In their quest to hold individuals accountable for war crimes and abuses of international human rights laws, in conflict and post-conflict situations, the international community established varied forms of international tribunals/courts. The Special Court for Sierra Leone was one of such courts and the first of its kind; that is, of a domesticated international court.
In Justice within the Arrangement of the Special Court for Sierra Leone Verses Local Perceptions of Justice: A Contradiction or Harmonious?, a paper I delivered earlier this year at the annual meeting of the American Political Science Association, I examine the enforcement of international criminal justice within the arrangement of the Special Court, from the perspectives of the people who experienced the phenomenon.
My study found that the notion of justice -- as instituted by the court's statute and as administered by the court itself -- was at variance in several respects with the local meanings and expectations of justice.
As an initial matter, the Special Court for Sierra Leone was mandated to try those who bear the greatest responsibility for the atrocities which took place in that country. (map credit) This was interpreted by the prosecution to consist of the political leaders of the respective warring factions; that interpretation led to the indictments of the leadership of respective warring factions. This left out the middle-level commanders and the foot soldiers who allegedly committed the atrocities in question. However, in the view of Sierra Leoneans, perpetrators were those who actually committed atrocities, irrespective of their levels in the chain of command.
A second concern related to the content of the Special Court's indictments, which concerned alleged violations of international humanitarian law irrespective of the side one fought during the war. However, the generality of Sierra Leoneans construed offences by virtue of the contexts in which the offences had occurred. That is, my study showed, Sierra Leoneans thought that one was a perpetrator depending on which side he fought during the war:
► Those who fought on the side of government were considered "good." because they defended their people.
► Those who fought on the side of the rebels were the "bad guys." because they rose against the people, deserving prosecution and punishment.
Consequently the indictment of members of the Revolutionary United Front, the rebels, was considered "good," because they fought the people and were the "bad guys." But most Sierra Leoneans did not accept the indictment of the leadership of the Civil Defence Forces, especially its leader, Sam Hinga Norman. Members of this militia fought on the side of the government, and thus were considered heroes.
A third factor contributed to variance in the notion of justice. Knowledge about international humanitarian law was considered critical in determining whether or not one was a perpetrator of alleged abuses. Supporters of the Civil Defence Forces argued that since this vigilante group comprised traditional hunters, with no training in armed warfare and no knowledge about international humanitarian laws, they should not have been punished for their actions.
A claim of discrimination in terms of the indictments was raised as a fourth concern. At the time that Hinga Norman was coordinating the Civil Defence Forces, he was also a deputy government minister; thus he was deemed to have taken instructions from the substantive minister and, for that matter, the President. This assumption led to the argument that since Norman was indicted, the President of Sierra Leone also should have been. The inclusion of the Civil Defence Forces was seen as symbolic, as a gesture of the Special Court’s impartiality. Again, it was argued that if the Special Court was desirous of administering justice, members of the Sierra Leonean army should have been held accountable given that they committed a lot of atrocities – a fact the former President acknowledged in his address before the Sierra Leone Truth and Reconciliation Commission.
Fifth, the notion of justice was also discussed in terms of sentencing and prison conditions. The Special Court statute did not make room for death penalty, even though Sierra Leonean national law permitted it. This difference posed a major concern. Also, the detainees of the Special Court had good living conditions that the ordinary person on the street could not afford, and people wondered why those considered perpetrators should have luxury while their victims suffered.
As yet another matter, the legitimacy of the Special Court was found contentious by virtue of an existing amnesty, which the government and the United Nations held inapplicable to the Special Court. They justified this on the grounds, first, that the rebel Revolutionary United Front had committed acts of violence in violation of the negotiated peace; and second, that the United Nations had signed the peace accord, the 1999 Lomé Agreement, as a moral guarantor with the reservation that the amnesty would not apply to war crimes. Revocation of the amnesty raised a number of issues:
► Why were the government-allied Civil Defence Forces were indicted and tried when they had not breach the negotiated settlement?
► Did the United Nations, a party to the agreement, have the authority to vary its terms as a moral guarantor, and did its disclaimer clause form an integral part of the Lomé Agreement?
► Could the government of Sierra Leone unilaterally revoke the peace agreement?
No matter the attempts to justify the Special Court, my study showed that the court remained a legal and moral issue in that it stands in contravention to the blanket amnesty in the Lomé Agreement. Its legitimacy remained questionable notwithstanding the fact that the Parliament of Sierra Leone passed an Act to incorporate it into the national legal system.
My study revealed a perception among Sierra Leoneans that the government, for its part, sought the Special Court to get rid of political opponents and to get revenge against the rebels, while the international community, for its part, pursued agenda not solely related to peace and stability for Sierra Leone.
Emerging as critical factors, in whether individual Sierra Leoneans were interested in, supported, and cooperated with the Special Court, were their socio-cultural and economic conditions; namely, literacy and economic status, cultural approaches to dispute resolution, the extended family system, and their priority concerns vis-à-vis justice.
The Special Court will have a far-reaching consequence for Sierra Leone as a country. My study demonstrates that there needs to be continuous dialogue between the government and stakeholders to make the experience relevant to Sierra Leone.
The paper also has implication for the United Nations, governments, policy-makers, designers, and implementers of future international criminal justice mechanisms. It brings to the fore the potential impact of local dynamics on the administration of international criminal justice -- dynamics precipitated by political, sociocultural, economic, and legal conditions in a given transitional context.
Legitimacy should not only be rooted in the formal and or international norms, but also in informal and local norms which inhere in the societies where international criminal justice is contemplated. For moral legitimacy, there must be consensus-building around the international criminal justice mechanism. The conceptualization, design, and implementation should be done by reference to the people,to their way of life and to their expectations of justice.The mechanism also should consider building peace and stability as its primary objective. Anything short of that is likely to render it susceptible to suspicion and contempt in the eyes of the local populace, with serious political consequences for the nation concerned.