Creation of a Special Court for Sierra Leone

• July 7, 1999, after 8 years of civil war, the Lomé peace agreement is signed. RUF leader Foday Sankoh, who had been sentenced to death, and his men are given a « presidential pardon » as part of the peace deal, and are granted amnesty for « crimes committed before the signing » of the agreement.
• May 17, 2000, Foday Sankoh, head of the Revolutionary United Front (RUF), and several rebels are arrested near the capital, Freetown.
• May 23, 2000, the Government declares its intention to ratify the Statute of the International Criminal Court.
• June 20, 2000, the Government announces that it would make a proposal to the United Nations Security Council to set up a tribunal for Sierra Leone. The President of the Republic requests either that a special court be set up or that the mandate of the International Criminal Tribunal for Rwanda be extended. American Ambassador to the UN Richard Holbrooke rejects the idea of extending the ICTR's mandate.
• August 14, 2000, the Security Council passes a resolution to establish a special, independent court for Sierra Leone. UN Secretary-General Kofi Annan has 30 days in which to negotiate an agreement with the Sierra Leonean government and to submit a report on the technical modalities involved in setting up the tribunal.
• From September 12 to 14, 2000, the Chief Prosecutor and Minister of Justice of Sierra Leone travels to New York to negotiate the legal framework of the special tribunal, the agreement with the Sierra Leonean government and the Statute.
• September 15, 2000, Sierra Leone ratifies the treaty of the International Criminal Court.
• From September 18 to 20, 2000, the Under Secretary-General of Legal Affairs, Ralph Zacklin, heads a mission to Freetown to assess the means required for setting up a special court.

Report on the Creation of a Special Court in Sierra Leone

• October 4, 2000, the UN Secretary-General submits his report on the creation of a Special Court for Sierra Leone.
• According to the report, the Special Court « is established by an Agreement between the United Nations and the Government of Sierra Leone and is therefore a treaty-based (...) court of mixed jurisdiction and composition. » As « a treaty-based organ, the Special Court is not anchored in any existing system (i.e., United Nations administrative law or the national law of the State of the seat) which would be automatically applicable to its non-judicial administrative and financial activities. »
• The Special Court will have primacy over national courts. This primacy will only apply to Sierra Leonean courts. Consequently, « it also lacks the power to request the surrender of an accused from any third State and to induce the compliance of its authorities with any such request. » (However, it may request the Security Council to endow it with special powers for the purpose of requesting the surrender of an accused who is in another country).
• Competence: « The special tribunal for Sierra Leone *shall+ prosecute persons who bear the greatest responsibility for the commission of serious violations of international humanitarian law as well as crimes under relevant Sierra Leonean law committed within the territory of Sierra Leone since November 30, 1996 » (the date of the signing of the Abidjan Peace Accord, the first general peace agreement signed between the Sierra Leonean government and the RUF).
• Individual criminal responsibility from the age of 15: « The possible prosecution of children for crimes against humanity and war crimes presents a difficult moral dilemma. More than in any other conflict where children have been used as combatants, in Sierra Leone, child combatants were initially abducted, forcibly recruited, sexually abused, reduced to slavery of all kinds and trained, often under the influence of drugs, to kill, maim and burn. Though feared by many for their brutality, most if not all of these children have been subjected to a process of psychological and physical abuse and duress which has transformed them from victims into perpetrators. »
• After consultation with the Sierra Leonean government, civil society and international humanitarian organisations, the report recommends that certain legal guarantees be provided in any proceedings that may be brought against minors:« In the prosecution of juvenile offenders, the Prosecutor shall ensure that the child-rehabilitation programme is not placed at risk, and that, where appropriate, resort should be had to alternative truth and reconciliation mechanisms, to the extent of their availability. » The report also recommends numerous other guarantees with respect to the defence of juveniles, the protection of their private life and the exclusion of prison sentences.

Special Tribunal

• According to the Report on the mission to Sierra Leone which led to the creation of the Special Court on 16 January last, the chief prosecutor, registrar and judges of the future body should be designated before 31 May. The prosecutor may well be appointed this week and set up his or her team at very short notice so as to launch the first investigations, with the first indictments in perspective within a year. As for the evidence, the Report notes that only that evidence gathered by the police after the Lomé Agreement (the Peace Agreement signed in July 1999) is immediately available, the rebels having destroyed the headquarters of the police investigation department in 1999. Evidence gathered by churches, NGOs and UNAMSIL (the United Nations Mission in Sierra Leone) will be re-evaluated. The drafters of the Report also comment on the links between the Truth Commission (created by law in May 2000) and the Special Court, recalling that their legal bases and objectives differ appreciably. While the two bodies will share some administrative services, the issue of sharing evidence is extremely delicate, particularly for the work of the Truth Commission. Based on the South-African model, the Commission promises those witnesses who so request that their declaration will be confidential and guarantees that the perpetrators of crimes who testify voluntarily will not be prosecuted. The Report specifies, thus, that information obtained by the Commission concerning an accused having played an important part in the perpetration of crimes may be provided to the Special Court under two conditions: that the information in question can only be obtained from the Commission; and that the evidence gathered is indispensable to establish the accused's guilt. A more detailed document governing the relationship between the two bodies is currently being drafted.
• Sierra Leone: Nomination of Judges

The eight judges of the Special Court for Sierra Leone have been named by the United Nations Secretary-General and the Sierra-Leone government. Set up to try those responsible for crimes committed during the nine year civil war, the hybrid international Special Court was established by treaty on 16 January 2002. Trials at first instance will be held before two international judges (a Canadian, Pierre Boutet, and a Cameroonian, Benjamin Mutanga Itoe) and a national judge, Bankole Thompson. There will be five appeal judges, four international (Emmanuel Ayoola of Nigeria, Alhaji Hassan Jallow of Gambia, Renate Winter from Australia and Geoffrey Robertson of the United Kingdom) and a Sierra Leone judge (Gelaga King). Finally, two ad litem judges have been named, coming from Ghana and Zimbabwe. The American prosecutor, David Crane, designated on 9 April 2002, should take office in Freetown at the end of July.