APPENDIX 2
Memorandum submitted by the Foreign and
Commonwealth Office
THE SIERRA
LEONE SPECIAL
COURT
1. On 12 June 2000, President Kabbah of
Sierra Leone wrote to the United Nations Secretary-General proposing
the establishment under UN auspices of a special court. The court
would "bring to credible justice those members of the Revolutionary
United Front (RUF) and their accomplices responsible for committing
crimes against the people of Sierra Leone and for the taking of
UN peacekeepers as hostages". The President remarked with
some justification that the atrocities committed by the RUF in
Sierra Leone throughout the previous decade as "generally
the worst in the history of civil conflicts".
2. The United Nations Security Council,
having taken note of an interim report from the Secretary-General
and recognising that the situation in Sierra Leone remained a
threat to international peace and security adopted Resolution
1315 (2000) on 14 August. This resolution invited the Secretary-General
to negotiate an agreement with the Government of Sierra Leone
(GoSL) to create an independent Special Court. The Court would
have jurisdiction over persons who bore the greatest responsibility
for the crimes against humanity, war crimes and other serious
violations of international law. It was envisaged that the Court
should be established by Treaty between the UN and GoSL and should
be funded by voluntary contributions from the UN membership.
3. On 16 January 2002 the GoSL and the UN
concluded an Agreement establishing the Special Court. The Statute
of the Court entered into force the same day. The state of war
in Sierra Leone was formally declared at an end two days later.
The first permanent officials of the Court arrived in Freetown
in July 2002.
4. The Court which emerged as a result of
this process has been described as a "hybrid". Although
the Agreement between GoSL and the UN was commissioned by the
UN Security Council, its authority is based not in the Council
but rather in the law of Sierra Leone. In this fundamental respect
it differs from the Tribunals for Rwanda and former Yugoslavia.
The obligations of the international community towards the Court
are in consequence much fewer than to the Tribunals. The Court
also differs from the Tribunals in that it is based in the country
where the crimes occurred and its judges, prosecutors and officials
are drawn from both Sierra Leone and the international community.
And it is charged with indicting only "those most responsible"
for the crimes committed within its temporal jurisdiction.
5. The temporal jurisdiction of the Court
begins on 30 November 1996 and is open ended. A number of start
dates were considered: that chosen marked the conclusion of the
Abidjan peace agreement, the first agreement between GoSL and
the RUF. This choice was made after the most careful deliberation
and was agreed by the Security Council. GoSL was a party to that
decision. An earlier date was rejected because it would impose
too heavy a burden for the prosecution and the Court.
6. The pragmatic approach to the establishment
of the Court came as a result of the international community's
desire not to create a new institution which would demand the
full weight and bureaucracy of a conventional UN body. The concept
was to create a court which was the property of the people of
Sierra Leone and which could be set up quickly and get on with
its job with the minimum of complication and expense and in the
shortest possible time. Its mandate would be to indict only those
individuals who bore the greatest responsibility. The decision
to make the Court dependent on voluntary rather than assessed
contributions was both part and consequence of this departure
from previous practice.
7. The aspiration to move quickly to the
establishment of the Court was soon frustrated. The novelty of
the proposition prompted objections, legal and technical difficulties.
The first draft of a budget suggested a requirement in excess
of $100 million for a three-year period, a figure based on a concept
of the Court closely akin to the Tribunals rather than the new
"light" form envisaged for Sierra Leone. And far in
excess of what might reasonably be expected to be raised on a
voluntary basis. By dint of hard negotiation an arrangement satisfactory
to all parties was eventually achieved and a budget of $57 million
for a three-year period agreed. The Secretary-General very properly
advised the UN membership that the Court could not become a reality
until such time as actual contributions or firm commitments sufficient
for the first two years of the Court's life were in place. A specially
created Trust Fund was created to receive contributions. Despite
generous early contributions from the UK, the US and the Netherlands,
it took a considerable time for funds to accrue. However on 26
December 2001 the Secretary-General announced that despite some
shortfall he was satisfied that the Court could proceed and the
UN/GoSL Agreement was concluded some three weeks later.
8. Funding remains a source of concern.
As at January 2003, there remains a deficit of some $21 million
(from $57 million) for the three-year period. The UK has already
contributed £2 million towards the first year of the budget
and has pledged £2.3 million for both years two and three.
These funds are drawn from the Africa Conflict Prevention Pool.
We are encouraging the Secretary-General to embark on a fund raising
exercise in the near future and will lobby in support. We are
optimistic that a visibly operational Court will help stimulate
a positive response.
9. Early in 2001, the Secretary-General
appointed Robin Vincent (UK) as Registrar and David Crane (US)
as Chief Prosecutor. Desmond de Silva QC (UK) was appointed by
the President of Sierra Leone as Deputy Prosecutor. These three
began the process of recruiting staff and establishing procedures
for the Court. In July 2002 they moved to Freetown.
10. On 25 July the Secretary-General and
GoSL jointly announced the appointment of the 10 judges who will
preside over the Court. Two are from Sierra Leone and one each
from Canada, Cameroon, Nigeria, Gambia, Austria, Ghana, Zambia
and Australia. The last, Geoffrey Robertson QC (Chambers in London)
was subsequently chosen by his colleagues as President of the
Court. Three judges will sit in the Trial chamber, five in the
Appeals Chamber and two are alternates.
11. Oversight of the Court is vested in
a Management Committee, located in the UN in New York. The Committee
is comprised of the Secretary-General's representative (from the
office of the Legal Adviser), the Permanent UN representative
of Sierra Leone and representatives of the principal contributors,
UK included. The Chair is presently held by Canada. Additional
legal and financial advice is provided from capitals as required.
External audit is conducted by UN OIOS. After an uneasy early
relationship, the Court has entered into a satisfactory agreement
with UNAMSIL whereby the latter provides logistical support and
assistance.
12. The Court, although accommodated in
prefabricated structures and borrowed accommodation is now fully
operational. A purpose-built Courthouse is under construction
which will be a legacy to the GoSL. A proposal to construct a
second trial chamber for the Courthouse to speed up the throughput
of cases has been lodged with the Management Committee and is
under consideration.
13. The Prosecutor has indicated that he
will be in a position to issue the first indictments shortly.
It is thought probable that a number of those to be indicted are
already in custody. We cannot otherwise speculate on the number,
identity or whereabouts of others to be indicted. However, the
Prosecutor is optimistic that he will be able to complete his
work within the existing timeframe and budget of the Court. He
maintains that, despite some early turnover in personnel, he has
been able to construct strong indictments and has the appropriate
staff to prosecute cases successfully. Plans are well advanced
for the creation of a Public Defender's office within the Court.
14. In the meantime the Court has pursued
an energetic "outreach" programme to explain its purpose
and intent to the people of Sierra Leone. It has sought with some
success to dislodge the widespread notion that the Special Court
will prosecute tens of thousands of individuals, many of whom
had been children at the time the atrocities were perpetrated.
The campaign has also sought to explain the Court's relationship
with the Truth and Reconciliation Commission.
TRUTH AND
RECONCILIATION COMMISSION
15. Although the decision to create a TRC
for Sierra Leone (July 1999, Lome Peace Accord) predates that
in respect of the Special Court, it has made painfully slow progress.
The TRC was established to give Sierra Leoneans the opportunity
to voice their experiences of the civil war, establish a true
record of the conflict and to promote reconciliation. It is not
a forum for blame or for seeking justice. It has a remit to allocate
reparations, likely to be community-focused non-financial awards.
It is important that the TRC operates effectively alongside the
Special Court, in order to reduce popular misapprehension about
the latter. The preparatory phase of the TRC was completed. This
included `sensitisation' visits to all 14 districts of the country,
a process designed inter alia to distinguish between the
respective roles of the TRC and the Special Court.
16. The Prosecutor has been at pains to
stress that statements made to the TRC (of which some 1,400 have
already been collected, with a higher than expected number from
perpetrators) will not be turned into evidence against those individuals
making them. He has been very conscious of the widespread apprehension
of former combatants in this regard, and more general anxieties
about the Court's remit. Mr Crane has appeared the same platform
as officers of the TRC with a view to emphasising the two bodies'
complementarity and not their interdependence.
17. There are however anxieties about the
viability of the TRC. It remains seriously under-funded (only
$2.3 million from a requirement of $6.4 million has so far been
pledged). The UK has contributed £500,000 (including the
£250,000 provided for set-up costs in FY 2000-01. Given the
UK's already considerable commitment to Sierra Leone (£120
million in bilateral aid over the next three years) we are keen
to encourage other donors to make additional contributions to
initiatives such as the TRC. There are indications that donor
support is available if the TRC makes further concrete progress.
The UN OHCR Africa team, which has responsibility for the TRC
project is optimistic that it will remain in budget. But they
need to do far more to encourage donors. There have also been
difficulties in recruiting adequate personnel. Franklin Kargbo
(SL) will take up his appointment as Executive Secretary only
in March 2003. Other key appointments have only just been made.
There have been murmurings of discontent from youth and human
rights groups about the quality and impact of the TRC's work on
the ground. We must hope that Mr Kargbo's appointment will enable
the TRC to change up a gear. The officers of the Court have stressed
their willingness to assist wherever practicable, in the two bodies'
mutual interest.
DOMESTIC COURTS
18. The rule of law and its apparatus was
effectively destroyed by a decade of civil war; and only since
the return of relative stability, have preliminary steps been
taken towards rebuilding the system. Sierra Leone had hitherto
practised a mix of statutory and customary (traditional) law,
and a return to this system is envisaged. DFID has in process
a £2.2 million programme (2000-03) to rebuild the judicial
infrastructure, the most visible manifestation of which is a new
High Court building in Freetown. The programme also involves
the provision of IT and related training. The Special Court will
provide valuable experience for Sierra Leoneans in all aspects
of court procedure and a nucleus of trained personnel who can
use their skills to develop the domestic judicial system when
the Special Court's work is complete. The Court will also leave
a physical legacy in the shape of its courtrooms, offices and
legal library.
IMPACT ON
THE BALANCE
OF PEACE
IN SIERRA
LEONE
19. Anxieties about the role and intention
of the Court are widespread at all levels of society in Sierra
Leone, and also amongst certain prominent individuals in neighbouring
countries. As indicated above, considerable effort has gone into
broadcasting the Court's mandate to indict "those most responsible".
20. We cannot speculate in a memorandum
of this nature as to which individuals the Court will choose to
indict. But it is self-evident that those individuals will be
fully aware of their own vulnerability. Whether already incarcerated,
active in public life in Sierra Leone or elsewhere or "on
the run", some if not all potential indictees will still
command a political following and access to/influence or control
over groups of armed supporters.
21. Whether those supporters will be moved
to open rebellion in the event of their leader or mentor being
indicted or arrested is a matter for speculation. The GoSL, the
Court, the Sierra Leone Police (British Inspector-General) and
Armed Forces (RSLAF) and UNAMSIL are all fully aware of this imponderable.
Incursions from across the Liberian border and a recent attempt
to seize weapons from an army barracks in Freetown, with the corresponding
flight of a prominent MP( JP Koroma), have reinforced the view
that peace and security cannot be taken for granted in the present
climate.
22. All interested parties remain in close
contact, and we have every confidence that suitable precautions
and preparations will be in place as and when the Prosecutor announces
the first indictments. The UK Government, with its special interest
in maintaining stability and not compromising the considerable
investment we have made in Sierra Leone, is kept fully informed
of developments, and has made appropriate plans to reinforce security
in Freetown should the need arise. We have every confidence nonetheless
of the ability of local forces and UNAMSIL to maintain order.
The security of the staff of the Court, and the British community
within Sierra Leone is kept under constant review.
AFRICA CONFLICT
PREVENTION POOL
23. The UK contribution to the Special Court
budget is funded from this pool. The £2 million contribution
already paid (into the Trust Fund) in 2001-02 anticipated the
establishment of the Court—and has been taken up as our
first year contribution in 2002-03. The contribution of £2.3
million earmarked for the Court in the Pool in 2002-03 (* below)
has therefore been deferred until 2003-04 where it will meet our
obligation in respect of the second year of the Court. We are
committed to a third payment of £2.3 million in respect of
the third year of the Court. The relationship to expenditure on
the Court in relation to other areas of expenditure on Sierra
Leone from the Pool is shown in the attached chart:
| Programme | Lead Dept
| 2002-03 | 2003-04
|
| IMATT | MOD | 16.0
| 16.5 |
| Op Silkman | MOD | 1.5
| 0 |
| CISU | FCO | 0.1
| 0.1 |
| SILSEP | DFID | 0.5
| 0.75 |
| Police programme | DFID |
5.0 | 2.0 |
| Police infrastructure | DFID
| 0 | 4.55 |
| RSLAF restructuring | DFID |
0 | 1.0 |
| Reintegration of XCs | DFID
| 5.8 | 3.7 |
| Regional (eg WFD) | FCO |
0 | 0.35 |
| Subtotal Programmes |
| 28.9 | 28.95
|
| Peacekeeping assessed costs | FCO
| 36.2 | 18.0 |
| Special Court | FCO | (2.3)*
| 2.3 |
| Peacekeeping non-assessed | FCO
| 2.1 | 1.8 |
| Subtotal Peacekeeping |
| 40.6 | 22.1 |
| Grand Total Conflict Prevention |
| 69.5 | 51.05
|
IMATT—International Military Advisory and Training Team
Op Silkman—UK forces in SL: November 2000—31 July
2002
CISU—Central Intelligence and Security Unit
SILSEP—SL Security Sector Reform Programme
XCs—Ex-combatants
WFD—Westminster Foundation for Democracy
24. It will be remarked that the Special Court is complementary
to other programmes in Sierra Leone designed to restore long-term
peace and stability through the rule of law.
Foreign and Commonwealth Office
March 2003
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