BEYOND THE TRIALS: REVISITING THE LEGACY OF THE SPECIAL COURT FOR SIERRA LEONE
By Alpha Sesay
I recently spoke at a Harvard Law School panel about the work of the Special Court for Sierra Leone (SCSL). The panel followed a screening of Rebecca Richman Cohen’s very powerful documentary on the work of the SCSL “War Don Don.” I had a pleasure of sharing the panel with Rebecca herslelf along with other notable Harvard faculty. In speaking on the Court’s legacy, I had cause to reflect on a recent piece by prolific writer Osman Benk Sankoh on the embarrassing state of the former SCSL courthouse—now in a state of dilapidation.
Proposals for use of the SCSL Courthouse included an outpost for an internationaltribunal, an international justice training centrefor West Africa, a museum or monument for justice, etc. On suggestions for the premises to be handed to the Sierra Leone judiciary, the Court’s Legacy Working Group noted that the Sierra Leonean government “does not have the resources nor the capacity to take over the site.” Benk Sankoh’s piece, sadly, gave credence to this view.
Indeed, some had expressed concerns whether the Court’s premises were a significant legacy project. In part due to the cost of upkeep, a defence lawyer with the Court at the time thought that focusing on the premises as a legacy was a diversion from real legacy generation. “The Special Court needs to invest in people. It is developing the human resources that matter,” she said. Some in civil society also worried that the site could be a distraction. “The Special Court has not prioritised the legacy we want to see – we want to see fair trials, the abolition of the death penalty, equality of arms at the national level,” a civil society activist said. “After that, then worry about the site, not before…It’s just a building,” he added.
During my recent talk to Harvard students and faculty, I reiterated the need to look beyond the premises and assess the real impact on Sierra Leoneans and their perceptions of justice as part of the Court’s legacy.
In 2008, during discussions on the court’s legacy, three men—all amputees from the country’s brutal 11-year war, with either one or both arms lost to the elbow, or a leg to the knee, sitting in a rickety tin shed during the rainy season in Freetown, talked about the potential for the SCSL to leave a lasting legacy in the country.
To them, the SCSL - a war crimes tribunal set up to prosecute those bearing the greatest responsibility for crimes committed during the country’s civil war - must mean more than meting out fair and impartial justice in a courtroom. The court, they said, needed to leave something meaningful behind in Sierra Leone – maybe a nationalised mechanism put in place to protect victims and witnesses.
Just a year earlier and across the globe in the halls of the United Nations Security Council in New York, international diplomats also set out their expectations and hopes for the Special Court’s legacy. In front of the huge oil mural depicting a phoenix rising from the ashes, symbolising a world rebuilt after World War II, 14 of 20 Security Council members and other interested states explicitly spoke about the SCSL’s role in creating a legacy, by rebuilding Sierra Leone’s shattered legal system, engaging the Sierra Leonean community about the trials, and generating lasting respect for the rule of law.
In many ways, the aspirational, if at times abstract, interventions by states expressed a desire to address the desperation of those most affected by the war, such as those three men who sat, without limbs, in the leaky tin shed in Freetown. “The victim’s perceptions that they received justice is crucial,” the President of the Security Council at the time said. Any assessment, therefore, of the SCSL’s legacy efforts must include the perspectives from the Court’s key constituency: the voices and experiences of those whom legacy creation efforts were intended to benefit. Several years later, there is still debate on whether aspirations about the court’s legacy hold today.
A major legacy of the SCSL is the perception of respect for the rule of law—the Court prosecuted the most senior persons in the various fighting forces including a senior government official and a former head of state-Chares Taylor-by far the Court’s most high-profile case. However, the aspiration that respect for the rule of law as seen through the SCSL trials would translate into similar belief or perception of the country’s national justice system remains just that—an aspiration. That the SCSL also did not situate itself to impact the jurisprudence of the domestic courts represents a missed opportunity. The Prosecutor’s failure to bring charges under Sierra Leonean law as provided in the Court’s statute is partly responsible for that.
Some positive aspects of the Court’s legacy include the setting up of a depository for Sierra Leone legal materials (SierraLii) and civil society engagement with the justice sector. Several Sierra Leoneans who worked at the SCSL are back working with the country’s national justice system. The Court also put significant effort into capacity building for Sierra Leoneans-both within and outside the Court. In this area, a major problem though was that the Court tended to look outwardly, developing projects which could be discretely implemented with outside funding. This came at the expense of looking inwardly to develop a comprehensive strategy for mainstreaming legacy efforts throughout all organs of the court. Institutionally, over some time, the training and legacy efforts which occurred within and outside the SCSL were not centrally coordinated nor developed in collaboration with section heads within the court to integrate legacy activities into the court’s daily operations. Much later, hiring a legacy officer helped change some of these.
Years after the Court completed its mandate, it is important to pick up on some of the important legacy initiatives and implement them at the national level. The SCSL helped draft a Witness Protection Legislation for Sierra Leone.With the spate of rape and sexual violence crimes against women and young girls in the country, and the country’s robust fight against corruption, it is important to bring this essential legacy initiative into fruition.
Domestication of the Rome Statute of the International Criminal Court is an important legacy project that is tied to the SCSL’s work in Sierra Leone.
Teaching students about the country’s transitional justice mechanisms and making the work of the SCSL part of International Criminal Law curricula for law students in university could also help promote understanding of and respect for the rule of law—an important legacy of the SCSL.
The Peace Museum-set up by the SCSL is a significant legacy project that should not be allowed to die. And to allow the courtrooms to continue in their present state will be a stain on the court’s legacy.
Finally, rebuilding faith and respect in the country’s national justice system and ensuring that Sierra Leone never again returns to what necessitated the need for the setting up of the SCSL will be the most significant legacies of the Court’s work in Sierra Leone.
Alpha Sesay is a Sierra Leone human rights lawyer working with the Open Society Foundations in the United States. He works and writes on a broad array of international law issues including international criminal justice, international human rights, litigation and advocacy for cases before regional human rights mechanisms, justice sector reform, anti-corruption, peace and justice, etc. He is also a Visiting Human Rights Fellow at the Harvard Law School.