1. Introduction
Some of the most shocking atrocities of the twentieth century were committed in Rwanda and Sierra Leone during the 1990s. In Rwanda, approximately 800,000 people were slaughtered between April and July 1994 in what is considered to have been the fastest genocide in history.Footnote 1 In Sierra Leone, during the country's civil war of 1991–2002, rebels and pro-government forces murdered and mutilated civilians, brutally raped women, and forced children to fight.Footnote 2 In response to these atrocious crimes, the international community created the International Criminal Tribunal for Rwanda (ICTR) in November 1994,Footnote 3 and the Special Court for Sierra Leone (SCSL) in January 2002.Footnote 4 These international courts were set up to deliver accountability, and thereby combat impunity and promote peace and reconciliation.Footnote 5 Because of their limited resources, however, they have tried only a small fraction of the many perpetrators associated with the atrocities. The ICTR has prosecuted around 70 individuals while the SCSL has tried only ten. Given such limitations, can these courts achieve their ambitious goals?
This question is relevant not only to the ICTR and SCSL, but to other international criminal tribunals (ICTs) which, in a world of limited resources, can target only a handful of perpetrators. Thus, even when atrocities are addressed by ICTs, the question of accountability rests largely with national jurisdictions. If most perpetrators evade justice, the ability of the ICTs to promote accountability for the atrocities (and thereby achieve its other goals) may be seriously undermined, even if the tribunals target the highest-level perpetrators. To mitigate this risk, national justice systems should deal with the perpetrators who are not addressed by the ICTs.
However, post-conflict states face serious political and practical challenges which often prevent them from addressing wartime atrocities. Indeed, the involvement of an ICT in a particular country is usually triggered by the inactivity of the national courts. In this light, once an ICT opens an investigation, there is a growing international consensus that national proceedings that are fair and genuine should be encouraged in parallel. This would ensure that the ICT's efforts to establish accountability are not undermined by an impunity enjoyed by most perpetrators. While national judicial proceedings can be encouraged through international measures such as judicial training and development aid, it seems that ICTs are particularly well placed to contribute to this end. For example, they can help to catalyse national proceedings by sharing their evidence and expertise with state authorities. They can also, through demonstrating their effects and by referring cases to national jurisdictions, create incentives for states to initiate or improve their domestic atrocity trials. This, at least, is the theory.
The aim of this article is to show where and when this theory holds true. It will do so by assessing empirically the impact of the ICTR and the SCSL on the justice systems of their target countries.Footnote 6 The article will also compare the national judicial effects of the ‘purely international’ ICTR with those of the ‘hybrid’ SCSL. Hybrid courts include international and national judges, have jurisdiction over national and international crimes, and are usually based in the country where the crimes were committed.Footnote 7 A number of observers have asserted that hybrid courts have a greater national impact than purely international courts, which are geographically removed from the crimes, staffed only by foreign judges, and exclusively apply international norms. However, my research underscores that the SCSL has actually generated significantly less national impact than has the ICTR.Footnote 8 This suggests that although an ICT's hybrid structure may enhance its national impact, other factors can hinder this impact. As shown below, the different approaches of Rwanda and Sierra Leone towards national accountability help to explain the variation in the respective national judicial influences of the ICTR and SCSL. Moreover, the policies and practices of key members of an ICT can affect its national impact.
The analysis in this article also aims to shed light on the interactions between international and national justice systems, and on the features of ICTs that may enhance their ability to encourage domestic legal reform. Finding ways to increase such national legal effects of ICTs is particularly important given the shift to ‘positive complementarity’ at the International Criminal Court (ICC).Footnote 9
Sections 2 and 3 of this article will address, respectively, the ICTR and the SCSL. Following a brief background section, each section will assess the impact of the relevant ICT on atrocity-related proceedings in its target country through identifying its influences on: (1) national legal norms; (2) rates of, and trends in, national atrocity-related prosecutions; (3) national sentencing practices; and (4) national judicial capacity. These four areas of focus were chosen as indicators of whether the ICTR and SCSL have encouraged national accountability processes in their target countries. The article will conclude with comparative observations in Section 4.
In terms of methodology, the research is empirically grounded and qualitative in nature. It is based primarily on interviews and is supplemented by documentary analysis. The assessment of the national judicial impact of the ICTR and SCSL poses methodological obstacles because the interactions between ICTs and national judiciaries are not always documented, and domestic judicial decisions are often unpublished. To overcome these methodological difficulties, I interviewed over 50 professionals affiliated with the ICTR, the SCSL and the national justice systems of Rwanda and Sierra Leone.Footnote 10 The interviewees were asked open-ended questions which allowed them to describe in detail the interactions between the international and national judicial responses to the atrocities, and the national effects of these interactions.
Additional sources of information include documents of the UN and non-governmental organisations (NGOs), international and national jurisprudence, academic articles and media reports. I also relied on my own professional experience between the years 2003 and 2010, working in legal positions with both the ICTR and the SCSL. The first-hand knowledge of the operation of these courts, and the ways in which they interact with national jurisdictions, guided my choice of interviewees and questions, and helped me to contextualise the answers.
2. The ICTR and Rwanda
2.1 Background: The Atrocities and their Judicial Responses
The Rwandan genocide targeted civilians belonging to the Tutsi ethnic group, which had been persecuted in Rwanda since the country's independence. The victims were often tortured and raped before they were killed, many hacked to death with machetes. The perpetrators included soldiers, militia members and civilians, mostly of Hutu ethnicity. Serious crimes were also committed by Tutsis against Hutu civilians.Footnote 11 The genocide was perpetrated at the tail end of a four-year civil war between government forces and the Tutsi-dominated rebel group, the Rwandan Patriotic Front (RPF). The RPF won the war and put an end to the genocide. On 18 July 1994, it established a new Government of National Unity. The government immediately began to arrest suspected genocide perpetrators, but most of the high-ranking ones had by then fled from Rwanda.
In November 1994, the UN Security Council established the ICTR to prosecute the major perpetrators of the atrocities committed in 1994 in Rwanda (and by Rwandans in neighbouring countries). The ICTR began its first proceedings in 1996. It indicted a total of 92 persons, and has prosecuted 72.Footnote 12 In 2003 and 2004, through its resolutions 1503 and 1534, the UN Security Council requested the ICTR to adopt a ‘completion strategy’ ensuring that it would complete its work by 2010.Footnote 13 This deadline has since been extended to 31 December 2014.Footnote 14 The completion strategy resolutions also request the ICTR to submit a progress report to the Security Council every six months. Until the adoption of the resolutions, explained a senior ICTR official, the tribunal operated with no real strategy or time limit in mind.Footnote 15
To help meet its closure deadline, the completion strategy resolutions urged the ICTR to transfer cases involving mid- and low-level accused to ‘competent national jurisdictions, as appropriate, including Rwanda’.Footnote 16 Accordingly, in 2004, the ICTR amended rule 11 bis of its Rules of Procedure and Evidence to allow the referral of cases from the ICTR to national jurisdictions, to include states ‘in whose territory the crime was committed’.Footnote 17 The amended ICTR rule 11 bis providesFootnote 18 that
[i]n determining whether to refer the case … the Trial Chamber shall satisfy itself that the accused will receive a fair trial in the courts of the State concerned and that the death penalty will not be imposed or carried out.
The rule also allows the ICTR to monitor or recall cases after having transferred them to national courts.Footnote 19 Under this rule the ICTR Prosecutor has, since 2006, made several requests to refer cases to European national jurisdictions (two of which were granted). In September 2007, the Prosecutor began to request the tribunal judges to refer cases to Rwanda.Footnote 20
In Rwanda, national courts started to prosecute genocide suspects in late 1996 under a newly enacted law criminalising genocide and crimes against humanity.Footnote 21 By 1998, mass arrests in Rwanda led to the detention of over 120,000 suspected genocide perpetrators. As investigations progressed, the list of suspects compiled by the Rwandan authorities exceeded one million individuals. To cope with the case load, in 2001 the government created a system of ‘gacaca courts’ designed to handle mass trials.Footnote 22 The gacaca courts are based on a traditional community justice mechanism. They were presented by the government as a means to deliver accountability and contribute to national reconciliation by bringing together community members to discuss the atrocities. By mid-2006, gacaca courts had taken over the vast majority of the country's genocide-related cases, leaving to the national courts only the cases which involved the gravest crimes and the most senior suspects.Footnote 23
Gacaca courts concluded their work in June 2012, after prosecuting approximately 400,000 mainly low- and mid-level suspects.Footnote 24 Rwandan national courts have handled slightly over 10,000 genocide cases and are now set to adjudicate some genocide cases transferred from the ICTR and third states.Footnote 25 Both the gacaca and national courts in Rwanda have been internationally criticised for failing to meet minimum fair trial standards and for meting out ‘victor's justice’ against Hutus while allowing Tutsis to enjoy impunity.Footnote 26
The discussion that follows focuses on the effects of the ICTR on the norms and practices of Rwanda's national courts. This does not negate the possibility that the ICTR also influenced gacaca proceedings. However, the ICTR interacts in a more direct and influential way with the Rwandan national courts which, like the tribunal, address high-profile cases (while gacaca courts dealt with less serious cases).
2.2 Impact of the ICTR on Rwandan Legal Norms
2.2.1 Due Process Norms in Rwanda's Transfer Law
Consistent with its national policy of maximum accountability for genocide-related crimes, the Rwandan government has long been interested in receiving cases from the ICTR.Footnote 27 To satisfy the ICTR's referral requirement, in 2007 Rwanda adopted a law to regulate cases received from the ICTR or third states (Transfer Law).Footnote 28 The Transfer Law implemented nationally many of the ICTR's due process standards, requiring their application in cases transferred to Rwanda from the ICTR or third states.Footnote 29 Notwithstanding this development, the first five requests by the ICTR Prosecutor to refer cases to Rwanda were denied by the tribunal's judges in 2008.Footnote 30 However, following additional legal reforms in Rwanda (discussed below) the tribunal started to grant such requests in 2011, a development which also paved the way for genocide suspects to be transferred to Rwanda from third states.Footnote 31 Rwanda is expected to commence trials shortly in some of these cases and apply the Transfer Law in their proceedings. That the ICTR, through its referral procedure, has encouraged Rwanda to improve its due process norms is already a significant development. The promised application of these norms in actual cases could even further increase the ICTR's impact on Rwandan judicial procedures. This is especially likely given that the ICTR will monitor the national proceedings, with the possibility of remanding cases that do not meet international standards.Footnote 32
2.2.2 Other Legal Norms
Interestingly, interviewees noted that ICTR staff members were among the international law experts consulted by Rwanda in connection with its national legal reforms of 2003–04.Footnote 33 In these reforms, Rwanda adopted certain norms such as the principle of command responsibilityFootnote 34 and certain rights of the accused.Footnote 35 While these post-genocide legal developments in Rwanda could, at first glance, seem attributable to the ICTR, interviews did not support such a conclusion. However, consulting tribunal members in connection with national reforms may suggest that Rwanda considered ICTR norms to be a source of inspiration for national laws. In addition, Rwanda's increased awareness of international norms may, in part, be attributable to the work of the ICTR.Footnote 36
Turning to the development of judicial norms, interviewees suggested that the ICTR's norms and jurisprudence had little (if any) impact on Rwandan case law.Footnote 37 However, such impact must be reassessed once Rwandan courts become fully engaged with cases transferred from abroad.Footnote 38
2.3 Impact of the ICTR on Rwandan Prosecution Rates and Trends
2.3.1 Genocide Prosecutions
Rwanda's ambitious attempt to prosecute all genocide perpetrators seems to have emanated from national initiatives rather than external pressure. This was confirmed by Rwandan officials and lawyers, who stressed that the ICTR did not play a role in encouraging national prosecutions of genocide perpetrators.Footnote 39 Nonetheless, the ICTR has influenced certain trends in these proceedings. For example, in 2005, when the ICTR Prosecutor transferred investigation files to Rwanda, he encouraged Rwanda to take domestic accountability to a new level by initiating proceedings against high- or mid-level genocide suspects.Footnote 40 Many of the files concerned suspects who were based outside Rwanda, explained a senior ICTR official, which helped to lead Rwanda to seek the extradition of genocide suspects from third states.Footnote 41
2.3.2 War Crimes Trials
In connection with war crimes prosecutions, the ICTR appears to have had a more discernible impact on Rwanda than in the area of genocide trials. In 2008, the ICTR Prosecutor deferred to Rwanda a case concerning four RPF officers suspected of committing war crimes by executing 13 Catholic priests and two civilians in Kabgayi, Rwanda. The ICTR Prosecutor suggested that he would not indict them if Rwanda genuinely tried them nationally. The four were eventually prosecuted before a military court in Kigali in June 2008 on charges of war crimes. The trial, referred to as the ‘Kabgayi trial’, was the first war crimes prosecution in Rwanda. Previously, some war-related crimes committed by RPF members were prosecuted as ordinary crimes.Footnote 42 Although Rwanda claimed that it had been investigating the Kabgayi killings, several interviewees noted that Rwanda would not have held the Kabgayi trial had it not been for the involvement of the ICTR.Footnote 43
The Kabgayi trial was held in public.Footnote 44 The defendants included Brigadier General Gumisiriza and three junior officers. Gumisiriza and one of the junior officers were acquitted, while the two remaining officers, who admitted to having shot the victims, were convicted and sentenced to five years' imprisonment. Representatives of the ICTR Prosecutor who monitored the Kabgayi trial reported that it complied with fair trial standards.Footnote 45 However, Human Rights Watch complained about the short proceedings and light sentences, and called the trial ‘a political whitewash’.Footnote 46 Concerns over the quality and genuine nature of the process were also voiced by others.Footnote 47 The Rwandan Justice Minister responded that a ‘five year sentence is not a small punishment for a person who admitted to hav[ing] committed the crime’.Footnote 48
Human Rights Watch also criticised the Rwandan government for prosecuting the four officers only because the ICTR had prepared a case against them, and complained that neither Rwanda nor the ICTR anticipate further prosecutions of RPF members.Footnote 49 Nonetheless, a national war crimes trial against RPF officers (including a high-ranking commander) is a significant event in Rwanda and merits evaluation on its own terms, even if it was exceptional and conducted only to prevent ICTR trials of RPF officers. Besides, the threat of international trials is a legitimate means by which ICTs can encourage national trials.Footnote 50 Thus, for example, the principle of complementarity, enshrined in the Rome Statute of the ICC (ICC Statute), may encourage states to prosecute atrocities in order to avoid proceedings before the ICC.Footnote 51
2.4 Impact of the ICTR on Rwandan Sentencing Practices
2.4.1 Abolition of the Death Penalty
When Rwanda first criminalised genocide-related crimes in 1996, its law imposed a mandatory death penalty in certain genocide cases.Footnote 52 The first death penalties imposed under this law were enforced in 1998, when 22 individuals convicted of genocide were publicly executed (by firing squad).Footnote 53 By mid-2007 Rwandan national courts had imposed the death penalty in over 1,300 genocide cases.Footnote 54 It is recalled that Rwanda was interested in receiving cases from the ICTR. It therefore had to satisfy the ICTR that the transferred accused would not receive the death penalty in Rwanda.Footnote 55 Indeed, in March 2007, through its Transfer Law, Rwanda excluded the death penalty from cases received from the ICTR. Four months later, in July 2007 Rwanda took a further step in this direction and abolished the death penalty altogether from its criminal system.Footnote 56 In September 2007 the ICTR judges were requested by the tribunal Prosecutor for the first time to refer cases to Rwanda.Footnote 57
Most interviewees felt that Rwanda abolished the death penalty to satisfy the ICTR's referral conditions, even though these conditions merely demanded that the penalty be excluded from transferred cases and not from all cases.Footnote 58 Interviewees who explicitly endorsed this view included non-Rwandan members of the ICTR, foreign legal experts based in Rwanda, Rwandan university lecturers and a prominent Rwandan lawyer.Footnote 59 But Rwandan officials also alluded to a connection between the ICTR and the abolition, even without explicitly stating this. For example, when asked about the abolition, a senior Rwandan official explained that such national reforms were prompted by local considerations, but these included Rwanda's wish to receive cases from third states.Footnote 60 Courts in third states have relied on the ICTR's referral decisions in deciding whether to transfer genocide suspects to Rwanda.Footnote 61 Thus, satisfying the ICTR's referral requirements may have been a way for Rwanda to receive cases from third states. Another senior Rwandan official, while firmly denying that the abolition was encouraged by the ICTR, admitted that excluding the death penalty from the Transfer Law had intensified internal discussions in Rwanda about abolishing the penalty altogether.Footnote 62
Other Rwandan interviewees attributed the abolition to internal public pressure.Footnote 63 One of them explained that the public execution of 22 genocide perpetrators in 1998 was perceived negatively by the population, and gave rise to local demands to abolish the death penalty.Footnote 64 Nonetheless, the death penalty was not formally abolished in Rwanda until nine years later, by which time over 1,300 additional individuals were sentenced to death.Footnote 65 Rwanda's current Justice Minister, who sponsored the abolition bill, recalled the great challenges he had to overcome to obtain the support of other ministers, but insisted that their eventual support of the bill in 2007 was not motivated by a desire to receive cases from the ICTR or third states.Footnote 66 However, a Rwandan news report published shortly after the abolition of the death penalty confirmed that the abolition ‘was largely motivated by the government's desire to have genocide suspects extradited and be tried here’.Footnote 67 According to the report, Rwandan judge (and current Chief Justice) Samuel Rugege said that the international community's push for abolishing the death sentence was not the main reason, though he admitted it was one of the factors that encouraged the abolition.Footnote 68
A non-Rwandan defence counsel with the ICTR, in support of his position that the abolition was prompted by the ICTR's referral conditions, recalled that Rwanda's post-genocide government supported the death penalty so strongly that it voted against establishing the ICTR because the tribunal would exclude this penalty.Footnote 69 Against this background the abolition of the death penalty in Rwanda could be seen as a surprising development, although in the years following the creation of the tribunal Rwandan legislators and judges seem to have become increasingly less eager to impose the death penalty in genocide cases. While the 1996 Genocide Law required a mandatory death penalty in some cases,Footnote 70 this requirement was dropped in 2001.Footnote 71 In parallel, Rwandan courts became less inclined to impose this penalty over time: statistics published by Amnesty International indicate that the percentage of cases that received the death penalty out of all genocide cases in Rwanda decreased on an annual basis from 30.8 per cent in 1997 to just 3.4 per cent in 2002.Footnote 72 However, this reduction must be evaluated in the context of a more general movement towards lenient sentences in Rwandan genocide cases.Footnote 73 Scholar Mark Drumbl attributes these trends, at least in part, to the facts that (i) the perpetrators prosecuted in the earlier trials were more notorious than those prosecuted later, and (ii) recourse to guilty pleas became more popular with time.Footnote 74 Thus it seems reasonable to conclude that while national dynamics may partly explain the death penalty abolition, the ICTR's referral requirements tipped the scales in favour of abolition. A recent study by a Rwandan academic also supports this conclusion.Footnote 75
2.4.2 Exclusion of Life Imprisonment in Isolation
When the death penalty was abolished in Rwanda in September 2007, life imprisonment with ‘special provisions’ replaced it as the maximum punishment. However, the ICTR found that in Rwanda this penalty could mean life imprisonment in isolation, which amounts to cruel and inhuman treatment and thus violates international norms. It was partly on this basis that, in 2008, the tribunal refused to refer cases to Rwanda;Footnote 76 within weeks, Rwanda excluded this penalty from cases transferred from the ICTR or third states.Footnote 77 In 2010 Rwanda adopted a law providing that life imprisonment with special provisions must be interpreted in light of the national constitutional prohibition of torture.Footnote 78 As a result of this development, the ICTR referred the first case to Rwanda.Footnote 79 Interviews confirmed that discussions in Rwanda on precluding life imprisonment in isolation had been prompted by the ICTR's referral decisions.Footnote 80
2.5 Impact of the ICTR on Rwanda's Judicial Capacity
The ICTR influenced the capacity of judicial professionals and institutions in Rwanda both through direct engagements such as training (and possibly employing Rwandans), and through incentives such as the possibility of holding trial proceedings in Rwanda, referring cases to Rwanda and enforcing sentences in Rwanda.Footnote 81 These incentives, in turn, prompted reforms in Rwanda. As is shown below, the case referral incentive was by far the most significant in this regard (as it was in relation to the other types of impact discussed in this article). Eventually, enhanced levels of collaboration allowed the ICTR to engage in capacity-building activities in Rwanda, even when they were unrelated to case referrals. These positive interactions stand in sharp contrast with the lack of cooperation between Rwanda and the ICTR in the tribunal's first ten years of operation,Footnote 82 which suggests that the ICTR's referral procedure significantly increased the tribunal's ability to impact on Rwanda. The following sections address in detail the various influences of the ICTR on Rwandan judicial capacity.
2.5.1 Training Activities
According to Rwandan and ICTR officials, since 2006 the tribunal's prosecution section has been training Rwandan prosecutors and investigators in areas such as investigation technique, crime analysis, evidence management, international criminal law, trial advocacy and indictment drafting.Footnote 83 This training has been funded mainly by the European Union (EU).Footnote 84 Some, but not all, of the initiatives were intended to facilitate the transfer of cases to Rwanda.Footnote 85 Two members of the ICTR prosecution described a training session involving indictment drafting as being especially successful.Footnote 86 A senior Rwandan official confirmed that this particular training has improved the capacity of many local prosecutors in Rwanda. He generally considered the ICTR training activities in Rwanda to be useful.Footnote 87 ICTR members explained that the ICTR registry and chambers also engage in capacity-building in Rwanda, in particular by training Rwandan judges and defence lawyers, lecturing to Rwandan law students and assisting in setting up libraries.Footnote 88
After the refusal of the ICTR to refer cases to Rwanda in 2008, the tribunal's prosecution and registry continued to collaborate with the Rwandan authorities in addressing the weaknesses identified by the ICTR judges: it was found, for example, that defendants might not receive a fair trial in Rwanda because potential witnesses may be reluctant to testify for the defence out of fear of harassment.Footnote 89 In response, the tribunal began to train Rwandan witness protection officers in an effort to increase their effectiveness in addressing security concerns of potential defence witnesses.Footnote 90 A stronger national witness protection programme, it must be stressed, could improve Rwanda's judicial capacity to handle not only atrocity cases but also any other type of criminal case.
2.5.2 Employment of Rwandans by the ICTR
Arguably, the ICTR has been contributing to Rwanda's judicial capacity by employing Rwandans. This assumes that those Rwandans eventually return to their home country with the knowledge they acquired by working at the tribunal. Indeed, two Rwandans who work in relatively senior positions at the ICTR indicated that they plan to return to Rwanda once the tribunal winds up.Footnote 91 Interviewees stressed that Rwandans are involved in the tribunal as staff members, interns and legal researchers.Footnote 92 An ICTR prosecutor stated that in his section Rwandans serve as trial attorneys and associate investigators.Footnote 93 According to an ICTR judge, in its early years, the tribunal employed Rwandans only as translators. However, at a later stage, the ICTR adopted a policy of including Rwandans in other sections, such as the Witness and Victims Support Section, the Protocol Unit, the Outreach Programme and the prosecution. In addition, every ICTR defence team has Rwandan investigators. The judge stressed that in 1996–97 it would have been impossible to let a Tutsi attorney cross-examine a Hutu witness (or vice versa), but this has changed over time and today the ICTR prosecution employs several Rwandan lawyers.Footnote 94 Tribunal officials also mentioned that an ‘attachment programme’ is being planned, under which Rwandan professionals will be seconded to the ICTR for three-month terms.Footnote 95
Despite all this, two senior Rwandan officials criticised the ICTR for not employing Rwandan prosecutors and investigators before 2003, and for not including Rwandan judges until today.Footnote 96 A senior ICTR official considered that the tribunal could not involve Rwandan judges because they may not be (or perceived to be) objective.Footnote 97 According to an ICTR judge, the bitterness and lack of trust across the ethnic divide in Rwanda in 1994 made it impossible for the tribunal to engage Rwandan judges in its early years. Even later, he added, such tension made it problematic for the ICTR to employ Rwandan judges.Footnote 98
2.5.3 Infrastructural Development
The ICTR Statute allows the tribunal to transfer its convicts to Rwanda to serve their sentences.Footnote 99 In view of this possibility, explained a senior Rwandan official, prison facilities in Rwanda were improved (with financial support from the Netherlands).Footnote 100 An ICTR official confirmed that Rwanda has been able to build a prison that conforms with international standards. In this light, the ICTR Registrar signed an agreement on the enforcement of sentences with Rwanda. However, at the time of writing, no ICTR prisoner has yet been transferred to Rwanda.Footnote 101 Another ICTR official noted that, in addition to improving prison facilities to meet the tribunal's standards, Rwanda also built a chamber that could host ICTR proceedings in its Supreme Court. This was done in the hope that ICTR judges would hold trial sessions in Rwanda, a possibility provided for by the ICTR Rules but which never materialised.Footnote 102
3. The SCSL and Sierra Leone
3.1 Background: The Atrocities and their Judicial Responses
From March 1991 to January 2002, Sierra Leone was engaged in a brutal civil war, in which government armed forces and the pro-government Civil Defence Forces (CDF) fought against two rebel groups – the Revolutionary United Front (RUF) and the Armed Forces Revolutionary Council (AFRC). The war killed between 50,000 and 75,000 people, and displaced almost half of the country's population. All factions involved committed atrocities against civilians, including murder, torture, rape and other sexual crimes, abductions, recruitment of child soldiers, burning of villages and amputation of limbs.Footnote 103 On 7 July 1999 Sierra Leone's President and the leader of the RUF signed a power-sharing peace agreement in Lomé, Togo.Footnote 104 This agreement provided a blanket amnesty protecting all combatants from prosecution by national courts for all crimes pre-dating the agreement (the Lomé Amnesty).Footnote 105
But the AFRC and RUF forces neither disarmed nor did they release abducted civilians and, despite the peace agreement, resumed attacks on the CDF and on the civilian population.Footnote 106 In light of the resumption of hostilities and the abduction of 500 UN peacekeepers by the RUF in May 2000, Sierra Leone's then President, Ahmad Tejan Kabbah, requested UN assistance in setting up a special court to prosecute in respect of RUF atrocities.Footnote 107 Consequently, the SCSL was established on 16 January 2002 by an agreement between the UN and the Sierra Leonean government.Footnote 108 Two days later, peace was officially declared in Sierra Leone. On 14 May 2002 President Kabbah was re-elected for another five-year term. The political wing of the RUF, known as the Revolutionary United Front Party (RUFP), did not win a single seat in parliament.
The SCSL became operational in August 2002 and had issued 13 indictments by September 2003. The suspects included RUF and AFRC leaders and their alleged patron, the then President of Liberia, Charles Taylor.Footnote 109 Senior members of the pro-government CDF were also indicted, including government minister, Sam Hinga Norman.Footnote 110 The SCSL eventually prosecuted ten individuals for the atrocities in Sierra Leone.Footnote 111 Apart from the case of Charles Taylor, the SCSL has concluded its trials and is expected to complete all judicial activities by September 2013.Footnote 112 As noted above, the SCSL is a hybrid international court, and therefore includes both national and international judges and staff members. In addition, it is authorised by its statute to prosecute certain Sierra Leonean national crimes, such as abusing young girls and burning buildings.Footnote 113 The statute also mandates the SCSL to follow national criminal procedures when it amends or adopts rules of procedure and evidence.Footnote 114 However, the court has refrained from resorting to national norms.
In sharp contrast to Rwanda's judicial response to the genocide, Sierra Leonean courts have hardly prosecuted any of the wartime atrocities. Two exceptions are the two multi-accused trials held in 2005 and 2006 before the High Court in Freetown in which a total of 88 rebels were tried for war-related crimes committed in 2000 (and thus not covered by the Lomé Amnesty). Since Sierra Leonean law does not cover international crimes, the accused were charged with national crimes. In any case, the accused were low-level fighters and the crimes were committed in connection with isolated incidents of hostilities.Footnote 115 The most serious atrocities in Sierra Leone were committed before the peace agreement was signed in July 1999, but their prosecution was prevented by a Lomé Amnesty.Footnote 116 In lieu of prosecutions, the peace agreement called for the creation of the Truth and Reconciliation Commission (TRC).Footnote 117 While truth commissions can establish some degree of accountability by providing a historical account of the atrocities and associating them with certain groups and individuals, it remains questionable whether the TRC managed to promote accountability in Sierra Leone.Footnote 118 Thus, while the SCSL tried a handful of ‘big fish’ and the national courts prosecuted very few ‘small fry’, all the mid-level perpetrators enjoy freedom sanctioned by the national amnesty.Footnote 119
3.2 Impact of the SCSL on Sierra Leone's Legal Norms
A SCSL judge considered that the court, by not applying national norms, missed an important opportunity to interpret and develop national law and to promote a public debate on whether Sierra Leonean courts may prosecute certain atrocities.Footnote 120 Still, in theory, the SCSL could have affected the norms applied in the two national atrocity-related trials mentioned above, especially since both trials were held after the SCSL had started its proceedings. Thus, in an attempt to identify some normative effects of the SCSL in Sierra Leone these two national trials will be examined in the following paragraphs.Footnote 121
The first trial concerned the shooting of demonstrators on 8 May 2000, when at least 20 people were killed. The 57 defendants were members of the RUFP. They were charged with 81 counts of murder, conspiracy to commit murder and shooting with intent to murder.Footnote 122 The judgment was given in April 2006.Footnote 123 Of the 57 defendants, only ten were convicted,Footnote 124 but before their appeal was heard, they were released as a political gesture by the President of Sierra Leone. The exact reasons for their release are unknown. A defence lawyer who was involved in the case indicated that ‘the former ruling government wanted to use them to disrupt the 2007 general elections’.Footnote 125 Another lawyer who assisted the defence case suggested that there was no political will to continue the trial.Footnote 126 She added that the trial was rife with violations of due process.Footnote 127
The second trial concerned the abduction by rebels of 11 British soldiers near Freetown on 8 August 2000. The 31 defendants were members of the West Side Boys, a rebel group which had split from the AFRC. They were charged with 31 counts of conspiracy to commit murder, robbery with violence, wounding with intent, and wounding. In April 2006, the High Court convicted seven of the 31 defendants;Footnote 128 all seven appealed within the prescribed time limit. After waiting for about five years in detention for their appeal to be heard, they were finally released without a trial in 2009.Footnote 129 Due process violations were common throughout the proceedings.Footnote 130
According to a Sierra Leonean lawyer, some of the defence attorneys in these national cases were also involved with the SCSL, although no references to SCSL norms were made during the national proceedings. The lawyer explained that referring to SCSL norms in national trials would have been futile, as the bench would not have applied the provisions.Footnote 131 This, combined with the above analysis of the national trials, suggests that the SCSL has had no normative impact on national criminal proceedings. This is unfortunate, as perhaps some of the due process violations would have been avoided had the SCSL's procedural norms been more visible in the national proceedings.
The Sierra Leonean lawyer added that national proceedings in Sierra Leone not only lack references to SCSL norms but they also lack references to SCSL jurisprudence more generally. He suggested that the development of criminal law in Sierra Leone is discouraged, and national courts do not normally rely on new jurisprudence, especially when it relates to human rights issues. He added that national judges and lawyers lack knowledge of SCSL jurisprudence.Footnote 132 As for certain doctrines followed by the SCSL, such as command responsibility and joint criminal enterprise, this lawyer noted that there was no need to apply them in the above national cases as these cases concerned the direct conduct of the accused.Footnote 133
Indeed, according to two senior members of the SCSL who are familiar with the Sierra Leonean justice system, the court has been unable to encourage the national system to improve its procedural or substantive criminal norms.Footnote 134 However, the SCSL may still have an effect on legal reforms in Sierra Leone: at least two of its prosecutors (including a Sierra Leonean national) have been lobbying the government to incorporate the ICC Statute into national law.Footnote 135 Currently, Sierra Leone's national law does not cover international crimes. Thus, if the advocacy efforts of these two prosecutors prove to be successful, and international criminal law norms are consequently internalised into Sierra Leonean law, such a reform could be regarded as an impact of the SCSL.Footnote 136 But even if Sierra Leone were to implement the ICC Statute domestically, the implementing legislation would not apply retroactively to atrocities committed during the country's civil war of 1991–2002.Footnote 137 Still, the introduction of such a national law would have an important general effect on the national justice system, and signal that Sierra Leone no longer tolerates impunity following atrocities.Footnote 138
3.3 Impact of the SCSL on Sierra Leone's Prosecution Rates and Trends
The potential of the SCSL to encourage the initiation of national proceedings in Sierra Leone was a priori limited, since such proceedings were prevented by the Lomé Amnesty (at least with regard to pre-Lomé crimes). Moreover, the creators of the SCSL did not consider it their task to encourage national trials in Sierra Leone and, accordingly, did not mandate the court to achieve this aim. This is despite a reference by the UN Security Council in its resolution in respect of the SCSL to ‘the pressing need for international cooperation to assist in strengthening the judicial system of Sierra Leone’.Footnote 139 Indeed, as is shown below, the SCSL did not try to encourage national atrocity-related proceedings in Sierra Leone even when it had the opportunities to do so. The court did not even encourage discussions about the possibility of initiating national proceedings.Footnote 140
In one of its earliest decisions, the SCSL Appeals Chamber ruled that the Lomé Amnesty was inapplicable to cases before ICTs or national courts of third states applying universal jurisdiction.Footnote 141 The decision did not discuss the amnesty's applicability in cases before the national courts of Sierra Leone. This was probably because this issue was not raised before the judges or considered relevant to the matter at hand – namely whether the Lomé Amnesty prevented proceedings before the SCSL. However, discussing the amnesty's applicability in universal jurisdiction cases held in third states was also not absolutely necessary for determining the matter at hand, yet the judges chose to discuss this issue. Had the judges considered it within their interest or authority to encourage national atrocity-related trials in Sierra Leone, they might have addressed the amnesty's applicability in cases before Sierra Leonean national courts.
The SCSL also fell short of encouraging national prosecutions in Sierra Leone for post-Lomé atrocities (which are not covered by the amnesty). This was confirmed by a Sierra Leonean lawyer, who suggested that the abduction of 500 UN peacekeepers in 2000, a major post-Lomé atrocity, was not subject to prosecution in Sierra Leone because it was addressed by the SCSL.Footnote 142 However, the two court systems may legally address the same event as long as each deals with different defendants. Since the SCSL pursued only the top leaders of the crimes, the national courts could have prosecuted the mid- (and low-) level perpetrators involved in the abduction, but it chose not to do so.
A senior SCSL official considered that it is better not to have national trials if the local system is unable to offer fundamental guarantees. Even if the law does provide international standards of justice, national trials should be held only if these standards are applied in practice, which includes standards in relation to the protection of victims and witnesses. In Sierra Leone, added the court official, there are concerns regarding lack of fairness towards defendants and witnesses, and it may take some time before fair trials are achievable. However, the same official argued that the creators of ICTs should bear in mind that the international cases may eventually have to be handed over to national courts; they should therefore devise a plan in advance to ensure that the national courts are ready to receive these cases.Footnote 143
On 27 May 2008 the Rules of Procedure and Evidence of the SCSL were amended to allow it to transfer cases to national courts, but the SCSL prosecution has never requested (or indicated that it would request) the court's judges to refer cases to Sierra Leonean courts. Such a referral request, or an indication that it was being contemplated, could have encouraged national discussion about the need to abolish or restrict the Lomé Amnesty to enable Sierra Leonean courts to prosecute crimes addressed by the SCSL. However, in contrast to the parallel ICTR rule on case referrals,Footnote 144 the relevant SCSL rule does not allow the court to monitor or recall cases after having transferred them to national courts. This, combined with the absence of fair and efficient criminal proceedings in Sierra Leone, militated against such a request by the SCSL prosecution.
3.4 Impact of the SCSL on Sierra Leone's Sentencing Practices
The maximum sentence in Sierra Leone is the death penalty, which was last carried out in 1998 in connection with treason charges.Footnote 145 In 2004, capital punishments were imposed by a Sierra Leonean court in a treason case, but the sentences were revoked on appeal in 2008.Footnote 146 By contrast, the SCSL's maximum penalty is life imprisonment. It has so far passed sentences ranging from 15 to 52 years' imprisonment. The sentences meted out by the Sierra Leonean courts in the two above-mentioned national war-related trials were much lower: a possible reason for this difference is that the crimes addressed by the national courts were of lesser gravity than those addressed by the SCSL.
Interestingly, SCSL norms are used by human rights groups in their efforts to advocate the abolition of the death penalty in Sierra Leone. For example, following the imposition of death penalties in 2004, Amnesty International lobbied for their abolition in Sierra Leone by calling for ‘an end to the discrepancy [in sentencing practices] between national courts and the Special Court’.Footnote 147 However, aside from ‘allowing’ its sentencing norms to be used in this manner, the SCSL has not encouraged Sierra Leone to abolish the death penalty. A Sierra Leonean human rights activist explained that the SCSL has also refrained from encouraging national actors to advocate for abolition.Footnote 148
The revocation of the death penalties in 2008 by the Sierra Leonean Court of Appeals was reported to be ‘the first successful appeal against a death penalty… opening the possibility of an eventual end to capital punishment [in Sierra Leone]’.Footnote 149 However, despite this expression of hope (and the TRC's recommendation in 2004 that the death penalty be abolished),Footnote 150 capital punishment still exists in Sierra Leone. Amnesty International reported that attempts made in August 2008 by civil society groups to pressurise Sierra Leone into abolishing the death penalty were unsuccessful and that Sierra Leone abstained, in December 2008, on a UN General Assembly resolution calling for a worldwide moratorium on executions.Footnote 151
3.5 Impact of the SCSL on Sierra Leone's Judicial Capacity
As the SCSL's mandate comes to its end, it is increasingly engaging in judicial capacity-building activities in Sierra Leone.Footnote 152 Some of these activities are inspired by the aspirations of Sierra Leonean members of the SCSL to see their national system improve; others are motivated by the desire of the SCSL to leave behind a legacy, or to ensure that its ongoing residual obligations are fulfilled in the long term.Footnote 153 These SCSL activities are discussed in the following paragraphs.
3.5.1 National Witness Protection Scheme
The SCSL has recently become involved in helping Sierra Leone to plan and implement a national witness protection programme.Footnote 154 According to a court official, the government is receptive to its suggestions, and Sierra Leone's President and other senior officials agree that there is a need for such a scheme. Another SCSL official explained that the national demand for a witness protection scheme was as a result of the court's presence and processes in Sierra Leone. The Sierra Leonean public, content with the SCSL's witness protection measures, requested the SCSL to encourage the national authorities to set up a witness protection system.Footnote 155 According to yet another SCSL official, a witness protection scheme would allow the Sierra Leonean authorities to deal more effectively with criminal cases, as at present even basic contact with witnesses is lacking.Footnote 156 An official of the Sierra Leonean judiciary, who was generally critical of the SCSL, referred with satisfaction to the SCSL's intention to establish a national witness protection programme.Footnote 157
3.5.2 Training Activities
A top SCSL official noted that since late 2008 the court has embarked on about 20 different training programmes for the local population. These range from teaching the national Anti-Corruption Commission how to use ‘insider witnesses’ in their proceedings to holding a course on defensive driving given by the SCSL transport unit.Footnote 158 According to other SCSL members, to ensure the transfer of skills to the national level the court has established a Legacy Working Group involving national institutions. The SCSL has assessed the needs of national institutions such as the prison service and police, and is training their personnel in the relevant areas; it is also training court reporters of the Sierra Leonean judiciary and investigators with the national Human Rights Commission and Anti-Corruption Commission.Footnote 159 The SCSL also holds seminars on international humanitarian law at Sierra Leone's Foray Bay College and at the local Bar school.Footnote 160
Moreover, a SCSL staff member mentioned that the court is encouraging the establishment of a public defence office at the national level, which would select and assign duty counsel, and would rely largely on the local Bar association.Footnote 161 A senior Sierra Leonean official confirmed that the government has been encouraged by the SCSL to create a national public defender's office.Footnote 162 SCSL officials have also focused on developing a legal and institutional framework to prosecute future international crimes: as noted above, SCSL officials are promoting the incorporation of the ICC Statute into national law.Footnote 163 In addition, a SCSL official indicated that there are discussions within the SCSL about encouraging the establishment of a war crimes office under Sierra Leone's Ministry of Justice.Footnote 164 It is also noted that the SCSL intends to leave behind its physical building for local use.
3.5.3 Employment of Sierra Leoneans by the SCSL
The SCSL's reliance on national staff has a strong capacity-building component. It could ensure that once the court has completed its work, Sierra Leone will be left with professionals capable of supporting a rule of law society. More than half of the SCSL's staff members are Sierra Leoneans. While many of them are employed in non-professional posts such as drivers, security guards and cleaners, others are placed in senior positions. In addition, both the defence and prosecution sections have been recruiting Sierra Leonean lawyers and interns.Footnote 165 Furthermore, Sierra Leonean police officers and investigators are seconded to the SCSL for 90-day periods to familiarise them with complex criminal investigation and evidence handling techniques.Footnote 166
Senior SCSL members explained that the court has exposed its Sierra Leonean employees to international standards of trial conduct, which affects national capacity by developing knowledge and expertise in the country. However, a Sierra Leonean lawyer considered that there are too few national legal practitioners involved in the SCSL process to be able to influence national criminal proceedings. When several local lawyers tried to participate in criminal proceedings before national courts in a manner influenced by their previous practice before the SCSL, their approach was too foreign for their local colleagues to accept. In his view, had more national lawyers been involved in the SCSL process, a more significant local impact would have resulted.Footnote 167 Another interviewee, a Sierra Leonean human rights activist, noted that some Sierra Leoneans who had worked at the SCSL and subsequently returned to the national judiciary did not eventually use the skills they acquired at the SCSL to improve national processes.Footnote 168 Moreover, SCSL officials stressed that Sierra Leonean nationals serving in senior positions at the SCSL may not return to the national system after the court winds up, preferring instead to seek international jobs. From this perspective, the court may be depleting instead of improving national capacity.Footnote 169
3.5.4 Outreach Activities
Commentators have repeatedly praised the SCSL's extremely active Outreach Section for its effectiveness.Footnote 170 Yet none of the interviewees mentioned the potential of the SCSL's outreach activities to enhance local judicial capacities (or any type of impact discussed in this article). It is possible that while these outreach activities have enhanced the level of knowledge of many Sierra Leoneans about the SCSL, this knowledge has not influenced national judicial norms, practices or capacities.Footnote 171
4. Conclusion
This article has identified the judicial impact of the ICTR and the SCSL on their target countries. The SCSL has had a relatively limited impact on Sierra Leone's justice system, which in turn has limited its contribution to the promotion of accountability in Sierra Leone. Indeed, the government's amnesty regime prevented national atrocity-related proceedings, thus limiting the ability of the SCSL to impact on such proceedings. However, Sierra Leone's amnesty policy was clear from the time when the SCSL was established. Given these circumstances, the court could have tried to encourage national prosecutions in Sierra Leone by sending a clearer message at the national level that international law is developing in the direction of prohibiting such blanket amnesties from covering international crimes, even in national courts. The SCSL could have done so explicitly through its judgments, or through outreach activities that encourage discussion about such international legal developments. To encourage national willingness and the capacity to address accountability, the court could have created better links with national judicial institutions through its current or former Sierra Leonean staff members. Moreover, the SCSL could have made greater efforts to apply national law and thus contribute to national legal developments, but instead of making such efforts, the SCSL kept a distance from the national justice system.
Thus, the lack of significant SCSL influence on Sierra Leone's justice system is not exclusively explained by national practices such as the amnesty, but also by international practices, which include the SCSL's hands-off approach towards the national justice system.Footnote 172 The combination of such national and international approaches helps to explain why the SCSL generated minimal impact on national accountability procedures despite having structural features – such as a hybrid composition, presence in the target country and a commendable outreach programme – that were expected to generate a significant effect nationally. In addition, it seems that the SCSL did not employ those structural features to increase its impact on the national justice system, but used them instead to improve its own processes. For example, the celebrated SCSL outreach programme focused mainly on improving the court's own work (by explaining its processes to the local population and thus gaining their support for those processes) rather than on encouraging national judicial procedures. Nonetheless, the court did have a certain degree of impact on Sierra Leone's capacity to handle criminal proceedings, for example, by encouraging the development of a witness protection programme. The SCSL may still inspire legal reforms in Sierra Leone, as discussed in this article, such as the abolition of the death penalty and the incorporation of the ICC Statute into national law.
In Rwanda, where scores of genocide suspects have been prosecuted at the national level, the ICTR may not have needed to focus on influencing the quantity of national trials, but rather on helping Rwanda to improve the quality and fairness of its national procedures. A senior Rwandan prosecutor was of the view that if the UN Security Council wanted the ICTR to have an impact on national trials in Rwanda, it should have opted for an ICT model that was more complementary with national proceedings.Footnote 173 However, research shows that other existing models of ICTs were not necessarily more successful in influencing national proceedings. The ICC, for example, even though its jurisdiction is complementary with that of national courts, has thus far not been able to encourage national atrocity-related prosecutions in its target countries.Footnote 174 Similarly, as shown above, the SCSL has not managed to affect national proceedings in Sierra Leone, despite having jurisdiction over national crimes and including national judges. By contrast, the ICTR has managed to encourage significant legal reforms in Rwanda, including strengthening guarantees of due process and promoting the abolition of the death penalty. The ICTR also motivated the improvement of Rwandan prison facilities,Footnote 175 and encouraged a national war crimes trial involving RPF defendants.
The ICTR managed to generate many of the above national effects by introducing a procedure for referring cases to national jurisdictions which, for the Rwandan government, presented an opportunity to assert its jurisdiction over relatively high-profile genocide perpetrators. Interestingly, while the ICTR's referral procedure created an incentive for Rwanda to improve its legal norms and institutions (in order to hear ICTR cases), it also created an incentive for the ICTR to cooperate more seriously with Rwanda, particularly through training activities (aimed at facilitating the transfer of its cases to national courts). As shown above, these enhanced levels of cooperation between the ICTR and Rwanda, and the resulting increased mutual trust, generated the most unexpected result of a trial in Rwanda against four RPF officers accused of committing war crimes against Hutu civilians. The willingness of the ICTR Prosecutor to defer jurisdiction to Rwanda over certain suspects, and to meaningfully engage in capacity-building activities in Rwanda, was an important factor that enabled the ICTR to influence the Rwandan justice system. Significantly, Rwanda's own approach was also crucial in this regard, as many of the ICTR's national influences were facilitated by Rwanda's policy of maximum accountability for genocide-related crimes and by the country's repeated efforts to make adjustments to meet the ICTR's requirements for transferring cases. In other words, the ICTR's referral procedure was an impact-enhancing mechanism because Rwanda was interested in receiving ICTR cases and because the ICTR Prosecutor was willing to cooperate with the Rwandan authorities.
Thus, in order to explain when, and how, some ICTs (such as the ICTR) have significant influence on national judicial proceedings while others (such as the SCSL) have far less influence, it is important to understand not only the ICT's structure (hybrid or purely international, presence in or out of the target country, strength of outreach programme), but also other factors such as the national policies of the target country (amnesty versus accountability) and the approach of key ICT members towards the target country's judiciary (proactive engagement or distance). The latter factor will often be related to the ICT's mandate, or how key ICT actors interpret it. The constitutive instruments of both the ICTR and SCSL stress the need to strengthen the national judicial system of their target country through international cooperation.Footnote 176 However, these words were not understood as mandating these ICTs to actively strengthen the relevant national judicial system. For the ICTR this changed when the UN Security Council urged it to adopt a completion strategy and refer cases to national courts. From that moment, as explained above, ICTR key officials considered it within their mandate to encourage national proceedings in Rwanda – and indeed they became proactive in this regard. It is therefore likely that an international court's impact on national justice systems is connected with the question of whether it is specifically mandated (or understood by its key actors as mandated) to have such an impact.
Since the ICTR and SCSL are still engaged in national capacity-building activities as they prepare for closure, and since their jurisprudence and legacies may still affect local courts, their national judicial impact may need to be reassessed in the future. However, by identifying the degree of this impact to date, the article has hopefully enriched our understanding of whether and how these ICTs have contributed so far to promoting accountability in Rwanda and Sierra Leone, respectively. In addition, by focusing on the potential and the limitations of the ICTR and SCSL in terms of influencing national judicial procedures, the article has tried to stress some of the promises and pitfalls of complementarity or ‘positive’ complementarity.
