“The purpose of the Residual Special Court (RSCSL) is to carry out the functions of the Special Court for Sierra Leone that must continue after the closure of the Special Court,” states the RSCSL Statute. But in the wake of the Taylor judgement and almost two years after the RSCSL agreement signed between Freetown and the UN, questions are being asked as to how much is actually in place today to ensure the Court’s legacy.
By Geraldine Coughlan, The Hague
The RSCSL is mandated to begin functioning only after the SCSL closes, following the appeal judgement in the case against former Liberian president Charles Taylor next year. However, the Court is already tasked with working on a ‘coordinated transition’ to the residual court. The first of the internationalised courts due to close, the Special Court is a hybrid set up by agreement between the UN and the government of Sierra Leone in 2002. Therefore, the RSCSL, also set up by agreement between the UN and the government in August 2010, ratified by parliament in December 2011, is based on a different type of strategy from that of the ad hoc courts (ICTY and ICTR).
The “process of establishing the RSCSL will be a work-in-progress until the Court completes its mandate,” says Daniel Eyre of the SCSL registry. “The Court, the members of its management committee, the governments of Sierra Leone, the Netherlands, the UN and other relevant actors are working to ensure all preparations are in place for a smooth transition to the RSCSL upon the completion of the Court’s mandate. Some transition tasks already under way will not be complete until that time,” said Eyre. The RSCSL will have its interim seat in The Hague and an office in Sierra Leone. One of the plans is to share an administrative platform with other institutions in both locations, but it is still uncertain whether this could be at the ICC in The Hague, according to Eyre.
The RSCSL will be headed by a president (chosen by RSCSL judges), a prosecutor and registrar – but these appointments are still to be announced. The residual court is due to be funded by voluntary contributions and the Court and its management committee of states are currently fundraising. Although no budget has been approved, the Court has a draft RSCSL budget, which it updates as it moves forward. It will be revised when the Court completes its mandate. “As a result, the RSCSL budget will remain a preliminary budget until that time,” Eyre said.
But there are concerns over voluntary, rather than guaranteed funding for the residual court. Wayne Jordash, defence lawyer for former RUF commander Issa Sesay, who is serving the Court’s highest sentence of 52 years, believes the voluntary contributions that were a constant worry to the SCSL during the trials, due to the voluntary funding arrangements, may well undermine the work of the RSCSL. “It is important that it has an amount of guaranteed funds to ensure this important work may also be guaranteed and effective,” he said.
Sharing the Court’s legacy is the aim of recent initiatives at the national level, such as the Sierra Leone Legal Information Institute (SierraLii) project, spearheaded by the Office of the Prosecutor (OTP). It came online last year with the aim of providing free access to the nation’s case law, legislation and other legal materials and integrating SCSL jurisprudence into domestic law. “This means the citizens of Sierra Leone will not only have free access to their own laws but to those of other countries as well. This assists in promoting justice and the rule of law and demonstrates the solid steps that Sierra Leone has taken towards rebuilding its judicial and legal institutions,” said Maria Warren of the OTP. “The plan is to hand over to the national entity by June or by year’s end at the latest.” However, “securing funding to sustain its operation will be crucial,” she adds.
Wayne Jordash urges caution in what he sees as the triumphalism that will accompany the closure of the ad hoc and hybrid courts. “A sober reflection on successes and failures and lessons learnt is needed to underpin the creation and implementation of the most effective and appropriate model for the residual mechanisms,” he warns.
The Court’s other legacy initiatives at the national level include the Sierra Leone Peace Museum and the national Witness Protection Unit. It is also funding an independent legacy survey to assess perceptions of the Court inside Sierra Leone by Brussels-based NGO, No Peace Without Justice.
White man’s justice
However, the slow pace of progress on residual issues may prove fatal to the ultimate evaluation by many Sierra Leoneans of the institution as a whole. “Had legacy been part of the court from the inception, the perception of people with regards to the white man bringing his own thoughts on white man’s justice would have been eroded long before now,” laments trial monitor for the Centre for Accountability and Rule of Law (CARL), Joseph Sesay. He says it is too soon to judge the successes of the Special Court. But with the wheels now turning towards kick-starting the RSCSL, the big question for the Court is not just about perceptions of ‘black’ or ‘white’ man’s justice. It is about how much remains to be done in one year for the RSCSL to avoid a possible failure and living up to popular expectations that it’s time to see concrete signs of movement.
The international community must therefore ‘get it right’ - as the RSCSL will form part of the international justice framework for the next era. “The highest sentence at the SCSL is 52 years, and the relative youth of the convicted individuals may well mean that the residual mechanism is needed for at least half a century,” says Kelly Askin of the Open Society Justice Initiative.