An Analysis of Transitional Justice in Sub-Saharan Africa:

Case Study Rwanda and Sierra Leone

ABSTRACT

The Sub-Saharan African countries of Rwanda and Sierra Leone have been plagued by conflict over the years. In the course of these conflicts, various atrocities were committed. They included massacre and maiming of civilians, the use of rape as a weapon of war, conscription of child soldiers, the destruction of people’s livelihood and displacement of people. As both countries are in the process of emerging (although not completely) from the shackles of these conflicts, the dilemma is how to deal with the past.1How does a nation discover the truth as to what happened duringthe conflict? Who were involved and what role did they play in the conflict? What sought of punishment would be appropriate for those found guilty of human rights abuses? More so, how to reconcile people who once found themselves in opposing sides of the conflict. Drawing from a litany of past experiences over decades, transitional justice institutions like ad hoc international tribunals and truth commissions have played a pivotal role in dealing with such circumstances.2 Rwanda and Sierra Leone followed suite in using such transitional justice mechanisms to dealwith past human rights violations.

This study begins by analysing the concept of transitional justice and various competing tenets within transitional justice. Chapters two and three would also analyse the use and implementation of transitional justice in Rwanda and Sierra Leone respectively. Has the use of transitional justice in both countries serve as a beacon in achieving accountability, reconciliation and truth seeking? The study concludes although there are some merits in the use of transitional justice, much is still to be desired for it to be considered successful in Rwanda and Sierra Leone.

1. TRANSITIONAL JUSTICE

Teitel defines transitional justice as, ‘the view of justice associated with periods of political change, as reflected in the phenomenology of primarily legal responses that deal with the wrong doing of repressive predecessor regimes’.3 Also Kaminski refers to transitional justice as the ‘formal or 1 Steven Ratner, ‘New Democracies, Old Atrocities: An Inquiry in International Law’(1999) 87 (3) Georgetown Law Journal 707-7482 International Military Tribunal (Nuremberg Trials), International Military Tribunal for the Far East, International Criminal Tribunal for the Former Yugoslavia ICTY, South Africa Truth and ReconciliationCommission and the Truth Reconciliation Commissions of South America3 Ruti Teitel, ‘Theoretical and international framework: Transitional Justice in a New Era’ (2003) 26 (4) Fordham International Law Journal 893-906 p893

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informal procedures implanted by a group or institution of accepted legitimacy around the time of a transition out of an oppressive or violent social order, for rendering justice to perpetrators and their collaborators, as well as their victims’.4 There are various concepts embedded in the notion oftransitional justice, which includes truth seeking, prosecution, institutional reform, reparations, purges and amnesia.5 Each of these areas addresses specific needs of alleged victims and the society. For example, truth seeking can assist victims to share their experiences, thereby providing a forum for the public to listen and understand. Whereas prosecution on the other hand establishes the desire of society to punish perpetrators found guilty of alleged abuses.

The international community had and in the foreseeable future,would use transitional justice to bring about peace and reconciliation and to prosecute.6 In fact, transitional justicehas developed into phases over the last century.7

The very first phase was the establishment of the Versailles Treaty after World War I. This was then followed by the establishment of the Nuremburg and Tokyo international Tribunals after World War II. After World War II, both tribunals prosecuted axis forces responsible for war crimes.8 The third phase of transitional justice was the spurt of democracy and political disintegration witnessed by some states especially in South America during the Cold War era.9 The implementation of post conflict transitional justice during this phase, gave rise to the proliferation of Truth Commissions.10 The main aim was to establish democratic governments, nation building and the promotion of human rights. As tensions in the Cold War between the US and the 4 Marek Kaminski, Monika Nalepa and Barry O’Neill, ‘Normative and Strategic Aspects of Transitional Justice’ (2006) 50(3) Journal of Conflict Resolution 295-302 p2955 Andrea Armstrong and Gloria Ntegeye , ‘The Devil is in the Details:Transitional Justice and African Peace Agreements’ (2006) 6 (1) African Human Rights Law Journal 1-25 p3 available at http://ssrn.com/abstract=2169126 accessed 08/12/20126 Wendy Lambourne, ‘Transitional Justice and Peacebuilding after MassViolence’ (2009) 3(1) International Journal of Transitional Justice 28-48 p287 Ruti Teitel, Transitional Justice ( Oxford University Press, 2000) p.318 Ruti Teitel, ‘Transitional Justice Genealogy’(2003) 16 Harvard Human Rights Journal 69-94 p709 Ibid Ruti Teitel, ‘Transitional Justice Genealogy’, p. 70-7110 Priscilla Hayner, ‘Fifteen Truth Commissions – 1974 to 1994: A Comparative Study’ (1994) 16 (4) Human Rights Quarterly 597-655 p.601

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USSR finally eased as a result of the disintegration of the USSR so too was the second phase of transitional justice. The third phase of transitional justice concept which is more encompassing began at the end of the Cold War. The reason for the broader implementation of transitional justice relates to the fact that most of the conflicts Post Second World War havemore of an internal dimension and less of international influence. Teitel emphasises that, this phase of transitional justice in post conflict situation deals with regulating intrastate conflict and peace time relations.11. More so, with the emergence of International Humanitarian Law combined with Human Rights Law, the international community derived the impetus in eradicating impunity and upholding the rule of law in post conflict situations.

The procedures of transitional justice could be initiated and administered by a society which is the victim of past human rights abuses (endogenous) or by external agents with no relation to the conflict (exogenous).12 Ad hoc tribunals and Hybrid courts are examples of exogenous forms of transitional justice mechanisms. Meanwhile, truth commissions and other forms of traditional justice are endogenous transitional justice mechanisms. All these various transitional justice mechanisms presumably can mend the rule of law, promote democracy, provide accountability, and protect human rights inpost conflict societies.13

Within the dialogue of transitional justice, there are two alternatives of justice in addressing accountability in post conflict situations. There is the retributive and restorative justice paradigm. The quest for accountability in most cases, breeds retributive form of justice. Hence, ad hoc tribunals, hybrids courts and in some cases national courts seek to prosecute past crimes. Retributive justice seeks to punish offenders through reparations, trials or a combination of both. Alternatively, restorative justice places much emphasis on healing and restoring community relationship through truth-seeking, amnesty, forgiveness.14 Both truth commissions and

11 Ibid Ruti Teitel, ‘Transitional Justice Genealogy’, p7412 Ibid Marek Kaminski, Monika Nalepa and Barry O’Neill, ‘Normative and Strategic Aspects of Transitional Justice’13 Laurel Fletcher and Harvey Weinstein, ‘Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation’ (2002) 24 (3)Human Rights Quarterly 573-63914 Mark Amstutz The Healing of Nations: The Promise and Limits of Political Forgiveness (Rowman and Littlefield Publishers Inc, Oxford, 2005) p18

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traditional forms of justice typify restorative forms of justice.

1.2. DIFFERENT TYPES OF TRANSITION

Although there are numerous types of transition, Huntington identifies four transitions which are relevant to modern day notion of transitional justice.15 They include intervention, transformation, trans-placement and replacement.

Intervention is change brought about by external forces in meddling in the affairs of a State with the sole aim of imposing democratic institutions.16 Granada and Panama are examples of transition through intervention. Transformations occur when a ruling regime in a country initiates transition with the aim of instituting democracy.17 Examples have includedSpain, India, Hungary and Brazil. Replacements occurs when anold regime is toppled through a coup d’état or where opposition groups are at the fore of instituting democratisation.18 Portugal, Romania and Argentina are examples of replacements transition. Finally, trans-placements arise as a result of the combined efforts of the government and opposition groups.19 Thus the government realises that in order to foster democracy and accountability there is need to negotiate with the opposition.

In any of these transitions, the government’s course of actionin either prosecuting, establishing truth commissions or do nothing at all would hinge on a number of issues. Firstly, the tendency to prosecute would be the order of the day when the outgoing regime becomes weaker and conversely ‘a do nothing’ approach should the outgoing regime remain stronger. Secondly, truth commissions would be the most likely outcome when the relative strength of both the public and outgoing regime is equal. 20

15 Samuel Huntington The Third Wave: Democratization in the Late Twentieth Century (University of Oklahoma Press, 1991)16 Ibid 12117 Ibid 12418 Ibid 14219 Ibid 15120 Elin Skaar , ‘Truth Commissions, Trials-or Nothing? Policy Options in Democratic Transitions’ (1999) 20(6) Third World Quarterly 1109-1128 p1110

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1.3. COMPETING TENETS IN TRANSITIONAL JUSTICE

Transitional justice seeks to enhance peace, promote reconciliation and democracy, and human rights. Considering that, transitional justice does not embody a unique form of justice but rather justice modified to societies or countries then transitional justice could vary from country to country. Some of the transitional justice mechanisms that have been used include prosecutions, truth seeking, reform of institutions and reparations. Arthur in discussing about the mechanisms of transitional justice elaborates how states undergoing transition face a herculean challenge. 21 Hence which method is more suitable in achieving the objectives still remains a debatable issue.22 Such a dilemma has been transposed to the peace versus justice divide and amnesty versus prosecution argument. However, states in transition must choose between these alternatives to remedy the past, establish peace and accountability, and consolidate democracy.Failure to act would as Desmond Tutu asserts using the analogyof a beast said; “…that beast is not going to lie down quietly, it is going as sure as anything, to come back and haunt you horrendously”.23In so doing, societies which deliberately ignore the legacy of past human rights abuses it would come to haunt them. Hence should transitional justice beabout amnesty or prosecution? Furthermore, should transitionaljustice be about peace o justice?

1.3.1. AMNESTY VERSUS PROSECUTION

Amnesty is “a sovereign act of forgiveness for past acts, granted by a Government to all persons (or to certain classes of persons) who have been guilty of crime or delict, generallypolitical offences, – treason, sedition, rebellion, draft evasion and often conditioned upon their return to obedience and duty within a prescribed time… amnesty is the abolition and forgetfulness of the offences”.24

21 Paige Arthur, ‘How “transition” reshaped Human Rights: a conceptualHistory of transitional justice, (2009) 31 (2)Human Rights Quarterly 321-36722 Macmillan Reference USA ‘Transitional Justice’ (2004) 3 The Encyclopaedia of Genocide and Crimes Against Humanity, pp. 1045-104723 Cited in Richard Goldstone ‘Justice as a Tool for Peacemaking: Truth Commissions and International Criminal Tribunals Hauster Lecture, New York University 199724 Joseph R Nolan and Jacqueline M. Nolan-Haley Black’s Law Dictionary (6th edn, West Publishing Co, Minnesota, 1991) p.83

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Amnesties have always been used centuries ago and it still remains an integral part of each and every society.25 Generallyamnesties are uncontroversial legal mechanisms.26 Irrespective of how amnesty is incorporated into a peace settlement, it seeks to prevent the prosecution of those involved in mass atrocities or human rights violations. Amnesty seeks to trade-off the surrender of power or hostilities in a conflict and also recognises past wrongs but exempts offenders from punishments on political or moral grounds. Depending on the terms of an amnesty it may apply only to specific persons, or the nature of crimes committed and may also be limited in timeor territory. Victims and the larger community are required toforgive and to forget past wrongs. In recent decades some countries have introduced amnesty in peace deals. Examples abound and just to name a few countries, South Africa, El Salvador, Cambodia and Sierra Leone.27

Regarding the subject of amnesty, a distinction should be madebetween conditional and unconditional amnesty. An unconditional amnesty relates to a blanket assertion of non-prosecution for past crimes in exchange for nothing on the part of the alleged perpetrator. Alternatively, conditional amnesty is related to the alleged offender recounting the truth and public acknowledgement of his involvement. Consequently it can be argued that conditional amnesty can accelerate the path to reconciliation. Victims would get a better understanding of what actually happened and can make aninformed decision as to how to reconcile past wrongs and move on as a community.

Furthermore, amnesty serves as a viable alternative for a state in transition. Considering that transitional regimes lack the necessary political, institutional and moral impetus,it makes it more fundamental to focus on inclusive constitutional democracy rather than prosecuting human rights abuses through retributive justice. Both human and financial resources should be spent in educating the population on the limits of law. Correcting the wrongs done over generations is a very challenging task and to a certain degree it cannot be

25 Ronald C Syle, ‘The Legitimacy of Amnesties under International Lawand General Principles of Anglo-American Law: Is a Legitimate AmnestyPossible?’ (2002) 43(1) Virginia Journal of International Law 173-247 p17426 Ibid Ronald C Syle p17427 Jennifer Llewellyn and Robert Howse, ‘Institutions for Restorativejustice: The South African Truth and Reconciliation Commission’(1999)49 University of Toronto Law Journal 355-388 p365

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achievable. Hence transitional justice should focus on amnesty.

Whether or not amnesty is conditional or unconditional, critics are abhorrent to the idea of amnesty for acts involving gross human rights violations and abuses.28 It is contended that, granting amnesty downplays the human rights abuses suffered by victims, encourages future offences and shows disrespect for the rule of law.29 Furthermore, amnesties could be contrary to principles of international law requiringstates to prosecute person(s) responsible for certain gross human rights abuses. Hence the preferred option of transitional justice should be prosecution of alleged perpetrators of gross human rights abuses rather than grantingamnesty.

Although some human rights advocates and leading scholars oppose the granting of amnesty, the United Nations which serves as a forum for international and political debates has a contrary view. The UN has not opposed the granting of amnesty in the countries which amnesty has been integrated into the peace agreements. More so, Article 6(5) of Protocol ll of 1977 Additional to the Geneva Conventions of 1949 stipulates that, “at the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflictor those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained”. However, not until recently, the International Committee of the Red Cross, issued an authoritative statement on the GenevaConventions, confirming that amnesties encouraged under Protocol II to the Geneva Conventions of 1949 specifically applies to "those detained or punished for the mere fact of having participated in hostilities. It does not aim at an amnesty for those having violated international law." Furthermore, the Rome statute creating the International Criminal Tribunal (ICC) does address the issue of amnesty. This could be attributed to the fact that Westernised form of justice is sought through prosecution and prosecution should take priority over any form of amnesty. More so, as an 28 Oscar Schachter International Law in Theory and Practice( M. Nijhoff Publishers, Kluwer Netherlands, 1991) pp50-55, Kenneth Roth, International Justice: The Tragedy of Sierra Leone Wall Street Journal Europe (August 3. 2000) available at www.hrw.org/news/2000/08/02/international-injustice-tragedy-sierra-loene accessed 07/01/2013 29 Ibid Ronald C Syle p182

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international court, the ICC wanted to preserve its integrity and to signal to the international community that those who are responsible for serious human rights violations and war crimes would not go scot free. That notwithstanding the ICC still recognises (can be flexible enough to accommodate) some non-prosecutorial methods depending on the circumstances of each case.

The conflict in Uganda is an example of the amnesty versus prosecution and the peace versus justice dilemmas. While the Acholi people in the North of Uganda want peace and return to normalcy, the ICC on its part is seeking justice through prosecution of LRA members.30 The threat of impeding prosecution could lead to resistance and more violence. Therewould be no incentive for those involved in an armed conflict to lay down their weapons or surrender knowing that they will be prosecuted. The Acholi tradition is geared towards amnesty and reconciliation. It is accompanied by symbolic acts and theprocess is voluntary.31

The justice versus peace dilemma is closely related to the amnesty versus prosecution argument. Hence, should a tribunal decide to implement justice, advertently it means prosecution of alleged perpetrators rather than granting amnesty. Amnestycan complement the peace versus justice dilemma. Amnesty when implemented correctly can enhance rather than handicap reconciliation. An obvious example is the South Africa TRC which was predicated on forgiveness and attempting to address the root causes rather than seeking justice through prosecution.32

1.3.2. PEACE VERSUS JUSTICE

In a stable and peaceful democracy both peace and justice mutually co-exist. Thus there cannot be peace without justice and neither justice without peace. Commonly a state which hasexperienced dictatorial rule or protracted and bloody conflictand human rights abuses, cannot bolster a justice system capable of providing justice, neither can lasting peace exist.33 In seeking justice, states in transition are more 30 Soile Pohjonen, ‘Peace Versus Justice’ available at http://ssrn.com/abstract=1557890 accessed 07/01/2013 31 Ibid32 Alfred Allan and Marietje Allan, The South African Truth and Reconciliation as a therapeutic tool (2000) 18(4) Behavioral Sciences and the Law 459-47733 John P Lederach , Preparing for Peace : Conflict Transformation Across Cultures(Syracuse University Press, New York, 1995)

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concerned at retributive justice-entailing prosecution and punishment. In the argument of peace versus justice, it is vital to understand what constitutes justice in a country undergoing transition. If justice in this context is closely aligned with retributive justice; whereby perpetrators of human rights abuses found guilty must be punished, then a concerted effort of promoting peace and stability can be difficult. Conversely, the reality is if the term justice is broadened to include various types of justice such as legal justice, rectifying justice and social justice then can it accommodate lasting peace. However, the relationship between peace and justice has become elusive in society’s undergoing transition. The definition of justice has become very narrow, without much attention to the particular local understandings and settings. The focus tends to be on abuses against individuals, leaving the injustices that caused the conflict untouched. “The narrow focus on questions of law, evident in much transitional justice theory, creates problems for understanding the issues at stake and consequences of transitional processes by removing them from a wider structural social, political, and economic context”34. For long-lasting peace to reign in troubled in troubled states, a more holistic approach is needed.

Through prosecution, perpetrators would be brought to stand trial and if found guilty would be punished. Such a move can lead to two scenarios. Firstly, it would to a certain extent satisfy victims’ interests in that justice has been done. Following on from that the second scenario is that, the prosecution of alleged perpetrators in the name of justice could lead to what is normally referred to victor’s justice. Victor’s justice generally refers to when a victorious movement (group) or State discriminately considers itself a victim of the tyranny of the vanquished on the other. There isan unequal apportioning of blame between the victor and the vanquished. Such situations normally give rise to a sense of injustice.

From the Nuremberg Criminal Court to Tokyo Tribunal were only Axis nationals and collaborators were prosecuted to the present situation in Rwanda (ICTR and Gacaca) have been plagued by the problem of victor’s justice.35 In a quest for 34 Patricia Lundy and Mark McGovern,‘Whose Justice? Rethinking Transitional Justice from the Bottom UP’ (2008) 35(2) Journal of Law and Society 265-292 p 27535 Victor Peskin, ‘Beyond Victor’s Justice? The Challenge of Prosecuting the Winners at the International Criminal Tribunal for

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justice, failing to punish both sides to a conflict would not promote peace within a region as the vanquished would rebel against such punishments. For example remnants of the Hutu junta in the Democratic Republic of Congo infiltrate neighbouring Rwanda with the aim of causing political upheavalagainst what they perceive as a Tutsis dominated form of justice against Hutu majority who were toppled during the genocide. 36

Seeking justice and guaranteeing peace might seem to be competing values at a superficial level in a country undergoing transition. Nonetheless there is evidence suggesting that both peace and justice can be achieved withoutany taking precedence over the other so long as justice is notlimited to retribution. Rather than seeking to satisfy victim’s interest, in which case would entail reparation, prosecution of alleged perpetrators the focus should be on survivors of a conflict.

2.1.1. RWANDA GENOCIDE

Rwanda was a German colony prior to 1918; thereafter it was transferred to Belgian control at the end of World War I.37 Thepolicy of divide and rule was the order of the day during bothcolonial eras. The Germans ruled by favouring members of the Tutsi minority, who occupied positions of power whereas the Belgians ruled by rearranging both Tutsi and Hutu groups according to race.38 National Identity Cards were issued based on tribal lines. Much of such policy was rooted in the writings of JH Speke.39 Speke transformed his alleged racist fantasies in to scientific assertion creating a distinction between the Tutsi and Hutu. He argued that the Tutsi were the custodians of the Rwandan culture. Their physical looks were associated to the scions of a Caucasian tribe of Ethiopian origin and descendants of King David. Meanwhile the Hutu he argued were more debased, backward, and ugly, and were cursed

Former Yugoslavia and Rwanda’ (2005) 4(2) Journal of Human Rights 213-23136 Howard Adelman and Astri Suhrke (ed) The Path of a Genocide: The Rwanda Crisis from Uganda to Zaire (1st edn, Transaction Publishers, New Jersey,2000)37 Josias Semujanga Origins of Rwandan Genocide(Humanity Books, Prometheus Books, New York, 2003) 10138 Ibid Josias Semujanga 10239 Gerard Prunier, The Rwanda Crisis: History of a Genocide(Columbia University Press, 1995) 8, It has referred to as the Hamite Myth

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off spring of Ham’s son Canaan.40Consequently, colonial rulers favoured the Tutsi minority against the Hutu majority.

The predilection of the Tutsi minority against the Hutu majority nurtured a fertile ground for the killings, violence and upheavals during colonial rule and after independence in Rwanda.41 At the end of the 1959 revolution that displaced the Tutsi Monarchy the Hutus implemented a despotic rule at the detriment of Tutsis.42However, time and space does not permit an in-depth analysis of the various conflicts which occurred in Rwanda prior to the genocide in 1994. The starting point which is of relevance to this essay is the year 1994.

Considering the lingering tensions, fighting and killings that has engulfed Rwandan’s existence, on 6 April 1994 a planecarrying president Habyarimana was shot as it returned from Tanzania killing all dignitaries on aboard the flight. Whoeverorchestrated the assignation and the reason for such an act remains unknown. Some commentators are of the view that the powerful akazu clique within the Hutu clan were behind the attack. They opposed the 1993 Arusha Peace Accords -powering sharing agreement between Habyarimana’s Hutu government and the Tutsi Rwandan Patriotic Front (RPF).43 Others contend that,the assignation was carried out by the RPF.44 Nonetheless, whatensued following the assignation of Habyarimana could be considered as one of the worst atrocities the world had experienced after the Holocaust. Indeed the Rwandan genocide of 1994 was an Armageddon which destroyed the Rwandan society and sent shock waves across the world. The deaths ‘… accumulated at nearly three times the rate of Jewish dead during the Holocaust”… and has been considered as “the most efficient mass killing since Hiroshima and Nagasaki.’’45 According to Jacques Fierens the killings were orchestrated by“those in power mobilising an unprecedented majority of the civilian population against a minority which often included

40 Ibid Gėrard Prunier 941 Ibid, Josias Semujanga Origins of Rwandan Genocide( Humanity Books, New York, 2003) pp 171-18942 Ibid43 Lyn S Graybill, ‘Pardon, Punishment and Amnesia: Three African PostConflict Methods’ (2004) 25(6) Third World Quarterly 1117-1130 p112044 Douglas Farrah and Stephen Braun, The Merchant of Death: Money Guns, Planes,and the Man Who Makes War Possible(John Wiley and Sons, Inc Hoboken ew Jersey, 200745 Philip Gourevitch We Wish to Inform You That Tomorrow We Will Be Killed with Our Families: Stories from Rwanda(Farrar, Strauss and Giroux , New York 1998)p4

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neighbours, friends and relatives. They tortured and killed, upon the authorization, encouragement and reassurance of leaders, i.e. in Rwanda, by the legal system”.46 Killings were carried out with the most dreadful, atrocious cruelty by usingmachetes, clubs, axes knives, grenades and guns.

As a direct result of the genocide Rwanda lost 40% of its population through death or exile.47 By some estimates between 800,000 to a million Tutsi and ‘moderate’ Hutu were murdered by ethnic Hutu in the 1994 genocide and approximately 50000 women were raped.48 Making significant gains and advancing fromthe East of Rwanda, the RPF ousted the caretaker government and stopped the genocide.

TRANSITIONAL JUSTICE IN RWANDA

As a result of the gruesome nature and the scale of the crimesin Rwanda during the genocide, there was need for accountability and justice. Accountability is an absolute goalwhich transitional justice mechanisms must not deviate from ina post conflict society. Through accountability victims’ grievances are addressed thereby paving way for sustainable peace, respect for the rule of law and human rights. Accordingly, Rwanda sought assistance from the international community in prosecuting those responsible for crimes of genocide and crimes against humanity during the Rwandan Genocide. Furthermore, prosecutions were carried out by national courts and the instituted a traditional form of justice called Gacaca Courts. Both the ICTR and the gacaca courtswould be examined in the following paragraphs. The main focus would be to look at the implementation of transitional justiceat both the ICTR and the Gacaca Courts not the trials at nationalcourts.

INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA

If the assertion that the creation of the International Criminal Tribunal for the former Yugoslavia (ICTY) was the last viable option in stopping a brutal war in the former Yugoslavia, then the creation of the ICTR was an expression

46 Jacques Fierens, Gacaca Courts: Between Fantasy and Reality’ (2005) 3 Journal of International Criminal Justice 896-919 p89747 Ibid Gerard Prunier p32748 Ibid Gerard Prunier p328

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of remorse by the International Community in not intervening while Rwandans slaughtered each other.49

The International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994, (hereinafter referred to as the ICTR) was created under Chapter VII of the UN Security Council Resolution.50

Though the Security Council established the ICTR at the behestof the Rwandan government; strangely Rwanda occupying a non-permanent seat at Security Council at the time voted against the November 1994 resolution.51 Rwanda was at odd with the international community for refusing the death penalty as a form of punishment for genocide crimes and crimes against humanity even though the death penalty was an acceptable punishment in Rwandan Law. Furthermore, the Rwandan government believed that the tribunal had insufficient number of prosecutors and judges.52At its (ICTR) early inception both the ICTR and the International Criminal Tribunal for the former Yugoslavia (ICTY) shared a prosecutor whose office was based in The Hague.

The seat of the ICTR was based in Arusha, Tanzania. Hence, theworkings of the tribunal seemed disconnected from its primary audience- the Rwandan people victimised by the conflict. During the early years of the court, it was virtually inaccessible to common Rwandans. The common Rwandan could not make the long and expensive journey down to Arusha to experience justice been done and as Byrne points out about theICTR: “In spite of a mandate focused on peace and reconciliation, the Tribunal was late to develop effective outreach programmesin Rwanda that explained the process of international justice and the progress and substance of the trials to the society 49 Louise Arbour, ‘the Prosecution of International Crimes: Prospects and Pitfalls’ (1999) 1 (13) Washington University Journal of Law and Policy 13-26p15 50 UN Security Council Resolution 955, 8 November 1994, 51 Olivier Dubois, Rwanda’s National Criminal Courts and the International Tribunal’ (1997) No. 321 International Review of the Red Cross available at htt://www.icrc.org/eng/resources/documents/misc/57jnza.htm accessed 05/01/201352 Ibid Olivier Dubois

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most directly affected by the Tribunal’s work...”53 Nonethelessas time went on, through the tribunal’s outreach programme, many Rwandans became aware of its working and others witnessedthe tribunal’s proceedings in Arusha. There is no gainsayingthat its location in Tanzania might have enhanced the tribunal’s status as neutral and free from Rwandan government influence. Nevertheless, such a decision to locate the tribunal in Arusha served to reaffirm Rwandans conception thatthe tribunal is a “foreign and removed body alien in procedure, whose slow pace of trials is proof of UN inefficiency, or worse, indifferent to Rwandan needs’.54

In a survey conducted in 2002, Stover concluded that, 87% of Rwandans especially those in the country’s rural area did not have sufficient information about the workings of the tribunal.55 Although the survey was conducted during the early years of the tribunal, there is little indication today there is a shift in perception.

The ICTR is modelled around the ICTY which was already in existence prior to the former amongst many other things evidence and procedural rules. That notwithstanding there existed differences between both courts. In the resolution creating the ICTR, the ICTR was tasked with national reconciliation as a core objective whereas the ICTY had no such objective. More so the statute creating the ICTR “called the need for international cooperation to strengthen the courts and judicial system of Rwanda, having regarded in particular to the necessity for those courts to deal with large numbers of suspects.”

The Tribunal had concurrent jurisdiction with the Rwandan national courts to prosecute persons for serious violations ofinternational humanitarian law. However, the ICTR could exercise primacy over national courts and therefore may at anystage of a proceeding formally request a national court to defer to its competence in a particular case.56 An individual 53 Rosemary Byrne, ‘Promises of Peace and Reconciliation: Previewing the Legacy of the International Criminal Tribunal for Rwanda’ 2006 14(4) European Review 485-49854 Pernille Ironside , Rwandan Gacaca: Seeking Alternative Means to Justice, Peace and Reconciliation (2002) 15 New York International Law Review 35 p3655 Eric Stover and Harvey M Weinstein (ed) ‘Conclusion: A Common Objective A Universe of Alternatives in Eric Stover and Harvey M Weinstein My Neighbour, My Enemy: Justice and Community in the Aftermath of Mass Atrocity( Cambridge University Press, Cambridge, 2004) p33456 Article 8 of the ICTR Statute

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who has been tried and acquitted by the ICTR could no longer stand trial in a national court. The ICTR has several accolades including the first international court to deliver a verdict on the issue of genocide57. The ICTR obtained the first ever successful conviction of a former prime minister58, the first conviction of rape as a crime against humanity59 and hate media campaign as a crime against humanity. The tribunal played a pivotal role in shedding lights about some key events in the genocide and the truth behind these events. It also debunked the argument that the Tutsi massacres were not premeditated ratherit was an unintended consequence of the civil war.60 Also during the trial of Bagosora, the perceived mastermind of the genocide, it became emphatically clear as to what roles were played by various organisations during the genocide and that the genocide offered a platform to be exploited by the state as a means of exterminating the Tutsis.61

The competence of the ICTR was limited in many respects. First, the ICTR had jurisdiction to investigate only historical events that took place in Rwanda as of January to December of 1994. The Security Council Resolution vividly states that; the ICTR is established “for the sole purpose of prosecuting persons responsible for genocide and other seriousviolations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December1994”.62 Hence even though it could be argued that 1994 only represented the Rwandan genocide at its crescendo, and that acts of genocide prior to the set date should be considered, the Security seemed to have distorted historical facts for political convenience and expediency by limiting the tribunal’s mandate.

57 Prosecution v Theonoste Bagosora (judgment) ICTR-96-7 - 199758 Prosecutor v Jean Kambanda(judgment) ICTR-97-23-S 1998 available athttp:www.unictr.org accessed 8/12/201259 Prosecutor v Akayesu (judgment) ICTR-96-4-T (1998) available at http:www.unictr.org accessed 8/12/201260 Prosecutor v Kambanda (judgment ICTR -97-23-S (1998), Prosecutor v Akayesu (judgment) ICTR-96-4-T (1998) available at http:www.unictr.org accessed 8/12/201261 Kingsley C Moghalu, Rwanda’s Genocide: The Politics of Global Justice (Palgrave Macmillan, New York, 2005) p8762 UN Security Council Resolution 955, para.1. 8 November 1994

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Furthermore, the tribunal was limited in its jurisdiction. Theterritorial jurisdiction of the ICTR was limited to the territory of Rwanda and its neighbouring countries. Nevertheless only Rwandan citizens can be prosecuted before the ICTR for serious crimes and crimes committed during the genocide. More so, only natural persons could stand trial before the tribunal.63Thus, corporations, organisations with necessary legal personality and States that might have played a role during the conflict cannot be prosecuted by the tribunal.

In the tribunal’s quest to prosecute those responsible for gross human rights violations and heinous crimes during the genocide, mostly Hutus were prosecuted. Hence, the question of accountability and truth seeking becomes a one sided affair. Only Hutus had to answer for crimes against genocide even though there is evidence to suggest that RPF consisting of the Tutsi minority had carried revenge killings of Hutus. 64 Thus Byrne asserts that “… the greatest obstacle to the Tribunal’s function as a reconciliation mechanism has been the exclusive prosecution ofHutu perpetrators of the genocide, and the non-prosecution of the RPF crimes of serious violations of international humanitarian law.”65

Furthermore, like many other international tribunals before the ICTR, the latter has become politicized and is seen as a victor’s justice. By targeting individuals to prosecute based on ethnicity rather than culpability and the evidence available before the tribunal represents a threat to the peaceof the nation and reconciliation would remain elusive. The tribunal has failed to prosecute or even investigates crimes committed by members the RPF during the conflict. According toByrne this is leading to “the same ‘victor’s justice’ refrain that attached to the Nuremberg and Tokyo trials is now transposed to its modern-day successor trials in the guise of ‘selective justice.”66

63 Article 7 of the ICTR Statute64 Richard Dowden, ‘Revenge Killings by Troops in Rwanda’ the Independent Newspaper 6/August/1994 available at www.independent.co.uk/news/world/revenge-killings-by-troops-in-rwanda-1374561.html accessed 09/01/201365 Rosemary Byrne, ‘Promises of Peace and Reconciliation: Previewing the Legacy of the International Criminal Tribunal for Rwanda’ (2006) 14 (4) European Review 485-49866 Ibid Rosemary Bryne

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As a result of the tribunal’s reliance on the cooperation of the Rwandan government, the latter used its leverage to block any attempt to investigate crimes committed by the RPF. The Rwandan government suspended cooperation with the ICTR in several cases.67 The chief prosecutor at the time Carla Del Ponte is on record as having said that she was relieved of herfunctions because she wanted to investigate crimes committed by the RPF during the genocide years.68 Neither did her successor attempt to investigate or prosecute members of the RPF.Considering the financial costs of the tribunal, the obvious question is whether it was worth it? It would be an affirmative to someone who is of the view that justice, peace and security are priceless. However, the socio-economic and political fabrics of Rwanda were completely destroyed during the genocide. Many people languished in abject poverty and it could have been wise to invest in revamping the lives of ordinary people. It is estimated the ICTR would have spent $1.75 billion over its life time, with 2008 and 2009 representing the most expensive years in the tribunal’s history as $150 million was spent each year.69The court’s budget during 8 years of existence was five hundred and sixty eight million US dollars which in a nutshell equates 6% of Rwanda’s annual GDP at the time.70 The Court’s proceedings wereslow, accomplishments was nothing to be proud of as the court was drawing close to its 10 years existence. Of the 72 cases that went before the ICTR, 45 of the total numbers have been completed while 17 of the cases are pending appeal and 10 haveresulted in acquittal the ICTR could boast of 1 acquittal and 12 convictions.71

GACACA COURTS

67 Ibid Kingsley C Moghalu p139-14168 Carla Del Ponte and Chuck Sudetic Madame Prosecutor: Confrontations with Humanity’s Worst Criminals and the Culture of Impunity: A Memoir (Other Press, 2009)69 Stuart Ford, How Leadership in the International Criminal Law is shifting from the United States to Europe and Asia: An Analysis of Spending on and Contributions to International Criminal Courts (2011)55 St. Louise University Law Journal 953 p97470 Charles T Call ‘Is Transitional Justice Really Just? ‘(2005) 11 Brown Journal of World Affairs 101 p10571Available online at http://ww.unictr.org/Cases/tabid/204/Default.aspx accessed 08/01/2013

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In Kinyarwanda language the word gacaca when translated into English literally means “on the lawn”.72 Members of a community gather on these lawns to resolve disputes.73The gacaca court represents an informal mechanism for conflict resolutionat the local with little or no legal consequences and exists at the margins of the State. The entire community led by council of elders within a district gather for hearings. Hearings are chaired by committee of 9 Inyangamugayo-traditional judges.74 These traditional judges are elected by the community based on good character and reputation and they are trained prior to commencing work.75

The gacaca courts played a pivotal role as a transitional justice mechanism in post conflict Rwanda. As the Rwandan detention facilities were overwhelmed with high numbers of alleged perpetrators of genocide and the slow pace of prosecution of these individuals, the government sought an alternative to the classic legal system. Consequently gacaca courts were established in 2001 by the Rwandan government to remedy the perceived failings of a so called ‘Westernised’ criminal justice. Adhering to a ‘westernised’ criminal justice system in its entirety was time consuming as there has to be strict adherence to due process and the right of fair trial of the accused. Considering that approximately 120000 suspects were in detention awaiting trial for crimes of genocide and crimes against humanity it could take a hundred years to complete proceedings.76

Hence the Rwandan government “... sought to provide culturallylegitimate forum that would enable ordinary Rwandans to deal with genocide violence...through face to face participation ofall community members in gacaca, the government sought to establish truth, justice and reconciliation on the basis of Rwandan custom”.77 72 Kinyarwanda language is the national language in Rwanda73Peter Harrell Rwanda’s Gamble: Gacaca and a new model of Transitional Justice ( Writer’s Advantage Press, New York, 2003)74 Rosemary Nagy Traditional Justice and Legal Pluralism in Transitional Context: The Case of Rwanda’s Gacaca Courts in Joanna R Quinn Reconciliation(s): Transitional Justice in Post Conflict Societies (McGill Queens University Press, McGill, 2009) 9275 Rosemary Nagy Traditional Justice and Legal Pluralism in Transitional Context: The Case of Rwanda’s Gacaca Courts in Joanna R Quinn Reconciliation(s): Transitional Justice in Post Conflict Societies (McGill Queens University Press, McGill, 2009) 9376Micheal Scharf, ‘The Amnesty of Exception to the Jurisdiction of theInternational Criminal Court’ (1999) 32 Cornell International Law Journal 50777 Ibid Rosemary Nagy 87

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According to Organic Law No. 16/2004 of Rwanda, establishing the organisation, competence and functioning of the gacaca court, it seeks to:

“. . . achieve justice and reconciliation in Rwanda, and thus to adopt provisions enabling rapid prosecutions and trials of perpetrators and accomplices of genocide, not only with the aim of providing punishment, but also reconstituting the Rwandan Society that had been destroyed by bad leaders who incited the population into exterminating part of the Society;. . . it is important to provide for penalties allowing convicted prisoners to amend themselves and to favour their reintegration into the Rwandan Society without jeopardizing the people’s normal life.” Although the gacaca courts were established in 2001 it was not until March 2005 that the firstcase was heard in a gacaca court. Furthermore, there were roughly 10000 gacaca courts across Rwanda with the focus of truth seeking and reconciliation amongst Rwandans. gacaca hearings were divided into investigative and judgement phases and it carried out proceedings in over 12000 localities acrossthe Rwandan territory.78

Gacaca as a form of transitional justice mechanism is based on restorative justice principles as it does not seek to punish rather to restore social order and reintegrate an offender back into the community. The gacaca court rewarded those who openly confessed their crimes. Secondly after admitting guiltythe perpetrator must ask for an apology. An apology would subsequently lead to reconciliation. Lastly the victim would receive reparations. Alleged perpetrators found guilty could make a financial donation to a victim fund or perform community service.79

By June 2012, when the gacaca courts officially closed their doors, it is estimated that, 2000000 cases were heard before the gacaca courts. 80 Such a staggering number of cases indicatethe challenges that would have compounded even a more advancedwestern legal system. The gacaca courts were able to deal with many cases at a relatively short period of time and at a low cost. The total cost of the gacaca courts is estimated at $

78 Ibid Rosemary Nagy 8779 Lyn Graybill and Kimberley Lanegran, ‘Truth, Justice, and Reconciliation in Africa: Issues and Cases’ (2004) 8(1) African Studies Quarterly available http://www.africa.ufl.edu/asq/v8/v8ilal.htm accessed 02/01/201380Gacaca Courts Website, available online at http:www.inkiko-gacaca.gov.rw accessed 07/12/2012

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48.4 million which is barely a fraction of the cost of the ICTR.81

More so, the entire community was engaged during the gacaca proceedings thereby gaining a high level of support and participation of the local population.82 However another study tells a different story as to why there seem to be a high level of participation in the gacaca. There was mandatory attendance on the part of the accused in order to give the gacaca courts high level of participation. Furthermore, the nature and functioning of gacaca courts did not guarantee minimum standards of fair trials, as stipulated under Articles9 International Covenant on Civil and Political Rights (ICCPR). International organisations like UN High Commissionerfor Refugees83, the Human Rights Watch,84 expressed grave concerns about rights of the accused in gacaca proceedings. Amnesty International considers Gacaca to be devoid of any legitimacy as it fails to protect victims and the absence of due process and equality of arms 85 gacaca, it could argue, lacked equality of arms and there are some procedural irregularities.

Both Tutsi and Hutu survivors were critical of the gacaca. The former were sceptical of participating during gacaca proceedings for fear of reprisal, harassment, violence and murder. There is well documented evidence of disappearance of persons who have participated in the gacaca. The Hutus considered the gacaca as a forum through which Hutus audition their guilt considering that the reconciliation process has always depicted the Tutsis as victims and not the Hutus.81 Ibid Simon Gabisirege and Stella Babalola82 Simon Gabisirege and Stella Babalola, Perception about the Gacaca Law in Rwanda: Evidence from a Multi-method Study, Special No.19 Baltimore John Hopkins University School of Public Health, Center for Communication Programs (2001) available at www. pdf.usaid.gov/pdf_docs/PNACN606.pdfaccessed 28/12/201283 Immigration and Refugee Board of Canada, Rwanda: Whether the gacaca courts are still operational; if not , the reasons that led to the courts being closed, including key dates; whether individuals are still summoned to appear before these courts (2010) available online at http://www.unchr.org/refworld/docid/4e4398ee2.html accessed 05/01/201384Human Rights Watch, ‘Justice Compromised: the Legacy of Rwanda’s Community based Gacaca Courts (2011) available at www.hrw.org/sites/default/files/reports/rwanda0511webwcover _0.pdf accessed 09/01/201385 Amnesty International, ‘Gacaca: A Question of Justice’ (2002) available at www.amnesty.org/en/library/asset/AFR47/007/2002. Accessed 05/01/2013

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Considering the social and political fabrics of Rwanda if at all it existed prior to the genocide was eventually in ruins, there was need to deal with the vast number of perpetrators who committed atrocities during the genocide years. If gacaca was deemed successful in achieving the goal(s) of transitionaljustice –reconciliation, why was there a need to create an ad hoc international tribunal with reconciliation as one of its main objective? It could be argued that due to the serious nature of the offences, prosecution remained paramount than reconciliation and rehabilitation. Added to this is the connection between human rights and humanitarian internationallaw which seeks to punish individuals involved in gross violation of human rights. Lastly, because of lack of credibility and integrity of the gacaca courts, certain individuals could not be tried before gacaca courts.

Despite the accolades of the gacaca courts from the Rwandan government and academic writings, there is evidence to the contrary which suggests that states sometimes ignore the role of accountability in a bid to achieve political settlement. AsBassiouni asserts,

“Justice is all too frequently bartered away for political settlements. Whether in international or purely internal conflicts, the practice of impunity has become the political price paid to secure an end to the on-going violence and repression. In these bartered settlements, accountability to the victims and the world community becomes the object of political trade-offs, and justice itself becomes the victim ofrealpolitik”.86 In the case of Rwanda it was not about achieving political settlement or justice rather the RPF whichis Tutsi dominated have used transitional justice mechanisms to establish a ‘tutsification’ in Rwanda.

Summary

The transitional justice process in Rwanda occurred against the backdrop of the growing authoritarian rule of the RPF government led by Paul Kagame. During the genocide both Hutus and RPF Tutsi minority committed crimes of genocide and crimesagainst humanity even though on a variant scale. However, onlyHutus have been prosecuted or made to ask for forgiveness for past wrongs. Furthermore, there is well-documented evidence of government abuses of Hutus including electoral

86 Mahmoud C Bassiouni Accountability for Violations of International Humanitarian Lawand Other Violations of Human Rights in Mahmoud C Bassiouni (ed.), Post ConflictJustice, (Transnational Publishers Ardsley, New York, 2002) pp7-8

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irregularities, the ‘Tutsification’ of the judiciary and censorship of dissenting voices contrary to the RPF, through harassment imprisonment or killing.87 Moreover the international community again seem to be a spectator as it hasallowed the RPF to suppress democracy and the rule of law and, thereby making a mockery of the set objectives of transitional justice.

SIERRA LEONE CIVIL WAR

Sierra Leone is located in the West of Africa and it is bordered in the northeast by the Republic of Guinea, in the southeast by Liberia and to the southwest by the Atlantic Ocean. The land surface area measures about 27,699 sq miles.88

There are sixteen different tribes in Sierra Leone each with its own language and customs. However the Temne and Mende tribesare the two most influential and dominant tribes and they makeup more than 60% of the entire population of Sierra Leone. 89 Despite the different languages and customs, the Kiro language is widely spoken and together with the English language in many parts of Sierra Leone.90 Sierra Leone was a former British Colony. Like most countries emerging from the shackles of colonisation, their idea of democracy and the rule of law, was not built on the Western notion of equality, rule of law, justice and freedom. Hence, after independence, various forms of despotic and totalitarianrulers emerged across most countries in Africa including Sierra Leone.

From 1961, right through to the 90’s politics in Sierra Leone had always been dominated by two main political parties- the Sierra Leone People’s Party (SLPP) and the All People’s Party (APC). Eventually, it created patronage, poor governance and squandering of the state’s resources. Also it resulted to chronic economic stagnation, gradual erosion of civil liberties and high unemployment. These circumstances served as a cursor of the civil war in Sierra Leone. 91

87 Ibid Rosemary Nagy 8988 David Keen Conflict and Collusion in Sierra Leone(1st edn, Palgrave Ltd, New York,2005 ) 889 Ibid David Keen 990 Ibid David Keen 1191 Ibid David Keen 36

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The war which began in Sierra Leone was a spill over from the Liberian Civil War. On March 1991, a group of rebels (Revolutionary United Front-RUF) crossed from territory held by the Liberian rebels-NPFL (National Patriotic Front of Liberia) into eastern Sierra Leone.92The RUF were welcomed by most Sierra Leoneans because the saw the RUF as a break from the past with corrupt and ineffective rulers.93 Despite stiff resistance from the Sierra Leonean army, the eastern part and most of the southern part of Sierra Leone eventually came under the rebels’ control. During the subsequent years, therewere insurgents and counter insurgents between the various factions in the war. The opposing factions in the conflict could not be exonerated completely from gross violations humanrights and mass atrocities in areas within their control. However, much of the blame is on the RUF and its allies. In 1997, the RUF in association with the Armed Forces Revolutionary Council (AFRC)94 entered Freetown and orchestrated what has become known as ‘Operation No Living Thing’. This was the crescendo of human rights violations in the conflict. There were instances of looting, rape and indiscriminate killings of civilians. Amputation of limbs wasa trademark used by the RUF to terrorise citizens. In the dialect of the RUF it could either be ‘long sleeve’ (amputation of the hand from the wrist) or ‘short sleeve’ (amputation of both arms from the elbow).95 The raison d’etre behind such amputation as Sabin asserts was “… that civilians had used their hands to vote for a corrupt president and they did not deserve to keep these appendages”.96 Conversely, even though the SLA was numerically superior and well-armed than the rebels, they could not supress the rebellion. This is partly attributed to the fact that while the RUF and its allies were waging guerrilla warfare, the SLA unruly, brutal and indiscriminate treatment of civilians did not help their course. The local civilians coined the phrase ‘sobels’ referring to SLA as soldiers by day and rebels by

92 Alfred Zach-Williams, ‘The Political Economy of Civil War,1991-1998(1999) 20 Third World Quarterly 143 p15993 Ibid94 AFRC was composed mainly of disgruntled SLA members under the command of Johnny Paul Koroma95 Ahmadu Sessay Does One Size Fit All? The Sierra Leone Truth and Reconciliation Commission Revisited ( Elanders Gotab AB Stockholm, 2007) 1296 Nicholas Sabin ‘From Machete to Microfinance: A Double Amputee’s Recovery’ Huffington Post USA 09/August/2008 available at www.huttingtonpost.com/nicholas-sabin/from-machete-to-microfina_b_124727.html accessed 05/01/2012

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night’.97 Still with the support of the Economic Community of West African States Monitoring Group ECOMOG and its allies thegovernment maintained control was able to repel rebel attacks in some areas within their control.

By May 1999 it became apparent that both (ECOMOG) under the leadership of Nigeria and the United Nations Organisations were not willing to commit resources in defeating the rebels.98

They opted to give peace negotiations a chance. The Economic Community of West African States (ECOWAS) negotiated a tenuouspeace agreement between both factions in the war and on July 1997 the Lomė Accord was signed.99 Under the Lomė Accord a new government of national unity was created under the leadership of President Ahmad T Kabbah and Foday Sankoh as both Vice-President and head of the Commission for the Management of Strategic Mineral Resources. Sankoh used his position to engage in illicit trade in diamonds and also to recuperate theRUF militias. A one ditch attempt was made again by the RUF totake over the capital city. However in May 2000 that the combined force of UNAMSIL, the Sierra Leone Army and the British military completely crushed any form of remnants and skirmish that existed in the rebel movement. The RUF’s defeat led to the signing of the Abuja Cease Fire Agreement.100 This paved the way for the disarmament of the RUF. Nonetheless other factors such arms embargo and a trade sanction against Liberia under the leadership of Charles Taylor who was the main sponsors of the RUF also explains the demise of the RUF.

It is estimated that the civil war from 1991 to 2002, claimed over 70, 0000 lives, approximately 2 million people were displaced, and the amputation of more than 10,000 people with some still living with the physical scares of amputation. Furthermore, there were countless cases of reported sexual slavery and over 1000 children were actively involved in the war –child soldiers.101

97 Ibid Abdulla Ibrahim (2004) Between Democracy and Terror: The Sierra Leone Civil War98 Karen Gallagher, ‘No Justice, No Peace: The Legalities and Realities of Amnesty in Sierra Leone’ (2000) 23Thomas Jefferson Law Review149-198 p16099 Details of the Lomė Accord can be viewed online at http://www.sierra-leone.org/Lom6accord.html accessed 8/12/2012100 Laura R. Hall and Nahal Kazemi, ‘Prospects for Justice and Reconciliation in Sierra Leone’(2003) 44(1) Harvard International Law Journal 287-301 p289101 Ibid Amadu Sessay p12

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This paper only provides an overview of the conflict in SierraLeone.102

Post-Civil War: Transitional justice in Sierra Leone

Seeking to redress the atrocities committed during conflicts on such a scale is both a legal and moral imperative on the part of a government. It helps not only to establish a transitional government’s legitimacy but also to restore peace, the rule of law and the respect of human rights abuses.However such a task cannot be underestimated considering the numerous challenges faced by a society in transition.

With the signing of the Lomė Peace Accord of 1999, belligerents in the conflict agreed to cease hostilities, disarm, demobilise and reintegrate their combatants into the SLA. More so, the Lomė Accord paved the way for the creation of the Sierra Leone Truth and Reconciliation Commission (STRC). Apart from truth-seeking and reconciliation, the TRC had as a provision, the granting of unconditional amnesty to all combatants. Such a move was later contested by the SpecialRepresentative of the UN Secretary General.103 Furthermore, on the consensus between the UN Secretary General and the Sierra Leonean government a hybrid court was created- The Special Court for Sierra Leone (SCSL). Thus the SCSL and the STRC served as transitional justice mechanisms in post -conflict Sierra Leone. Both institutions worked alongside each other and provide a perfect platform in the study of the relationship between restorative and retributive justice. The STRC and the SCSL will be examined in the following paragraphs.

102 For detailed accounts of the war in Sierra Leone see John L HirschSierra Leone, Diamonds and the Struggle for Democracy (Lynne Reinner Publishers,Inc, Colorado, 2001); David Pratt, Sierra Leone: The Forgotten Crisis, 1999, available at <http://www.globalsecurity.org/military/library/report/1999/crisis-e.htm accessed 05/01/2013; Ibrahim Abdullah (ed) Between Democracy And Terror: The Sierra Leone Civil War(UNIS Press, South Africa, 2004); Lansana Gberie A Dirty War in West Africa: The RUF And the Destruction of Sierra Leone(C.Hurst & Co Publishers Ltd, London, 2005)103 Beth K Dogherty ‘Searching for Answers: Sierra Leone’ Truth and Reconciliation Commission’(2004) 8(1) African Studies Quarterly 39-56 p40 available at http://www.africa.ufl.edu/asq/v8/v8i1a3.pdf accessed 04/01/2013

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SPECIAL COURT FOR SIERRA LEONE

With persistent attacks from the RUF on innocent civilians andinternational bodies monitoring the cease fire during the conflict, the international community was eager to use retributive justice against members of RUF. However, the UN did not want to take on the financial responsibility of setting another ad hoc international court to prosecute crimesof gross human rights violations and atrocities. 104The ICTY wasjust about finishing its proceedings and the ICTR was still conducting proceedings for genocide in Rwanda. Creating a court of a similar status to the ICTY and ICTR would have beencumbersome on the resources of the UN and lastly there was no appetite to create such a court among UN Security Council members.105

Nevertheless, the Sierra Leonean government with the help of the US government came into agreement with the UN to create a Special Court.106 President Kabba of Sierra Leone expressed the view that a court created in collaboration with the UN would “have the advantage of strong enforcement powers that will call for cooperation from states in the investigations, arrest, extradition and the enforcement of sentence.”107

Following on from deliberations, the UN Security Council underResolution 3115 authorised the Secretary General of the UN together with the government of Sierra Leone to create an independent Special Court for Sierra Leone (SCSL).108 It should be emphasised that unlike the ICTR and the ICTY, the SCSL was not created under Chapter VII of the Security Council Mandate.Rather the SCSL was borne out of an international treaty agreement between the government of Sierra Leone and the UN. Thus the court could not rely on the UN to assist in the arrest and detention of indicted individuals outside the jurisdiction of Sierra Leone. The question here is whether this made difference between the SCSL and the ICTR regarding the cooperation from the UN and member states. The ICTR even though it was created under chapter VII also witnessed lack of104 Celina Schocken, ‘The Special Court for Sierra Leone: Overview andRecommendations(2012) 20(2) Berkeley Journal of International Law 436-461 p105 Ibid106 Ibid107 Barbara Crossette, ‘Sierra Leone Asks UN for Role in War Court’ New York Times (New York 21 June 2000) available at http://www.nytimes.comm/2000/06/21/world/sierra-leone-asks-un-for-role-in-war-court.html accessed 04/01/2013108 Doc. S/2000/915 4October 2000

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state cooperation regarding the arrest and detention of alleged genocide suspects.

The utmost lack of state cooperation with the SCSL was Ghana and later Nigeria’s refusal to hand over Charles Taylor. Charles Taylor was an ardent supporter of the RUF and he provided logistic and material support to overthrow the government of Sierra which he considered hostile to his ambitions.109 After much international pressure, Charles Taylorwas arrested in March 2006 and transferred from Nigeria to Liberia but Liberia chose not to prosecute him for his crimes.Taylor was then handed over to the SCSL. On the request of both the presidents of Sierra Leone and Liberia who feared that such a trial could lead provoke new violence, Taylor’s trial was moved to the Hague.

Similar to the ICTR and many other international ad hoc tribunals, the Special Court for Sierra Leone is also based onthe principles of retributive justice as it seeks to prosecutealleged crimes against humanity. Furthermore, the SCSL is a pro-type of the ICTR with regards to its structure and composition.110 The court consists of three organs: the Chambersand Appeal Chambers, the Prosecutor and the Registry. More so,the SCSL is similar to the ICTR, in terms of the crimes it could prosecute. The Special Court had jurisdiction over crimes against humanity,111serious violations of Article 3 common to the Geneva Conventions,112intentional direction of attacks against humanitarian or peacekeeping personnel,113conscription of children into armed forces or groups,114and a few select aspects of Sierra Leonean law

109 Stephen Ellis The mask of anarchy: the destruction of Liberia andthe religious dimension of an African Civil War( New York University Press, New York, 1999) 93 110 Abdul Tejan-Cole, ‘The Special Court for Sierra Leone: Conceptual Concerns and Alternatives’ (2001) 1 African Human Rights Law Journal 107-126 p.112111 The Special Court for Sierra Leone Statute: Art. 2112 Ibid Art. 3113 Ibid Art. 4(b), “Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict.”114 Ibid Art. 4(c) “Conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities”

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relating to the abuse of girls and arson.115However the SCSL hadno mandate to prosecute crimes of genocide like the ICTR. It has been argued that conflict in Sierra Leone had no ethnic, religious or racial connotation; thus could not be considered as genocide.116 As the RUF and its allies were composed of people from different ethnic groups and did not assert ethnic claims to territories within their control, there appear to beno relation between ethnicity and the conflict. While superficially the civil war was not fought on ethnic lines like in Rwanda, Juma asserts that ‘the factors responsible forthe eruption of the conflict have ethnic bearing.’117

When the SCSL began proceedings there seemed to be a genuine disagreement between the Sierra Leone government and the UN regarding the prosecution of minors. The government was of theview that some of the most heinous crimes and atrocities during the civil war were committed by child soldiers. Inasmuch as they committed these crimes, the children were both perpetrators and victims in their own right. At the same time the Government was adamant that anyone who was 15 years of age and above at the time of committing these crimes shouldbe prosecuted. Finally the will of the Sierra Leonean government prevailed over the concerns of the international community but with strict guidelines on how to conduct trials involving minors.118

The court’s mandate is restricted to prosecuting the leaders. It mandate to prosecute only those with ‘greatest responsibility’ and consider only crimes committed since November 1996 have all contributed to the narrow mandate of the court and this might partly explain why only 20 persons have been on trial.119 In terms of prosecution the court would focus only on “those persons who bear the greatest

115 Ibid Art. 5116 Laurence Juma, The Human Rights Approach to Peace in Sierra Leone:The Analysis of Peace Process and Human Rights Enforcement in a Civil War Situation(2002) 30 (3) Denver Journal of Internal Law and Policy 325-376 p334117 Ibid 334118 Avril McDonald, ‘Sierra Leone’s shoestring Special Court’(2002) 84(845) International Review of the Red Cross 121-142 p133 available at http://www.icrc.org/eng/assets/files/other/121-144-macdonald.pdf accessed 02/01/2013 119 Robert Cryer, Colin Warbrick and Dominic McGoldrick, ‘A “Special Court” for Sierra Leone? ‘(2001) 50(2) The International and Comparative Law Quarterly 435-446

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responsibility”.120 Hence, it inadvertently allows impunity forcrimes committed by mid and low level commanders who carried out one of the most heinous crimes. The narrow mandate of the court in culmination to the financial constraints and political interference has led to impunity of some high level perpetrators. By contrast, some who hold that Sam Hinga Norman’s acts were not grave enough to justify his trial conclude that the Court was trying the wrong people.121 High profile individuals like the Foday Sankoh the leader of the RUF and Sam Bockarie, died before they could be brought to trial likewise Johnny Paul Koroma, who has evaded capture.122 Itis a fact that no tribunal can fully prosecute all perpetrators of crimes against humanity or war crimes. However, the understanding that the impunity arises as a result of the limited mandate of the court to operate on is worrying not that the court had the mandate but could not do it or carry out prosecution.

Furthermore, the Court has been limited in its jurisdiction interms of only being able to prosecute for crimes committed from 30 November 1996. Considering that 1996 only represented the peak of the initial violence that had started in 1991, theinternational community seem to take lightly the fact that thecivil war actually started in 1991. Such fabricated dates seemto distort the history of the conflict. The Sierra Leone TRC report described the process as deeply flawed, externally imposed to some degree and in conflict with the working of theSpecial Court.123

The Court had primacy over Sierra Leonean courts.124 At the request of the SCSL, the national courts would have to defer cases to the SCSL. Persons, who have been tried by the SCSL, could not be subordinated to a trial by the national courts.125 Conversely the SCSL can subsequently prosecute a person who has been tried by national courts, should they deem that thereis a strong evidence to prove that the national trial was riddled with impartiality and was not independent.

120 The Special Court for Sierra Leone Statute: Art.1 121 Abdul Lamin, ‘Building Peace Through Accountability in Sierra Leone: The Truth and Reconciliation Commission and the Special Court’(2003) 38 Journal of Asian and African Studies 295-320122 Ibid 123 Pambazuka News, Sierra Leone : Searching for Truth and Reconciliation, 3 Feb. 2006 available at http://www.pambazuka.org/en/category/rights/32427 accessed 31/12/2012124 The Special Court for Sierra Leone Statute: Article 8125 The Special Court for Sierra Leone Statute: Article 8(2)

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TRUTH AND RECONCILIATION COMMISSION

In line with the 1999 Lomė Peace Accord, and with the assistance of the United Nations Mission in Sierra Leone (UNAMSIL), the Sierra Leone Parliament enacted the Truth and Reconciliation Act in 2000 creating the Truth and Reconciliation Commission. Its purpose was to provide elaborate report on human rights violations committed from 1991 to the end of the civil war. It was also tasked with providing a platform to facilitate reconciliation between the victims and the perpetrators and also to provide suggestions on how to prevent similar conflicts in future. The TRC was tasked with addressing impunity, meeting the needs of victims and promoting healing and reconciliation with the aim of avoiding similar atrocities in the future. Meanwhile as the TRC was not seeking to prosecute, it could be said that its findings were to depict an impartial and coherent historical records of the civil war.

The Lomė Accord establishing the TRC also sought a complete and unconditional amnesty to all those involved during the civil war as part of healing and reconciliation process.126 Indeed the TRC extended one of the eclectic possible immunity from prosecution in modern post conflict by; “granting absolute and free pardon and reprieve to all combatants and collaborators in respect of anything done by them in pursuit of their objectives, up to the time of the signing of the present Agreement.”127 It could be argued that, by insisting onunconditional amnesty, Lomė agreement was more of a political expediency rather than justice. Nigeria which was at the foreof the ECOMOG had become concerned about the financial costs and human costs involved in the war and saw the negotiations as the only alternative. More so the rebel movement of Foday Sankoh was negotiating from a position of strength even thoughmost sierra Leoneans were against a power sharing agreement with the RUF. Sankoh had the capability (manpower and the resources) to reignite the war and thus in the peace agreementnumerous concessions were made to him.

However the UN General Assembly expressed a contrary view saying an unconditional amnesty would not apply to crimes of genocide, war crimes, crimes against humanity and other

126 A Tejan Cole ‘Painful peace-Amnesty under the Lomė Peace Agreement(1993) 3 Law, Democracy and Development127 Lomė Peace Agreement, 7 July 1999, Sierra Leone , Part 3 art 9(2)

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serious crimes committed during the war. Thus perpetrators of such crimes would be tried before the SCSL. More so, had the amnesty barred all prosecutions the SCSL would of course have become meaningless as it was created for the prosecution of such gross crimes and human rights violations. Goldmann also expressed the view that “It should be better left to the Courtto determine the responsibility of an accused. However, the TRC Report reveals that the selection of only very few people for trial is not commensurate to the number of people involvedin the Commission of atrocities at command level. Not will allof those “who bear the greatest responsibility” be accused. This might cause public opinion to overrate the role of some and to underrate that of others. It also deprives the Court ofthe possibility to create a more or less complete record of the events of the past, which might have been instrumental forthe discharge of its task to contribute to reconciliation.”128 The TRC’s underlying purpose is ‘to create an impartial historical record of violations and abuses of human rights andinternational humanitarian law related to the armed conflict in Sierra Leone’ from 1991 to 1999, to address impunity, to respond to the needs of the victims, to promote healing and reconciliation and to prevent the repetition of the violationsand abuses suffered’129

In the TRC quest for reconciling the various factions, the TRCwas determined that ‘truth’ must be of essence in its deliberations. There was an underlining assumption that because people would participate voluntarily, somehow the truth will come out and this will in turn lead to reconciliation. The flip side to such an assertion/ assumption is the fact that what if the defendant or wilful participant is not telling the truth, this would only victimise the victims and the latter might seek revenge which will be detrimental to reconciliation. 130 More so in Sierra Leone it seems a common practice there are alternative ways ofdealing with the atrocities that occurred rather than speakingout. 131 A glaring example to substantiate this argument is the fact that perpetrators were more at ease to come forward 128 Mathias Goldmann, Sierra Leone: African Solutions to African Problems? (2005) 9 Max Planck Yearboook of United Nations Law 457-515 p508 available at SSRN: http://ssrn.com/abstract=1927188 accessed 11/12/2012129 Truth and Reconciliation Commission Act 2000 Section 6(1)130 Tim Kelsall, ‘Truth, Lies, Ritual: Preliminary Reflections on the Truth and Reconciliation Commission in Sierra Leone’(2005) 27(2) Human Rights Quarterly 361-391 pp383-384131 Ibid 385

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during the traditional ceremonies marking the end of the TRC.132 The perpetrators would normally come forward in the presenceof traditional rulers and ask for forgiveness from the entire community.133 Although such ceremonies were within the mandate of the TRC, it indicates that it is only through such ceremonies and rituals that the truth can come forth rather than through the TRC process.

The workings of the TRC were in two phases, the statement taking phase and the hearing phase. The TRC commenced public hearings on 14 April 2002.

The TRC had an international dimension as a result of the participation of the Special Representative of the Secretary General and the High Commissioner for Human Rights.134 The TRC panel consisted of seven members of whom 3 were appointed by the office UN Secretary General and the High Commissioner for Human Rights.135 The TRC had powers to investigate, issue summons and subpoenas.136 Also the Commission could not be compelled to disclose information which it had received on a confidential basis.137

Contrary to many other Truth and Reconciliation Commissions which the world is acquainted with, the Sierra Leone’s TRC exercised judicial functions in that it could ‘issue subpoenasand compel individuals to obey orders …. Failing to comply with these orders may result in severe penalties, including imprisonment’.138 Such is the powerful nature of the SLTRC that it has the potential of deterring witnesses from testifying ongrounds that such testimonies could be used against them in a criminal proceeding at the SCSL.

Unlike the SCSL the TRC could try minors under the age of 15. More so, unlike the Court the TRC had an extensive territorialcompetence and could try groups accused of gross human rights violations. The TRC had the authority to make recommendationsand see into it the government does everything within its remit to institute these recommendations.132 Ibid 387133 Ibid 389 134 14th Report of the Secretary-General on the United Nations Mission in Sierra Leone, Security Council, S/2002/679, 27.135 Clause 3(1) TRC Act136 Clause 8 TRC Act137 Clause 7(3) TRC Act138 A R Lamin, ‘Building Peace through Accountability in Sierra Leone:The Truth and Reconciliation Commission and the Special Court’ (2003)38 Journal of Asian and African Studies 295-320, pp 301-302

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The financing of the TRC was by way of voluntary contribution in monetary terms and technical assistance from Non-Governmental Organisations and donor countries. Hence, like any other international organisation which is tasked with sucha job but at the same time dependent on foreign donation, the TRC was bound to encounter difficulties. Such difficulties only hampered the reputation of the TRC that it was not up to the task. The TRC even though was established in 2000 it did not go fully operational until 2002 partly as because as a result of lack of funding. Out of Sierra Leone little is knownof the workings of the Sierra Leone TRC when compared to that of the SCSL, Gacaca courts or the ICTR. However this does not in any way mean, the Sierra Leoneans are not informed about the workings of the TRC

The Sierra Leone TRC worked in conjunction with the SCSL, learning from each other’s experiences. The Commission handed its findings to the Sierra Leonean government and the UN Security Council in October 2004139. The report was critical of the role played by both sides in the conflict. While acknowledging that both sides in the conflict committed atrocities, much of the blame was solely on the RUF. In an attempt to put to rest the argument as to the causes of the civil war, the report stated that while the control of the diamonds may have fuelled the war, the main cause of the war rests on successive governments which have been associated with cronyism, corruption, waste and lawlessness. As a result of weak and inefficient governments, the situation served as arecruiting tool for disenchanted youths and demoralised soldiers who joined the ranks of militias and military juntas.140 Rather than attributing the blame of the war on external forces like Gadhafi and Charles Taylor who assisted the RUF, the Commission did not acknowledge the role external forces played in the civil war and also that seeking control of the diamond mines in Sierra Leone may have played role in the civil unrest and mass atrocities. While not completely diminishing the role that external factors may have played in the civil war, the Commission was of the opinion that the underlying cause of the civil war the Commission stems from internal factors such as absence of the rule of law that plagued sierra Leone over three decades. It also stated both sides of the conflict committed mass atrocities against

139 Report of the Sierra Leone Truth and Reconciliation Commission of 5 October 2004, available at http://www.nuigalway.ie/human_rights/ publications.html accessed 30/12/2012140

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civilian population. The SLA and the pro-government Civil Defence Forces on the one hand and the RUF were both culpable,although the scale of atrocities committed by the RUF was sophisticated. Leaders of both the CDF and the RUF have been indicted, arrested, although some questions still linger aboutcertain influential figures that have not been indicted or arrested. The International Crisis Group in 2003 painted a bleak picture of how the local were responding to the TRC deliberations in Freetown as drawing smaller crowds than was envisaged and the lack of government support considering that government ministers only appear before the TRC only after been threatened with a subpoena.141

There is optimism that the TRC in Sierra Leone might have lefthallmarks of success as a transitional justice mechanism. However that still remains to be seen whether the political elites would embrace the findings and recommendations considering that their “years of bad governance, endemic corruption and the denial of basic human rights that created the deplorable conditions that made conflict inevitable.”142

3.1.5. SUMMARY

The Civil war formally ended on 11 January 2002, with the symbolic ceremonial closure of the disarmament centre in Kailahun district where the war had started in March 1991 followed by the symbolic burning of arms in Makeni in the capital Freetown.143

Unlike Rwanda, the war in Sierra Leone was not fought on ethnic lines, numerous factors including but not limited to the following have been identified as having contributed to the civil war. They include patrimonial rule, a rebellious culture, greed, political corruption and oppression all must have played in part in making Sierra Leone to descend into chaos from 1991 to 2002. More so, the post conflict- transitional justice situation in Sierra Leone is a sharp contrast to that in Rwanda. While the latter bear the 141 International Crisis Group, ‘Sierra Leone: The State of Security and Governance’ ICG Africa Report N° 67, 2 September 2003, p12 available at http://www.crisisgroup.org/en/regions/africa/west-africa/sierra-leone/067-sierra-leone-the-state-of-security-and-governance.aspx. Accessed 7/7/2012142 TRC Report143 Lansana Gberie A Dirty War in West Africa: the R.U.F and the Destruction of Sierra Leone (C.Hurst &Co Publishers Ltd, London, 2005)p.2

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hallmarks of tutsification and victors’ justice, the former is about bad governance, everyone was a victim and there was no victor.

4. CONCLUSION

The prevalence and acceptance of transitional justice paradigmwith its focus on legal and none legal forms of justice have enhanced the legitimacy of transitional justice in Rwanda, Sierra Leone and many other parts of the world. This is evident in the growing number of hybrid courts and Truth and Reconciliation Commissions emerging across many parts of the world.144 It has given rise to hope that states or communities in the process of transition would experience justice rather than flagrant abuses and human rights violations. More so thatdemocracy and the rule of law would prevail over authoritarianism and that the culture of impunity would no longer be tolerated. Hence, the ICTR and the gacaca courts in Rwanda and the SCSL and the TRC in Sierra Leone raised expectations. The optimisms which surrounded the ICTR and the Special Court for Sierra Leone as effective tools of transitional justice mechanisms rest on two assumptions. First, there is the assumption that international laws and institutions would be widely accepted as legitimate and neutral. Secondly, international institutions as such would not be within the manipulation and control of local elites. Yet both ad hoc courts (ICTR and SCSL) continued to depend on state cooperation for access to archives, permission to conduct forensic investigations, permission to interview witnesses, and the ability to make arrests. As stated earlier, the Rwandan government had threatened to cease from collaborating with the ICTR should the latter seek to investigate crime committed by members of RPF. Even Rwandan nationals have challenged the legality of the ICTR.145 Where thelegitimacy of a transitional justice institution is efficaciously defied, it dents the impact transitional justice

144 Amnesty International Comprehensive list of Truth Commissions available at http:// www.amnesty.org/en/international-justice/issues/truth-commissions accessed 10/01/2013145 Victor Peskin, ‘Beyond Victor’s Justice? The Challenge of Prosecuting the Winners at the International Criminal Tribunals for the Former Yugoslavia and Rwanda’(2005) 4(2) Journal of Human Rights 213-231

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mechanisms can create in addressing renunciation. In contrastto Rwanda, Sierra Leone fully cooperated and supported the SCSL. The Special Court ratification Act 2002 further solidified the cooperation between the Sierra Leone and the Court as it incorporated into domestic law the obligation to assist the court when and wherever possible.146

More so, over decades and even today transitional justice institutions focus on confined responsibility within the statewith little or no attention to the role of external entities or persons. The implication of such a procedure depicts transitional justice as an ideological history confined withinthe local affair and local borders, thereby denying the role played by external forces in the interventions in local conflicts. For example, it has now been documented that prior to and during the genocide in Rwanda external countries played a significant role in assisting the Tutsi RPF or Hutu government. While the socio-economic and political factors mayhave served as remote causes of the conflict, the shooting down of the Rwandan presidential aircraft and the death of Habyarimana precipitated the genocide. It is alleged the “US even supplied the RPF with the Soviet –made surface –to-air missiles that were used to shoot down the aircraft”.147 This unleashed a mass murder on a scale like never before. A Tutsi led RPF under the command of Paul kagame who had ties with thePentagon and the CIA established its rule against the French supported Hutu Habyarimana and subsequently Pasteur Bizimungu government. America’s goal in the conflict was to “install anAnglo-American protectorate in Rwanda”, which enabled the US to establish a neo-colonial foothold in Central Africa.” 148Thisis substantiated in the fact that the working language in private and public life in Rwanda is English and no longer French.Uganda also played a pivotal role leading up to and during theconflict. With the acquiescence of Yoweri Museveni, the RPF trained its members in Uganda who launched cross-border attacks against the Hutu led government. Supplies of arms and ammunition continued to cross the border during the conflict.149

146 The Special Court for Sierra Leone, The Special Court Agreement Ratification Act available at www.sc-sl.org/DOCUMENTS/tabid/176/Default.aspx147 Wayne Masden Jaded Tasks: Brass Plates Black Ops and Big Oil: The Blood Politics of Bush and Co (1st edn, TrineDay, Chicago, 2006) 2148 Michel Chossudovsky The Globalization of Poverty and the New World Order(2nd edn Global Outlook Press, Quebec, 2003) 112

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The conflict in Sierra Leone was no exception to external interference. Former Libyan leader Muammar Gaddafi and formerLiberian leader Charles Taylor supported Foday Sankoh leader of the RUF during the civil war. Furthermore, Viktor Bout who had enjoyed the protection of the Russian government, and now serving a 25 years jail term in the US Federal prison for charges unrelated to the war in Sierra Leone actually suppliedarms to Charles Taylor. These arms were then used in Sierra Leone.150 The RUF received foreign backing from neighbouring Liberia and Burkina Faso.151

However in contrast to Rwanda, the Sierra Leone Truth and Reconciliation Commission acknowledged the role played by external forces during the civil war. Surely acknowledgment onits own would be sufficient. It would be an ideal situation for truth commissions and ad hoc international criminal courts to investigate various actions of external players in the conflict in Rwanda and Sierra Leone. In appraising the role of transitional justice in establishing accountability, acknowledgement of crimes committed, and truth seeking, then, it is important to consider how these institutions by failing or in failing to investigate roles played by external forces construct political myths, whether deliberately or inadvertently, that are contradictory with transitional justice objectives –truthseeking.Transitional justice concepts or mechanisms should be comprehensive and all inclusive rather than aligning it to a more Western-centrism. Transitional justice has to be devoid of assertive universality to leave its hallmarks in Rwanda, Sierra Leone and Africa in general. Thus in this respect therehas to be a paradigm shift in the notions of transitional justice in order to encompass a more moral and universal principles. It has to have a more holistic approach. Concepts such as retribution, reparative are limited and maybe lack legitimacy in the eyes of victims. Drawing from Arbour’s assertion, transitional justice does not give adequate attention to economic , social and cultural rights or discriminatory practices ‘was eminently predictable’ given

149 African Rights Rwanda Death Despair and Defiance(African Rights, London, 1994) 628-629150 Douglas Farrah and Stephen Braun, The Merchant of Death: Money Guns, Planes, and the Man Who Makes War Possible (John Wiley & Sons, Inc Hoboken New Jersey, 2007) 151 Eric Berman and Katie Sams, Peacekeeping in Africa: Capabilities and Culpabilities (United Nations, United Nations Institute for Disarmament Research, 2000) pp121-122

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the role played by criminal law in transitional justice and the ‘hidden assumption that socioeconomic and cultural rights are not entitlements but aspirations’.152 Without diminishing the role played by transitional justice in post conflict societies, she asserts that: “… transitional justice must havethe ambition of assisting the transformation of oppressed societies into free ones by addressing the injustices of the past through measures that will procure an equitable future. It must reach to, but also beyond the crimes and abuses committed during the conflict which led to the transition, into the human rights violations that pre-existed the conflictand caused, or contributed to it. When making that search, it is likely that one would expose a great number of violations of economic, social and cultural (ESC) rights and discriminatory practices”.153 Until transitional justice is tailored to meet these demands, critics would always argue about the relevance of the role played by transitional justicein post conflict societies. The sum of $30 million was allocated for the SCSL. However current estimates indicate that the SCSL would have cost over $257 million by the times it completes it work.154 When such estimates are measured against the dire background economic situation of Sierra Leonethe question then is, was it worth it? Toady Sierra Leone is considered as extremely poor with inequality income distribution. It has one of the highest poverty rates in the world, with an estimate of 70 % of the population living belowthe poverty line.155 The life expectancy rate is 34years and a high mortality rate of 284% under five. Unless such economic dire strait is taken into consideration by transitional justice, there could be a repeat of deja vue.

Transitional justice institutions like truth commissions and criminal tribunals could assist in conveying messages or

152 Louise Arbour, Economic and social justice for societies in transition’ speech at New York University of Law School, 2006 available at http://www.chrgj.org/docs/Arbour_25_October_2006 .pdf accessed 10/12/12153 Ibid Louise Arbour154 Stuart Ford, How Leadership in the International Criminal Law is shifting from the United States to Europe and Asia: An Analysis of Spending on and Contributions to International Criminal Courts(2011) 55 St. Louise University Law Journal 953 p975155 United Nations Development Programme: Human Development Index 2008 Country Information Sierra Leone available at: http://hdrstats.undp.org/en/countries/profiles/SLE.html accessed 02/01/2013

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lessons of past violence that serve as the basis of a shared history, even when some might dispute the facts. For example, many transitional justice institutions probably with the exception of gacaca now seek to consider all survivors as perpetrators and victims of a conflict. Another message that many transitional justice institutions seek to convey is that individuals can and should be held responsible for systematic political violence. Transition from a despotic or violent regime to a more peaceful and democratic regime is difficult. The dilemmas of transitional justice are complex and vary fromone country to another. Transitional justice within the context of Africa has to shed away the tag of dogmatic universality for it to have a long lasting legacy. It has to undergo a reconstruction and adopt a holistic approach in order to appeal to the victims within a society. Both Rwanda and Sierra Leone have experimented with different types of transitional justice which have their inherent strengths and weaknesses. These various mechanisms of transitional justice have employed both retributive and restorative forms of justice in order to right the wrongs of the past.156

More so, the use of transitional justice system phases out over time as it is operates only on a transitional basis. During this period there is wide condemnation of the atrocities committed and a call to bring alleged perpetrators to justice. Hence while there might be an immediate focus on the country by the international community, over the years there can also be a tendency quickly forget the mass atrocities that might have occurred in these countries.

Like most other conflicts, the wars in Rwanda and Sierra Leonehad been going on for years and it is only when the conflict reaches a crescendo then the international community becomes involved. Then in its quest to assist states in transition, they create transitional justice mechanisms which look at a limited periods of instability in the life of the State. Transitional justice in Rwanda considered only incidents from 1994 to 1996 (11 years) and that of Sierra Leone (3years). This could defeat the purpose of transitional justice if it seeks truth and reconciliation without having a full understanding of the conflict from the very beginning. However, it could be argued that going back many years to the start of the conflict would make it difficult if not 156 Lyn Graybill and Kimberly Lanegran, ‘Truth, Justice , and Reconciliation in Africa: Issues and Cases’ (2004) 8(1) African Studies Quarterly available http://www.africa.ufl.edu/asq/v8/v8ilal.htm p.9 accessed 03/01/2013

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impossible to produce plausible evidence that can lead to successful prosecutions or convictions. More so, it could takedecades for ad hoc international tribunals and Truth Commissions to complete their tasks. Although such an argumentis plausible, it sends out the wrong signal to those who were victims prior to or after the set dates.Criminal prosecution of victims although might be necessary within the concept of transitional justice, it is not sufficient. Such prosecutions are not in the interest of the victims it is more of revenge by society against the wrongdoers. Besides considering that institutions of transitional justice scrutinise vehement histories and divisive issues, it would not be a fallacy to say transitionaljustice only serve as placate of obstructing reconciliation because as Leebaw asserts it leads to: “opening old wounds”… thereby, “generating political instability and interfering with forward looking political change”. 157

Overall justice in itself is not an easy concept to define andit can sometimes be subjective depending on the contexts. Thisonly makes the notion of transitional justice to be treated with scepticism. The international community and human rights advocates must be very critical of the current short comings of the current transitional justice mechanism and must devout a concerted effort at combatting the inequality of the application of this form of justice. The history of the conflicts in Rwanda and Sierra Leone is complicated and Transitional justice would offer just a white wash solution tothe problems. In Rwanda and Sierra Leone there is every indication to show that democracy never fared-well. Thus thesestates would have different recapitulations of transition from one or another. In Rwanda the Tutsi political hegemony has resurfaced under the pretence of ‘democracy and post conflict transitional justice reconstruction.158 In Sierra Leone, politics is still dominated by the Temme and Mende tribes and even though the country is exceptionally rich in diamond, it has not alleviated the plight of many Sierra Leoneans. Former President Kabba of Sierra Leone admitted thattribal differences is having grave concerns in Sierra Leonean politics, yet not much has been done to change the tides.159

157 Bronwyn Leebaw, ‘The Irreconcilable Goals of Transitional Justice’(2008) 30(1) Human Rights Quarterly 95-118 p96-97158 Makau Mutua, ‘A Critique of Rights in Transitional Justice: The African Experience’ (2011) University of Buffalo Law School New YorkSeries Paper No.2012-032 Legal Studies Research available at http://ssrn.com/abstract=193703 p.40 accessed 27/12/2012159 Ibid Laurence Juma p339

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Lundy P and McGovern M, ‘Whose Justice? Rethinking Transitional Justice from the Bottom UP’ (2008) 35(2) Journal of Law and Society 265-292

McDonald A, “Sierra Leone’s shoestring Special Court”, International Review of the Red Cross 84 (2002), 121

Peskin V, ‘Beyond Victor’s Justice? The Challenge of Prosecuting the Winners at the International Criminal Tribunalfor the Former Yugoslavia and Rwanda’ (2005) 4(2) Journal of Human Rights 213-231

Ratner S ‘New Democracies, Old Atrocities: An Inquiry in International Law’ (1999) 87(3) Georgetown Law Journal 707-748

Schabas W, ‘The Relationship between Truth Commissions and International Courts: The Case of Sierra Leone’ (2003)25 Human Rights Quarterly 1035-1066

Schabas W, ‘The Special Court for Sierra Leone: Testing the Waters Conjoined Twins of Transitional Justice?’ (2004) 2 Journalof International Criminal Justice 1082

Scharf M ‘The Amnesty of Exception to the Jurisdiction of the International Criminal Court’ (1999) 32 Cornell International Law Journal 507

Skaar E, ‘Truth Commissions, Trials-or Nothing? Policy Options in Democratic Transitions’ (1999) 20(6) Third World Quarterly 1109-1128

Syle R, ‘The Legitimacy of Amnesties under International Law and General Principles of Anglo-American Law: Is a Legitimate Amnesty Possible?’ (2002) 43(1) Virginia Journal of International Law 173-247

Teitel R, ‘Theoretical and International Framework: Transitional Justice in a New Era’ (2003) 26(4) Fordham International Law Journal 893-906

Teitel R, ‘Transitional Justice Genealogy’ (2003) 16 Harvard Human Rights Journal 69-94

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Tejan-Cole A, ‘The Special Court for Sierra Leone: Conceptual Concerns and Alternatives’ (2001) 1 African Human Rights Law Journal 107-126

Tejan-Cole A, The Complementary and Conflicting Relationship Between the Special Court for Sierra Leone and the Truth and Reconciliation Commission’ (2003)6 Yale Human Rights and Development Law Journal 139

Zach-Williams A, ‘The Political Economy of Civil War, 1991-1998 (1999) 20 Third World Quarterly 143

Websites

Amnesty International, ‘Gacaca: A Question of Justice’ (2002) availableat www.amnesty.org/en/library/asset/AFR47/007/2002. Accessed 05/01/2013

Gacaca Courts website, http:www.inkiko-gacaca.gov.rw

International Crisis Group, ‘Sierra Leone: The State of Security and Governance’ ICG Africa Report N° 67, 2 September 2003, p12 [Online] available at http://www.crisisgroup.org/en/regions/africa/west-africa/sierra-leone/067-sierra-leone-the-state-of-security-and-governance.aspx accessed 7/7/2012

Report of the Sierra Leone Truth and Reconciliation Commission of 5 October 2004, available at http://www.nuigalway.ie/human_rights/ publications.html

United Nations Development Programme: Human Development Index 2008Country Information Sierra Leone available at: http://hdrstats.undp.org/en/countries/profiles/SLE.html accessed 02/01/2013

United Nations Secretary-General, Report on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies (2004) available online at: :http//daccess-dds-ny.un.org/doc/UNDOC/GEN/NO4/395/29/PDF/NO439529.pdf? Open Element para8

Human Rights Watch, ‘Justice Compromised: the Legacy of Rwanda’s Community based Gacaca Courts (2011) available at

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www.hrw.org/sites/default/files/reports/rwanda0511webwcover _0.pdf accessed 09/01/2013

Statutes and Legislations

Truth and Reconciliation Commission Act 2000

Article 8 ICTR Statute

Article 7 of the ICTR Statute

Special Court Statute, Art. 2

Special Court Statute, Art. 3

Special Court Statute, Art. 4(b)

Special Court Statute, Art. 4(c)

Special Court Statute, Art. 5

Truth and Reconciliation Commission Act 2000 Section 6(1)

The SCSL Statute Article 1

Rwanda Organic Law No. 16/2004 of 19/6/2004

Resolutions

Security Council, resolution 955, 8 November 1994, UN doc S/RES/955 (1994)

Doc. S/2000/915 of 4 October 2000Security Council /Resolution /1315 (2000) of 14 August 2000 paras 1-2CASES

Prosecutor v Akayesu (judgment) ICTR-96-4-T (1998)

Prosecutor v Kambanda (judgment ICTR -97-23-S (1998),

NEWSPAPER PUBLICATIONS

Crossette B, ‘Sierra Leone Asks UN for Role In War Court’ New York Times (New York, 21 June 2000) http://www.nytimes.com/2000/06/21/world/sierra-leone-asks-un-for-role-in-war-court.html accessed 04/01/2013

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Pambazuka News, Sierra Leone: Searching for Truth and Reconciliation, 3 Feb.2006 available at http://www.pambazuka.org/en/category/rights/32427 accessed 31/12/2012

Nicholas Sabin ‘From Machete to Microfinance: A Double Amputee’s Recovery’ Huffington Post USA 09/August/2008 available at www.huttingtonpost.com/nicholas-sabin/from-machete-to-microfina_b_124727.html accessed 05/01/2012

Richard Dowden, ‘Revenge Killings by Troops in Rwanda’ the Independent Newspaper 6/August/1994 available at www.independent.co.uk/news/world/revenge-killings-by-troops-in-rwanda-1374561.html accessed 09/01/2013

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