Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice by Naomi Roht-Arriaza Page A
Authors: Naomi Roht-Arriaza
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to restrict “traditional methods” for averting penal consequences of international crimes; “traditional methods” which perpetuate impunity.
The Appeals Chamber's decision establishing that heads of states are not immune from prosecution by international tribunals was given in the case againstCharles Taylor, who was indicted for his alleged involvement in Sierra Leone's war, while still in office as Liberia's president. [69] Taylor's defense counsel argued before the Special Court's Appeals Chamber that under customary international law, heads of states enjoy immunity from criminal prosecution in foreign or international courts. The Appeals Chamber rejected this argument, finding that under customary international law, “the principle seems now established that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court.” [70] This decision sends an important message to African and other leaders.Taylor's surrender to the Special Court strengthens this message. Unfortunately, until the rule of law is reinforced throughout West Africa tyrants may continue evading justice, even after having been indicted by international criminal tribunals.
In its decision concerning the national amnesty, the Special Court's Appeals Chamber ruled that “[w]hatever effect the amnesty granted in theLomé Agreement may have on a prosecution for such crimes as are contained in Articles 2 to 4 [of the Statute ] in the national courts of Sierra Leone, it is ineffective in removing theuniversal jurisdiction to prosecute persons accused of such crimes that other states have by reason of the nature of the crimes. It is also ineffective in depriving an international court such as the Special Court of jurisdiction.” [71] This view is consistent with the reservation appended to theLomé Agreement by the UN representative, as well as with the growing body of opinion which maintains that under international law such blanket amnesties cannot apply to international crimes. Referring to this trend, the Special Court acknowledged “that such a norm is developing under international law.” [72]
Indeed, the Special Court's Appeals Chamber affirmed that “[e]ven if the opinion is held that Sierra Leone may not have breachedcustomary law in granting an amnesty, this court is entitled in the exercise of its discretionary power, to attribute little or no weight to the grant of such amnesty which is contrary to the direction in which customaryinternational law is developing.” [73] Finally, it is worthwhile stressing that the Special Court's decision does not abolish the institution of post‐conflict amnesties, but rather renders such amnesties inapplicable in international or third‐state proceedings to certain persons with respect to particular crimes.
Witness protection
In contrast to the Nuremberg Trials, most evidence before the Special Court is testimonial. Hence the success of trials before the Special Court depends on the ability and willingness of witnesses to testify. Since the security situation in Sierra Leone has still not completely stabilized, many witnesses feel that testifying before the Court will entail retaliation. The fact thatRUF supporters and CDF supporters live in mixed communities increases this apprehension. [74] Fears of retraumatization and stigmatization may also prevent certain witnesses, especially victims of sexual violence, from testifying before the Court.
The war left Sierra Leone with a seriously damaged justice system, hardly capable of enforcing protection measures, and with army and police forces which are still identified with various parties to the conflict and considered unreliable. [75] The Special Court must therefore afford protection to its witnesses. Psychological and psycho‐social support must also be accorded to witnesses who, by testifying and reliving painful experiences may become retraumatized. Moreover, if
The Appeals Chamber's decision establishing that heads of states are not immune from prosecution by international tribunals was given in the case againstCharles Taylor, who was indicted for his alleged involvement in Sierra Leone's war, while still in office as Liberia's president. [69] Taylor's defense counsel argued before the Special Court's Appeals Chamber that under customary international law, heads of states enjoy immunity from criminal prosecution in foreign or international courts. The Appeals Chamber rejected this argument, finding that under customary international law, “the principle seems now established that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court.” [70] This decision sends an important message to African and other leaders.Taylor's surrender to the Special Court strengthens this message. Unfortunately, until the rule of law is reinforced throughout West Africa tyrants may continue evading justice, even after having been indicted by international criminal tribunals.
In its decision concerning the national amnesty, the Special Court's Appeals Chamber ruled that “[w]hatever effect the amnesty granted in theLomé Agreement may have on a prosecution for such crimes as are contained in Articles 2 to 4 [of the Statute ] in the national courts of Sierra Leone, it is ineffective in removing theuniversal jurisdiction to prosecute persons accused of such crimes that other states have by reason of the nature of the crimes. It is also ineffective in depriving an international court such as the Special Court of jurisdiction.” [71] This view is consistent with the reservation appended to theLomé Agreement by the UN representative, as well as with the growing body of opinion which maintains that under international law such blanket amnesties cannot apply to international crimes. Referring to this trend, the Special Court acknowledged “that such a norm is developing under international law.” [72]
Indeed, the Special Court's Appeals Chamber affirmed that “[e]ven if the opinion is held that Sierra Leone may not have breachedcustomary law in granting an amnesty, this court is entitled in the exercise of its discretionary power, to attribute little or no weight to the grant of such amnesty which is contrary to the direction in which customaryinternational law is developing.” [73] Finally, it is worthwhile stressing that the Special Court's decision does not abolish the institution of post‐conflict amnesties, but rather renders such amnesties inapplicable in international or third‐state proceedings to certain persons with respect to particular crimes.
Witness protection
In contrast to the Nuremberg Trials, most evidence before the Special Court is testimonial. Hence the success of trials before the Special Court depends on the ability and willingness of witnesses to testify. Since the security situation in Sierra Leone has still not completely stabilized, many witnesses feel that testifying before the Court will entail retaliation. The fact thatRUF supporters and CDF supporters live in mixed communities increases this apprehension. [74] Fears of retraumatization and stigmatization may also prevent certain witnesses, especially victims of sexual violence, from testifying before the Court.
The war left Sierra Leone with a seriously damaged justice system, hardly capable of enforcing protection measures, and with army and police forces which are still identified with various parties to the conflict and considered unreliable. [75] The Special Court must therefore afford protection to its witnesses. Psychological and psycho‐social support must also be accorded to witnesses who, by testifying and reliving painful experiences may become retraumatized. Moreover, if
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