Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (8 page)

After the TRC had concluded its public hearings, in August 2003, some detainees of the Special Court asked to give public testimony to the TRC. Even more surprisingly, the Prosecutor then opposed the initiatives taken by the TRC with a view to facilitating such public hearings. A ruling by the Court's President,
Geoffrey Robertson, allowed defendants to appear before the Commission, but did not authorise a public hearing.
[43]
Judge Robertson explained:

 

30. What is actually proposed by this application may be described in different ways: it may appear as a spectacle. A man in custody awaiting trial on very serious charges is to be paraded, in the very court where that trial will shortly be held, before a Bishop rather than a presiding judge and permitted to broadcast live to the nation for a day or so uninterrupted. Thereafter for the following day or days, he will be examined by a barrister and then questioned from the bench by the Bishop and some five or six fellow Commissioners. In the immediate vicinity will be press, prosecutors and “victims.” His counsel will be present and permitted to interject but there are no fixed procedures and no Rules of Evidence. The event will have the appearance of a trial, at least the appearance of a sort of trial familiar from centuries past, although the first day of uninterrupted testimony may resemble more a very long party political broadcast. It is not necessary to speculate on the consequences of this spectacle: there may be none.
There may be those the Prosecution fears which could lead to intimidation of witnesses and the rally of dormant forces. There may be those that doubtless informed the original advice of his lawyers against testifying – namely fodder for the Prosecution, an adverse effect on public perceptions of his innocence and a consequent disheartening of potential defence witnesses. There will probably, I fear, be this consequence, namely intense anxiety amongst other indictees, especially from rival factions, and concerns over whether they should testify to the TRC as well, or in rebuttal. The spectacle of the TRC sitting in court may set up a public expectation that it will indeed pass judgement on indictees thus confronted and questioned, whose guilt or innocence it is the special duty of the Special Court to determine.

31. I cannot believe that the Nuremberg Tribunal would have allowed its prisoners to participate in such a spectacle, had there been a TRC in Germany after the war, or that the International Criminal Tribunals for the Former Yugoslavia or Rwanda would readily permit indictees awaiting trial to broadcast in this way to the people of Serbia or Rwanda. If it is the case that local TRCs and international courts are to work together in efforts to produce post‐conflict justice in other theatres of war in the future, I do not believe that granting this application for public testimony would be a helpful precedent.
[44]

 

Deprived of the platform they had been seeking, the defendants ultimately refused to cooperate with the TRC. Unfortunately, the tensions generated by this litigation left a sour taste in relations between the TRC and the Special Court. In reality, it was little more than an incident in what had been an essentially serene relationship.

The issue of testimony by Special Court detainees might have been addressed from the standpoint of a division of labour between the two institutions. There had been suggestions that the TRC would, in effect, concern itself with the “small fish” while the Court focused on the “big fish.” There was certainly no doubt that the Court's mandate was confined to “those who bear the greatest responsibility,” something spelled out explicitly in Article 1 of its Statute. During establishment of the Court, the
Security Council had stressed that it would be preferable for juvenile offenders to be dealt with by the TRC, perhaps suggesting that the Council understood the relationship between the two bodies as involving some sort of identification of distinct spheres of interest.
[45]
But in pursuing the testimony of alleged offenders being held in custody by the Special Court, the Commission demonstrated that it considered even the “big fish” to fall within its own terms of reference. Indeed, it could not be otherwise, given that the TRC was tasked with preparing an historical record of the conflict, something that necessarily involved a consideration of the role of the principal participants.

Observers in the field continue to report that people in Sierra Leone are confused about the distinctions between the two bodies. This is
presented as a problem, for which the solution proposed is further campaigns of sensitization. Yet confusion about the mandates and functions of these two bodies would seem to be not only inevitable but quite natural and understandable. After all, most European law students have trouble explaining the distinctions between the European Court of Human Rights and the European Court of Justice. The average citizen of the United States would be challenged to distinguish between the Chief Justice of the Supreme Court and the Attorney‐General. Who can really expect uneducated, illiterate peasants in the countryside of Sierra Leone to do better? Perhaps the “confusion” about the two bodies is proof of success, not failure. To the extent that the people of Sierra Leone understand that the two bodies exist, and that they have some shared objectives, such as accountability for human rights violations, then the message has been delivered and “sensitization” achieved.

The TRC accomplished its mandate, although it suffered terribly from poor funding and administrative weaknesses. In particular, it was able to prompt the cooperation of many perpetrators, who testified in public or private to their deeds. In this respect, it was probably no better or worse than the many other truth commissions have been. To be sure, there is nothing simple about convincing those who have committed atrocities to admit to their crimes. Moreover, the Sierra Leone TRC did not have the carrot of amnesty that the South African TRC had used as an incentive for perpetrator admissions.

The willingness or reluctance of perpetrators to participate in accountability processes – be they truth commissions or courts – may have far less to do with promises of amnesty or threats of prosecution than many may think. Just as criminals often confess, despite “Miranda” warnings about the right to silence, not to mention stern admonition from their lawyers, some perpetrators of serious human rights violations may feel the need to unburden themselves, to “tock dee troot” as they say in Krio, Sierra Leone's lingua franca. At the other extreme, there are those who are incapable of admitting to what they have done, even when promised immunity from prosecution. And this suggests that truth‐telling may or may not work, regardless of the threat of
criminal trial.

Sierra Leone has provided the evolving discipline of transitional justice with a laboratory in which to examine how the two bodies, special “internationalized” courts and truth commissions, relate to each other. As experience has now shown, much of the speculation about potential problems and relationships has proven to have been somewhat wide of
the mark. The relevance of this work to other post‐conflict justice situations cannot be underestimated. Virtually everywhere, the two concepts have their promoters, although they are often presented in the alternative. Sierra Leone has demonstrated that the relationship of the two mechanisms is rather more synergistic than many might have thought. The complexities of the matter are well‐illustrated in the saga of attempts to establish a truth commission for Bosnia and Herzegovina, and the evolving view of the International Criminal Tribunal for the former Yugoslavia from one of virtual opposition
[46]
to one that might be characterized as benign tolerance.
[47]
These issues are likely to be at the top of the agenda of the Prosecutor of the new International Criminal Court as he wrestles with the adequacy of domestic responses to atrocity in assessing the potential admissibility of cases under Article 17 of the Rome Statute.
[48]
Perhaps the unfolding practice in Sierra Leone will convince him of the usefulness of a genuinely complementary approach, by which international prosecution coexists with alternative accountability mechanisms, rather than the context of antagonism and confrontation that many observers expect.

Although there had been some discussion within Sierra Leone about the importance of a truth commission prior to its establishment, the idea was obviously borrowed from elsewhere. It seems open to question whether Sierra Leone would have organised a truth commission had this not been promoted and encouraged by the “international community.” If the United Nations had insisted that Sierra Leone contribute a reasonable proportion of the costs of the venture, it would probably never have seen the light of day. Sierra Leone is an extremely poor country, and it could never have been expected to shoulder a large part of the expense of a truth commission. Still, the insignificant participation in the TRC's funding by Sierra Leone and by Sierra Leoneans can only have affected negatively the sense of ownership. Sierra Leone is a graveyard to wonderful international initiatives, established by generous funders, which are left abandoned and decaying when the foreign support concludes. Why should the TRC be any different?

With the presentation of its report, the Commission formally went out of existence. The
Truth and Reconciliation Act 2000
provided for follow‐up mechanisms, to ensure that the recommendations are implemented. It seems likely that the real successor of the Commission may be the new Human Rights Commission, which will be a permanent institution. The Truth and Reconciliation Commission has fulfilled its general objectives, and it seems likely that the Special Court will do the same. The problem is not with the viability of the transitional justice institutions, but with the limited nature of the overall transition within Sierra Leone.
A useful comparison can be made with South Africa, where the transitional justice institutions were part of a much broader social transformation, driven by an extremely dynamic civil society. Sierra Leone lags far behind South Africa in this respect. And this sad conclusion inevitably limits the potential of the Sierra Leone Truth and Reconciliation Commission to influence the future of this troubled country.