The Afterlife of a Court: Residuality and Responsibility in Sierra Leone

[Mark A. Drumbl is Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute, Washington and Lee University.]

In late February 2024, the city of Freetown hosted a Legacy Conference for the Special Court for Sierra Leone (SCSL). The event’s goal was to raise awareness of the SCSL’s contributions to international justice, peace, and security. It ably succeeded in this regard. I attended the Legacy Conference, along with about 250 participants, including nearly all of the RSCSL judges joined by key prosecutorial actors, UN officials, politicians, and victims.

The SCSL was established in 2002. It transitioned in late 2013 and early 2014 from an active court to a court-like residual mechanism, the RSCSL, which through its open-ended mandate supervises ongoing sentences, protects witnesses, attends to administrative matters, curates the institution’s legacy, and stands ready to complete more demanding legal work should the need arise. Residuality is a theme that now engages the temporary international(ized) courts (Rwanda (ICTR), Yugoslavia (ICTY), Cambodia (ECCC)). They are shut down, but still remain ‘open’. Their work is complete but necessitates ongoing monitoring and thus also remains work-in-progress.

Despite its operational prevalence, residuality remains under-conceptualized and under-theorized  as a branch of international criminal law enforcement.  This post offers some thoughts about residuality (and responsibility) sparked by my time in Serra Leone. These thoughts might reframe ongoing conversations about the nature of residuality, how to speak of institutional endings and afterlives, and perhaps new beginnings along the way.

First, a bit of background to situate readers unfamiliar with Sierra Leone. Readers familiar with Sierra Leone can skip to the next paragraph. A conflict raged in Sierra Leone from 1991 to 2002. Seventy thousand people were brutally killed; many others amputated and raped; child soldiers were enlisted; forced marriages were endemic; millions of persons were displaced. The SCSL, an international institution, was established following the end of the conflict to deliver justice. The SCSL was created by a treaty between the United Nations and the government of Sierra Leone. It espoused a hybrid model insofar as judges hailed from Sierra Leone as well as from numerous other states. This differentiated the ‘internationalized’ SCSL from the ICTY and ICTR (entirely international institutions) and aligned it structurally with the hybrid ECCC. The SCSL conducted four trials: two of leaders of rebel groups (the AFRC and the RUF), one of an armed group that fought the rebels on behalf of the government (the CDF), and one of Liberian President Charles Taylor who aided and abetted (and planned) horrific violence. The SCSL completed its trials with rigor. It secured convictions. Jurisprudentially, the SCSL made important contributions to the crime of forced marriage, the status of immunities, child soldiering, gender-based violence, and modes of liability.

Although my time in Sierra Leone was starkly limited, I was greatly moved by the conference. By limited I mean I did not much leave the hotel, other than my eyes wandering over the ocean in a really stunning view from my balcony, both at dawn and dusk. The conference was at the hotel. And the one time I did leave the hotel I never parted from the conference in that it was an organized visit to the Sierra Leone Peace Museum. But, still, notwithstanding my limitations in terms of time, I learned so much. It was a brilliant and moving conference. I am thankful I was included. I am very grateful to the indomitable Binta Mansaray for inviting me, to the dedicated RSCSL judges for sharing their thoughts with attendees, and to the prosecutors, court officials, and victims for voicing their experiences. The words that follow reflect my personal takeaways from this event, as an outsider academic, along with some thoughts about residuality and responsibility.

The SCSL’s mandate was to punish those most responsible for atrocities. This mandate was affirmed in its constitutive statute. This mandate moreover formed part of the imperatives of its first Chief Prosecutor, David Crane. Striking to me is how SCSL outreach explains this mandate to the people of Sierra Leone. After all, the crushing preponderance of the violence was committed by the ‘little people’ – children, coerced recruits, small-town hooligans – suddenly emboldened with machine guns, amulets, and situational power. So how to explain this?

The Memorial Garden in Freetown — adjacent to the Sierra Leonean Peace Museum and the dilapidated, collapsing UN-built SCSL courthouse – offers a telling illustration. At the gateway to the Garden, visitors encounter a large wall sculpture which puts in the visual the SCSL’s core legal tenet of prosecuting ‘those who bear the greatest responsibility’.  The carving constellates five men designated as most responsible – their identities readily discernible to Sierra Leoneans from their faces — in an arc above a line of little figures, the little peoples, who point in accusation at this choir of the big five. But in their pointed exclamations of attribution I also see the pursuit of soothing exculpations of involvement. Assignation of responsibility can become the comforting salve of an assuaging, yet deceiving, non-responsibility. After all, the little people did have some responsibility. A lot, in fact. Lilliputian neighbors betrayed, stalked, killed and tortured neighbors. Little people rampaged and raged. They did so very far away from any leadership; moreover, what exactly is leadership in a scattered-shattered society often bereft of communication lines?  Charles Taylor may have been responsible, yes, but little persons very remote from Charles Taylor actually did it. Indeed, the core attribution principle of international criminal law captures this carving, and the carving put words in images, much in the way the stained glass of medieval churches instructs on guilt, sin, indulgence, devilishness, and mercy through the visuality of parables. But in the end, the visualities of this attribution principle, at least as carved on a memorial wall in Freetown, also bring its limitations into sharp relief.

Indeed, this artwork clashes with another, inside the Garden, which features two non-responsible little people bigly dressed in military gear tearing a child from the mother’s arms and seemingly tearing the child apart. There is no exculpation theme here. None at all. In the end, the limitations of penal law to those most responsible, and the reductive language of attribution, may also be unsatisfying and occlusive.

I found the recollection of the atrocities among Sierra Leoneans to be raw and visceral. The Peace Museum and the Memorial Garden speak to this, including the curdling blood-red fountain of the child being snatched from the mother’s outstretched arms. I equally found the candidness of reenactment to be striking. In the middle of the first morning of the conference, in the in-between among speeches, conference organizers made a very courageous choice to include a jarring reenactment of the disembowelment of a pregnant woman, a rape, killings, and the sheer terror faced by villagers when under attack. Students of theatre at the local university put it on. The depictions have really stayed with me: in particular the shifting triptych in the faces of the actors of sheer terror, how terror shears emotion, and the wildness of insanity. Then after the reenactment all returned to ‘normal’. Speeches and presentations resumed as if nothing had happened.  But something had definitely happened.

Perhaps one reason for this bluntness is to compensate for the fact that the diffuse nature of the violence in Sierra Leone (i.e. no orchestrated genocidal or ethnic cleansing plan) risks the reality of a myriad of small sites of sudden violence, in which the sum could be lost amid all the parts, as opposed to centralized killing fields, torture centers, prison complexes, and elimination camps that could readily be marshalled in memory and concentrated in a fixed geographic fashion (as in Cambodia and Bosnia). Since all could be easily forgotten, perhaps something more graphic may be required to remember? Alternately, it could just be cultural. Sierra Leone stuck me as a very frank place.  

The Peace Museum also dabbles in text. It has an entire section featuring excerpts from the testimony of witnesses at SCSL trials as authentications of what happened during the conflict, in particular when it came to sexual violence. I have never seen placards of extensive witness testimony deployed in this pedagogical function in museums to such an extent, and it got me thinking a great deal about the transmissions of the transcript and about interpretation and translation. The Peace Museum in fact begins with an exhibit dedicated to interpreters, who are personally featured biopically, along with extensive discussion of language including a detailed map of Sierra Leone’s. This is a rare find when it comes to recognition. It is compelling.

That morning also had a surrealist tinge to it. This was not the Peace Museum, nor the Garden, but rather the adjoining lighting of the ‘peace flame’ just outside the SCSL building. Why? Because the SCSL building is falling apart physically. Derelict. The roof is collapsing, the wooden walls fraying, the entrance is supported by metal rods, the place has apparently been taken over by squatters. It is neglected. To light a peace flame before such an abandoned building is poignant. It speaks volumes about the coming and going of justice, the fragility of footprints, and the peripatetic nature of justice activism and funding. But it really struck me. I don’t mean it in a mocking sense. It is tragic. But it also was surrealistic for me.  

What else? I moderated a lively panel comprised of 14 RSCSL judges. I also spoke on a panel on the future of residual mechanisms, a narrow and bureaucratic topic that turned out to become something wider and bigger. Indeed, questions arise about situational residuality, namely, the ending of individual situations at the permanent International Criminal Court (ICC), along with institutional residuality, meaning, endings of institutions such as the SCSL. And efficiencies, to wit, would it be better for all endings to be consolidated into one structure, a permanent institution geared towards ‘the end’, or better left as fragmented among individual institutions and situations?

I think the best course of action would be to take a step back. The word ‘residual’ is indeed bandied about a lot nowadays in international criminal law, but perhaps a more careful look at its etymology can be revealing. This brings us to ‘residue’, which after all is the noun for residual, and which means a small part of something that remains — that lingers — after the main part has been taken or used or has evaporated or combusted. On this note, I thought a lot about Salvador Dalí’s ‘The Persistence of Memory’, namely, shapelessness (including the shapelessness of residual mechanisms as courts, the shapelessness of melting time, institutional shapelessness amid the precise permanence of landscape); a space in which hard objects like courts become limp and gelatinous or disintegrate like the SCSL structure itself; and I also spoke about lawyers as curators, the ethics of archiving, judicialized after-life, aging convicts and elderly victims, safeguarding witnesses though time, and rehabilitating and reintegrating mass killers once they do their time for their crime. Law in this space becomes administrative, routine, and managerial. Winding down is the opposite of winding up, a different stage of the life-cycle, but still one in which the interactive nature of the international and the national need to be calibrated. This renders pertinent the notion of ‘dismissability’ rather than admissibility, to wit, how to balance the international and the national in the winding down, the aging out of institutions, the idea of complementarity in the fade, of the waning of primacy. I was also struck by the idea of the fade as stretched and elongated and, ultimately, entropic.  This reminds me of Tithonus, whose wife Eos asked Zeus to grant him eternal life, but she neglected to ask for eternal youth, so Tithonus remained forever wizened. I wonder whether this is going on elsewhere, beyond the penal function, in international institutional law?

I was thinking about institutional eternity and institutional death in Sierra Leone, about not letting go, embalming in a sense, like Lenin in Moscow, whose internal organs and brain have been removed, but the body — assiduously maintained by scientists, a residue – still lies in a glass sarcophagus as an attraction. Lenin died in 1924, so this year it has been so for a century. I am also thinking lately about Dante, including his reflections on death, namely, that of his guide and companion Beatrice, as unspooled in his sonnet, ‘On the 9^th of June 1290’, this being the morning after Beatrice dies at the age of 24:

Upon a day, came Sorrow in to me

Saying, ‘I’ve come to stay with you a while’;

And I perceived that she had ushered Bile

and Pain into my house for company.

Wherefore I said, ‘Go forth – away with you!’

But like a Greek she answered, full of guile

And went on arguing in an easy style

Then, looking, I saw Love come silently,

Habited in black raiment, smooth and new,

Having a black hat set upon his hair;

And certainly the tears he shed were true.

Dante’s contrast between Love, on the one hand, and Sorrow, Pain, Bile, on the others, is magnificent. Is this how the end should be remembered, or the person recollect(ed)(ing) while fading, and is this a frame applicable to institutional dénouements as well? Residue is what remains after things have left, so when is it that residues depart? How? When do residues end? Should they just linger, like Lenin artificially in a see-through case? Or might they stretch to the horizon like an authentic Sierra Leonean sunset over the sea?