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TUESDAY 18 MARCH 2003 __________ Members present: Tony Baldry, in the Chair __________ Examination of Witness MR DESMOND DE SILVA, QC, Deputy Prosecutor of the Special Court for Sierra Leone, examined. Chairman
(Mr de Silva) The first thing I would like to say of course is that the Special Court for Sierra Leone has been an unqualified success. That cannot really be said of ICTY and ICTR, where there have been tremendous delays in bringing people to trial. Let me give you an example. In ICTR, the Rwandan Tribunal, they have convicted nine people in nine years. Six months to the day after my arrival in Sierra Leone, thanks to the efforts of the national and international staff in the Office of the Prosecutor, we have brought in seven indictments; there are five indicted war criminals behind bars now awaiting trial and there are more arrests and indictments likely to follow in the near future. So we have a pace and momentum in our affairs that seems to be lacking in ICTY and ICTR. I do not wish to criticise them, I am not here to do that, but the great difference of course is that they were created under Chapter 7 of the UN Charter and we were not. We are a hybrid court of the kind that has never been created before. It is a unique experiment in the application of international criminal law and some people take the view that this is a new step in the evolution of international criminal courts. I hope that is reasonably satisfactory. (Mr de Silva) The judges have been appointed already. They have been appointed by the United Nations. They come from Australia, Canada, the Cameroons, Sierra Leone and the Gambia. It is a mixture of very experienced judges who together will be bringing to these proceedings a wealth of international experience and of course a complete independence, which is absolutely essential in a war-torn and war-ravaged country, where the judiciary I am not going to say is shot to pieces but where the pressures upon the existing Sierra Leonean judiciary are very great, given the fact that there are warlords still about. (Mr de Silva) Defence counsel will be funded by the Registry. Of course a number of the people whom we have arrested are men of considerable means, having dipped their fingers into blood diamonds and things of that kind, and no doubt they can find a way of funding eminent counsel, but others, who are unfunded in that way, will have, in the same way as ICTY, counsel funded by the Registry at a rate that operates very well at ICTY at the Hague. (Mr de Silva) This is a difficult question, and only difficult for this reason: normally one would be able to predict rather more easily when these cases would be coming to trial but here, as this is a new court, we anticipate that there are likely to be a number of challenges to the jurisdiction of the court in a variety of ways. Those challenges will have to be dealt with beforehand. In other words, the appeals will almost come before the trials, so the trials will only follow once the trial chamber and once the appeal chamber comes to the conclusion this court has jurisdiction to do what it is doing because we anticipate the first assault upon the court would be a legal challenge to its jurisdiction. (Mr de Silva) We are a unique court. When ICTY was set up, although created under Chapter 7 of the UN charter, under which the UN can do anything, as far as one can see, its jurisdiction was challenged, in a very famous case called Tadic. The appeals chamber decided in that case that the ICTY did have jurisdiction, because the UN Security Council did have capacity, acting under Chapter 7, to create that. But we are not a Chapter 7 court; we are created by an agreement between the UN and the Government of Sierra Leone. It is a treaty-based court. I take the view it is a court like Nuremberg, where the four great powers got together and by treaty decided to impose a court on Germany. That was a treaty-based tribunal and so is this. I take the view that the Security Council acts on behalf of the entire community of nations. Therefore, when the Security Council passed its Resolution 1315 and called upon the Secretary General to negotiate the creation of a new court in Sierra Leone to deal with the savagery and the barbarities that have occurred - some take the view the like of which has not been seen since the Second World War - when that was done, it was the Security Council, we held, acting on behalf of the community of nations, and that is really that the whole UN was involved in the whole process. So it is an agreement between all the nations of the United Nations and in fact the government of Sierra Leone to set up this court. Whereas Nuremberg was simply the four great powers, this is a court with much greater validity, if I may I put it that way. (Mr de Silva) No, it will be nothing to do with Sierra Leone. The first challenge will be taken, no doubt, by the defendants before the trial chamber. The trial chamber will make its decision, hopefully, that the court is perfectly validly constituted. Then, no doubt that will be appealed by either side. If the defence win, I will appeal it to the appeals chamber, of which the president is Geoffrey Robertson, QC, eminent in the field of international law. He is the president of the Court of Appeal. It is a very powerful appeals chamber. Beyond that, of course, there is no appeal. It is rather like ICTY and ICTR: there is a trial chamber and there is an appeal chamber. Beyond that, there is nothing. Mr Colman (Mr de Silva) A number of countries have contributed to the funding of the Special Court. I would like to make this point at the very outset of your question, Mr Colman: originally the budget needed was conceived as being in the nature of $114 million. Through some knee-jerk reaction as occurs in these instances, it was cut to $56 million - and we are really operating on a threadbare basis. It is really quite astonishing that Britain, in whose sphere of influence Sierra Leone is - and let it not be forgotten that Sierra Leone owes a great debt of gratitude to this country for the way in which Britain has played a remarkable role in keeping Sierra Leone as a democratic state for the past few years, in an attempt to break the spiral of military government - as I look at the figures and find that the Netherlands over three years has contributed more to the existence of the Special Court than the United Kingdom, it is a little bit disappointing. I can give you the figures: the Netherlands over three years is contributing $11,400,000; the United Kingdom is contributing $9,110,000. I am going to make a plea, and that is this: if Britain matches the Netherlands it would make a very big difference to our lives. This is the first court to operate in theatre. Germany was on its back during Nuremberg and there were not any forces really challenging the jurisdiction of the allied powers; ICTY is miles away from Yugoslavia; ICTR is nowhere near Rwanda; we are operating in theatre. As my American boss says, in that rather colourful way, "Desmond, we are surrounded by the bad guys, and we might have to get out of Dodge leaning forward in the saddle." Be that as it may, there is rather a feeling of that, I am afraid. (Mr de Silva) Yes, I can. Australia $50,000; Belgium $105,000; Canada $1,450,000; Chile $5,000; Cyprus $50,000; Czech Republic $300,000; Denmark $480,000; Finland $290,000; Germany $1 million; Ireland $537,500; Italy $83,465; Japan $500,000; Liechtenstein $5,000; Lesotho $100,000; Luxembourg $22,312; Mali $3,076; Malaysia $50,000; Mauritius $4,500; Mexico $6,000; Netherlands $11,400,000; Nigeria $10,000; Norway $500,000; Phillippines $961; Singapore $15,000; South Africa $30,000; Sweden $300,000; United Kingdom $9,110,000; the United States $10 million. That is over a three-year period. Tony Worthington (Mr de Silva) Absolutely. I entirely agree with that. Of course I am looking at this entirely from the point of view of the Special Court. Mr Colman (Mr de Silva) Not as far as I can see. I would like to see Britain taking a greater interest in the success of the court by making a somewhat larger contribution. It has come to the notice of the management committee in New York that the creation of a second court would enable us to discharge our mandate more quickly and certainly more effectively. A second court, I understand, will cost about $1.7 million if in fact it is built in the future but it might cost something like only $1.3 million if it is built now, whilst the first court is in the process of construction. A second court built later on might simply disrupt existing proceedings, for example, and therefore, there is a great need for the second court, if there is to be one, to be started now. Of course all these budgetary figures are predicated on the basis of a single trial court. It would seem to me and to a lot of us that if in fact the second court which the management committee actually recommends could be built - and of course the money has to come from somewhere and we were rather hoping that Britain might contribute £1 million or something of that kind - it will leave a legacy. That court will remain in Sierra Leone and the Sierra Leoneans could use that court when we go away. One of the things we are hoping to do is to train up young Sierra Leoneans, so that the rule of law, which has been absent for so long in that country, will be a legacy that will continue, not just in the training that we give the young Sierra Leoneans but also in the buildings we leave behind. It will be left behind as part of the legacy of this court, so it is a contribution worth making. It is not some evanescent thing that is going to disappear; it will be there for all time. It seems to me, if I might be permitted to make this plea, that if Britain made that contribution it could be quite significant. I give you another area in which a contribution could be made: I know there are areas from which evidence can be gathered. Jane's Consultancy, for example, who are enormously knowledgeable about affairs in West Africa nd elsewhere, military matters and things of that kind, have areas of evidence which it would take us months and months and months of investigative work to achieve. I know that evidence is available for about $75,000, because they have their own researchers on to it, and that could be done very quickly, but we do not have the money to pay for it. Therefore, I think, in a way, that if the international community wills the end, it must will the means, because this is a great success story that is unfolding in Sierra Leone and I think penny-pinching could actually damage it - and I am talking about really small sums of money in real terms. We will bring in the culprits within the terms of our mandate, within the period of our mandate - I have no doubt we will do all that - but all we need is a little bit of assistance from the international community, particularly Britain, which has a special interest in Sierra Leone in view of Britain's commitment to Sierra Leone already. (Mr de Silva) Yes. We have uncovered evidence which discloses that there is a trail of blood diamonds to al-Qaeda. Forgive me if I do not talk in depth because this will doubtless form part of the evidence and, as you will appreciate, this is not a matter on which I would wish to touch, but there is an undoubted connection between al-Qaeda and blood diamonds. Chairman (Mr de Silva) Yes. Tony Worthington (Mr de Silva) Yes. (Mr de Silva) If I might answer your second question first, the answer is yes. The reason why this shortened period was chosen - and of course I cannot do anything about it because this is what the agreement between the UN and the government of Sierra Leone was and so I am stuck with it - is because it was thought that to go too far back would lead to an unmanageable court, in the sense that trawling back 10 years would create a court that might go on, like Rwanda, which I understand might go on for another 10 years, having been in existence for nine already. The international community wanted a small court, an efficient court, with a limited budget, quite clearly, and a limited mandate to go after only the people who have the greatest responsibility. Therefore, one of the things we have to do is to sift between the people. There might be a man who executed a thousand people. He might not be the one whom we charge; we may charge the one who gave the order, who killed nobody. So you have that dilemma. We have to sort that out. It is a moral question. It is also a legal question. Because our mandate is so tight: to go after only the people who bear the greatest responsibility, we have to exercise a consummate judgment and discretion. Whom do we go after? We have taken the view that the people whom we go after are the people who were in command and control. Some of the barbarities perpetrated are so awful, as will be evidenced when our evidence comes to light. (Mr de Silva) We are looking at a neighbouring country. We are looking at neighbouring countries. As you know, our mandate entitles us to go after heads of state. No one is beyond our reach. No doubt if we were to issue a warrant against a head of state, a head of state immunity argument would be raised, but one must not forget that Milosevic was indicted when he was a head of state and the doctrine of sovereign immunity from which a head of state may seek to operate is getting very thin now and it is gradually seeping out of international criminal law. I think it is a good thing, it is a very good thing, that people, however high they be, should not be beyond the reach of international criminal law. Otherwise, we will never break the spiral of tyrants and dictators. (Mr de Silva) The losing side is not being prosecuted because we are prosecuting people across the board. I mean, there were various factions, some of which actually fought on the side of the government. We have arrested a cabinet minister - he was arrested at his desk, much to his surprise. His forces were actually behind the government forces at one stage. But that is beside the point. The one thing he was not allowed to do was to commit crimes against humanity in the process. We are not just prosecuting the losing side - which may be called the RUF in this instance, the Revolutionary United Front led by a man named Foday Sankoh - but we are prosecuting others across the board. In fact I have been vigilant and so has David Crane, absolutely vigilant, to ensure that this is not seen as a trial of the vanquished but rather a trial across the board of all those who participated in crimes against humanity. (Mr de Silva) Well, we have to. We have to. But, as you rightly say, the hand, indeed the bloody hand, of other countries in the region is to be seen in this conflict. We have investigators out in the field at the moment, which includes other countries. After I arrived in Sierra Leone, indeed before I arrived, it was apparent that the investigations were beyond the borders of Sierra Leone. This in itself has eaten up a great deal of our money which we have had to expend on investigations of this kind. Further, because this is a prosecution in theatre, with warlords still about, the witnesses we have, some of them, are under threat of death, and we have had to whisk them out, with their families, in chartered aircraft, for example, to get them out of the place. (Mr de Silva) We have issued a warrant against a man called Sam Bockarie. He, at present, I think is in Liberia or somewhere in the region. We basically call upon the governments of the places in which these people are to surrender them. We have the right to go to the UN and ask the Secretary General to exert a bit of pressure upon those governments to surrender indicted war criminals. We do not have the right or the power which is enjoyed by ICTY, for example, or ICTR, which are Chapter 7 courts, to demand that somebody is surrendered. We can request; the request can be denied us. Of course, if you harbour indicted war criminals in your country, you are rather likely to end up being a sort of pariah country in the eyes of the right-thinking members of the world. That is the only pressure we have, because we cannot send in a column to get them out. That we cannot do. It is a question of those people not being able to move to other countries and things of that kind, because they will be picked up and maybe handed in. It is a great deal of moral pressure which we can exercise, and exercise, indeed, through the UN, but we have no way of actually demanding their return from wherever they are presently fugitives. Hugh Bayley (Mr de Silva) David Crane, the Prosecutor, has been going around the country and doing a simply marvellous job in explaining in town hall after town hall, to ordinary Sierra Leoneans, what the whole thing is about, explaining to them that we actually are there to represent the people of Sierra Leone. Because there is not a family which has not been affected by the war. We also represent the ghosts of those who were murdered. This is the message that has been got across to them. There are a number of people who do not like us there because they fear being brought before the Special Court. We have made it clear, and David Crane has made it absolutely plain, that we are not after hundreds and hundreds of people - because the army has been told that, and there is a certain amount of animosity towards us by the army, and we cannot afford to have the army turning against us. As you probably know, one of the people we arrested, the Minister of the Interior, had the support of a considerable section of the army and we were extremely concerned that the army might not stand idly by whilst we carried out the arrests. Anyway, thanks to the British contribution of the Ghurkhas and the HMS Iron Duke which was in the bay, its guns trained on the town and the Ghurkhas putting on a display of fire power, which gave a19th century touch to the whole thing, people were kept quiet. But I do not know how long it will continue. But David Crane has been doing a fantastic job in communicating to what I call "the masses" our message. With regard to the death penalty, the Sierra Leoneans apply the death penalty in their municipal jurisdiction. They take the view that hanging is not only justified but no doubt it is a very economic way of running a prison! There is a feeling abroad that they cannot understand why it is that we, on behalf of the international community, cannot bring ourselves to impose the death penalty. Well, there it is. ICTY does and ICTR does not. We do not have the power to do it and so there it is. But the awful thing is that the people who bear the greatest responsibility may get life imprisonment; the people down the line who do not bear the greatest responsibility and who are tried by the local courts might be executed. This is a curious moral dilemma but I cannot do anything about that. It is one of those things that has happened. In fact the people who bear the greatest responsibility should be putting their hands up and coming forward and saying, "Try us before the special courts so we do not get topped." There it is. I am sorry, there was another question. Chairman (Mr de Silva) We are not going to try children. That we are not going to do. Children from the age of seven and eight had guns put in their hands, and were forced into a form of slavery, really, to fight on behalf of one side or the other because the parents were threatened with death or somebody was mutilated in their presence. They were put into the frontline to fight alongside adults. This will be the first time in the history of international criminal law that there is going to be a serious attempt - and there is going to be this attempt by us on behalf of the Office of the Prosecutor - to try to ensure that the use of children in warfare is and must be a war crime. Because there is increasing use of children, as we know, not just in this part of the world but in the Far East and so on and so forth, and it is about time that the message went out, that those who conscript children in this way will be answerable to the international community and it must be made a war crime. This court, apart from all the other things it is going to do, I hope will broaden the frontiers of international criminal law and leave a precedent behind. This may be one of the most significant areas in which we can leave that precedent; namely, that the message goes out to the international community and warlords of every kind that people who embark upon the recruitment of children will be called to account, and if they are convicted they will be locked up, never to see the light of day again. Hugh Bayley (Mr de Silva) If you will forgive me, I will not comment on the issue of Libya for a variety of reasons - or, indeed, any other specific country. We are at risk. I know, for example, that the person in charge of our security told my private secretary that I was target number one for a whole variety of reasons. I have an armed guard at my gate and I have, living in my house, a CPO, as we call them, a close protection officer, from the UK. I cannot walk anywhere unless I am accompanied by such an armed figure. So it is a threat. It does not make it easy to discharge one's functions, it makes it a great deal more difficult. Because you cannot go out, to an extent you are a prisoner yourself. We know from intelligence reports that there is a determined effort on the part of some people to bring the affairs of the Special Court to an end. Without going into these intelligence reports, it is perfectly obvious that some of the powerful figures who had a hand in this bloody warfare take the view that a few rocket-propelled grenades at the right place might disturb the activities of the court to such an extent that we will just fold our tents and go away. But we will not. We are determined to stay and we will discharge our mandate. Of that I am quite convinced. We simply will not go away. Mr Battle (Mr de Silva) Yes. (Mr de Silva) That is absolutely right. (Mr de Silva) The Truth and Reconciliation Commission exists for a very particular reason; namely, that if people want to go and confess and get things off their chest, which I am told is a good thing and a therapeutic exercise, they can go and do so. We will not use any of those statements. We do not have access to those statements and we do not plan to use anything that is said because we do not know what is said to the Truth and Reconciliation Commission. That is for people to get things off their chest. If having got it off their chest they want to come to talk to us about what they have done, that is different. But we will not use that material. The Truth and Reconciliation Commission I am sure is doing and will do a very good job. It is chronically underfunded and is having great problems of its own. It is an interesting juxtaposition of organisations. A lot of people in the villages, for example, took the view that we would simply plunder what has been said to the Truth and Reconciliation Commission to obtain our evidence. We are not going to do so and that is what David Crane has been saying as he goes about the country explaining that they are two very distinct bodies. (Mr de Silva) I think I have made it quite clear I believe we will, because we have an efficiency and an impetus in our affairs that seems not necessarily to exist elsewhere. We work 12, sometimes 14 hours a day, simply because our budget is so tight and we do not have the people. I would like to see, very much like to see, some experienced - just two or three more - senior counsel coming out to act on behalf of the prosecution. We will do our job. I would like to do it without having to work 12 hours a day or thereabouts because you can burn out very easily, and you have a turnover in personnel which should not take place, because I think people should see things through. So far as those matters are concerned, I am totally convinced we will come in within budget in rough terms and we will come in on time, and we will do what has not been done yet in other courts, largely because of the commitment, the efficiency and the leadership that exists in this court. (Mr de Silva) UNAMSIL forces. Of course, this is the biggest concentration of UN troops in the world, for whose presence we are very grateful. Obviously I have a line into them. There is a British brigadier called Brigadier Ellery who is the Chief of Staff. We do communicate with one another on a regular basis. There is an IMATT brigadier. We liaise constantly and they are there. It is a great comfort to us to know they are there, and they have always given us every assurance that if ever we need help they will be there to give us that military help. Of that I am totally confident. I am grateful there are such eminent British officers out in Sierra Leone Mr Khabra (Mr de Silva) Yes. (Mr de Silva) Yes. The legacy we will leave behind is the legacy of the rule of law, a legacy, not just for that country but for the region, that warlords cannot go around perpetrating barbarities of this kind and expect never to be called to account. The legacy within Sierra Leone of new courts. We have on my staff, for example, young and able Sierra Leoneans whom we are training. I hope it is going to be an all-round legacy that is left behind, but, above all, to impress upon the Sierra Leoneans that never again should they depart from the rule of law and that when the rule of law is departed from then a country starts going down the pan. (Mr de Silva) Yes. (Mr de Silva) I think it is going to be successful in its aims because I have every intention that it should be successful and so has David Crane. We will not shrink from bringing people to court. However high or mighty, we will simply bring them to court, even if they be heads of state who have had a hand in the bloody conflict. We will indict them. We will seek to bring them to court so that they will be answerable for their crimes. We will not shrink from conduct of that kind. If you ask me: Do we have any particular heads of state in our sights? that is a question I would not be able to answer for obvious reasons of operational security. (Mr de Silva) Yes. We have the power to indict heads of state. Chairman (Mr de Silva) Gentlemen, thank you very much. |