Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (7 page)

It was often said that the TRC was mandated to give special attention to issues concerning women in Sierra Leone, although there is actually nothing in the
TRC Act
to this effect. Section 17 of the
TRC Act
requires the Commission to give “special attention to the subject of
sexual abuses.” The TRC did in fact devote considerable attention to issues concerning women in the conflict and more generally within Sierra Leonean society.

Many women gave statements to the Commission and testified during its hearings. One day each week was reserved for testimony by women victims of sexual abuse. Their statements were taken in closed sessions, in the presence of women members and staff of the Commission. But frequently, women who had been victims of sexual abuse insisted upon testifying publicly. Their dramatic testimony was often punctuated by terrible pauses, by tears and sobs, but despite the emotional strain they courageously continued. It is often said that African women do not like to speak openly about
sexual assaults; but it is unlikely that women anywhere like to speak openly about sexual assaults. Certainly the public hearings of the Sierra Leone TRC showed that any suggestion that African women are particularly demure about such things is an unfounded stereotype. The willingness to speak in public must show an outrage and intolerance of such practices that is translated into the need for public denunciation.

Issues concerning women inevitably were confronted with traditional practices that discriminate against women. For example, one of the features of the conflict was the widespread capture and enslavement of women, who were then described euphemistically as “bush wives.” In fact, they were domestic and sexual slaves. The Commission rejected
any suggestions that the circumstances of their abduction were cured once women had spent a significant period of time with their captors. One of the features of Sierra Leonean culture that reflects the subjugation of women is the very widespread practice of female
genital mutiliation. It was not strictly speaking a human rights violation with a significant
nexus
to the conflict. But if the Commission were to view corruption and bad governance as causes of the conflict, could it not also treat female genital mutilation on the same plane? The issue was too controversial, even among the commissioners, for a clear view to emerge. In the end, the Commission made no findings or recommendations on this point, except to urge Sierra Leone to ratify the recently adopted
Protocol to the African
Charter on Human and Peoples' Rights on the Rights of Women in Africa
, which requires the prohibition “through legislative measures backed by sanctions, of all forms of female genital
mutilation, scarification, medicalization and para‐medicalization of female genital mutilation and all other practices in order to eradicate them.”
[30]

Children were very much at the heart of the TRC's mandate. They seemed to be the incarnation of the contradictions that gripped the entire country, in that one and the same child might be both a victim and a perpetrator. In one case, a young teenager reported on how he had been forced to watch while his parents were slaughtered, and then forcibly recruited into the
RUF where he became a killer. When he testified before the Commission, he had returned home to live with relatives and was back in school. But many others were much less fortunate, and still live as street children in the alleyways of Freetown, or are condemned to lives of inactivity in amputee camps.

The Commission worked closely with various international and local child protection organizations. Special counselling was available when child witnesses were heard. Witnesses under eighteen were not even allowed the option of testifying in public; they too would be heard with victims of
sexual assault in closed hearings. Many children were, of course, also victims of sexual crimes.
[31]

A “child‐friendly version” of the TRC report was also prepared. While the intentions were honorable, it is difficult to determine how effective such a measure can really be. The assumption is that a single version, written in a highly simplified and somewhat paternalistic tone, is appropriate for “children.” This must surely be an oversimplification of the situation. Nobody would go to a bookstore and ask to purchase a book “appropriate for a child under eighteen.” A copy of
The Cat in the Hat
would not suit a child of seventeen any more than an unabridged version of
Anna Karenina
would be right for one of six. Children vary enormously, depending upon age and other factors that influence levels of maturity. What is surely required are several “child‐friendly versions” rather than a single “one size fits all” volume.

A variety of recommendations dealt with the special concerns of children. In one proposal , reflecting the priorities of the
Convention on the Rights of the Child
, the Commission calls for a prohibition on corporal punishment. Children were also the backbone of the combatant forces. Their immaturity made them particularly vulnerable to manipulation by the adult leaders of different groups. The use of narcotic drugs may have contributed to the process, although their role in the conflict has probably been exaggerated. Evidence before the Commission indicated that the military leaders of both the
RUF and the pro‐government militias had begun their careers as
child‐soldiers themselves. They had been recruited to British colonial forces in the 1950s, when they were in their early teens. Apparently it was the British who coined the term “Small Boys Units,” used in the 1990s as a label for combat units of children as young as ten. This is not to excuse their conduct – recruitment of
child‐soldiers is now recognised as a war
crime – but it certainly helps account for the origins of the practice.

Perhaps the most distinctive aspect of the Sierra Leone transitional justice programme was the parallel existence of a truth and reconciliation commission and an international criminal tribunal.
[32]
This was not part of a master plan, but rather the result of circumstances subsequent to the decision to establish the TRC. A renewal of fighting in May 2000 stalled the creation of the TRC, but
also revived debate about the legitimacy of the amnesty. The Government of Sierra Leone “reassessed”
[33]
its position with respect to the amnesty, and requested that the United Nations establish a special tribunal. On August 14, 2000, the
Security Council supported the creation of a court to try “persons who bear the greatest responsibility” for serious violations of international humanitarian law and the laws of Sierra Leone, and mandated the Secretary‐General to negotiate an agreement with the government of Sierra Leone to this effect.
[34]
Like the TRC, this too took some time to materialize, and it was only in January 2002 that the
United Nations and the Government of Sierra Leone reached formal agreement on the project.
[35]
In April 2002, the
Special Court Agreement (Ratification) Act 2002
was adopted to
enable the effective operation of the Court and to implement Sierra Leone's commitments under the agreement with the United Nations.

In March 2003, the Special Court issued eight indictments against several obvious and well‐known suspects. The first trials began in June 2004, at about the same time that the TRC wound up its work. The date at which the temporal jurisdiction of the Special Court begins, November 30, 1996, coincides with the signature of the
Abidjan Peace Agreement
, reached between the Government of Sierra Leone and the rebel Revolutionary United Front (RUF).
[36]
The Secretary‐General had recommended this be chosen so as not to impose a “heavy burden” on the Court, although the conflict is generally agreed to have begun in 1991. In mid‐2001, the Government of Sierra Leone unsuccessfully requested the United Nations to extend the temporal jurisdiction to the beginning of the conflict in 1991. The explanation given by the United Nations for limiting the jurisdiction is not very convincing. Perhaps the United Nations was itself uncomfortable with involvement in
pre‐Abidjan prosecutions because it had not objected to the amnesty provisions at the time, in contrast with the position it took three years later at Lomé.

In a letter to the Security Council in 2001, as the Court's legal framework was still being negotiated, Kofi Annan said that “care must be taken to ensure that the Special Court for Sierra Leone and the Truth and Reconciliation Commission will operate in a complementary and mutually supportive manner, fully respectful of their distinct but related functions.”
[37]
Once it became clear that the two institutions would operate in parallel, there was intense speculation about how they might interact. Those who were suspicious of truth commissions and oriented towards criminal prosecution, saw the opportunity to marginalise the TRC, subordinating it to the Court as a kind of investigative arm or grand jury. For example, Amnesty International wrote that the TRC's “contribution to ending impunity is likely to be extremely weak or non‐existent.” Furthermore, it recommended that “the government of Sierra Leone and the international community should acknowledge that, while the TRC may be able to make an important contribution to establishing the truth about human rights abuses and understanding the nature of the conflict in Sierra Leone, it should not be a substitute for prosecuting those responsible for serious crimes under international law.”
[38]

Those who favoured
restorative justice approaches responded by insisting upon the relevance of a strong and dynamic TRC as a complement to prosecution. In this spirit, as early as October 2001 the
United States Institute of Peace, the International Human Rights Law Group, and the
International Center for Transitional Justice held an expert round‐table on how the two bodies would relate to each other.
[39]

In December 2001, as part of its activities to prepare for the establishment of the TRC, the Office of the UN's High
Commissioner for Human Rights (OHCHR) and the UN's Office of Legal Affairs convened an expert meeting in New York City. The meeting was described as follows in the report of the High Commissioner:

 

The expert meeting on the relationship between the TRC and the Special Court was organised by OHCHR and the Office for Legal Affairs (OLA) of the
United Nations in New York on 20 and 21 December 2001. The participants discussed the important issue of an amicable relationship between the two institutions that would reflect their roles, and the difficult issue of whether information could and should be shared between them. The pros and cons of a wide range of possibilities regarding cooperation between the Commission and the Court were examined. Based on those discussions, the participants agreed on a number of basic principles that should guide the TRC and the Special Court in determining modalities of cooperation. These principles include the following:

 

• (i) The TRC and the Special Court were established at different times, under different legal bases and with different mandates. Yet they perform complementary roles in ensuring accountability, deterrence, a story‐telling mechanism for both victims and perpetrators, national reconciliation, reparation and restorative justice for the people of Sierra Leone.
  

   
  

  1. I. While the Special Court has primacy over the national courts of Sierra Leone, the TRC does not fall within this mould. In any event, the relationship between the two bodies should not be discussed on the basis of primacy or lack of it. The ultimate operational goal of the TRC and the Court should be guided by the request of the Security Council and the Secretary‐General to “operate in a complementary and mutually supportive manner fully respectful of their distinct but related functions” (S/2001/40, paragraph 9; see also S/2000/1234).
     

  2. II. The modalities of cooperation should be institutionalised in an agreement between the TRC and the Special Court and, where appropriate, also in their respective rules of procedure. They should respect fully the independence of the two institutions and their respective mandates.
     [40]
     

   
  

 

 

In addition to the UN‐sponsored meetings, some international NGOs developed some rather elaborate proposals on the type of provisions that might be governed by a relationship agreement. Although there was consideration of the possibility of joint or common efforts at witness protection, translation and public awareness, most of the reflection on how the two bodies might cooperate tended to dwell on what was called “information sharing,” something the December expert meeting had agreed was a “difficult issue.”

The various proposals mainly attempted to govern the modalities of “information sharing” between TRC and Special Court. In practice everyone understood this would be a one‐way street. It was quite unthinkable that the Prosecutor of the Special Court – not to mention the defense – would share its files with the Commission. From the TRC standpoint, the concern was that access by the Court to its materials would have a chilling effect on perpetrators who might otherwise have been tempted to cooperate with the Commission. For example, the Secretary‐General indicated that
the RUF was “receptive” to the TRC, but that it had expressed “concern over the independence of the Commission and the relationship between it and the Special Court.”
[41]
According to
Human Rights Watch, doubts about the ability of the TRC to obtain information in confidence “could potentially undermine the willingness of persons to come before the TRC to provide testimony.”
[42]

In the result, there was never any formal agreement between the two bodies, nor was there any information sharing. Neither institution showed any interest in cooperation. Both seemed to value polite, neighbourly relations, and nothing more. The Prosecutor of the Special Court,
David Crane, very helpfully declared that he was not interested in seeking information from the TRC, a move that may have reassured some perpetrators who were concerned that any information they might provide to the Commission would be used to build a case against them at the Special Court.