23 Mar SCSL Symposium: The Relationship between the Court and the Sierra Leone Truth and Reconciliation Commission
[Joseph Rikhof is an adjunct professor at the Faculty of Common Law of the University of Ottawa. Until his retirement in 2017 he was also a senior counsel at the Crimes against Humanity and War Crimes Section of the Canadian Department of Justice. 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.]
The book “The Legal Legacy of the Special Court for Sierra Leone” by Professor Charles Jalloh is a tour de force. While it is not the first book written, which discusses this institution, see here, here, here, here, here, here, and here) it is certainly the most comprehensive, detailed and, most importantly, the most skillful monograph. It provides an excellent in-depth analysis of the most pressing legal issues faced by the Special Court for Sierra Leone (SCSL) and the impact of these legal issues on the development of international criminal law (ICL).
The connection between the jurisprudence of the SCSL and the use of this caselaw by other international criminal institutions, especially the Extraordinary Chambers in the Court of Cambodia (ECCC) and the International Criminal Court (ICC) shows the courage of the SCSL judges in tacking novel and unique legal issues in a manner, which had resonance in different situations than the ones faced in the Sierra Leone context. The erudite analysis by Professor Jalloh of these legal questions and the subsequent references to this jurisprudence, which he adroitly weaves into this narrative, makes his book stand out compared to other works in ICL, which often limit themselves to a description of legal issues without taking into account their impact on the larger ICL canvas. His approach can be found in all the chapters of the book dealing with substantive legal matters, such the issues of greatest responsibility, forced marriage, child recruitment, head of state immunity and amnesties. (For further developments regarding prosecutions regarding the crime of forced marriage and child recruitment see here, paragraphs 606-612 (and especially footnotes 1233 and 1246) and here, paragraphs 1102-1108 (and especially footnote 3075)).
Especially the issue of forced marriage, which was originally seen by the SCSL Trial Chamber as sexual slavery but which its Appeal Chamber determined to be a crime against humanity of other inhumane acts had an important impact in the recent ICC judgment in the case of Ongwen (see here) both in the general analysis of this crime (in paragraphs 2748-2749 with a footnote to the AFRC Appeal judgment in footnote 7212) but also in distinguishing this crime of forced marriage from sexual enslavement (paragraphs 2750-2751 referring to SLSC jurisprudence in footnotes 7215-7216). The ICC Trial Judgment in Ongwen was delivered on 4 February 2021, but already in Professor Jalloh’s book published in July 2020, he had foreshadowed that development from the pre-trial chamber ruling noting that it would potentially give the ICC trial chamber the opportunity to clarify this issue (see Jalloh, Legal Legacy at p. 185).
The Trial Chamber in setting out the essence of the crime of forced marriage reflected the language of the AFRC Appeal judgment when it said: “The central element, and underlying act of forced marriage is the imposition of this status on the victim, i.e. the imposition, regardless of the will of the victim, of duties that are associated with marriage – including in terms of exclusivity of the (forced) conjugal union imposed on the victim – as well as the consequent social stigma. Such a state, beyond its illegality, has also social, ethical and even religious effects which have a serious impact on the victim’s physical and psychological well-being. Accordingly, the harm suffered from forced marriage can consist of being ostracised from the community, mental trauma, the serious attack on the victim’s dignity, and the deprivation of the victim’s fundamental rights to choose his or her spouse.”
Regarding the distinction between forced marriage and sexual slavery, the Ongwen judgment said (resonating the language of the SCSL) that “While the crime of sexual enslavement penalises the perpetrator’s restriction or control of the victim’s sexual autonomy while held in a state of enslavement, the other inhumane act of forced marriage penalises the perpetrator’s imposition of ‘conjugal association’ with the victim. Forced marriage implies the imposition of this conjugal association and does not necessarily require the exercise of ownership over a person, an essential element for the existence of the crime of enslavement.” (for a general commentary on the case, see here).
Chapter 10, the discussion of the relationship between the SCSL and the Sierra Leone Truth and Reconciliation Commission (TRC) is different than the other chapters for two reasons. First, while there have been a large number of TRCs (see here for an elaboration on the legacy of TRCs), it has been rare for such an transitional mechanism to be working in parallel with a criminal justice institution while secondly, because of this unusual configuration, the lessons set out in this chapter have not been utilized in subsequent similar situations.
Professor Jalloh discusses the main two points of friction arising out of the confluence of the operations of the SCSL and TRC, namely the issue of information sharing between the two institutions, specifically the disclosure of confidentially obtained information by the TRC and whether such information could or should be shared with the SCSL and the concomitant question whether the SCSL had primary over the TRC; and the issue of whether SCSL detainees could testify before the TRC and if so, under which circumstances, specifically whether this should be in public or in private.
Professor Jalloh discusses in detail the various arguments brought to bear by academic observers, judges of the SCSL and members of the TRC but does not shy away from providing his own perspective by indicating that TRC information should have been shared with the SCSL and that SCSL should have allowed detained person to testify before the TRC in a private capacity. His overall astute conclusion is that in a situation where there are two institutions working in parallel in achieving justice in a broad sense, a detailed agreement between the two – in advance – would be imperative. (See here for a thoughtful analysis on truth and justice).
This recommendation should be adhered to in two contemporary situations, namely in the Central African Republic (CAR) and Kosovo. Unfortunately, it appears that this might not be happening in CAR while in Kosovo a TRC has been proposed by the President who has also been indicted by the Kosovo Specialist Prosecutor’s office, raising other unique legal questions. Lastly, this issue could also come into play as part of a determination in the ICC context whether a national TRC fulfils the requirement in Article 17(1) of the Rome Statute of being able and willing to conduct its own investigations, thereby usurping the jurisdiction of the ICC. In the end, even though the decentralized nature of ICL and the wide range of States and actors involved in its institutional development might mean that lessons from courts such as the SCSL may not always be reflected in the design of the successor institutions, the mere fact that this experimentation already occurred and that there are lessons to be applied elsewhere gives some hope about the continued maturity of the field.