra
Leone.
Another
potential problem for the Special Court concerns its funding. Institutions
created by the Security Council, such as the previous Tribunals, are
funded by scaled assessments in which each countrys contribution
is proportionate to its size and wealth. However, because it will
not be directly established by the United Nations, the Sierra Leone
court will be financed through voluntary contributions. In his report,
the Secretary-General warned against voluntary contributions, arguing
it would render the court "neither viable nor sustainable,"
and recommended it be financed through assessed contributions. Security
Council members refused, and in a compromise reached in January, the
Secretary-General suggested establishing the court once it had received
funds and pledges to cover the first three years of its operation.
It is not clear however, how long it will take to gather the estimated
$70 million plus needed for three years, leaving the date for the
courts establishment up in the air.
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