From Freetown, Sierra Leone.
Volume 1: Chapter 1: Mandate of the Commission
CHAPTER ONE
The Mandate of the
Truth and Reconciliation Commission
The Legislative Framework
1. Truth
and Reconciliation Commissions had been established in many countries
following periods of protracted internal conflict, and were widely
believed to provide an important mechanism for transitional justice.
Generally, they have been presented as an alternative to judicial
prosecution for atrocities, especially in cases where political
exigencies made this unlikely or impossible. In the case of Sierra
Leone, this was quite explicit. The creation of the Commission was
provided for in the Lomé Peace Agreement of 7 July 1999. Article IX of
the Lomé Peace Agreement provided a pardon and amnesty for participants
in the conflict. The Commission was therefore viewed as the principal
means of providing a degree of accountability for human rights abuses
committed during the conflict.
2. It
is worthy of note that the Abidjan Peace Agreement of 30 November 1996,
which initially offered the hope of an end to the conflict but which
did not succeed, for reasons detailed elsewhere in this Report, made no
provision for a Truth and Reconciliation Commission or for any similar
process. Yet article 14 of the Abidjan Agreement granted an amnesty to
members of the Revolutionary United Front, allegedly so as ‘[t]o
consolidate the peace and promote the cause of national reconciliation’.
Legal Framework for Mandate
3.
Article VI(2) of the Lomé Peace Agreement described the Truth and
Reconciliation Commission as one of several ‘structures for national
reconciliation and the consolidation of peace’. Article XXVI of the
Lomé Peace Agreement reads as follows:
ARTICLE XXVI
HUMAN RIGHTS VIOLATIONS
1.
A Truth and Reconciliation Commission shall be established to address
impunity, break the cycle of violence, provide a forum for both the
victims and perpetrators of human rights violations to tell their
story, get a clear picture of the past in order to facilitate genuine
healing and reconciliation.
2.
In the spirit of national reconciliation, the Commission shall deal
with the question of human rights violations since the beginning of the
Sierra Leonean conflict in 1991. This Commission shall, among other
things, recommend measures to be taken for the rehabilitation of
victims of human rights violations.
3.
Membership of the Commission shall be drawn from a cross-section of
Sierra Leonean society with the participation and some technical
support of the International Community. This Commission shall be
established within 90 days after the signing of the present Agreement
and shall, not later than 12 months after the commencement of its work,
submit its report to the Government for immediate implementation of its
recommendations.
4.
The Truth and Reconciliation, 2000 (‘the Act’) was adopted on 22
February 2000. However, it was, strictly speaking, only ‘established’
on 5 July 2002, when the seven Commissioners appointed by the President
were formally sworn in during a public ceremony. The word ‘mandate’ is
used three times in the Act, in the context of references to
‘fulfilment of the Commission’s mandate’ (sections 8(1)(b) and c),
9(1)), but nowhere is there any attempt to explain or define what the
mandate actually consists of. Section 6(1) refers to the ‘object for
which the Commission is established’ and section 6(2)c) speaks of
‘fulfilment of the object of the Commission’, suggesting that the
expression ‘object’ may be synonymous with ‘mandate’. The Act is
associated with an explanatory ‘Memorandum of Object and Reasons’,
which was attached to the Bill presented to Parliament. Section 15(2)
refers to the need ‘to achieve the object of the Commission’. The Act
also contains references to the ‘functions of the Commission’. Part III
of the Act, which includes the sections within which the ‘mandate’ and
‘object’ of the Commission are referred to, is entitled ‘Functions of
the Commission’.
5.
For the purposes of this discussion, there does not seem to be any
useful or meaningful distinction between ‘mandate’, ‘object’ and
‘functions’ of the Commission. It is not possible to glean any
significant nuance in Parliamentary intent from the use of these three
terms. They are all components of the ‘mandate’ of the Commission.
6. Section 6 of the Truth and Reconciliation Commission Act 2000 sets out the ‘object’ of the Commission:
6.
(1) The object for which the Commission is established is to create an
impartial historical record of violations and abuses of human rights
and international humanitarian law related to the armed conflict in
Sierra Leone, from the beginning of the Conflict in 1991 to the signing
of the Lome Peace Agreement; to address impunity, to respond to the
needs of the victims, to promote healing and reconciliation and to
prevent a repetition of the violations and abuses suffered.
(2) Without prejudice to the generality of subsection (1), it shall be the function of the Commission -
(a)
to investigate and report on the causes, nature and extent of the
violations and abuses referred to in subsection (1) to the fullest
degree possible, including their antecedents, the context in which the
violations and abuses occurred, the question of, whether those
violations and abuses were the result of deliberate planning, policy or
authorisation by any government, group or individual, and the role of
both internal and external factors in the conflict;
(b)
to work to help restore the human dignity of victims and promote
reconciliation by providing an opportunity for victims to give an
account of the violations and abuses suffered and for perpetrators to
relate their experiences, and by creating a climate which fosters
constructive interchange between victims and perpetrators, giving
special attention to the subject of sexual abuses and to the
experiences of children within the armed conflict; and
(c) to do all such things as may contribute to the fulfilment of the object of the Commission.
7.
Section 7(1) of the Truth and Reconciliation Commission Act 2000
discusses the ‘functions’ of the Commission, which it says ‘shall
include the following three components’:
undertaking investigation and research into key events, causes, patterns of abuse or violation and the parties responsible;
holding
sessions, some of which may be public, to hear from the victims and
perpetrators of any abuses or violations of from other interested
parties; and
taking
individual statements and gathering additional information with regard
to the matters referred to in paragraphs (a) or (b).
8. Section 7(2) of the Act lists several features of the Commission’s operations:
seeking
assistance from traditional and religious leaders to facilitate its
public sessions and in resolving local conflicts arising from past
violations or abuses or in support of healing and reconciliation;
provision of information to the Commission on a confidential basis;
taking
into account the interests of victims and witnesses when inviting them
to give statements, including the security and other concerns of those
who may wish to recount their stories in public;
implementation
of special procedures to address the needs of such particular victims
as children or those who have suffered sexual abuses as well as in
working with child perpetrators of abuses or violations;
decision-making by consensus, to the extent possible;
provision
of information or recommendations to or regarding the Special Fund for
War Victims provided for in Article XXIV of the Lome Peace Agreement,
or other assistance.
9. Section 8 of the Act sets out the powers of the Commission.
10.
Indications as to the ‘mandate’ of the Commission are also provided for
in Part V of the Act, which deals with the ‘Report and
Recommendations’. The Report is to summarise the findings of the
Commission and to ‘make recommendations concerning the reforms and
other measures, whether legal, political, administrative or otherwise,
needed to achieve the object of the Commission, namely the object of
providing impartial historical record, preventing the repetition of the
violations or abuses suffered, addressing impunity, responding to the
needs of victims and promoting healing and reconciliation’.
11.
The Memorandum of Objects and Reasons is not, strictly speaking, part
of the enacted legislation creating the Commission. Nevertheless, as an
attachment to the Bill presented to Parliament, it is of considerable
significance for the interpretation of provisions of the Act that was
eventually adopted. It provides useful guidance as to Parliamentary
intent at the time the legislation was enacted. Several phrases in the
Memorandum of Objects and Reasons are of particular relevance, notably
the reference to the proceedings of the Commission ‘as a catharsis for
constructive interchange between the victims and perpetrators of human
rights violations and abuses’, and the intent that the Commission
‘compile ‘a clear picture of the past’’. Also of interest is the
suggestion that clause 6 of the Act refers to ‘the principal function
of the Commission’ as being ‘to create an impartial historical record
of events in question as the basis for the task of preventing their
recurrence’. In fact, section 6 of the Act lists five distinct
‘objects’ of the Commission, and suggests no hierarchy between them.
The Memorandum of Objects and Reasons provides a helpful perspective
for the interpretation of the various components of section 6 of the
Act. Here is the text in full:
MEMORANDUM OF OBJECTS AND REASONS
The
object of this Bill is to establish the Truth and Reconciliation
Commission proposed by Article XXVI of the Lome Peace Agreement as part
of the process of healing the wounds of the armed conflict which began
in 1991. By clause 2 of the Bill, the Commission is being established
as a body corporate.
Section
1 of Article XXVI of the Peace Agreement envisaged the proceedings of
the Commission as a catharsis for constructive interchange between the
victims and perpetrators of human rights violations and abuses and from
this catharsis the Commission is to compile ‘a clear picture of the
past’. Accordingly, by clause 6, the principal function of the
Commission is to create an impartial historical record of events in
question as the basis for the task of preventing their recurrence.
To
best ensure the Commission’s independence and impartiality, the members
of the Commission are to be appointed after a selection process
involving both national and international expertise as stipulated in
the Schedule to the Bill and involving a Selection Panel on which all
the protagonists to the conflict and other interested parties are
represented; (clause 3). By clause 5, the Commission shall operate for
one year preceded by a period of three months during which the
Commission is to carry out all the ground work necessary for its
effectiveness when operations begin. For good cause shown, the term of
the Commission may be extended by the President by statutory instrument
for a period of six months.
Under
clause 12, the Commission is required to raise the funds to finance its
operations from both governmental and international non-governmental
sources to which it is required to submit quarterly reports to account
for the moneys donated (clause 13). Under clause 15, the Commission
reports to the President who will then arrange to send copies of the
report to the U.N. and Parliament. By clause 18, the Government is
required to set up a follow-up Committee to monitor and stimulate the
progress of the implementation of the Commission’s findings. Under
clause 19, the President is required to dissolve the Commission by
notice in a statutory instrument not later than three months after the
submission of the Commission’s report.
12.
In the words of the President, at the swearing in ceremony of the
Commissioners held on 5 July 2002, in Freetown, ‘the Commission will
investigate and report on the causes, nature and extent of the
violations and abuses of human rights and international humanitarian
law during the conflict. Of course it will create an impartial
historical record of the atrocities perpetrated against innocent
civilians during a ten-year period of the war. However, it is
absolutely necessary that we look beyond those functions, and see the
work of the TRC as a therapeutic process. It was a brutal war. It
caused grievous physical and emotional damage for thousands of our
compatriots. It also created divisions between families, and among
neighbours and friends. To a large extent the conflict also fractured
the body politic of the nation. Well, the guns may be silent, but the
trauma of the war lingers on. We have a great deal of healing to do.
This is why the TRC is, and should also be seen, as an instrument of
national reconciliation, and another means of strengthening the peace.’
The Context of Establishment of the Commission
13.
The Commission is one of the accountability mechanisms established to
deal with the human rights abuses that occurred during the armed
conflict. Sierra Leone’s transition from armed conflict to peace came
about as a result of a peaceful negotiated settlement of the conflict
between the government of Sierra Leone and the Revolutionary United
Front, with the signing of the Lome Peace Accord on 7 July 1999. The
process began in the aftermath of the January 1999 invasion of
Freetown. The Government of Sierra Leone proposed that the Abidjan
Peace Accord should serve as a basis for negotiations. In his address
to the nation, on 7 February 1999, President Kabbah called upon the
nation and civil society groups to consult and build consensus around
the Abidjan Peace Accord in that regard.
14.
Civil society groups supported the Government’s proposals for peace
talks. However, while endorsing in general terms the government’s
decision to use the Abidjan Peace Accord as the basis for future
dialogue with the rebels, the Human Rights Committee expressed
reservation with regard to certain articles in the Abidjan Peace
Accord, particularly Article 14, which appears to confer blanket
immunity on all perpetrators of human rights violations in Sierra
Leone. The Committee was of the view that while it was important to
look forward rather than to the past during this critical peace
process, the disturbing cycle of impunity in Sierra Leone could not be
broken unless there was some form of censure or punishment to some
perpetrators of gross abuses of human rights in the country.
‘Accordingly
therefore, the Committee proposed the creation of a Truth, Justice and
Reconciliation Commission in Sierra Leone which will, inter alia,
enable the country to cope with the aftermath of the crisis by hearing
the truth directly from perpetrators of gross human rights violations,
help survivors of violations cope with their trauma, and recommend
judicial prosecutions for some of the worst perpetrators of the
violations. This Commission will be an independent structure comprising
personalities of unimpeachable moral probity.’
15.
In preparations for the meeting in Lomé, the Sierra Leonean government
also held a consultative conference on peace building on 12 April 1999.
Members of civil society, students, various professional bodies as well
as politicians were present at this attempt to build consensus around
the content of a future peace agreement. The conference adopted a
number of positions including a blanket amnesty clause. The
consultative conference did not include an accountability mechanism as
a component of the proposed negotiations. Nevertheless, the conference
was also clearly opposed to power sharing between the democratically
elected government and the RUF-AFRC. A communiqué to that effect and
the summary consensus was given to the team that went to Lomé for the
negotiations. Commenting on the Government’s position in Lomé, Hon
Solomon Berewa, leader of the government delegation, has pointed out
that the Government went to Lomé with two positions on which to
negotiate:
A} that there should be peace at all costs and
B} the Constitution of the Republic of Sierra Leone should remain intact.
16.
In its desire to have human rights issues addressed as part of the
peace process, civil society through the United Nations Mission in
Sierra Leone (UNAMSIL) facilitated the visit of the United Nations High
Commissioner for Human Rights, Mary Robinson, to Sierra Leone in June
1999. The essence of the visit was to lend the support of her office to
the dialogue of peaceful negotiation, and also to add to the momentum
gathered for the need to address human rights violations as well as the
building of a culture of respect for human rights. During her visit,
the Government, human rights, NGOs represented by the National Forum
for Human Rights and the National Commission for Democracy and Human
Rights, signed a human rights manifesto in which the parties agreed,
among other things, that a truth and reconciliation commission should
be established as an accountability mechanism to deal with the abuses
which had occurred during the conflict.
17. It was evident that the RUF would not agree to peace if there was no amnesty.
In
the words of Solomon Berewa: ‘We needed to have an agreement with the
RUF on having permanent cessation of hostilities. The need for a Peace
Agreement at the time became obvious from the panicky reaction of
Sierra Leoneans to a threat issued in Lome by Corporal Foday Sankoh
that he would call off the talks. I had to make a radio broadcast from
Lomé to assure the Sierra Leone public that there was every probability
that the Peace Agreement would be concluded. This assurance was
necessary to put the population somehow at ease. Most importantly, the
RUF would have refused to sign the Agreement if the Government of
Sierra Leone had insisted on including in it a provision for judicial
action against the RUF and had excluded the amnesty provision from the
Agreement.’
He described the TRC as a ‘balm’ to
heal the deep wounds of the Sierra Leonean society that have been
occasioned by the conflict. It should be noted that the Lomé Peace
Agreement granted amnesty or pardon not only to the RUF combatants, but
to all ‘combatants and collaborators’, with specific reference to those
of the RUF, ex-AFRC, ex-SLA or CDF. Thus - and in contrast with the
Abidjan Agreement, which granted amnesty only to the RUF - the
political leaders at Lomé appear to have amnestied themselves as well
as their adversaries.
18.
It can be said that the philosophy of the Lomé Peace Agreement is to
hold perpetrators accountable to the truth and restore the dignity of
victims by way of truth telling as opposed to trials and prosecutions.
Although there might be technical arguments about the scope of the
amnesty in the Lomé Peace Agreement, the Commission could realistically
expect that its constituency - victims and perpetrators alike - would
be immune from criminal prosecution for all practical purposes. In this
respect, its mandate was therefore significantly different from that of
other similar commissions, such as the South African Truth and
Reconciliation Commission, where the threat of prosecution hovered over
the TRC proceedings, and where amnesty was used to induce cooperation
with the TRC process.
19.
The philosophy of the Lomé Agreement was modified somewhat in 2000,
when the Government of Sierra Leone called upon the United Nations to
establish a tribunal. In a letter dated 12 June 2000, President Kabbah
asked the United Nations Security Council ‘to initiate a process
whereby the United Nations would resolve on the setting up of a special
court for Sierra Leone. The purpose of such a court is to try and bring
to credible justice those members of the Revolutionary United Front
(RUF) and their accomplices responsible for committing crimes against
the people of Sierra Leone and for the taking of United Nations
peacekeepers as hostages.’
20.
The letter noted that, in the Lomé Peace Agreement, the Government of
Sierra Leone had agreed to a total amnesty as ‘a price’ for peace,
adding that the RUF had subsequently ‘reneged’ on the Lomé Peace
Agreement. Although President Kabbah’s letter did not make clear
whether the Government of Sierra Leone contemplated prosecutions for
pre-Lomé offences, thereby repudiating the amnesty provision in that
agreement, this subsequently became clear. On 16 January 2002, the
Government of Sierra Leone reached agreement with the United Nations
for the establishment of a Special Court with jurisdiction over
pre-Lomé offences, irrespective of amnesty or pardon. The agreement was
subsequently endorsed by Parliament in March 2002, when it adopted The
Special Court Agreement, 2002, Ratification Act, 2002.
21.
In May 2002, the Government of Sierra Leone proceeded with the
establishment of the Commission. The seven commissioners were named by
President Kabbah and duly sworn into office in July 2002. The
Government subsequently provided financial assistance to the
Commission. Accordingly, the Commission was born under a bit of a
cloud, generated by the ambiguity surrounding the attitude to be taken
to the Lomé Peace Agreement and its underlying philosophy. Clearly,
both the Government of Sierra Leone and Parliament had repudiated at
least one element of the Lomé Peace Agreement, in the recognition of
the legitimacy of prosecution for at least part of the period of the
conflict (the temporary jurisdiction of the Special Court begins with
the adoption of the Abidjan Agreement, on 30 November 1996).
22.
It is important to consider to what extent these subsequent
developments influenced the mandate of the Commission, if at all. The
Commission might have viewed the creation of the Special Court as a
factor that transformed its own raison d’être. Faced with prosecution
of some perpetrators, the Commission might then have seen fit to
recommend that immunity from prosecution be granted in exchange for
cooperation with the truth and reconciliation process, as was the case
in South Africa. Alternatively, it might have sought a close and
synergistic relationship with the Court, operating to some extent as a
pre-trial investigative body, somewhat along the lines of commissions
in Timor Leste and Peru.
23.
In fact, the Commission, although it recognized and was forced to
contend with the practical consequences of parallel prosecutions, did
not view these subsequent developments as having any effect whatsoever
upon its mandate. The Commission’s attitude towards and its
relationship with the Special Court for Sierra Leone are fully
discussed elsewhere in this report. For the purposes of the discussion
here, it should be sufficient to note that the Commission has viewed
its mandate as being derived from the Lomé Peace Agreement and the
legislation adopted in February 2000, irrespective of the subsequent
change in philosophy of the Government of Sierra Leone and of
Parliament. Parliament was, of course, always free to do so, if it had
believed that adjustments to the Commission’s mandate were required, in
the light of the establishment of the Special Court for Sierra Leone
and the, at least, partial repudiation of the covenants reached in Lomé.
Creation of an Impartial Historical Record
24.
The statutory definition of the ‘object’ of the Commission, in section
6(1), consists of an enumeration of five distinct elements. But these
are separated by a semi-colon into two groups. The first comprises only
one element, ‘to create an impartial historical record of violations
and abuses of human rights and international humanitarian law related
to the armed conflict in Sierra Leone, from the beginning of the
Conflict in 1991 to the signing of the Lome Peace Agreement’. The
second comprises the other four: to address impunity, to respond to the
needs of the victims, to promote healing and reconciliation and to
prevent a repetition of the violations and abuses suffered. No ranking
or hierarchy is established in the legislation among the five elements
or the two groups. But the Statement of Objects and Reasons, which was
attached to the Bill when it was enacted by Parliament, says that ‘the
principal function of the Commission is to create an impartial
historical record of events in question as the basis for the task of
preventing their recurrence’. There can therefore be no doubt that the
creation of an impartial historical record lies at the core of the
Commission’s mandate.
25.
On the other hand, the Lomé Peace Agreement implies somewhat different
priorities: ‘A Truth and Reconciliation Commission shall be established
to address impunity, break the cycle of violence, provide a forum for
both the victims and perpetrators of human rights violations to tell
their story, get a clear picture of the past in order to facilitate
genuine healing and reconciliation.’ Here, the only implication of the
mission of the Commission as historian is the rather colloquial
suggestion that it ‘get a clear picture of the past’. The incontestable
conclusion is that the historical component of the Commission’s mandate
was strengthened by Parliament, and that it is of central importance to
the fulfilment of its solemn mission.
26.
Given the resources available to the Commission, in terms of
professional researchers and investigators, not to mention its very
short lifespan, Parliament was surely ambitious in thinking that the
Commission could create anything resembling a comprehensive historical
record of the conflict in Sierra Leone. In any event, the proximity of
the events to the writing of the historical record makes any aspiration
to a thorough study troublesome and possibly unrealistic. While it may
be illusory to think that bodies like truth commissions can establish a
complete historical record, they can nevertheless discredit and debunk
certain lies about conflicts. If they can accomplish only this, their
work may contribute validly to the rebuilding of a stable social
environment on the ruins of conflict and war.
27. There
is no shortage of examples of this historical mission being fulfilled
by quasi-judicial bodies, like truth commissions, and judicial ones,
like courts. The Nuremberg tribunal, for example, which was convened
within months of the end of the Second World War and which rendered its
judgment less than a year later, clarified much of the historical truth
about Nazi atrocities. To take a more contemporary example, a recent
judgment of the International Criminal Tribunal for the former
Yugoslavia notes that the institution was established by the United
Nations Security Council so that ‘the truth about the possible
commission of war crimes, crimes against humanity and genocide [would]
be determined, thereby establishing an accurate, accessible historical
record. The Security Council hoped such a historical record would
prevent a cycle of revenge killings and future acts of aggression.’
28.
It is to be hoped that this report will clarify and resolve debates
about the conflict. Possibly the Special Court for Sierra Leone will
find that the impartial historical record established by the Commission
is of value in its own proceedings.
The historical record is based upon
a variety of sources, including testimony in public hearings, private
interviews and the examination of documents and other sources. Where
available and relevant, existing historical accounts of the conflict
and the period that preceded it have been consulted.
29.
Although this surely goes without saying, the Act specifies that the
historical record is to be ‘impartial’. In any case, ‘truth’, including
‘historical truth’, must by definition be impartial. A ‘partial’ truth
is no truth at all, merely the distorted version of events tailored to
suit one of the parties. In this regard, the selection of Commissioners
and the process of arriving at decisions and determinations were
crucial to its work. The Act envisioned a Commission composed of four
nationals and three non-nationals to enhance the credibility of this
process. The three non-nationals were selected by the United Nations
High Commissioner for Human Rights, whose integrity is beyond question.
The nationals were chosen as part of a transparent selection process
overseen by the Special Representative of the Secretary-General of the
United Nations to Sierra Leone. Commissioners were provided with terms
and conditions of employment, as well as various legal immunities and
protections, to further assure their independence and impartiality.
‘Violations and Abuses’
30.
The concept of ‘violations and abuses’ (or ‘abuses and violations’)
lies at the core of the TRC’s mandate. Section 6(1) of the Act focuses
the content of the historical record on ‘violations and abuses’. The
concept of ‘violations and abuses’ re-appears in other subsections of
section 6. Thus, subsection 6(2)(a) says that without prejudice to the
generality of subsection (1), ‘the function of the Commission’ shall be
‘to investigate and report on the causes, nature and extent of the
violations and abuses referred to in subsection (1) to the fullest
degree possible, including their antecedents, the context in which the
violations and abuses occurred, the question of whether those
violations and abuses were the result of deliberate planning, policy or
authorisation by any government, group or individual, and the role of
both internal and external factors in the conflict’ .
31.
Furthermore, it is also among ‘the functions’ of the Commission,
according to subsection 6(2)(b), ‘to work to help restore the human
dignity of victims and promote reconciliation by providing an
opportunity for victims to give an account of the violations and abuses
suffered and for perpetrators to relate their experiences, and by
creating a climate which fosters constructive interchange between
victims and perpetrators, giving special attention to the subject of
sexual abuses and to the experiences of children within the armed
conflict’ .
32.
Section 7 also refers to this concept of ‘violations or abuse’.
Accordingly, in subsection 1, the ‘operating procedures and mode of
work’ of the TRC are to include ‘investigation and research into key
events, causes, patterns of abuses or violation and the parties
responsible’, holding public and non-public sessions ‘to hear from the
victims and perpetrators of any abuses or violations or from other
interested parties’, and taking of individual statements and gathering
of additional information with regard to these matters’ .
33.
Section 7 also refers to the concept of ‘past violations or abuse’ and
to ‘child perpetrators of abuses or violations’. The Report of the
Commission, in accordance with section 15, is to include
recommendations directed to ‘preventing the repetition of the
violations or abuses suffered’.
34.
The ‘Memorandum of Objects and Reasons’, which is attached to the TRC
Act, notes that the Peace Agreement ‘envisaged the proceedings of the
Commission as a catharsis for constructive interchange between the
victims and perpetrators of human rights violations and abuses’.
35.
It should be noted that, in the Lomé Agreement, the references (art.
XXVI) are to ‘human rights violations’, and not to ‘violations and
abuses’.
36.
The mandate of the South African TRC - a model familiar to the
Parliament of Sierra Leone when it created the Commission - spoke only
of ‘gross violations’. This is clearly a much narrower concept than
‘violations and abuses’. According to Priscilla Hayner, the South
African TRC was criticised for this narrow perspective, in that this
presented a ‘compromised truth’ that excluded a large number of victims
from the Commission’s scope.
37.
The TRC Act does not define what constitute violations and abuses with
regard to international human rights law and international humanitarian
law. The term ‘violations and abuses’ does not appear to have any
recognised technical meaning within either human rights law or
international humanitarian law. Obviously, there is a literal meaning
of the two terms which should require no further explanation.
38.
Of some interest within the field of international human rights law is
the frequent use of the term ‘abuse’ in a very recent instrument, the
Protocol to the African Charter on Human and Peoples’ Rights on the
Rights of Women in Africa, adopted in July 2003. It uses the term
‘abuse’ in several provisions (articles 5(d), 12(1)(c), 12(1)(d),
13(m), 22(b), 23(b)). The context suggests that the term is used
particularly with reference to acts committed by individuals against
other individuals, rather than by States.
39.
There does exist within human rights and international humanitarian law
a number of more specific terms to describe certain types of violation
or abuse. These include: breaches, grave breaches, serious violations,
gross and systematic violations, and so on. For example, in 2000, when
the United Nations Human Rights Committee found that Sierra Leone had
violated the Optional Protocol to the International Covenant on Civil
and Political Rights for proceeding with twelve executions on 19
October 1998 despite an interim measures request from the Committee
that it stay the executions pending consideration of a petition, the
Committee described this as a ‘grave breach’ of the Optional Protocol.
In fact, nowhere does the Optional Protocol speak of ‘grave breaches’,
referring instead to ‘violation’; the Covenant itself refers cautiously
to ‘not fulfilling’ and ‘not giving effect to’ obligations.
40.
Within international humanitarian law, reference is made to ‘violation’
of the Geneva Conventions as well as to the more serious concept of
‘grave breach’ of the Conventions. The Hague Convention of 1907 refers
both to ‘abuse’ and to ‘violation’ in its provisions. It is of some
interest to note that the mandate of the Special Court for Sierra Leone
is limited to ‘serious violations of international humanitarian law’.
41.
Human rights and international humanitarian law treaties are meant to
bind sovereign states to various obligations. In principle, an
individual cannot ‘violate’ a human rights treaty, as this is a form of
contract or undertaking between sovereign states. Nevertheless, the
African Charter on Human and Peoples’ Rights, for example, establishes
a list of ‘duties’ that apply to ‘every individual’. Some violations of
international humanitarian law, known colloquially as ‘war crimes’, are
in effect - but by exception - applicable directly to individuals.
42.
Under certain circumstances, a State may be held responsible for acts
or omissions that constitute violations or abuses of human rights when
committed by an individual or group under its control, or over which it
has some responsibility. A State is expected to exercise due diligence
in preventing individuals from violating the human rights of other
individuals. The term ‘horizontal violations of human rights’ is used
in this context. An example would be the duty upon State authorities to
ensure that a prisoner under their care is not victim of abuse by other
prisoners.
43.
There is a growing body of law to support the idea of the involvement
of ‘non-state actors’ in violations or abuses of human rights.
‘Non-state actors’, be they individuals, groups or organisations, are
neither parties to international human rights or international
humanitarian law treaties nor are they, as a general rule, bound by
national constitutions. Nevertheless, it may be possible to impute
certain violations and abuses of human rights and international
humanitarian law to them.
44.
This would indeed seem to be the implication of the Act, with the
reference to ‘perpetrators of human rights violations and abuses’ in
the Memorandum of Objects and Reasons. That individuals and not only
states or state-like bodies are contemplated is confirmed by the
reference to ‘child perpetrators of abuses or violations’. This is also
suggested by section 6(2)(a), which asks ‘whether those violations and
abuses were the result of deliberate planning, policy or authorisation
by any government, group or individual’.
45.
Individual perpetrators may be both natural persons and corporate
bodies, such as transnational companies or corporations. But this leads
to other difficulties. For example, let us consider the case of a
transnational mining company operating in Sierra Leone but whose head
office is in another country, say, South Africa. Although described
colloquially as ‘transnational’, the company will in fact have the
nationality of the State where it has its head office. Can South Africa
be blamed for human rights violations committed by the company in
Sierra Leone, for failing to regulate the activities of its company, in
the same way that it might be blamed for human rights violations
committed by the company in South African itself? Objections to the
imputation of such liability may come not only from South Africa, but
from Sierra Leone itself. Sierra Leone might consider attempts by South
Africa to regulate the behaviour of South Africans within Sierra Leone
as an infringement on the latter’s sovereignty. Yet the TRC might well
conclude that violations and abuses of human rights were committed in
Sierra Leone not only by the hypothetical South African mining company,
but also by both Sierra Leone and South Africa for failing to regulate
it.
46.
In the light of the reference to ‘violations and abuses’, the
Commission has decided that its mandate is a very broad one. It is not
limited by use of adjectives such as ‘gross’ or ‘serious’. The addition
of the term ‘abuses’, which may be taken to encompass human rights
violations committed by individuals rather than States or governments,
enlarges rather than restricts the mandate. Accordingly, the
Commission’s mandate is not confined to violations of human rights that
might constitute crimes, under either national or international law,
nor is it limited to violations committed by States or governments. The
word ‘abuse’ appears nowhere in the Lomé agreement. Thus, Parliament
somewhat enlarged the scope of the TRC from what had been originally
contemplated in the Lomé Peace Agreement.
‘Human Rights and International Humanitarian Law’
47. According
to section 6(1) of the Act, the ‘violations and abuses’ must be of
‘human rights and international humanitarian law’. This is a reference
to two distinct, although related, bodies of international law. The
distinct scope of each body of law, as well as the relationship between
the two, shall be considered in turn.
48.
‘Human rights’ is a term used to describe a broad spectrum of rights
that may belong to individuals, groups (such as ethnic and religious
minorities) and ‘peoples’. Human rights are those basic standards
inherent to the human being without which a person cannot live in
dignity. Human rights are entitlements, which every human being
possesses by virtue of his or her humanity. Guarantees of human rights
are expressed in both international and national law.
49.
The 1991 Constitution of Sierra Leone devotes a lengthy section,
Chapter III, to ‘human rights and fundamental freedoms’. The
formulation is awkward and unduly complex, making it inaccessible to
the average citizen. Many of the provisions are devoted more to
exceptions to human rights than to their affirmation. There is an
exhaustive provision dealing with the use of emergency powers and the
suspension of constitutional protections. The language is consistent
with that in the constitutions of many other former British colonies,
and reflects an historic unease of English lawmakers with the
constitutional entrenchment of fundamental rights. For the purposes of
the TRC’s work, there is no significance in the distinction between
‘human rights’ and ‘fundamental freedoms’; both terms can be subsumed
within the expression ‘human rights’.
50.
The Lomé Peace Agreement attempts a definition of the term ‘human
rights’ that is probably more helpful than that of the 1991
Constitution in this respect. It makes a useful reference to
international legal sources, such as the Universal Declaration of Human
rights and the African Charter of Human and Peoples’ Rights. The list
of fundamental rights is not an exhaustive one, and serves merely to
provide examples.
ARTICLE XXIV
GUARANTEE AND PROMOTION OF HUMAN RIGHTS
1.
The basic civil and political liberties recognized by the Sierra Leone
legal system and contained in the declarations and principles of Human
Rights adopted by the UN and OAU, especially the Universal Declaration
of Human Rights and the African Charter on Human and Peoples Rights,
shall be fully protected and promoted within Sierra Leonean society.
2.
These include the right to life and liberty, freedom from torture, the
right to a fair trial, freedom of conscience, expression and
association, and the right to take part in the governance of ones
country.
51.
The sources of international human rights law are in treaties, bodies
of principles and customary international law. The Government of Sierra
Leone is legally bound by many of the most important international
human rights law treaties, by virtue of its ratification or accession.
This is the case with such instruments as the International Covenant on
Civil and Political Rights, the International Covenant on Economic,
Social and Cultural Rights, the Convention on the Rights of the Child
and the African Charter of Human and Peoples’ Rights. But Sierra Leone
is also subject to various other standard-setting instruments of which
the most important is the Universal Declaration of Human Rights,
adopted by the United Nations General Assembly on 10 December 1948.
52. Human
rights are sometimes classified into civil, political, economic, social
and cultural rights. They range from rights which contemplate the core
values of human dignity, like the right to life and the prohibition of
torture, to the right to housing and medical care. Efforts to separate
human rights into categories of ‘civil and political’ as opposed to
‘economic and social’, which have characterised human rights law in the
past and which reflected geo-political conflicts, have been rejected in
favour of a more holistic approach sometimes described as
‘indivisibility’ of human rights. Thus, human rights are acknowledged
as being universal, interrelated, indivisible and interdependent. The
preamble to the African Charter on Human and Peoples’ Rights states
‘that it is henceforth essential to pay a particular attention to the
right to development and that civil and political rights cannot be
dissociated from economic, social and cultural rights in their
conception as well as the universality and that the satisfaction of
economic, social and cultural rights is a guarantee for the enjoyment
of civil and political rights’. The Universal Declaration of Human
Rights contains civil, political, economic, social and cultural rights,
and makes no distinction between them. In any event, human rights
violations and abuses will often have both civil or political and
economic, social and cultural dimensions. Moreover, certain specific
rights, such as the right to a fair trial, which are usually
categorised as ‘civil’, have an economic dimension too. Indeed,
although wartime atrocities usually involve the ‘core’ human rights,
like the right to life and the protection against cruel and inhuman
treatment, the conflict in Sierra Leone may also have involved, and
have been caused by, violations of such economic and social rights as
the right to food, to housing and to medical care.
53.
It might be argued that the human rights dimension of the Commission’s
mandate is narrower than has been proposed above, and that it should be
defined essentially with respect to the Constitution of Sierra Leone
and the human rights treaties ratified by Sierra Leone. This might
suggest a somewhat narrower approach. However, the Commission’s mandate
extends well beyond an examination of the compliance of the Government
of Sierra Leone with its legal obligations. The Act requires the
Commission to consider a range of non-state actors, including armed
groups, as well as ‘external factors’, which may even involve
consideration of the role of foreign governments and international
organisations. Thus section 6(2) of the Act refers to ‘the question of
whether those violations and abuses were the result of deliberate
planning, policy authorisation by any government’ . For these reasons,
it would be incorrect for the Commission to confine its examination of
human rights to those that find expression in the Constitution of
Sierra Leone and those international instruments to which Sierra Leone
is a party.
54.
For the purposes of its work, the Commission decided to adopt a broad
view of the concept of human rights, using as its touchstones the
Universal Declaration of Human Rights and the African Charter on Human
and Peoples’ Rights. It does not confine its approach to the legal
obligations imposed upon the government of Sierra Leone by
international or national law. Violations of economic, social and
cultural rights as well as of civil and political rights have been
examined, as well as other categories of rights such as the right to
development and the right to peace.
55.
The conclusion that a broad approach to human rights is required, also
finds support in the reference in the TRC Act which mandates the
Commission to pay ‘special attention to the subject of sexual abuses
and to the experiences of children within the armed conflict’. Such
issues might not be subsumed within a mandate focussed only on the
‘core’ civil and political rights listed in article XXIV of the Lomé
Peace Agreement or the Constitution. To supplement the basic
international human rights instruments referred to in the preceding
paragraph, the Commission has sought guidance from specialised
instruments in the area of the rights of women and children, such as
the Convention on the Rights of the Child, the African Convention on
the Rights and Welfare of the Child, the Convention on the Elimination
of Discrimination Against Women, the Protocol to the African Charter on
Human and Peoples’ Rights on the Rights of Women in Africa and various
United Nations and African Union declarations concerning sexual abuse
of children and violence against women.
56. Section
6(1) of the Act also instructs the Commission to prepare an impartial
historical record of violations and abuses of ‘international
humanitarian law’. The term ‘international humanitarian law’ has been
described as a ‘more recent and comprehensive’ term for what in the
past was referred to as the ‘international law of armed conflict’, or
even earlier, the ‘law of war’. According to the Appeals Chamber of the
International Criminal Tribunal for the former Yugoslavia, in the
authoritative statement on the subject, the term ‘international
humanitarian law’ emerged ‘as a result of the influence of human rights
doctrines on the law of armed conflict’.
57.
In principle, ‘international humanitarian law’ applies only during
armed conflict, as opposed to human rights law, which applies during
peacetime as well as wartime. According to the Appeals Chamber of the
International Criminal Tribunal for the former Yugoslavia, ‘an armed
conflict exists whenever there is a resort to armed force between
States or protracted armed violence between governmental authorities
and organised armed groups or between such groups within a State.
International humanitarian law applies from the initiation of such
armed conflicts and extends beyond the cessation of hostilities until a
general conclusion of peace is reached; or, in the case of internal
conflicts, a peaceful settlement is achieved. Until that moment,
international humanitarian law continues to apply in the whole
territory of the warring States or, in the case of internal conflicts,
the whole territory under the control of a party, whether or not actual
combat takes place there. With regard to its work the Commission has
assumed the existence of armed conflict throughout the time frame
defined in section 6(1) of the Act. It seems appropriate to consider
that international humanitarian law continued to apply within Sierra
Leone subsequent to the Lomé Peace Agreement and probably until 18
January 2002, when the conflict was officially declared to have come to
an end.
58.
The norms and principles of international humanitarian law have been
codified in several quite complex international treaties, of which the
1949 Geneva Conventions and their two Additional Protocols stand at the
centre. To a large extent, these principles are similar to those
contained in the main human rights treaties, with the important
distinction that the international humanitarian law instruments apply
only during armed conflict. Given that the mandate of the Commission is
concerned essentially with violations and abuses related to the
conflict, the relevance and application of international humanitarian
law can be taken as a given. Sierra Leone is a party to the main
international humanitarian law treaties. But for the same reasons
discussed above with respect to international human rights instruments,
whether or not Sierra Leone is legally bound by a particular treaty or
body of norms does not define the mandate of the Commission, given that
it is to report on violations and abuses committed by non-State actors
as well as by the Government of Sierra Leone and other governments.
59. ‘International
humanitarian law’ makes an important distinction between international
armed conflict and non-international armed conflict. This is explained
by the historic reluctance of States to assume the same obligations
with respect to civil wars, and their treatment of rebel armed groups,
as they would undertake in the case of war with another State. For
example, under the applicable treaties there is no concept of ‘prisoner
of war’ in an internal armed conflict. Clearly, most of the conflict in
Sierra Leone was of an internal nature. As a result, a somewhat more
limited set of international humanitarian legal norms and standards
applies than would have been the case had the conflict been
international in nature. In practice, however, the distinction may not
be all that important. The fundamental principles of international
humanitarian law are much the same, whether the conflict is
international or non-international. The International Committee of the
Red Cross (ICRC) has attempted to summarise these principles as follows:
a.
Persons hors de combat and those who do not take a direct part in
hostilities are entitled to respect for their lives and their moral and
physical integrity. They shall in all circumstances be protected and
treated humanely without any adverse distinction.
b. It is forbidden to kill or injure an enemy who surrenders or who is hors de combat.
c. The wounded and
sick shall be collected and cared for by the party to the conflict
which has them in its power. Protection also covers medical personnel,
establishments, transports, and equipment. The emblem of the red cross
or the red crescent is the sign of such protection and must be
respected.
d. Captured
combatants and civilians under the authority of an adverse party are
entitled to respect for their lives, dignity, personal rights, and
convictions. They shall be protected against all acts of violence and
reprisals. They shall have the right to correspond with their families
and to receive relief.
e. Everyone shall be
entitled to benefit from fundamental judicial guarantees. No one shall
be held responsible for an act he has not committed. No one shall be
subjected to physical or mental torture, corporal punishment, or cruel
or degrading treatment.
f. Parties to a
conflict and members of their armed forces do not have an unlimited
choice of methods of warfare of a nature to cause unnecessary losses or
excessive suffering.
g. Parties to a
conflict shall at all times distinguish between the civilian population
and combatants in order to spare the civilian population and property.
Neither the civilian population as such nor civilian persons shall be
the object of attack. Attacks shall be directed solely against military
objectives.
60.
The mandates of the Commission and the Special Court for Sierra Leone
overlap somewhat, as they are both to address issues of ‘international
humanitarian law’. In the case of the Commission, its attention is
directed to ‘violations and abuses’, whereas the Special Court’s
jurisdiction is confined to ‘serious violations’ of ‘international
humanitarian law’. The concept of ‘serious violations of international
humanitarian law’ is a technical one whose definition has been
developed in judgments and decisions of the International Criminal
Tribunal for the former Yugoslavia. It should be pointed out that the
Special Court does not have jurisdiction over all ‘serious violations
of international humanitarian law’, but only those listed in articles 4
and 5 of the Statute. The jurisdiction is limited principally to crimes
committed within internal armed conflict. In addition, the Court has
jurisdiction over three crimes that may be committed in international
armed conflict, namely indiscriminate attacks on civilians, attacks on
United Nations personnel and installations, and recruitment and use of
child soldiers. Consequently, a broad range of serious violations of
international humanitarian law, to the extent these are committed in
international armed conflict, do not fall within the jurisdiction of
the Special Court. For example, while the Special Court has
jurisdiction over the ‘serious violation’ of ‘intentionally directing
attacks against the civilian population’, it does not have jurisdiction
over the ‘serious violation’ of ‘intentionally directing attacks
against civilian objects’. Such serious violations of international
humanitarian law when committed in international armed conflict are
not, in contrast, excluded from the work of the Commission.
61. The
concept of ‘violations and abuses’ of ‘international humanitarian law’
is also considerably broader than that of ‘serious violations’ (the
term used in the Statute of the Special Court for Sierra Leone), or,
more colloquially, ‘war crimes’. Criminality attaches to certain
serious violations of international humanitarian law (of which the
authoritative list appears in article 8 of the Rome Statute of the
International Criminal Court; there are a few war crimes that are not
listed in the Rome Statute, so the enumeration should not be taken as
an exhaustive one). Nevertheless, many violations and abuses of
international humanitarian law do not incur individual criminal
liability. In this regard, the Commission’s mandate is very
significantly broader than that of the Special Court.
62.
An illustration may be helpful to show how these distinctions were of
relevance to the work of the Commission. The participation of
mercenaries in the conflict (Gurkhas, Sandline, Executive Outcomes) has
been widely documented. The use of mercenaries is not a ‘war crime’,
and as such it is clearly outside the jurisdictional purview of the
Special Court. But the use of mercenaries is condemned by international
declarations and treaties, and is clearly discouraged by the relevant
international humanitarian law instruments. It may arguably be
described as an ‘abuse’ of ‘international humanitarian law’, but
perhaps one that is confined to international armed conflict. The use
of mercenaries would not therefore seem to fall within the remit of the
Special Court, but it is a matter that can be fully examined by the
Commission (at the very least, to the extent that it is determined that
an international armed conflict exists).
‘Related to the Armed Conflict in Sierra Leone’
63.
Section 6(1) of the Act limits the scope of the impartial historical
record to be prepared by the Commission to those violations and abuses
of human rights and international humanitarian law that are ‘related to
the armed conflict in Sierra Leone’. In other words, not all violations
and abuses of human rights and international humanitarian law fall
within the ambit of the work of the Commission. This reference has
consequences in terms of the time frame and territory addressed by the
Commission, as well as the actual substance of the violations and
abuses.
64. With
respect to the time frame considered by the Commission, more specific
language addresses this aspect of the mandate and will be dealt with
later in this chapter. With respect to the territory to be considered,
it is significant that section 6(1) does not confine the work of the
Commission to the geographic boundaries of Sierra Leone. Moreover,
section 6(2)(a) of the Act requires the Commission to consider ‘the
role of both internal and external factors in the conflict’. In this
respect, a useful comparison can be made with the jurisdiction of the
Special Court for Sierra Leone, which is confined to the ‘territory of
Sierra Leone’. Violations or abuses committed outside the territory of
Sierra Leone are relevant to the work of the Commission, to the extent
that they are ‘related to the armed conflict in Sierra Leone’. The
report, and particularly the historical narrative, refers to many
violations and abuses committed elsewhere in Africa, and even on other
continents. Those countries that border upon Sierra Leone are
especially relevant to the impartial historical record. Some of them
contributed to the violations and abuses. Other countries and
international organizations also bear some responsibility. All of this
is germane to the work of the Commission.
65.
The reference to a relationship to the armed conflict also has a
substantive limitation on the mandate of the Commission. Obviously, not
all violations of human rights committed within Sierra Leone during the
1990s can be considered to be ‘related to the armed conflict’. For
example, the practice of female genital mutilation is and has for many
years been widespread within Sierra Leone. It continued to be practiced
during the period of the conflict. The Protocol to the African Charter
on Human and Peoples’ Rights on the Rights of Women in Africa refers to
female genital mutilation as a harmful practice which violates the
rights of women and which must be prohibited (art. 5(b)). It is
probably unreasonable, however, to refer to female genital mutilation
as a human rights violation or abuse that was ‘related to the armed
conflict’. Nevertheless, it might well be argued that the practice of
female genital mutilation contributed to a context of oppression and
marginalisation of women that was manifested in violations and abuses
that were unquestionably related to the armed conflict, such as gang
rapes and sexual slavery.
66.
In other words, the line between violations and abuses in general and
those related to the armed conflict is not always an easy one to trace.
It therefore seemed safe for the Commission to presume that violations
and abuses committed in this period within Sierra Leone probably have
some sort of relationship with the armed conflict. At the onset of the
Commission’s work, statement takers were instructed to record
information of violations and abuses that might not initially appear to
be related to the armed conflict. Subsequently, any doubtful
allegations have been considered by the Commission, and either included
or excluded on a case by case basis.
67.
Human rights law applies in both peacetime and wartime, whereas
international humanitarian law’s application is confined to wartime
alone, as a general rule. The two bodies of law are largely
complementary. There is some authority for the proposition that
international humanitarian law represents a kind of special law (or lex
specialis) that in effect takes the place of human rights law during
armed conflict. However, the international human rights conventions
clearly contemplate their application during wartime, subject to the
possibility that certain rights are limited or suspended because of the
emergency situation.
68.
International humanitarian law has always represented a compromise
between the protection if the rights of non-combatant civilians and the
requirements of military necessity. It recognizes that, under some
circumstances, civilian lives may be taken where this is necessary for
the attainment of military objectives, subject to the criterion of
proportionality. But, under human rights law, there is virtually no
situation where the killing of an innocent civilian can be tolerated.
If the view were to be adopted that human rights law is, in a sense,
superseded by the special rules of international humanitarian law, the
Commission would be required to be considerably more tolerant of the
killing and injury of innocent civilians than were in the case where
the two bodies of law are viewed as providing two complementary but
distinct levels of protection. In practice, given the nature of the
conflict in Sierra Leone and the low level of humanitarian principles
followed by the combatants, there were no situations where the
Commission might be required to address a potential conflict between
conduct authorized by international humanitarian law yet prohibited by
international human rights law.
The Time Frame
69. According
to section 6(1) of the Act, the Commission is to provide an historical
record ‘from the beginning of the Conflict in 1991 to the signing of
the Lome Peace Agreement’. With specific reference to the historical
record, the Commission is instructed to examine the antecedents of the
conflict (s. 6(2)(a)).
70.
This reference to the time frame of the conflict applies to the first
element of the ‘object’ in section 6(1), and not to the second. In
other words, although the ‘historical record’ of the Commission is
time-limited, there is nothing in section 6(1) to prevent the
Commission from looking back prior to 1991 and forward beyond the Lomé
Agreement in terms of the responsibility to address impunity, to
respond to the needs of the victims, to promote healing and
reconciliation and to prevent a repetition of the violations and abuses
suffered. Aside from being justifiable on a literal reading of section
6(1), this interpretation is reasonable and helpful. Indeed, it would
be futile for the Commission to attempt “to address impunity, to
respond to the needs of the victims, to promote healing and
reconciliation and to prevent a repetition of the violations and abuses
suffered” while remaining blind or indifferent to events since the Lome
Peace Agreement. In this sense, the Commission does not have any
temporal jurisdiction, in contrast, for example, with the Special Court
for Sierra Leone.
71.
For all of these reasons, the Commission has not felt itself to be
particularly constrained by the time frame set out in section 6(1). The
reference to the outbreak of the conflict in 1991 and to the Lomé
Agreement serves to define ‘the conflict’, and the Commission’s mandate
is to consider the ‘conflict’. It could not do this in an accurate and
faithful manner if it were to begin mechanically with 23 March 1991 and
to conclude in an equally mechanical manner with 7 July 1999.
To Address Impunity
72.
The second limb of the ‘object’ of the Commission consists of four
elements, the first being ‘to address impunity’. Article XXVI of the
Lomé Agreement listed this as the first of the functions of the
proposed the TRC. The reference to impunity is somewhat enigmatic,
given that the Lomé Agreement, in granting pardon and amnesty to the
perpetrators of human rights and international humanitarian law
violations and abuses, constitutes one of the more striking grants of
impunity in recent history. The paradox of the Lomé Agreement, and of
the Truth and Reconciliation Act 2000 that was adopted to give effect
to certain of its provisions, is that it both enshrines impunity and
seeks to address it.
73.
According to one of the world’s experts on the subject, Louis Joinet,
who was the Special Rapporteur of the United Sub-Commission for the
Promotion and Protection of Human Rights, “’Impunity" means the
impossibility, de jure or de facto, of bringing the perpetrators of
human rights violations to account - whether in criminal, civil,
administrative or disciplinary proceedings - since they are not subject
to any inquiry that might lead to their being accused, arrested, tried
and, if found guilty, convicted, and to reparations being made to their
victims’. Louis Joinet devised a ‘Set of Principles for the Protection
and Promotion of Human Rights Through Action to Combat Impunity’. These
served as an extremely useful set of guidelines for the Commission in
the interpretation of its mandate to address impunity.
74.
The principles developed by Louis Joinet are grouped into three
categories: the victims' right to know; the victims' right to justice;
and the victims' right to reparations. The Commission can make
significant contributions in all three of these areas.
75.
According to Joinet, the right to know comprises what he calls ‘the
inalienable right to the truth’. He says: ‘Every people has the
inalienable right to know the truth about past events and about the
circumstances and reasons which led, through the consistent pattern of
gross violations of human rights, to the perpetration of aberrant
crimes. Full and effective exercise of the right to the truth is
essential to avoid any recurrence of such acts in the future.’
76. This
‘right to the truth’ includes a duty to remember: “A people's knowledge
of the history of their oppression is part of their heritage and, as
such, shall be preserved by appropriate measures in fulfilment of the
State's duty to remember. Such measures shall be aimed at preserving
the collective memory from extinction and, in particular, at guarding
against the development of revisionist and negationist arguments.’
Joinet also specifically recognises the right of victims to know, their
families and dear ones to know the circumstances of violations and, if
death or disappearance is the result, the fate of the victim.
77.
In the context of the right to the truth, Joinet recognises the special
role of ‘extrajudicial commissions of inquiry’, of which truth and
reconciliation commissions are certainly the most significant
manifestations. Here, then, the mandate and functions of the Commission
fits squarely within the perspective outlined by Louis Joinet for
combating impunity. It is with this component of the struggle against
impunity that truth and reconciliation commissions excel. Indeed, they
can generally respond to the needs of truth-seeking better than the
alternatives, such as criminal prosecutions.
78.
With respect to the second category, ‘the victims’ right to justice’,
the Commission cannot make as significant a contribution. According to
Joinet, the right to justice
‘implies that
any victim can assert his rights and receive a fair and effective
remedy, including seeing that his oppressor stands trial and obtaining
reparations. There can be no just and lasting reconciliation without an
effective response to the need for justice; as a factor in
reconciliation, forgiveness, a private act, implies that the victim
must know the perpetrator of the violations and that the latter has
been able to show repentance. If forgiveness is to be granted, it must
first have been sought.’
This may be overstating the point.
There are valid examples of post-conflict societies where victims were
denied access to traditional justice mechanisms, and yet where
reconciliation is indeed possible, such as Mozambique and South Africa.
Justice is not always a reliable option, if only because the
perpetrators are dead or cannot be identified, and those responsible
may be indigent and unable to provide compensation. If criminal or
civil justice is seen as a sine qua non, inevitably many will be
frustrated and disappointed.
79.
With respect to amnesty, Joinet declares bluntly: ‘Amnesty cannot be
accorded to perpetrators before the victims have obtained justice by
means of an effective remedy.’ This view is widespread in international
justice circles. But amnesty cannot always be excluded. Sometimes it
may simply be an unavoidable political reality, dictated by the need to
bring an end to conflict. To be sure, many amnesties given to tyrants
in recent decades are vulnerable to severe criticism. But it is too
absolute to rule them out altogether.
80. In
terms of addressing impunity in the context of this ‘right to justice’,
the Lomé Agreement is unquestionably deficient. The amnesty was
criticised by the United Nations, and left bitterness among many Sierra
Leoneans who believed that terrible crimes were to go unpunished. The
Commission is without power to change this situation. It can, however,
within its mandate, make observations and recommendations about the
wisdom of the amnesty provision in the Lomé Agreement, of the objection
formulated at the time by the United Nations Special Representative of
the Secretary-General to Sierra Leone, and of the subsequent
initiatives that rescinded the legal effect of the amnesty and
established the Special Court for Sierra Leone. Just as the Commission
may address the ‘right to truth’ component of the struggle against
impunity better than the Special Court for Sierra Leone, the contrary
may be the case with respect to the ‘right to justice’ component. The
Special Court responds, but only to a limited extent, given the
limitations on its own mandate and its resources. The findings of the
TRC in this respect are discussed in the Findings Chapter.
81.
The third category is the ‘right to reparation’. Louis Joinet sees this
as being composed of a number of elements, namely restitution (seeking
to restore the victim to his or her previous situation), compensation
(for physical or mental injury, including lost opportunities, physical
damage, defamation and legal aid costs), and rehabilitation (medical
care, including psychological and psychiatric treatment). In this area,
too, the Commission has much to contribute, although it is not
authorised to actually adjudicate or award reparations in any specific
form. According to section 7(6) of the Act, the Commission is empowered
to ‘provide information or recommendations to or regarding the Special
Fund for War Victims provided for in Article XXIV of the Lome Peace
Agreement, or otherwise assist the Fund in any manner the Commission
considers appropriate but the Commission shall not exercise any control
over the operations or disbursements of that Fund’. The Commission is
also instructed to make recommendations ‘concerning the reforms and
other measures, whether legal, political, administrative or otherwise,
needed to achieve the object of the Commission, namely the object of
providing impartial historical record, preventing the repetition of the
violations or abuses suffered, addressing impunity, responding to the
needs of victims and promoting healing and reconciliation’ (s. 15(2)).
The Government is required by the Act to implement these
recommendations. Many of the Commission’s recommendations are intended
to give effect to the ‘right to reparation’. This matter is addressed
in detail in the Recommendations Chapter.
Promoting Healing and Reconciliation
82.
In addition to enabling the Commission to prepare an impartial
historical record of the conflict, its principal activities -
statement-taking and hearings - provided the people of Sierra Leone
with a forum for private and public acts of reconciliation. These
included public confrontations between victim and perpetrator that led
to various expressions of contrition and a desire on both sides to put
the past behind them. These concretely vindicated the interpretation
given to section 6 and to its mandate in general by the Commission.
83.
The setting up of district support committees and the partnership of
the Commission with the Inter-Religious Council to continue working on
reconciliation up to late 2004 are expressions of the Commission’s
interpretation of this component of the mandate.
84.
Article XXVI of the Lomé Peace Agreement of 7 July 1999 obliges the
Commission to, ‘among other things, recommend measures to be taken for
the rehabilitation of victims of human rights violations’. While the
Commission’s enabling legislation did not explicitly mention the term
‘reparations’, the Commission has considered the matter within the
context of the portion of its mandate instructing it to ‘promote
healing and reconciliation’.
Preventing a Repetition of Violations and Abuses Suffered
85.
The mandate of the Commission is focussed on both the past and on the
future. Obviously, the historical dimension of its work looks to the
past. But, in instructing the Commission to consider the question of
prevention of a repetition of violations and abuses, Parliament has
given it an authorisation to peer into the future.
86.
For this reason, the Commission has made a large number of
recommendations that target institutional and other reforms. Many
recommendations are directed to the government for administrative
action, and to Parliament which must repeal certain legislation and
introduce new measures. In many cases, these recommendations are deemed
mandatory by the Commission. The TRC Act 2000 directs that the
Commission’s recommendations be implemented. In order to ensure this
implementation, the Act provides for the establishment of a follow-up
committee, which is to report on government compliance with the
recommendations of the Commission.
87.
Prevention of a repetition also involves a change in the way the people
of Sierra Leone behave with each other, on individual and collective
levels. It also concerns their attitude towards themselves, to their
own country and to their public institutions. The Commission has taken
up this aspect of its mandate through a project called the National
Vision for Sierra Leone. The National Vision attempted to provide
Sierra Leoneans with a platform to reflect on the conflict and to
describe the future society they wish to see in Sierra Leone.
-END OF CHAPTER ONE-
© 2002 - 2007, Sierra Leone Truth & Reconciliation Commission
|
|