SCSL Symposium: A Legal Legacy that Opens the Way to Justice in Challenging Places and Times–Part I

[Stephen J. Rapp is a Senior Fellow at the United States Holocaust Memorial Museum’s Center for Prevention of Genocide and at the Blavatnik School of Government of Oxford University. He was formerly Ambassador-at-Large heading the Office of Global Criminal Justice in the US State Department, and between 2007-2009, was the Prosecutor of the Special Court for Sierra Leone. This essay was initially prepared at the request of FIU Law Review for its micro-symposium on The Legal Legacy of the Special Court for Sierra Leone by Charles C. Jalloh (Cambridge, 2020). An edited and footnoted version is forthcoming in Volume 15.1 of the law review in spring 2021.]

Charles Jalloh’s The Legal Legacy of the Special Court for Sierra Leone reminds us of the great usefulness of the hybrid model of international criminal justice.   It is very timely when so many of the mass atrocities committed in today’s world—in Syria, Iraq, South Sudan, and Myanmar (except for forced deportation)–are outside the reach of the International Criminal Court (ICC), either because of non-membership of the territorial states or the blockage of the UN Security Council.

Indeed, even where the atrocities are committed on the territory of ICC member states, the hybrid approach can be viewed as a form of “complementarity” that avoids taking the situation to The Hague but does not rely on exclusively national trials.   It can be a better alternative than a single global court in The Hague that is expensive, distant and easy for local leaders to demonize, and national courts where it can be very hard to properly try powerful actors, particularly if these courts were dysfunctional before the violence and were further disabled by it.

The usual arguments for hybrid justice focus on the advantages of locating a court near the victims and affected communities but with a structure that ensures the necessary capacity and will to deliver independent justice for core international crimes.  From my own experience at the SCSL, I have seen how the mixing of national and international personnel was a “win-win” in building capacity because we were able to learn from each other’s knowledge and experience in ways not easily achieved by any other means.  

I also saw how the hybrid model allowed us to overcome the “political will” challenge and prosecute and build public understanding of our case against the leadership of the Civil Defense Forces (CDF) for serious violations committed while they fought on the “pro-democracy” side of the internal conflict.  My friends in Sierra Leone tell me that this delivered an enduring message that no one should attack innocent civilians, no matter what the cause, and as a result the country has survived two power-changing elections without lethal violence.

Charles Jalloh’s book makes the case that beyond these advantages, the greatest may be on the legal front.  In particular, he shows how the SCSL’s decisions on head-of-state immunity and amnesties have profoundly changed the international legal landscape.   He draws a direct line from the SCSL’s denial of immunity to President Charles Taylor of Liberia, which was not a state party of the SCSL, to the ICC’s decisions on the immunity of President Omar al-Bashir of Sudan, which was not a state party to the ICC.  While both courts were treaty-based, the state parties of which recognize head-of-state immunity in their national systems, it was the international character of the SCSL and ICC that extended their legal reach to enable the arrests and trials of even the highest office-holders.

As Jalloh acknowledges, the ICC head-of-state immunity decisions have been criticized by several states and many legal commentators.  It is possible that they could be overturned if the opposing states were successful in building sufficient support for a UN General Assembly (UNGA) resolution asking for an advisory opinion of the International Court of justice (ICJ), and then if the ICJ opined that the ICC immunity decisions were incorrect.  But would the ICJ wish to be seen as closing the door to accountability for high-level officials when it previously took care to leave it partially open in the Arrest of Warrant Case of 2002 by holding that immunities of such officials do not apply “before certain international criminal courts where they have jurisdiction”?

But even if the ICJ were to opine that immunities of certain serving officials still apply in treaty-based courts, the legal legacy of the SCSL is rock solid as to whether such courts can apply customary international law, even where that law is not reflected in the statutes or constitutions of the ratifying states.  This has important implications on immunity of former heads-of-state, amnesties, and retroactivity of statutes in a number of atrocity crime situations where the hybrid model has been under active consideration as a practical solution.

In The Gambia, a Truth, Reconciliation, and Reparations Commission (TRRC), has been busy with the first phase of transitional justice after the electoral defeat and exile of President Yahya Jammeh, who ruled the country from 1994 to 2017.   The TRRC is mandated to complete its work by 2021, and then identify and recommend “prosecution of persons who bear the greatest responsibility for human rights violations and abuses” committed when Jammeh was in power.  The hybrid model has strong support in The Gambia, in part because of the legal limitations of the Gambian domestic justice system.

The present Gambian constitution immunizes Jammeh and those involved in his 1994 coup d’etat and in the transition that followed.  This immunity could be overcome if the proposed new constitution were ratified.   However, there is also the problem that Gambian law during the Jammeh regime did not include crimes against humanity, torture or enforced disappearance.  While Article 15(2) of the International Covenant on Civil and Political Rights (ICCPR) allows retroactive application of statutes that reflect the “law recognized by the community of nations,” there is an additional legal obstacle in the West African region that arose during the preparations for the trial of former Chadian President Hissene Habré in Senegal.

In June 2006, the African Union Summit asked Senegal to try Habré, then in exile in Senegal, “on behalf of Africa.”  There was not a problem with his immunity as a former head-of-state because Chad had waived the immunity and there was no amnesty applicable to his alleged conduct.   The problem arose over the retroactive application of Senegal’s 2007 statute by which it intended to try Habré for crimes committed in Chad during 1982-1990. 

In November 2010, the Court of Justice of the Economic Community of West African States (ECOWAS) ruled that it was a violation of the African Charter on Peoples and Human Rights for Senegal to try Habré under a retroactive domestic statute, and that this could only be accomplished by following the international practice of establishing an ad hoc or special court. This was subsequently achieved by an international agreement between the African Union and Senegal to create a hybrid court–the Extraordinary African Chambers (EAC), staffed entirely by Senegalese personnel except for two international judges, one to preside at trial and the other on appeal. 

The hybrid model is also under active consideration in Liberia, where its TRC in 2009 recommended a Special Court like the SCSL, but where the presence and power in the Liberian Legislature of former warlords and their followers has blocked progress. Now thanks to a public mobilization of support for accountability for war crimes and economic crimes, more than 2/3rds of the members of the Liberian House of Representatives are sponsoring a resolution calling for a Special Court.  At a conference of civil society organizations in Monrovia in November 2018, the hybrid model was seen as offering many advantages, particularly in overcoming domestic legal limitations.   These include the amnesty that was adopted by the Liberian Legislature before President Taylor’s departure in August 2003, the absence of international crimes in domestic statutes, and the constitutional guarantee of trial by jury—so important for ordinary crimes, but difficult to apply in war crimes cases given the challenges to juror impartiality and security in a society where alleged perpetrators present themselves as protectors of their communities.

A hybrid court to provide accountability for the mass atrocities committed in South Sudan since a brutal a civil conflict began in December 2013 was promised by the government and the armed opposition in the peace agreement of August 2015 and the revitalized peace agreement of September 2018.   Article V of both agreements provides for an African Union Hybrid Court for South Sudan (AUHCSS), with the statute to be negotiated between the government and the AU, and with the AU empowered to enact the statute if the government does not agree.  Article V specifically mandates that the statute incorporate international crimes and allow prosecution without regard to amnesties or immunities based on official position.   The AUHCSS appears to be a vehicle that would make the maximum effective use of the legal legacy of the SCSL.  However, to date there has been an absence of the domestic political will, the regional (and AU) support, and the active international engagement that made it possible for the SCSL to be established.

But the hybrid model does not require political will by all local actors, or active engagement by all international partners.  Where there is sufficient will and engagement of key parties, a critical mass can be reached to build a judicial institution based on the legal legacy of the SCSL.  This could happen even in the situation of Syria, the site of ongoing atrocities that are the worst of this 21^st Century.