Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (40 page)

So, what of mechanisms that are often expected to be specifically oriented towards the needs of victims? I turn now to the TRC, the SCSL, and the reparations program.

The Truth and Reconciliation Commission

The TRC was expected to have served a restorative function and to have been particularly victim-oriented, an expectation placed on many such commissions. It was originally mandated by the 1999 Lomé Peace Agreement and created in 2002, issuing its report in 2004. It took statements across the country, and its final report was ambitious, outlining the domestic and regional causes of the conflict, naming alleged perpetrators, and issuing a series of recommendations regarding
legislative and constitutional reform, and it recommended traditional justice mechanisms as well as a reparations program.
⁶⁵

However, the commission had a mixed reception in the country. This may have been to do with its fit, or lack of, with Sierra Leonean political and social culture, in part because of its relatively formal structure.
⁶⁶
Some anthropologists who have long studied Sierra Leone, as well as more recent commentators on the proceedings at the commission, have suggested that the type of truth-telling entailed in such processes may have been culturally a poor fit. They have claimed that Sierra Leoneans do not generally engage in the type of public confession that such commissions provide the space for and that they prefer not to discuss past violence but rather take a “forgive and forget” approach. Instead, it is argued, people rely on ritual processes which may include sacrifice and healing processes.
⁶⁷
One scholar scrutinizing the proceedings of the TRC in Tonkolili, expecting them to have a cathartic effect on participants that paved the way for reconciliation, found quite the opposite. Many of my interviewees questioned the utility of the commission, often asking whether people who testified were either honest about what they had done or genuine in their apologies.
⁶⁸
Kelsall similarly found that participants often did not tell the truth before the commission, because such processes are not strong in Sierra Leonean culture. He argues further that the only successful element of proceedings was when rituals were utilized, rather than truth-telling, and suggests that one should abandon the idea that truth can enable reconciliation.
⁶⁹
The limited improvements in the conditions of victims and communities may also hinder reconciliation.
⁷⁰

The Special Court for Sierra Leone

No international or internationalized trials were originally envisioned for Sierra Leone. However, following the capture of Foday Sankoh, the government of Sierra Leone requested that the United Nations create an
ad hoc
tribunal of the type in existence for the former Yugoslavia and Rwanda to try him and other RUF leaders. What was created instead was a hybrid tribunal, of mixed national and international character, called for first by UN Security Council Resolution 1315 in August 2000 and created by bilateral agreement between the UN and the government of Sierra Leone. The court’s statute, completed in January 2002, gives it the power to prosecute persons who bear the greatest responsibility for serious violations of national and international humanitarian law since 30 November 1996.
⁷¹
The creation and operation of the court have come under criticism, as driven by the preferences of either then-President Kabbah or Western powers, particularly the USA and the United Kingdom, and as dominated by foreigners.
⁷²

However, the more relevant criticisms for the purposes of this inquiry have been that the court has not had significant relevance for Sierra Leonean society at large, or for specific groups of victims.
⁷³
While the court was sited in Freetown to make it more accessible to society, the severe poverty of the country has meant that few have the luxury of taking time to observe court proceedings; severe
illiteracy means that it is difficult for the majority of Sierra Leoneans to follow proceedings through print media.
⁷⁴
The outreach unit of the court has sought to disseminate the activities of the court throughout the country, with a degree of success.
⁷⁵
Nonetheless, there remains, even among human rights advocates, a sense that the court has relatively little to do with the demands of average Sierra Leoneans for justice; in particular the characterization of those prosecuted as “most responsible” does not resonate with many who see immediate perpetrators “still strolling around” in their villages.
⁷⁶
Indeed, some have observed that the disparity between the expenditure on the court, estimated to be some US $250 million, and that spent on reparations, to date about $4.5 million, was seen as an indication of the priorities of the international community.
⁷⁷

Others have compared the relatively luxurious conditions of imprisonment of those convicted by the court to the squalid living conditions of many victims and the larger population, and to the appalling conditions in many Sierra Leonean prisons. Justice, on the account of such advocates, should address the needs of victims as well as (but, notably in the views of many, not instead of) prosecuting a few perpetrators.
⁷⁸
Others suggest that the court did not deal with the real concern of most Sierra Leoneans, poverty, and that true justice would have to address these needs.
⁷⁹
Indeed some suggest that the court should have provided reparations, a task that was not in its mandate. It is to the reparations which were implemented that I now turn.

The Reparations Program

The final report of the TRC recommended the provision of reparations to victims of the conflict, among other measures. The Human Rights Commission of Sierra Leone was tasked with the oversight of the implementation of the report; however, it was the National Commission for Social Action (NaCSA) that was given specific responsibility for reparations under legislation passed in 2009.
⁸⁰
The United Nations provided US $3 million to the reparations fund in December 2008, via the UN PBF, which was to be administered with the oversight of the International Organization for Migration (IOM). This was to build the capacity of NaCSA to administer reparations and for the creation of a register of victims. The program, called the Year One program, created that database, and gave health assistance to victims, particularly amputees and women who had suffered serious injuries as a result of sexual and gender-based violence. It also provided micro-grants to victims. Of nearly 30,000 registered victims, about 20,000 have received such grants, the equivalent of about $100, and there have also been some educational grants.
⁸¹

However, there have been a number of shortcomings with the program. The Year One phase was almost entirely reliant on international support. The War Victims Trust Fund announced by the president of Sierra Leone at the end of 2009 has received limited donations and there is no regular budget line in the national budget for reparations.
⁸²
A smaller follow-on fund of US $450,000 has been provided by the UN PBFund; in addition Unifem (now UN Women)
allocated another $1 million (of which half has been released at the time of writing) to provide skills training and micro-grants to victims of sexual violence.
⁸³
As noted by one IOM official, in the absence of follow-on programs, however, there is a risk of injustice, as not all of those who have registered will even receive the small initial micro-grant of about $100.
⁸⁴
A persistent concern raised by interviewees was about the timing of the reparations—some seven years after the initiation of DDR programming—as well as the disparity in expenditures between the two programs.
⁸⁵

Implications

Sierra Leone’s experiences with DDR and victim-centered justice are by no means unique, and are illustrative. Rather typically, DDR took place long before reparations were initiated. Transitional justice mechanisms which in part purported to address the needs of victims and society at large, specifically the SCSL and the TRC, continue to be viewed by many, even advocates who see inherent merit in them, as not particularly relevant to society at large or to victims specifically. A persistent claim that I encountered in interviews was that true justice would not address a very small number of perpetrators presented as high level, but rather the perpetrators who remained visible, and in many cases beneficiaries of DDR packages, on a daily basis. Restorative justice processes, specifically variations on ritual cleansing, have been used in a few instances, but questions remain about the impact, in the short or long term, on victims, communities, and perpetrators, as well as about the risk that victims will be used for these processes in ways that do not address their needs and may be somewhat coercive. Advocates in the Campaign for Good Governance suggested that what is needed is a long-term process with more holistic packages, dealing with DDR and reparations as part of longer planning; the head of Timap for Justice similarly suggested an umbrella program that dealt with both DDR and reparations, albeit treating them separately.
⁸⁶
These might be options worth exploring, although several caveats are noteworthy. First, as Lars Waldorf emphasizes in his chapter in this volume, there is evidence that integrated approaches do not work; nonetheless coordinated approaches might be appropriate. Second, limited resources and the urgency of addressing security may mean that DDR processes are always sequenced not just first, but well before any justice or restorative processes. Nonetheless, more research and creative programming of the type advocated by these Sierra Leonean practitioners might well be needed.

Notes

1
 Jennifer J. Llewellyn, “Restorative justice and peacebuilding in post-conflict societies,” paper presented at the annual conference of the International Studies Association (San Francisco, CA, 26–29 March 2008), p. 2.

2
 See generally John Hirsch,
Sierra Leone: Diamonds and the struggle for democracy
(Boulder, CO: Lynne Rienner, 2001); Comfort Ero and Jonathan Temin, “Sources of conflict in
West Africa,” in Chandra Lekha Sriram and Zoe Nielsen, eds,
Exploring Subregional Conflict: Opportunities for conflict prevention
(Boulder, CO: Lynne Rienner, 2004).

3
 Special Court for Sierra Leone,
Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao
, Case No. SCSL-04-15-T (2 March 2009) and Case No. SCSL-04-15-A (26 October 2009); Valerie Oosterveld, casenotes for these cases,
American Journal of International Law
, vol. 104 (2010), pp. 73–81.

4
 
Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone
, UN Doc S/1999/777; for the mandate of the United Nations Mission in Sierra Leone (UNAMSIL), UN Security Council Resolution 1270, UN Doc. S/RES/1270 (1999).

5
 Chandra Lekha Sriram, “(Re)building the rule of law in Sierra Leone: Beyond the formal sector?” in Chandra Lekha Sriram, Olga Martin-Ortega, and Johanna Herman, eds,
Peacebuilding and Rule of Law in Africa: Just peace?
(London: Routledge, 2010), pp. 127–41.

6
 See, e.g., Laura Stovel and Marta Valiñas, “Restorative justice after mass violence: Opportunities and risks for children and youth,”
Innocenti Working Paper IWP 2010
–
15
(Florence: UNICEF Innocenti Research Centre, June 2010), p. vi.

7
 For a critique, see Michael Humphrey, “From victim to victimhood: Truth commissions and trials as rituals of political transition and individual healing,”
The Australian Journal of Anthropology
, vol. 14, no. 2 (2003), pp. 171–87.

8
 See generally United Nations Economic and Social Council, “Basic principles on the use of restorative justice programmes in criminal matters,” UN Doc. E/CN.15/2002/ 5/Add. 1; United Nations Office on Drugs and Crime,
Handbook on Restorative Justice Programmes
(Vienna: United Nations, 2006); Matthew Gillett, “Victim participation at the International Criminal Court,”
Australian International Law Journal
, vol. 16 (2009), pp. 29–46; Jemima García-Godos, “Victim reparations in the Peruvian Truth Commission and the challenge of historical interpretation,”
International Journal of Transitional Justice
, vol. 2 (2008), pp. 63–82; Nneoma V. Nwogu, “When and why it started: Deconstructing victim-centered truth commissions in the context of ethnicity-based conflict,”
International Journal of Transitional Justice
, vol. 4 (2010), pp. 275–89; Mark Findlay, “Activating a victim constituency in international criminal justice,”
International Journal of Transitional Justice
, vol. 3 (2009), pp. 183–206; Ruth Rubio-Marín and Pablo de Greiff, “Women and reparations,”
International Journal of Transitional Justice
, vol. 1 (2007), pp. 318–37; Conor McCarthy, “Reparations under the Rome Statute of the International Criminal Court and reparative justice theory,”
International Journal of Transitional Justice
, vol. 3 (2009), pp. 250–71; Simon Robins, “Towards victim-centred transitional justice: Understanding the needs of families of the disappeared in postconflict Nepal,”
International Journal of Transitional Justice
, vol. 5 (2011), pp. 75–98.

9
 Llewellyn, “Restorative justice and peacebuilding in post-conflict societies,” op. cit., p. 4.

10
 Ibid., pp. 5–6.

11
 Ibid., pp. 7, 11. See also Ruti G. Teitel,
Transitional Justice
(Oxford: Oxford University Press, 2000).

12
 Stovel and Valiñas, “Restorative justice after mass violence,” op. cit., pp. 2–4; Chandra Lekha Sriram,
Globalizing Justice for Mass Atrocities: A revolution in accountability
(London: Routledge, 2005), pp. 55–56. Compare Christopher Bennett, “Taking the sincerity out of saying sorry: Restorative justice as ritual,”
Journal of Applied Philosophy
, vol. 23, no. 2 (2006), pp. 127–43.