Evaluating Transitional Justice

The Sierra Leonean civil war was exceptionally brutal; during the conflict, in this small country with just over 6 million inhabitants, an estimated 70,000 people lost their lives and 2.6 million were displaced.¹ The war became known for widespread atrocities, including forced recruitment of child soldiers and extensive incidents of rape, sexual slavery and amputations of limbs. In addition to the outward manifestations of violence, the conflict left less tangible but still pervasive legacies. Incidents of localised violence caused deep rifts within many communities, and, in politically marginalised areas, state violence reinforced the mistrust of political institutions and government structures. As many combatants were disenfranchised youth, the conflict featured a high degree of violence targeted against specific authority figures, made relations between generations more fraught and tore apart the social fabric.

The legacy of the Special Court for Sierra Leone (SCSL), including its contribution to Sierra Leone’s transition from Conflict to a post-Conflict society, is a truly important topic in a country that has shown a great deal of strength of character and commitment to justice, and has moved forward successfully towards a peaceful future after a very difficult and lengthy Conflict.

The literature on Sierra Leone’s Truth and Reconciliation Commission (TRC) considers a variety of issues, including the breadth and authenticity of participation, the relationship of the Commission to the Special Court and the extent to which the Commission provided for healing, reconciliation and accountability.² However, there has been little scholarly consideration of the integrity of the Commission’s historical narrative and its findings from the perspective of the Commission’s practitioners. In particular, there needs to be more focus on the nature of the ‘truth’ that should be sought. The South African TRC conceded that the testimony and other forms of evidence collected constituted a ‘more extensive and more complex’ truth than any one commission could hope to adequately process.³ This chapter considers the Sierra Leonean TRC’s efforts to provide a historical narrative describing the causes of the Conflict and the Conflict itself, under more constraints than the South African Commission.

Ten years since the end of its 11-year civil war, Sierra Leone has become an important case study for students and practitioners of transitional justice (TJ). The parallel establishment of the Special Court for Sierra Leone (SCSL) and a Truth and Reconciliation Commission (TRC) brought new attention to the merits of restorative and retributive approaches operating simultaneously. While William Schabas argues that Sierra Leone is a successful model of the ‘two-track approach’, Sierra Leone has also become the focus of a large critical literature, which questions the legitimacy of external practices and ideas.² Growing concerns in Sierra Leone that international transitional justice undermined internal restorative justice and communal structures have generated intense debates over what a comprehensive TJ process should entail. These debates tie into a politics of legitimacy between international and national justice mechanisms. Members of Sierra Leonean civil society — including members of the TRC — have argued that the international influence on TJ practices has sidelined local culture, civil society and authority structures. While traditional practices of reintegration preceded the TRC in some communities, criticisms of the TRC also led to the rise of new actors and grassroots TJ processes within the country.

The establishment of a truth and reconciliation commission (TRC) and a war crimes court (the Special Court for Sierra Leone or SCSL) in Sierra Leone has been described as a transitional justice (TJ) model that advances both justice and reconciliation.² Whether these institutions have been a ‘success’ has been highly contested within Sierra Leone and among external TJ observers. This chapter focuses on the politics informing the most prominent process in Sierra Leone: the Special Court.³ The chapter claims that the independence or otherwise of SCSL case selection is a key indicator of success. It considers the interests of the actors who designed the Court and traces the manifestation of those interests in key elements of institutional design and function. Its findings support a more realist explanation of the Court’s creation and function than the normative aspirations espoused by the Court and repeated by other observers ‘that no one was beyond the court’s reach’.⁴ I argue that the politics of the Court’s creation compromised its capacity to independently pursue its mandate — to pursue those most responsible for crimes. This was a Court, I argue, designed to assist other US and British instruments of regime change strategy in Liberia and regime protection in Sierra Leone.

As the modern crop of international criminal tribunals finish their caseloads, concerted efforts to define affirmative transitional justice (TJ) legacies have begun. Having prosecuted significantly fewer accused than its closest relatives, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) — just nine trials in more than a decade, at a cost of several hundred million dollars⁴ — the task facing the Special Court for Sierra Leone (SCSL) is especially challenging. No doubt the supporters of the SCSL will seek to rest their plaudits on evidence suggesting that segments of Sierra Leonean society hold broadly positive views of the trials and believe that the Court contributed to bringing peace to Sierra Leone.⁵ However, these arguments should be approached with a degree of circumspection. In a country destroyed by poverty, war and crime, and in dire need of some form of accountability, such evidence, whilst part of the overall picture, speaks little to more specialised aspects of legacy. The Court, as a legal institution, needs also to be judged on whether the trials were fair and impartial, whether the practice and procedure provide valuable precedent for other domestic and international legal processes and whether justice was actually done.

The Special Court for Sierra Leone (SCSL) is well known in the international legal community for its examination of sexual and gender-based violence (SGBV) directed against women, men, boys and girls in the Sierra Leone civil war. For example, the SCSL was the first international criminal tribunal to convict an individual for the crime against humanity of sexual slavery, and the first to examine the phenomenon referred to as ‘forced marriage’ or ‘conjugal slavery’.² One way in which the legacy of the SCSL can be traced is through its impact upon the domestic laws of Sierra Leone. A nuanced connection can be traced from the SCSL to the enactment of certain domestic legislation on gender issues, as well as the creation of courts and investigation units specifically aimed at addressing rape. Less clear, however, is whether there is any link between the work of the SCSL and attitudinal change in Sierra Leone around SGBV in general. As in pre-Conflict and wartime Sierra Leone, post-Conflict Sierra Leone suffers from high levels of SGBV, despite legislative changes in 2007 and 2012.

On 26 April 2012, the Special Court for Sierra Leone (SCSL) in The Hague found ‘beyond reasonable doubt’ that former Liberian President Charles Taylor ‘is criminally responsible … for aiding and abetting the commission of the crimes 1 to 11 in the indictment’.¹ Taylor had substantial influence over, and provided military support for, the Sierra Leonean Revolutionary United Front (RUF), which had committed the war crimes and crimes against humanity for which Taylor was convicted, but his contribution was judged to have fallen short of effective command and control. The majority of the reactions to the judgment around the world were effusive in their praise of the SCSL and, on the face of it, the judges’ conclusions about Taylor’s liability were reasonable. The judgment acknowledged some RUF independence in decision-making and unintentionally emphasised the point that the Conflict may be too complex to reduce to a black-and-white legal process. Indeed, seeing the war purely in terms of criminality hides a whole terrain of political textures. Impunity has been marginally reduced by the Taylor trial, but at what political costs in Sierra Leone and neighbouring Liberia? And at what ongoing costs elsewhere? This chapter looks at how justice affects politics and politics affects justice with regard to the SCSL and the contemporaneous Truth and Reconciliation Commission (TRC), and contrasts this with the primarily realpolitik approach to Conflict resolution in neighbouring Liberia.

Transitional justice (TJ) in Sierra Leone is commonly associated with two internationalized formal institutions — the Special Court for Sierra Leone (SCSL) and the Truth and Reconciliation Commission (TRC). While the SCSL was mandated to hold criminally accountable those bearing greatest responsibility for atrocities committed during the country’s brutal civil war (1999–2002), the TRC was established to foster restorative justice and reconciliation. But in addition to these specific mandates, both institutions were expected to demonstrate rule-of-law norms that would subsequently be replicated in the domestic justice system. For the Court, it was anticipated that the successful trial and conviction of perpetrators would restore confidence and trust in the judicial system, and ultimately stimulate respect for the rule of law among the local population. Although a non-judicial body, the TRC, as a state-mandated legal mechanism, was also expected to undertake a kind of positive social engineering in the post-war context. Whether there is a direct correlation between these long-term goals of justice reform and the legacy of the two concurrent TJ mechanisms remains in dispute. Particularly important is the question of why the Court became disconnected from the national justice system, despite its purported hybridity and close physical proximity to the war-torn society.

For most people in Sierra Leone, justice is not dispensed by formal systems but by a dense network of institutions at the local level, which may or may not be codified or even visible. These institutions constantly change and are subject to a variety of controlling bodies, which regulate the meaning and enforcement of common law. Indeed, even the formal institutions of local and Magistrate courts draw on common law rather than state law in many of their cases, and this is open to interpretation and influence according to changing local customs. Different social structures exercise influence over justice processes and outcomes. These biases exist despite the public, national agreements, for example, to enforce human rights legislation. Local power is at least partly exercised through the appointment to courts and through the role of elders within villages, many of which are relatively old and also male. As documented below, this leads to institutional bias within the customary system, particularly against women and those classified as youth.

A Sierra Leonean friend described returning to Sierra Leone in 2005 for the first time since peace was declared. Having fed during the war, he had followed violent events closely, fearing for friends and family left behind. He expected to find a society torn apart by grief and anger, with communities demanding retribution against perpetrators of atrocity. He was shocked — indeed almost frustrated — to find a very different situation. Victims of wartime violence talked of forgiving and forgetting, and of ‘moving on’. Ex-combatants lived alongside non-combatants, with little sign of tension.¹ His amazement was one which has been frequently expressed by visitors to Sierra Leone since the war. How can it be that people are not angrier or crying out for justice?

There has been a great deal of academic work undertaken recently that attempts to appraise the success of transitional justice (TJ) in various post-Conflict states. However, there is little agreement on what counts as success and how it should be measured or judged. The other chapters in this book consider the extent to which Sierra Leone’s TJ processes should be considered a success. I take a step back to focus instead on what we mean by ‘success’ when assessing the impacts of TJ efforts and to examine the problems involved in evaluating transitional justice. My aim is not to provide a Definition of success, as to do so would be impossible, for reasons set out below. Rather, I hope to provoke readers to consider afresh what should count as TJ success and how it should be evaluated.

Sierra Leone has become something of a touchstone in broader debates surrounding transitional justice (TJ) since its civil war ended in 2002: a site of competing imperatives and Conflicting ideologies and agendas. The country has been the focus of a sustained international effort to implement an ideological-normative TJ agenda and a setting in which TJ practitioners tried to correct perceived past shortcomings. Yet this was not purely a project of ethics or law: international and domestic politics, as this book makes clear, have also played important roles in dictating the opportunities and constraints for transitional justice in Sierra Leone.