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Lessons from the Sam Hinga Norman Decision of the Special Court for Sierra Leone: How trials and truth commissions can co-exist

Published online by Cambridge University Press:  06 March 2019

Michael Nesbitt

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Sierra Leone is a poor nation in the midst of a laudable campaign to bring justice and reconciliation to a people desperately in need of it. Having suffered through the scourge of a decade long civil war, the nation employed two distinct yet related institutions to take a leading role in this campaign. Uniquely, the Government of Sierra Leone (GoSL) sought the assistance of the United Nations (UN) in setting up the world's first “hybrid tribunal”, named the Special Court for Sierra Leone (SCSL), to work alongside the already conceived of Truth and Reconciliation Commission (TRC). These two institutions were to employ different procedures and, to an extent, different objectives in the hopes of achieving peace, justice and reconciliation.

Type
Articles
Information
German Law Journal , Volume 8 , Issue 10: Special issue – ‘Coup d'état in the courtroom’ , 01 October 2007 , pp. 977 - 1014
Copyright
Copyright © 2007 by German Law Journal GbR 

References

1 See generally, Martha Minow, Between Vengeance and Forgiveness (1998); Truth v. Justice: The Morality of Truth Commissions (Robert I. Rotberg & Dennis Thompson eds., 2000); Transitional Justice: How Emerging Democracies Reckon with Former Regimes, 3 vols., (Neil J. Kritz ed., 1995); and Ruti Teitel, Transitional Justice (2000).Google Scholar

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3 Mark Freeman, Truth Commissions and Procedural Fairness Appendix 1 (2006); Priscilla Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions Appendix 1 (2002). Other countries might be added to the lists provided by these authors. For example, Bahrain, Bosnia, and others have been discussing TRCs, and Liberia has recently commenced statement-taking, see online at: http://www.trcofliberia.org/; Morocco recently released its own TRC or “Instance Equité et Réconciliation” report: online at http://www.ier.ma/rubrique.php3?id_rubrique=309. See also United States Institute of Peace, online at http://www.usip.org/library/truth.html#tc.Google Scholar

4 Mark Freeman, id., offers perhaps the best discussion on this topic. See especially 27-28.Google Scholar

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19 This was the case with respect to the TRC Report in Argentina following its “Dirty War”, where now International Criminal Court Chief Prosecutor led the way with subsequent prosecutions of army personnel. El Salvador had a similar experience subsequent to the release of its report.Google Scholar

20 The Office of the Attorney General and Ministry of Justice Special Court Task Force specifically foresaw this result accruing from the TRC process at, supra, note 3. See generally Minow (note 1); Rotberg & Thompson (note 1); Paul van Zyl (note 12), 665-67; Hall, Laura R. & Kazemi, Nahal, Prospects for Justice and Reconciliation in Sierra Leone, 44 Harvard International Law Journal 287, 290; Hayner, Unspeakable Truths (note 5), 24-31; Robinson, Darryl, Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court, 14 European Journal of International Law 3, 481, 484 (2003); Miraldi (note 5), 855.Google Scholar

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27 See, supra, note 21.Google Scholar

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31 See Orentlicher (note 21) for a discussion of the duty to prosecute for serious international crimes.Google Scholar

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39 Id, Human Rights Section. Evenson (note 6), 733 states that 2 million were internally displaced, with 500,000 refugees and 5,000 children turned into combatants.Google Scholar

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41 UK Foreign and Commonwealth Office Country Profile (note 37). Foday Sankoh led the RUF throughout the decade long conflict. See Earl Conteh-Morgan & Mac Dixon-Fyle, Sierra Leone at the End of the Twentieth Century: History, Politics, and Society (1999) and John L. Hirsch, Sierra Leone: Diamonds and the Struggle for Democracy (2001). As a result of the support offered to the FLA by the Government of Liberia, both leading up to and in perpetuation of the violent conflict, now deposed Liberian dictator Charles Ghankay Taylor was indicted by the Special Court for Sierra Leone: see Special Court for Sierra Leone, Indictment of Charles Ghankay Taylor, Case No. SCSL-2003-01-I, 7 March 2003. See also Special Court for Sierra Leone, The Prosecutor v. Charles Ghankay Taylor (Decision on Immunity from Jurisdiction), Case No. SCSL-2003-01-I, 31 May 2004.Google Scholar

42 See Special Court for Leone, Sierra, Indictment of Johnny Paul Koroma also known as JPK, Case No. SCSL-2003-03-I, 7 March 2003. Even at the time he was leading the AFRC from prison, Johnny Paul Koroma had been charged previously with treason. Specifically, he was indicted for crimes against humanity, violations of common article 3 to the Geneva Conventions and to Optional Protocol II and other serious violations of international humanitarian law.Google Scholar

43 ECOMOG was the Nigerian-led ECOWAS armed monitoring group: see UK Foreign and Commonwealth Office Country Profile (note 37); see also Miraldi (note 5), 849-850.Google Scholar

44 President Kabbah and his government had been in neighboring Ghana after seeking refuge there following the coup. See UK Foreign and Commonwealth Office Country Profile (note 37).Google Scholar

45 Over 5,000 people were killed in these attacks and “most of the eastern suburbs of Freetown were destroyed. See UK Foreign and Commonwealth Office Country Profile (note 37).Google Scholar

46 Id.Google Scholar

47 “Peace Agreement Between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone (Lome Accord)”, Sierra Leone Web, available at: www.sierra-leone.org, last accessed 5 April 2005. The Lome Agreement was “notorious” because it offered a full amnesty to the leaders of all Parties to the conflict and as such offered a potential barrier to prosecutions as the SCSL began indicting these very same individuals. The conflict was resolved when the SCSL established that it had jurisdiction to hear cases in Sierra Leone and essentially dismissed the amnesty's applicability to the Court. See Special Court for Sierra Leone, Decision on Challenge to Jurisdiction: Lome Accord Amnesty, 13 March 2004, available at www.sc-sl.org, last accessed 5 April 2004.Google Scholar

48 ECOWAS brokered the agreement.Google Scholar

49 See UK Foreign and Commonwealth Office Country Profile (note 37). The State of Emergency was lifted by March of that year.Google Scholar

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52 Id., Part III – Functions of the Commission, para. 6(1).Google Scholar

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54 Id., para. 6(2)(b).Google Scholar

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57 Id., Part V – “Report and Recommendations”, para. 15(2).Google Scholar

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64 Id., Article 1: “Competence of the Special Court,” para. 1 (emphasis added).Google Scholar

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67 Statute of the SCSL (note 62). In particular, the following crimes were made a part of the SCSL's jurisdiction: crimes against humanity (Article 2); violations of Article 3 common to the Geneva Conventions and of Additional Protocol II (Article 3); other serious violations of international humanitarian law; and, crimes under Sierra Leonean law (Article 5).Google Scholar

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69 Id., Article 7: Jurisdiction over persons of 15 years of age.Google Scholar

70 There were many statements that discouraged the Court from exercising its jurisdiction over children under 18. See Letter dated 31 January 2001 from the President of the Security Council addressed to the Secretary-General, UN Doc. S/2001/95 (2001): “The members of the Council continue to believe it is extremely unlikely that juvenile offenders will in fact come before the Special Court and that other institutions, such as the Truth and Reconciliation Commission, are better suited to address cases involving juveniles.” (Emphasis added.) See also, Letter dated 22 December 2000 from the President of the Security Council addressed to the Secretary-General, UN Doc. S/2000/1234 (2000); Stephanie Bald, Searching for a Lost Childhood: Will the Special Court for Sierra Leone Find Justice for its Children?, 18 American University International Law Review 537 (2002).Google Scholar

71 Kofi Annan, Letter dated 12 January 2001 from the Secretary-General of the United Nations addressed to the President of the Security Council, UN Doc. S/2001/40 (2001) (emphasis added). See also Letter dated 22 December 2000 id., 1; Letter dated 31 January 2001, id.; Eleventh report of the Secretary-General on the United Nations Mission in Sierra Leone, UN Doc. S/2001/857 (2001), para. 66.Google Scholar

72 See e.g. ICTJ Report (note 2); Human Rights Watch Report (note 2). Both offered thoughtful insights into how the relationship between the TRC and SCSL should be organized. See also, Situation of human rights in Sierra Leone, UN Doc. E/CN.4/2001/35 (2001), which details the proposal for a consultative process to arrange the relationship between the two institutions made by the Office of the High Commissioner for Human Rights and the United Nations Assistance Mission for Sierra Leone.Google Scholar

73 William A. Schabas, A Synergistic Relationship: The Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone, 15 Criminal Law Forum 3, 25-41 (2004); UN Doc. E/CN.4/2002/3 (2002), especially para. 70.Google Scholar

74 See Statute of SCSL (note 62) and “Special Court Agreement” (note 61).Google Scholar

75 Statute of SCSL, id. (emphasis added).Google Scholar

76 See “Special Court Agreement” (note 61), Article 21(2).Google Scholar

77 William Schabas argues that such a conclusion would indeed be preposterous. See Schabas, , The Relationship Between Truth Commissions and International Courts: The Case of Sierra Leone, 25(4) Human Rights Quarterly 1035, 1049 (2003).Google Scholar

78 “Special Court Agreement” (note 61).Google Scholar

79 Truth and Reconciliation Act (note 50) (emphasis added).Google Scholar

80 The repetition of the word “shall” is clearly mandatory in this context. See ICTJ Report (note 2), 5.Google Scholar

81 For a discussion on the extensive attempts to pre-plan the relationship, and even conceive of a cooperation agreement, see Schabas (note 73), 25-41.Google Scholar

82 See Special Court for Sierra Leone, Decision on Appeal by the Truth and Reconciliation Commission for Sierra Leone and Chief Samuel Hinga Norman“ Case No SCSL-2003-08-PT (Norman Appeal Decision), para. 1, available at: www.sc-sl.org, last accessed 17 September 2007 (emphasis added); “Practice Direction on the Procedure Following a Request by a National Authority or Truth & Reconciliation Commission to Take a Statement from a Person in the Custody of the Special Court for Sierra Leone”, 9 September 2003, para. 5. A revised Direction was issued 4 October 2003 that responded in part to certain TRC concerns: “Revised Practice Direction on the Procedure Following a Request by a State, the Truth and Reconciliation Commission, or Other Legitimate Authority to Take a Statement from a Person in the Custody of the Special Court for Sierra Leone”, 4 October 2003. Both were adopted pursuant to Rule 33(D) of the Rules of Evidence and Procedure of the Special Court.Google Scholar

83 The TRC was explicitly dissatisfied with the Direction: see Schabas (note 2), 1094; Boister, Neil, Failing to get to the Heart of the Matter in Sierra Leone? The Truth Commission is Denied Unrestricted Access to Chief Hinga Norman, Journal of International Criminal Justice 1100, 1102 (2004).Google Scholar

84 See Norman Appeal Decision (note 82), para. 1.Google Scholar

85 See Schabas (note 2), 1082. Note that this is also happening in East Timor; the relationship between the former TRC and present domestic prosecutions is beginning to take shape in Peru, has already taken place in countries such as Chile and South Africa, and the likelihood of more examples presents itself in the transition of numerous other societies.Google Scholar

86 See Pape, E., Cleaning House, Legal Affairs 69 (2003); IRIN News, United Nations Office for the Coordination of Humanitarian Affairs, Sierra Leone: Analysis – Election could turn on Kamajor war heroes/criminals, (7 September 2007) available at: www.irinnews.org, last accessed 17 September 2007.Google Scholar

87 See Schabas (note 2), 1085. See also, Sierra Leone Truth and Reconciliation Commission Final Report (note 60), Vol. 2, chapter 2 (see e.g. Findings against the CDF in respect of women, paras. 508-510).Google Scholar

88 Commissioner Schabas has noted that the TRC found that the atrocities committed by the CDF “were on a par with the worst the RUF had to offer.” See Schabas (note 73), 12.Google Scholar

89 See Special Court for Sierra Leone, The Consolidated Indictment – Samuel Hinga Norman, Case No. SCSL-03-14-I.Google Scholar

90 Truth and Reconciliation Commission for Sierra Leone, “Request to conduct a public hearing with Chief Samuel Hinga Norman,” filed on 9 October 2003 with the Special Court for Sierra Leone pursuant to Rule 33(D) of the “Rules of Procedure and Evidence of the Special Court”.Google Scholar

91 Agreement in writing of Samuel Hinga Norman signed by his Counsel on 14 October 2003. See Special Court for Sierra Leone, Decision on the Request by the Truth and Reconciliation Commission of Sierra Leone to Conduct a Public Hearing with Samuel Hinga Norman, Case No. SCSL-2003-08-PT (Norman Trial Chamber Decision), available at: www.sc-sl.org.Google Scholar

92 Norman Trial Chamber Decision, Id., para. 16.Google Scholar

93 The preliminary judgment was made by Justice Bankole Thompson. See id., paras. 6 and 8.Google Scholar

94 Id.Google Scholar

95 Id., para. 8 (emphasis added).Google Scholar

96 The term erroneous is meant in both the subjective sense and objective sense. The decision was erroneous in the subjective sense for reasons that are laid-out below. The reasoning is objectively erroneous in the sense that his decision was, strictly speaking, overturned on appeal.Google Scholar

97 Norman Trial Chamber Decision (note 91), para. 10 (emphasis added).Google Scholar

98 Id., para. 11.Google Scholar

99 Id., (emphasis added).Google Scholar

100 Id., para. 12.Google Scholar

101 Id.Google Scholar

102 Id.Google Scholar

103 Id.Google Scholar

104 Id.Google Scholar

105 Id., para. 13.Google Scholar

106 Id., para. 15.Google Scholar

107 He was after all arrested in his Ministerial Office as a member of the Cabinet (Schabas (note 2), 1092).Google Scholar

108 This is in contrast to Judge Thompson who believes that the Accused should not have “a license to incriminate himself elsewhere.” See Norman Trial Chamber Decision (note 91), para. 14. Such a restriction on free speech would seem very hard to justify without further explanation. If someone in a criminal trial wishes to admit guilt outside of the trial and has been instructed by his counsel to do so then it is for him to bear the consequences. But again this is not the situation here as the Accused would not necessarily even be admitting guilt, at least not guilt in the criminal sense.Google Scholar

109 Perhaps it is better to ask why an accused would waive his right to silence than to ask if he can do so? In Norman's case, his legal representative is not to blame: his defense counsel had warned him against testifying before the TRC while he was indicted before the SCSL. See Letter of 17 June 2003 from Mr. J.B. Jenkins-Johnston, legal representative of Chief Hinga Norman, to the Registrar of the Special Court, found in Schabas (note 73), 43.Google Scholar

110 Norman Trial Chamber Decision (note 91), para. 14 (emphasis added).Google Scholar

111 Id. Google Scholar

112 As judge Thompson asserts at id. Google Scholar

113 TRC Commissioner William Schabas comes to this very same conclusion. He states that the experience of Sierra Leone: “demonstrated the feasibility of the simultaneous operation of an international court and a truth commission. The Sierra Leone experience may help us to understand that post-conflict justice requires a sometimes complex mix of therapies, rather than a unique choice of a single approach from a menu of alternatives.” See Schabas (note 2), 1088 (emphasis added). See also Robinson (note 20), 484.Google Scholar

114 See Norman Appeal Decision (note 82).Google Scholar

115 In other words, Justice Thompson had treated the TRC as if it was a court and subsequently held it to a similar standard of practice and evidence. This was most obvious in his characterization of the TRC as a body capable of placing the indictee in the “legal category of perpetrator.” See Boister (note 83), 1104.Google Scholar

116 The genesis of such a right stems from the Inter-American Human Rights system. See Trujillo Oroza Reparations, Inter-Am Ct. H.R. (Ser. C) No. 92, para. 115 (2002); Ellacuria v. El Salvador, Case 10.488, Inter-Am Court of Human Rights OEA/serL/V/II.106 (1999); Velasquez Rodriguez v. Honduras, Inter-Am. Ct. H.R. (Ser. C), No. 4 (1988), especially paras. 174, 181; Bamaca Velásquez v. Guatemala, Petition No 11.129/1993, Judgment of 25 November 2000, especially para. 41; Report of the Inter-American Commission on Human Rights in Monesnor Oscar Arnulfo Romero and Galdamez v. El Salvador, Report No. 37/00 of 13 April 2000. See also the Committee against Torture, which speaks of the right of victims to an impartial investigation into torture on its territory: e.g. M'Barek v. Tunisia, Communication No. 60/1996, 12, U.N. Doc. CAT/C/23/D/60/1996 (2000). See also, Freeman (note 3), 6-9.Google Scholar

117 See, generally, Boister (note 83), 1104-05.Google Scholar

118 Norman Appeal Decision (note 82), para. 2.Google Scholar

119 Special Court for Sierra Leone, Press and Public Affairs Office Press Release, “Sam Hinga Norman may Testify,” Freetown, 28 November 2003, available at: www.sc-sl.org, last accessed 26 September 2007.Google Scholar

120 Justice Robertson stated that: “It is not normally appropriate for one judge to review another's exercise of discretion, so I have not treated this appeal as a judicial review…or strictly as an appeal from his decision, but rather as a fresh hearing in a context where as President, I have the flexibility to explore alternative solutions”. See Norman Appeal Decision (note 82), para. 3, and also paras. 9-10.Google Scholar

121 Id., para. 33.Google Scholar

122 Id.Google Scholar

123 Id., para. 39.Google Scholar

124 Id., para. 41.Google Scholar

125 Id., para. 4.Google Scholar

126 See Tejan-Cole, Abdul, The Complementary and Conflicting Relationship between the Special Court for Sierra Leone and the Truth and Reconciliation Commission, 6 Yale Human Rights and Development Law Journal 139, 151 (2003), who also argues that Justice Robertson's “primacy” argument is incorrect. See also, Schabas (note 77), 1058.Google Scholar

127 Norman Appeal Decision (note 82), para. 4.Google Scholar

128 Id., para. 30.Google Scholar

129 Id., (emphasis added). See also, id., para. 31 where Justice Robertson states that the Nuremburg Tribunal would not have allowed defendants to “participate in such a spectacle“ (emphasis added).Google Scholar

130 Schabas (note 2), 1096.Google Scholar

131 Id., 1098.Google Scholar

132 After the decision the Court issued a statement saying the appeal was allowed: see SCSL Press Release (note 119). Meanwhile, the TRC issued a statement saying that the rule had “dealt a serious blow to the cause of truth and reconciliation in Sierra Leone….” (see Truth and Reconciliation Commission, Press Release, Freetown, Sierra Leone, 1 December 2003, available at: www.sc-sl.org, last accessed 20 April 2005). See, generally, Boister (note 83), 1108.Google Scholar

133 Marissa Miraldi argues that while they have the same ultimate purpose, they are able to reach different people as a result of their separate jurisdictions. As a result, there is a need to work together to complete the picture. See Miraldi (note 5), 855. See also Tejan-Cole (note 126), 150-151.Google Scholar

134 Tejan-Cole, id., 150, provides further support for such a conclusion.Google Scholar

135 The “Special Court Task Force” made a special plea not to “pitch…the two institutions as rivals”. See Special Court Task Force Briefing Paper (note 2), 8, para. 6.1.Google Scholar

136 Evenson (note 6), 730.Google Scholar

137 See e.g. Hayner, Unspeakable Truths (note 5).Google Scholar

138 Norman Appeal Decision (note 82), para. 15.Google Scholar

139 Schabas (note 73), 25-41.Google Scholar

140 Id., 29.Google Scholar

141 Sierra Leone Truth and Reconciliation Commission Final Report (note 60), vol. 3b, chapter 6, para. 46. See also Vol. 2, chapter 2, paras. 588-90.Google Scholar

142 For a comprehensive review of how to deal with the exchange of testimony more broadly see Human Rights Watch Report (note 2); ICTJ Report (note 2).Google Scholar

143 Post-Conflict Reintegration Initiative for Development and Empowerment & the International Centre for Transitional Justice, Ex-Combatant views of the Truth and Reconciliation Commission and the Special Court in Sierra Leone 19 (12 September 2002) available at: http://www.ictj.org/images/content/0/9/090.pdf, last accessed 11 July 2007.Google Scholar

144 See Boister (note 83), 1109. See also Hayner (note 3), 209.Google Scholar

145 See Boister, id., 1109-1110.Google Scholar

146 For arguments supporting the ICC's cooperation with TRCs, see generally, Robinson (note 20), 484.Google Scholar

147 Rome Statute (note 65), Article 93(i).Google Scholar

148 Id.Google Scholar

149 See Boister (note 83), 1109-1110.Google Scholar

150 ICC Rules of Procedure and Evidence, Rule 73(2), UN Doc. PC NICC/2000/1.Add.1 (2000). Note also the UN Draft Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, UN doc. E/CN.4/Sub.2/199/20/Rev.1, Annex II. (1997), which “state that evidence resulting from TRC investigations should be safeguarded for later use by the courts”, but “it is not clear that this includes evidence given in confidence.“ See Boister (note 83), 1109 (emphasis added).Google Scholar

151 Tejan-Cole (note 126), 155.Google Scholar

152 In the Sierra Leone context there was indeed confusion as to the respective roles of the two institutions as it was. See Schabas (note 2), 1099.Google Scholar

153 Id. Further, the standards of evidence before both bodies are different thereby making it practically impossible for the defense to lead certain TRC ‘evidence’.Google Scholar

154 See Human Rights Watch (note 2).Google Scholar

155 Boister (note 83), 1114.Google Scholar

156 This was a continuing concern in Sierra Leone where the distinction between the two institutions was often misunderstood.Google Scholar

157 Norman Appeal Decision (note 82), para. 41.Google Scholar

158 Boister (note 83), 1110.Google Scholar

159 See id. See also, Hayner, Unspeakable Truths (note 5). See further, the numerous “right to truth” cases, supra (note 116).Google Scholar

160 This is supported by domestic criminal law systems as well where the “salutary effects” of testimonial bans are weighed against the “deleterious effects to the free expression.” See e.g. Dagenais v. Canadian Broadcasting Corp. (CBS), 94 Canadian Criminal Cases, Third Series 289, 317 (1994); A.G. v. Sport Newspapers Ltd. [1991], 1 Weekly Law Reports 1194, 1200.Google Scholar

161 Villa-Vicencio (note 30), 221.Google Scholar

162 See, generally, Norman Appeal Decision (note 82), para. 20.Google Scholar

163 Schabas (note 2), 1099.Google Scholar

164 Sierra Leone Truth and Reconciliation Final Report (note 60), vol. 3b, chapter 6, para. 230: “It is likely that in the future there will be more truth commissions that work alongside international judicial bodies. This will particularly be the case as the International Criminal Court commences operations in different post-conflict countries.”Google Scholar

165 Id.Google Scholar

166 See Boister (note 83), 1114.Google Scholar

167 Villa-Vicencio (note 30), 217-218.Google Scholar