U.N. Sets Out Recommendations for Sierra Leone War Crimes Court
Court to try those with greatest responsibility
By Judy Aita
Washington File United Nations Correspondent
United Nations -- Secretary General Kofi Annan has recommended the
establishment of an independent special court for Sierra Leone to
prosecute those with "the greatest responsibility for war crimes and
other crimes against humanity" during the civil war dating back to
November 1996 -- including children over the age of 15.
The report, released October 5, sets out the legal framework and
practical arrangements for the court and has been given to the
Security Council to take action on it. The court will be similar to
U.N. tribunals dealing with war crimes in the former Yugoslav
Republics and Rwanda and be comprised of two trial chambers and one
appeals chamber. Each trial chamber will have two international judges
and one judge chosen by the Sierra Leone government. The appeals
chamber will have five judges -- three international judges and two
chosen by the government. The chief prosecutor will be appointed by
the secretary general and the deputy by the Sierra Leone government.
The aspect of child soldiers was the most difficult issue to deal
with, said Ralph Zacklin, assistant secretary general for legal
affairs.
"It is an issue on which there are very high emotions. We have had
some extremely emotional meetings with our U.N. colleagues who are
working in Sierra Leone, with the international NGOs who are working
there, but also with the national NGOs, the civil society, the
government officials, and those who work in the rehabilitation
centers," Zacklin said at a press conference introducing the report.
"One of the very particular characteristics of the war in Sierra Leone
has been the role of child combatants," he said. "There have been many
thousands of children who have been abducted, who have been drugged,
who have been placed under duress and abused, and who have perpetrated
over many years some of the most serious crimes that have been
committed in Sierra Leone -- summary executions, amputations."
The debate was whether those who committed the crimes while they were
between the ages of 15 and 18 years should be tried by the special
court; or whether, Zacklin said, because of their age, the fact that
they were for the most part abducted, abused and therefore were
victims themselves, they should be handled through some kind of truth
and reconciliation process under the rehabilitation and demobilization
program.
After consulting with U.N. offices and agencies dealing with children,
as well as with Sierra Leone officials and civilians, "we have
tentatively suggested that this age group of 15 to 18 year olds should
be brought within the jurisdiction of the special court albeit with
many safeguards," he said.
"If a prosecutor should, indeed, find a child in this age group who
has committed such crimes...such a trial would have to be separated
from the trial of adults; the court would have to establish a special
juvenile chamber; the children given all kinds of due process
protection -- their identity would be protected -- and, of course,
they would be given psychological counseling and other forms of
assistance in the process," he said.
In his report to the council, the secretary general said that the
government "and representatives of Sierra Leone civil society clearly
wish to see a process of judicial accountability for child combatants
presumed responsible for the crimes falling within the jurisdiction of
the court.
"It was said that the people of Sierra Leone would not look kindly
upon a court which failed to bring to justice children who committed
crimes of that nature and spared them the judicial process of
accountability," Annan said.
Zacklin also said that the court will deal with "war crimes, crimes
against humanity and violations of the Common Article 3 of the Geneva
Conventions. We do not cover genocide because in our evaluation it
would be very difficult for the prosecutor in the Sierra Leone context
to make the case for genocide."
Zacklin said that the secretary general is suggesting that the court
deal with those bearing "most responsibility," instead of the
council's initial suggestion to try those bearing "the 'greatest
responsibility'.
"We feel the formula 'greatest responsibility' probably pitches the
personal jurisdiction too narrowly and too high to capture all of
those who bear some degree of command responsibility or leadership
responsibility (for the crimes). So the court's jurisdiction should
extend to those who are most responsible. This is intended to cover
those in leadership positions, either politically or militarily," he
said.
In one of the more significant aspects of jurisdiction, the U.N. chose
the cut off date of November 1996 -- this pre-dates the Lome Agreement
which included an amnesty agreement -- as the starting point for the
commission of crimes covered by the court. The date, Zacklin said,
also corresponds to the adoption of the Abidjan agreement, the first
attempt to reach a peaceful settlement of the civil war in Sierra
Leone.
"In the Lome Agreement there was an amnesty provision that basically
amnesties everybody from all kinds of war crimes," he pointed out.
"The United Nations special representative who signed the Lome
agreement as witness or moral guarantor was, at the time, instructed
by the secretary general to enter a reservation with regard to the
amnesty provision, because it is the view of the United Nations that
there is no amnesty for war crimes, crimes against humanity and
genocide."
In instructing the secretary general to work out the details, the
council said that the court should be funded by voluntary
contributions. However, the secretary general said that voluntary
funding would be too risky and the establishment of a court of this
kind must have assurances of long-term, continuous availability of
funds -- or face the 'loss of credibility" and "exposure to legal
liability."
Zacklin suggested that, based on the costs of the Rwanda and Yugoslav
Tribunals, the Sierra Leone court would be facing first year start-up
costs of about $25 million. That could be lessened by voluntary
contributions of personnel and equipment from other governments.
The council will also have to decide whether to set up the court's
mandate under Chapter VII of the U.N. Charter, which would make it
mandatory for all states to cooperate with the tribunal and give the
U.N. Mission in Sierra Leone (UNAMSIL) troops the enforcement
authority to arrest indicted war criminals. Otherwise the Sierra Leone
government will have to go through extradition processes should some
of those indicted flee the country.
(The Washington File is a product of the Office of International
Information Programs, U.S. Department of State. Web site:
http://usinfo.state.gov)
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