April 12, 2004
Sierra Leone Faces Significant Obstacles
in Establishing Rule of Law, HRSP Concludes
It’s a country without major roads, traffic lights, bookstores,
or even ancient monuments, but Sierra Leone “may be the most
interesting place on earth,” said law professor Tim Wu during
his introduction to the Human Rights Study Project (HRSP) presentation
of findings April 8. Perhaps most telling, as students involved in
the Project found, the country lacked a strong legal system that would
give Sierra Leoneans faith in their government and the rule of law.
|Law students (from left), Jenn
Deleonardo, Art Koski-Karell, Brooke Purcell, Chris Dunn, Sara
Shapouri, and Varda Hussain, with Col. Massoud (center), Commander
Sector East, and Major Jamiil, Information Officer, of the Pakastani
Battalion (PAK BATT VIII) of U.N. Peacekeepers stationed in Koidu,
Sierra Leone. Sierra Leone photos courtesy
Each year, students who participate in the Project travel during their
spring break to a foreign country to study human rights, with the aim
of investigating a chosen topic and producing academic scholarship
from their findings. The team hopes to publish its findings, which
are based on their observations and interviews with U.N., Sierra Leonean,
NGO, and Special Court officials.
In Sierra Leone, the group examined whether the ambitious idea of
international justice can help end the cycle of violence that pervades
Sierra Leone and much of Africa, where in many places, “any means
of war is permissible,” said Wu, who joined the trip to conduct
research for his own scholarship; he is a faculty adviser to two HRSP
members. The vast disparities between the United States and Sierra
Leone became readily apparent when the group found that the only way
to get to the capital, Freetown, was via helicopter—piloted by
former members of the Soviet Air Force. Wu said the country, which
recently emerged from years of civil wars, was a “fascinating
place to investigate human nature.”
Sierra Leone once served as a slave-trade outpost and later a British
colony to which freed slaves were returned in the 18th century. HRSP
member Art Koski-Karell explained that throughout its history, the
country was used mostly for its resources, and never developed a stable
agricultural sector or market economy. After Sierra Leone gained its
independence in 1961, the country faced ethnic tensions, several coups,
and corrupt leaders who had absolute power, all of which led to an
intense mistrust of the government, Koski-Karell said. In 1991, then-Liberian
President Charles Taylor and neighboring nation Burkina Faso sought
to capitalize on Sierra Leone’s economic instability and sent
in less than 100 trained guerillas to take over the country, which
helped spark a civil war. Taylor backed the rebelling forces, which
had formed into a group called the Revolutionary United Front (RUF).
In time it became clear the invaders were more interested in controlling
the diamond mines, than in forging a political movement. Under international
pressure, Sierra Leone held elections in 1996 despite the continued
violence, electing President Ahmad Tejan Kabbah, but the turmoil continued
until 1999, when the Lome Peace Accords provided for a U.N. peacekeeping
force to enter the country. Within a year, though, the RUF and its
allies started a war again.
“You had atrocities on a massive scale,” Koski-Karell
said. “The U.N. decided to step up its engagement, along with
Under pressure, Taylor stopped supporting the RUF. By 2002 the civil
war was declared over, and Kabbah was elected to another five-year
term. Since then, Taylor has stepped down from power in Liberia and
sought asylum in Nigeria.
Constitutionality of the Special Court
|Jenn Deleonardo said some are unhappy
with how the Court was authorized.
In constructing the Lome Peace Accords, Sierra Leone granted blanket
amnesty to everyone involved in the civil war, said second-year law
student Jenn Deleonardo, who focused her study on the constitutionality
of the Special Court under the Sierra Leonean constitution. As guarantors
of the agreement, the U.N. made a reservation that the amnesty would
not apply to serious international humanitarian law violations. “Because
of that, the U.N. ... could do something about the fact that Sierra
Leone was not able to prosecute anyone,” she said.
Kabbah requested international assistance in prosecuting war criminals,
and the U.N. Security Council passed a resolution authorizing negotiations
to create the Special Court. Sierra Leone and the United Nations signed
a treaty in 2002 to form a “treaty-based court,” different
from those formed previously in places like Rwanda or Yugoslavia. To
establish the Special Court, the Sierra Leonean Parliament passed the
2002 Ratification Act, which is now being challenged by opponents—including
defense lawyers for indicted war criminals and others who disapprove
of the Act’s methodology—on the grounds that the country’s
constitution mandates that the Supreme Court of Sierra Leone is supreme
to all other courts. Many in Sierra Leone feel that a constitutional
amendment is required to set up such a court, but amendments require
a referendum, which would have been problematic to present while much
of the country was still under control of rebel forces.
The Special Court can now write court orders and warrants in the same
way as other Sierra Leone courts, and arrests likewise are made through
domestic law enforcement. “Inevitably you end up with something
that operates within the Sierra Leonean system,” Deleonardo said.
Still, “it’s unlikely the Supreme Court will say the [
Special Court] is invalid because there is popular support for the
But the widely praised Sierra Leone model becomes problematic if it
is universally applied to other situations. “It’s popular
in Sierra Leone right now, but what if that changed? What if you moved
it to a country where it isn’t popular?” she asked.
If the Court indicts alleged criminals who have popular support—as
with a former defense minister who is charged by the Court and considered
a war hero among the people—and resistance to the Court grew,
the model might lose the consent of the people and legitimacy as a
Prosecutorial Discretion in International Courts
International courts in part “function to develop international
law,” said third-year law student Chris Dunn, HRSP director.
Without an international legislature, and because the treaty process
is too cumbersome to codify specific norms, international courts and
prosecutors set the benchmark for how international norms are applied
in practice. “Prosecutorial function is the first filter through
which indictments are brought,” he said.
|A sign calls for former Liberian
President Charles Taylor to be indicted for war crimes.
Because the Special Court in Sierra Leone only has a three-year mandate
to conduct trials, the Court’s rules of procedure have been revised
to minimize the judge’s preliminary review of the prosecutor’s
indictments. Dunn said a vibrant defense office might act as a structural
restraint on prosecutorial discretion; the Special Court has done more
to assist defense counsel than other international tribunals have in
Dunn met with Special Court Chief Prosecutor David Crane, a former
JAG School teacher who was appointed by the United Nations, and Deputy
Prosecutor Desmond DeSilva, a British lawyer appointed by Sierra Leone.
They originally issued 13 indictments, but two who were indicted have
since died, and the others have been consolidated into three indictments
against RUF, Civil Defense Forces, and Armed Forces Revolutionary Counsel
leaders, who represent three of the main factions fighting in the civil
Dunn said there are some Sierra Leoneans who are dissatisfied with
the narrow jurisdiction of the Court, which is limited to those who “bear
the greatest responsibility”; there is some sense that this won’t
reach actual perpetrators of the crimes. With such broad prosecutorial
discretion in place, as many as 50 people might meet the narrow jurisdictional
standard, Dunn hypothesized, but Crane has said from the beginning
he will try about 20.
Dunn said his paper would address how prosecutors see their role in
the international system, and whether they take conservative stances
on law or instead try to develop international law norms. In an interview
with Dunn, Crane said it was incumbent upon international prosecutors
to develop international law, and in fact he’s the first prosecutor
to indict on charges of recruiting child soldiers and forced marriage.
“They’re just pushing the [boundaries] of what we consider
international law,” he said. Dunn said he was arguing for a paradigm
shift—that commentators, scholars, and officials must also consider
prosecutors and defenders when developing these criminal tribunals.
“At some level guilt isn’t the issue,” he said. “The
issue is, who among the many, many people we’re going to choose
The Special Court’s Influence on Building a Rule-of-Law
The Special Court can trigger change in the Sierra Leone legal system,
third-year law student Varda Hussain suggested, but it won’t
be able to sustain change after the Court leaves without a robust initiative
that seeks to link the work of the tribunal with that of the national
judiciary and with civil society at large.
|The Special Court in Sierra Leone
may impact the country's culture of impunity, Hussain said.
The tribunal is acting against a backdrop of a collapsed judicial
system, so effecting change is especially difficult, Hussain said.
Explaining the state of the Sierra Leonean judicial system, she related
her experience attending a murder trial. Absent a transcriber, the
judge took notes himself. The legal scene appears even more haphazard
once you realize “laws in Sierra Leone aren’t written down.
“There’s no precedent you can point to, which can make
for some interesting judicial decision-making,” she added.
Although the majority of Sierra Leoneans favor the establishment of
the Special Court, several people Hussain talked with expressed disappointment
about the lack of effect the Court may have on building a rule-of-law
culture. When asked what legacy the Special Court might leave behind,
the Chief Justice of the Sierra Leone Supreme Court remarked, “they’re
going to leave us the building—that’s it.” He added
that the only influence the Court has had on the national legal system
thus far is that they plucked his best registrar out of the national
judiciary for the tribunal.
Some lawyers and NGO officials she talked to were resistant to the
idea that the Special Court should work more closely with the national
judiciary, for several reasons. Many pointed to the lack of funding
and short timeline of the Court as necessitating a narrower mandate;
others thought a stronger push to link the work of the tribunal with
the national courts might undermine the independence of the Special
The Special Court’s Outreach Section strives to promote the
understanding of the tribunal’s mission and procedures to Sierra
Leoneans, especially those in rural areas, but suffers from a lack
of funding. The Section published a booklet with illustrations showing
what the Court does, but it was sparsely distributed. Although there
was initial support for a more vigorous capacity-building project,
the idea was dropped due to lack of funding.
Despite these hurdles, the Special Court may have an effect on the
nation’s culture of impunity. “It’s a huge symbol
to Sierra Leone that this sort of atrocity will never happen again,” Hussain
She concluded that the real challenge was to figure out how to “link
short-term reform with long-term impact.”
Jurisdiction Over Child Soldiers
An estimated 7,000 perpetrators of war crimes in Sierra Leone were
children, some as young as eight-years-old, said second-year law student
Sara Shapouri. The rebel forces used children because they were easily
controlled and seen as expendable; lightweight weapons also made it
possible for youths to bear arms. When Freetown was invaded, children
made up the first wave of soldiers, serving as a possible distraction
to townspeople expecting men.
|Shapouri: “Even if [you recruit
a child soldier] to protect your own community, it’s still
a form of abuse for children, and they can’t go back to just
Children were threatened with death if they refused to join or obey,
and they were often given cocaine through a cut on their temple to
make them more brutal or desensitize them in battle. The RUF would
often tattoo its child soldiers with the group’s name for easy
identification and so they couldn’t return home, where they might
Once the war ended, children were included in a disarmament, demobilization,
and reintegration (DDR) program, a rehabilitation of sortsoriginally
designed to last six months but later shortened to as little as four
weeks. UNICEF estimates that 5,000 children have been reunited with
their families, while others have been placed in interim care centers
or foster care. The Sierra Leone Truth and Reconciliation Commission
has gathered child soldiers’ stories in closed proceedings.
Many former child soldiers are homeless, she said, and haven’t
had the benefit of DDR. “These are children that aren’t
getting any help at all.”
Shapouri said the decision to allow the Special Court jurisdiction
over children who were 15 to 18 when they committed war crimes has
been controversial. A draft statute placed by the United Nations originally
called for the jurisdiction in addition to trying the children in a
different court, although the latter was not established. “A
lot of people didn’t like them having jurisdiction over children,” she
said. Although the chief prosecutor decided he was “absolutely
not going to prosecute any children,” Shapouri said the fact
that he could has ramifications for international law. “I find
it personally really disturbing,” she said, adding that an international
tribunal was not an appropriate mechanism for trying children.
“Even if [you recruit a child soldier] to protect your own community,
it’s still a form of abuse for children, and they can’t
go back to just being kids.”
“Blood Diamonds” Foster Corruption, International
Conflict diamonds or “blood diamonds” are used frequently
in Africa to fund wars or political movements, and in Sierra Leone
the practice has wrought havoc on the country’s stability.
|Sierra Leone's alluvial diamond
“A lot of experts think that Sierra Leone has the richest diamond
mines in the world,” explained second-year law student Brooke
Purcell. “Diamonds are literally spread across this country.
You can walk along and pick one up.”
Sierra Leone mines its most valuable resource through alluvial diamond
production—meaning no machinery or large investments are necessary. “The
mines look pretty much like the California gold rush,” she said. “You’ve
got guys with mines and picks.”
Diggers work for a cup or two of rice per day, and get 2 pennies for
every rough stone they find.
Sierra Leone produces $300-400 million in rough diamonds annually,
but only about $1-2 million worth of diamonds were exported legally
during the war’s height.
Purcell planned to study how legal issues contributed to Sierra Leone’s
inability to control its diamond trade and what makes the resource
so vulnerable to abuse by people like Charles Taylor. She added that
she had to take a step back from her plan. “The biggest issues
facing Sierra Leone are not legal issues at all,” she said. The
lack of law enforcement has led 75 percent of the people to believe
being re-colonized by the British would be the best next step. “It
doesn’t matter what the laws are on the books when those laws
are not respected,” she said.
The diamonds that should make the country wealthy instead are a source
of government corruption. Purcell met with Anti-Corruption Commissioner
Val Collier, who she called an “amazing man”; despite this,
by everyone’s accounts the Commission has been a colossal failure
and hasn’t prosecuted anyone, due to still-widespread corruption.
Like precious metals, ivory, or firearms, diamonds are the implements
of international criminals or insurgents, Purcell said. They sell well
on the black market, are hard to trace, have a high value for the volume,
are easy to carry, and are produced in lawless areas.
Purcell said rule-of-law issues need to be addressed first or “the
Charles Taylors of the world will keep on coming. Several people she
interviewed alleged that members of Hezbollah and Hamas in Sierra Leone
may be using diamonds to fund their organizations.
“International crime and international warfare have become a
lot more sophisticated than international law,” she concluded.
The Military and Enforcing the Rule of Law
|Koski-Karell that the years of
war destroyed the military's credibility among the people of Sierra
The Republic of Sierra Leone Armed Forces (RSLAF) lost credibility
during the civil war, and now lacks the support of people to help secure
the country and enforce the rule of law, said Koski-Karell.
“It was a broken institution during the civil war,” he
explained, with soldiers who fought during the day acting like rebels
at night. “The army would meddle in politics on a pretty regular
The country, with the help of the international community, is now
moving to professionalize the troops and shrink the current force of
13,000 down to 8,000—a difficult task since most of the country
is unemployed. The armed forces has established mandatory retirement
ages and standardized testing to start pushing out the older generation
of soldiers. Reformers have focused on civil-military training, because
they want civil leaders to run the RSLAF. The United States is spending
$500,000 a year to teach seminars about civil-military systems and
fund exchange programs to Ghana and the United States.
Yet a leader at the U.S. Embassy Koski-Karell interviewed warned, “If
the U.N. pulled out tomorrow, there would be a coup in a matter of
The military’s equipment is in disrepair, they’re short
on uniforms, and communications in the country travels by bicycle.
In short, Koski-Karell said, they have a long way to go to be considered
an effective deterrent.
Police, however, are better trained, better equipped, have better
leadership, and more governmental support. Security officials Koski-Karell
talked to were hesitant to admit that the government is supporting
the police while leaving the military out in the cold.
“What comes first? Democracy or a professional military?” Koski-Karell
The question is especially important in an area wracked with tension:
the Ivory Coast is currently facing rebel armies, one of which reportedly
includes Sierra Leonean mercenaries; Nigeria recently arrested a group
of military leaders conspiring against its democratic government; and
there has been recent fighting on the Sierra Leone-Guinea border.
Although the people of Sierra Leone have a favorable opinion of the
British military, their traumatic encounters with other armies, even
those that were supposed to be helping them, have sown distrust. The
nation currently hosts 12,500 U.N. troops, and will likely continue
to host a large number of them, but Koski-Karell wondered at the implications
for traditional notions of sovereignty. “The military must be
a Sierra Leonean institution,” he said, even if an international
deterrent is currently necessary to keep the peace. It may help, he
added, to restructure the military as a source of cultural and legal
reform, and not simply focus on its firepower. “[National] self-examination
must go on, both in the military and in the government,” he said, “but
• Reported by M. Wood