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Case Selection in ICL and the Legacy of Anomalies

by Wayne Jordash – iLawyer

The concept of a court’s legacy has been defined by the United Nations (UN) as the “lasting impact on bolstering the rule of law in a particular society, by conducting effective trials to contribute to ending impunity, while also strengthening domestic judicial capacity.” Unless we are supposed to extrapolate from the word “effective”, this UN definition curiously fails to mention the most critical platform for a meaningful and sustainable legacy – the requirement that the trials are, and are perceived to have been, fair in their inception and process. Effective, but selective and unprincipled, trials might not quite deliver the lessons in the rule of law or provide the demonstration effects that are presumed to play their part in ending impunity. As the current crop of international or hybrid courts complete their work, is this not the critical criterion upon which any long lasting or otherwise robust legacy must rest?

The limitation of this UN definition and the need for the ongoing legacy conversations to be embedded in these considerations was apparent at the recent ICTJ sponsored conference “Exploring the Legacy of the Special Court for Sierra Leone” held in Freetown on the 6-7 February 2013. Attended by a range of international humanitarian and criminal law actors, many with considerable experience of working at the Special Court for Sierra Leone (SCSL). These were accompanied by an equally impressive array of Sierra Leonean civil and academic society, including Marie Bob-Kandeh from the “Sierra Leonean Association of Market Women”, Sulaiman Jabati, the Executive Director of the “Coalition for Justice and Accountability” and Joe D. Alie from the once- famous Sierra Leone Fourah Bay College, as well as a range of other academic and interested parties. Of the subjects that gave rise to the most vigorous debate within the largely Sierra Leonean audience was the discussion concerning fair ‘case selection’ – viewed as an integral aspect of a broader enquiry, namely, whether those who were selected had received a fair trial.

Members of civil society were keen to explore which participants in the Sierra Leonean eleven year war had the SCSL decided to prosecute and why – or, more poignantly, who had not been prosecuted and the reasons why. Of course, logically, this is one of the starting points for a comprehensive consideration of the broader questions: whether an international or hybrid court, such as the SCSL, had delivered fair and impartial justice, and consequently the precise nature of their legacy. The question – whether those who were tried were those who were perceived to fall within the jurisdictional threshold of bearing the “most” or the “greatest responsibility” for the crimes –as considered in the recent report by No Peace Without Justice: “Making Justice Count: Addressing the impact and legacy of the Special Court for Sierra Leone in Sierra Leone and Liberia” – is only one aspect of that enquiry and, from the perspective of the Tribunals, by far the most convenient part. The more salient questions concern the consideration of which men evaded trial and why, what does that say about the fairness of the trials that did occur, and what did these choices and trials demonstrate to the stakeholder communities.

SCSL officials will urge that the conviction of Taylor stands as a powerful illustration of the impartiality of the prosecutions, the success of the trials and a powerful demonstration of the non-arbitrary exercise of the rule of law. As this reasoning goes, if a sitting head of State may be indicted and convicted against considerable forensic challenges, this stands as cogent proof of the independence and impartiality of the process and the fairness of the convictions obtained. Does this not show the rule of the law is more powerful than the “rule of the gun?” Are these not the seeds of a credible, robust and sustainable legacy?

Of course, this (successful) prosecution and the fact that most, if not all, other convicted persons at the SCSL fell squarely within the “greatest responsibility” threshold, does provide a measure of support for this claim. But the more difficult and uncomfortable question is whether others should have been tried, but for reasons, unconnected to the evidence, could not and managed to escape from the “ending of impunity” net. To paraphrase Human Rights Watch, did the conviction of Taylor prove that every “big man” must face justice – or only those that were no longer important to the United States and the other international powers-that-be? And, of course, if some were allowed to avoid prosecution for non-legal reasons, why should we – or rather, ordinary Sierra Leoneans – have faith in the subsequent prosecution and conviction of those remaining, or the applicability of law to all?

It is certainly the case that the SCSL, perhaps more than its sister Tribunals (the ICTY, ICTR, and the ECCC), can claim to have achieved some kind of balance in its prosecutorial and trial approach. It, not only, prosecuted Taylor, but also achieved some kind of numerical equality, prosecuting individuals from each of the important fighting forces: 3 from the pro-government militia, the CDF (including the then sitting Minister of Defence, Hinga Norman, who died before judgment was rendered) and 3 from each of the two principle rebel groups (the Revolutionary United Front (RUF) and the Armed Forces Revolutionary Council (AFRC).

At first blush, this record compares well with the failure of the ICTR to initiate any prosecutions of the Tutsi army, the RPF (then led by Kagame – now President of Rwanda), and the dearth of prosecutions and almost comprehensive failure at the ICTY to secure convictions against the non-Serb leadership in command or control of the armies or militia that were undoubtedly responsible for serious violations during the 1990’s civil war in the former Yugoslavia. Carla del Ponte, ex-Chief Prosecutor at the ICTR is of the view that the failure to prosecute the RPF was not due to an absence of evidence or otherwise a decision based upon individual liability. On the contrary, in her book: Madame Prosecutor: Confrontations with Humanity’s Worst Criminals and the Culture of Impunity (Other Press, New York, 2009, pp.231-233, 236) she describes being replaced due to her determination to pursue these inconvenient prosecutions. The more recent acquittal by the Appeals Chamber of the senior members of the Croatian military leadership, including Gotovina, for their actions during Operation Storm and the tens of thousands of citizens that left their homes as a result has underlined for some a nagging doubt over the selective targeting of Serbs by the ICTY.

But, of course, the question of fairness or impartial case selection rests on more than the, equally arbitrary, attempt to select equal numbers from all sides of the conflict or the (unsurprising) insistence, propounded by prosecution insiders from the Tribunals, that they followed the evidence, without fear or favour, wherever it led them. Although the Prosecution at the SCSL chose three members of the pro-government forces to be tried to equal the 3 from the two rebel groups, the RUF and AFRC, the overwhelming bulk of the serious crimes were committed by the RUF and the AFRC. As found by the TRC, the CDF forces committed only 8% of the total crimes, whereas the RUF and AFRC were responsible for 60.5% and 16.6% respectively.

More importantly, perhaps, as was plain from the evidence against the third CDF indictee, Fofana, there were many individuals from the RUF and the AFRC whose trials would have been more compelling from the perspective of the scale, the seriousness and notoriety of the crimes, as well as the strength ofevidence in support of their responsibility. Too much numerical or other similar symbolic gesturemay therefore be equally removed from a measured assessment of the evidence, the basis of any fair case selection. As some argue with regard to some of the trials of non-Serbs at the ICTY, the attempt to create a numerical equality may also lead to high profile acquittals, that dent confidence in the Tribunals, leading to a loss of legitimacy that is also capable of undermining the legacy project.

Moreover, the reality is that case selection at the SCSL and their claim that no one was “above the law” was flawed, or at least skewed, from the very conception of the institution. At the time the Court was established, a waiver granting immunity from prosecution for ‘peacekeepers and related personnel’ was built into the Statute. This was inserted for the sake of ECOMOG (a largely Nigerian led force that fought on the side of the government), who, according to the TRC, had committed 1% of the atrocities and human rights violations. It also applied to a mixed contingent of international peacekeepers (“UNAMSIL”), including those from the UK and many others who were working with the government, including those that were providing arms.

As an illustration of how this type of selectivity seeps into the process of adjudication, it is worth recalling that the three RUF accused were charged with several counts of serious violations of international law on the basis of allegedly attacking UNAMSIL. Each accused, to a greater or lesser degree, argued that at the relevant time, UNAMSIL troops had abandoned their peacekeeping role to become combatants fighting on the side of the government. In other words, despite at least prima facie evidence of extra-curricular involvement in the war (including extensive illicit diamond mining by some), the RUF accused had to advance their respective defences knowing that the court was built on a foundation that defended UNAMSIL from allegations of wrongdoing: hardly a firm basis for the fair application of the burden and standard of proof.

Thus far no convincing argument or evidence has been advanced by the Prosecution at the SCSL to suggest that this type of selectivity was not employed to provide then President Kabbah with the same type of immunity from prosecution. On the contrary, the proposition that Kabbah’s Deputy Minister of Defence, Hinga Norman, acted for several years without the President’s direction, or that, as found by the Sierra Leonean TRC (at para. 33, 264-265 and 284), Kabbah had no managerial responsibility to restrain the obvious and enduring criminal excesses of the CDF is difficult to accept: even more so when one considers that Kabbah held both the Presidency and Minister of Defence posts during the indictment period. But of course it was Kabbah whose request to the US State Department led to the setting up of the court and his cooperation was critical to its success.

Similar reasoning may be employed with regard to a number of others, including President Compaoré of Burkino Faso and the late Muammar Gaddafi, both of whom were implicated in aiding and abetting the horrendous crimes during the civil war and yet escaped prosecution for reasons that remain opaque.  The fact that the Court was funded by voluntary contributions, requiring it to rely upon the largesse of the US and other donating member states, such as the UK, provides as convincing an explanation as any proffered by the SCSL so far. That is not to argue this is correct, only that, absent transparent disclosure of the underlying reasoning, this argument looms large to a skeptical Sierra Leonean public, many of whom considered Norman a hero who had fought to save his country and query why he, and not Kabbah, was indicted.

The consideration of these questions ought to form a part of any fair appraisal of the work of the modern tribunals. To ascertain the extent of their impact upon the targeted societies, the question of whether the trials have been fair must be at the root of any enquiry and this must begin with the thorny question of case selection. Of course, cases must be selected – not all can be prosecuted. But that selection had to be, and seen to be, based on principled assessments of the available evidence; not mere strategic machinations or the dalliance of regional or international power play.

As ICTJ appeared to recognize at their recent legacy conference, the Prosecution must lead on these issues. It is not sufficient to merely insist that the Prosecution acted with integrity, following the evidence to its logical conclusion. Any formal criteria, prosecutorial policy and salient evidence must be disclosed as a prerequisite for full consideration of the issues. The SCSL is alone in not providing even the first of these requirements. These materials will create the conditions essential for a provoking, but measured, debate that might address the degree to which the institutions delivered non-selective, fair trials that lie at the heart of a sustainable legacy. If the Prosecution will not lead the debate, others will and the conclusions reached may not make for comfortable deliberation.