Evaluating Transitional Justice

Accountability and Peacebuilding in Post-Conflict Sierra Leone

K. Ainley, R. Friedman, C. Mahony, K. Ainley, R. Friedman, C. Mahony

• Publisher: Palgrave Macmillan
• Year: 2016
• ISBN:
  9781137468222
• Topic: Politique et relations internationales
• Subtopic: Politique africaine

This major study examines the successes and failures of the full transitional justice programme in Sierra Leone. It sets out the implications of the Sierra Leonean experience for other post-conflict situations and for the broader project of evaluating transitional justice.

1

Transitional Justice in Sierra Leone: Theory, History and Evaluation

Kirsten Ainley, Rebekka Friedman and Chris Mahony

The Sierra Leonean civil war was exceptionally brutal; during the conflict, in this small country with just over 6 million inhabitants, an estimated 70,000 people lost their lives and 2.6 million were displaced.1 The war became known for widespread atrocities, including forced recruitment of child soldiers and extensive incidents of rape, sexual slavery and amputations of limbs. In addition to the outward manifestations of violence, the conflict left less tangible but still pervasive legacies. Incidents of localised violence caused deep rifts within many communities, and, in politically marginalised areas, state violence reinforced the mistrust of political institutions and government structures. As many combatants were disenfranchised youth, the conflict featured a high degree of violence targeted against specific authority figures, made relations between generations more fraught and tore apart the social fabric.

Since the end of the war in 2002, Sierra Leone has become the site of sustained and multifaceted transitional justice (TJ) and peace-building efforts. The Sierra Leonean Truth and Reconciliation Commission (TRC) was set up as part of the 1999 Lomé Peace Agreement, which provided for a TRC alongside a general amnesty. Just over a year after the Agreement was signed, the then President of Sierra Leone, Tejan Kabbah, wrote to the United Nations Security Council (UNSC) on 12 July 2000, requesting an ad hoc tribunal to be set up in the country. The Security Council passed Resolution 1315, stipulating that the UN Secretary-General (UNSG) should negotiate an agreement with the Kabbah administration for an ‘independent special court’. The Special Court for Sierra Leone (SCSL) was established in January 2002. At the same time, Sierra Leonean communities and civil society organisations around the country drew upon a range of informal and traditional mechanisms, including community-level restorative justice processes and customary law, to advance community reconciliation and combatant reintegration.

Many observers, particularly external practitioners, see Sierra Leone as a successful case of transitional justice that offers valuable lessons for other countries emerging from violence. Sierra Leone’s TJ mechanisms have set important precedents. The SCSL was the first ‘hybrid’ international criminal tribunal, administered jointly by the UN and the government of Sierra Leone but answerable to neither in its judicial functions. The Court’s founding, via a treaty between the Sierra Leone government and the UN, departed from the UNSC-established international tribunals for the former Yugoslavia and Rwanda, and from the Special Panels in East Timor, which were established by the UN Transitional Administration in East Timor (itself established by the UNSC). The SCSL was unique in its foundations and also broke legal ground in its jurisprudence. In addition, it is commended for its extensive and innovative outreach programme. The TRC, in turn, is unique as the first commission to have separate proceedings for youth under the auspices of the United Nations Children’s Fund (UNICEF), and for its extensive focus on gender and the widespread incidents of sexual and gender-based violence (SGBV) committed in the conflict. Finally, the Court and the TRC set precedents in working alongside each other as the first case in which an internationalised tribunal and a TRC were established in parallel.2

As the chapters in this book highlight, however, this series of unique or innovative aspects of transitional justice in Sierra Leone should not automatically lead to a judgement that the TJ programme was a success. Such a judgement requires examination of the mechanisms’ normative, legal and political contexts and contributions. TJ mechanisms in Sierra Leone were established in an impoverished and unstable post-conflict environment, often in line with the wishes of powerful external actors. They frequently operated without clear long-term strategies and at times without sufficient guarantees of funding. They also had to negotiate external and internal political pressures. This book takes these often-competing constraints and interests into account, in order to examine the establishment, politics, goals and effects of Sierra Leone’s TJ programme as a whole.

Theorising Transitional Justice in Sierra Leone

Over a decade since the end of the war, Sierra Leone has become the focus of an active and polarised TJ literature that illuminates many controversies within TJ theory and practice more broadly. Many early observers, often scholar-practitioners, were optimistic in their assessments of the Sierra Leonean experience. They tended to focus on the ‘justice’ element of transitional justice and to favour a strong criminal justice response to atrocities. Their assessments centred on the precedents the Sierra Leonean case set and how it related to previous TJ programmes.3 This orientation can still be seen in the legal literature on the SCSL. In a recent collection, Jalloh et al. offer an analysis of the global legal legacy of the SCSL, in particular, its practices and jurisprudence, as well as its potential impact on wider norms for international and domestic criminal law and procedures.4 Jalloh notes that the SCSL was confronted with novel legal issues, and that it served as the first international criminal court to deliver convictions for the recruitment of children, to prosecute attacks against UN peacekeepers, to prosecute forced marriage as a crime against humanity and to try and convict a former head of state (ex-President of Liberia, Charles Taylor) for the commission of crimes in another state.5 This literature puts little emphasis on ‘truth-telling’, and even less on socio-economic programmes, such as reparations, as necessary components of transitional justice.

Analysts of both the SCSL and the TRC have sought to determine their impact by measuring public perceptions, usually through survey data and public opinion polls. These studies focus on measuring popular awareness and perceptions of transitional justice, with high awareness and positive perceptions assumed to demonstrate legitimacy of the TJ programme.6 This literature includes the SCSL’s own legacy report, the 2012 survey conducted by the NGO No Peace Without Justice, for which more than 2,800 people in Sierra Leone and Liberia were interviewed, and which generated broadly positive findings.7

However, a critical qualitative literature has emerged alongside the more favourable assessments of Sierra Leonean transitional justice, taking issue with what it characterises as a legalistic, formulaic and externally driven TJ regime. Redirecting attention internally, ethnographic researchers have argued that the emphasis on local ownership and partnership in recent policy discourse remains superficial, and that transitional justice in fragile states, such as Sierra Leone, lacks meaningful engagement with local institutions and local traditions.8 Rosalind Shaw, for example, maintains that speaking of the war in public in Sierra Leone undermines established processes for healing and reconciliation at the village and familial levels.9 Tim Kelsall examines the importance of culture in transitional justice. In his work on the SCSL and the TRC, he argues that globalised transitional justice failed to meaningfully...