"How the acts and experiences of children are addressed in Sierra Leone--within the processes established to seek truth and justice, by the UN and international agencies, by government ministries, through national legislative reform, or institutional strengthening efforts, by local communities--must all be carefully monitored, supported and evaluated to help ensure the best interests of Sierra Leonean children and to contribute to improved practice in similar situations elsewhere."
ILENE COHN (1)
Some of the many children who have endured a decade of armed conflict in Sierra Leone will soon be involved in efforts to establish truth and impart justice in the aftermath of egregious abuses committed by the warring parties. A Special Court for Sierra Leone, which will seek to prosecute crimes against humanity and war crimes, including those committed against and sometimes by children during the war, is being established by agreement between the United Nations (UN) and the Government of Sierra Leone. A national Truth and Reconciliation Commission (TRC), which will seek to clarify the war's impact on children and pay particular attention to the role of children in perpetrating abuses, is in the early stages of formation. No previous or existing truth commission or war crimes tribunal has explicitly sought to expose or administer justice for abuses perpetrated on or by children. (2)
The creation of these truth and justice-seeking mechanisms has generated an important debate, both internationally and in Sierra Leone, about the potential of such processes to assist in the recovery and reintegration of individual children, the post-conflict healing of families and communities, and social reconciliation in general. At present, both the TRC and the Special Court for Sierra Leone are in the planning stages. Though child rights advocates, human rights specialists, lawyers, and child protection experts differ over how best to advance the interests of children within Sierra Leone's truth and justice-seeking mechanisms, the respective constitutive instruments do ensure that the TRC and the Special Court can address the rights and advance the interests of child victims, witnesses and perpetrators. But the debate over how this should be done reveals how little is known at the international level about the ways in which juvenile justice or truth-telling procedures can help heal children exposed to or involved in armed conflict, and how these processes can be structured to help children rejoin and participate in civilian life. This article will review how the involvement of children in truth commissions and war crimes tribunals has been discussed and addressed in the context of Sierra Leone. It will also describe the outstanding questions in need of urgent attention if the positive potential of truth commissions and war crimes tribunals is to be harnessed for the benefit of war-affected children in Sierra Leone and elsewhere.
The horrors of the war that has ravaged Sierra Leone since1991 have been recounted time and again -- massacres, rape of girls as young as eight years, mutilations, including the wanton amputation of limbs, butchery of pregnant women, abduction of children, torture and arson. Many of the hundreds of thousands of displaced children have been separated from their families or orphaned. Amnesty International has estimated that over 5,000 girls and boys, some as young as six, have fought with armed groups and forces.
On 7 July 1999 the Government of Sierra Leone and the Revolutionary United Front (RUF) signed the Lome peace agreement, which recognized "the imperative that the children of Sierra Leone, especially those affected by the armed conflict, ... are entitled to special care and protection...." (3) Several of the accord's provisions would, if ever fully implemented, be of great benefit to children. For example, the Government was to mobilize resources to address the special needs of child soldiers within the demobilization and reintegration process. (4) Unfortunately, fighting broke out again in May 2000, the RUF/SL leader who signed the Lome agreement, Corporal Foday Sankoh, was subsequently imprisoned, and many of the operational or administrative bodies that were to be established by the Lome agreement never fully developed.
The Lome agreement did, however, call for the establishment of a Truth and Reconciliation Commission (TRC) "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." (5) The UN Office of the High Commissioner for Human Rights and others focused attention and resources on this aspect of the agreement and, after many setbacks, the process of selecting Commissioners is underway.
Truth is one thing and justice is another; the parties to the Lome agreement sought explicitly to exclude any prosecution of war criminals. Foday Sankoh and others were to receive full pardon and a blanket amnesty was granted "to all combatants and collaborators in respect of anything done by them in pursuit of their objectives, up to the time of the signing of the present Agreement." (6) The UN signed the Lome agreement as a "moral guarantor" of its implementation. However, appended to the signature of the Secretary-General's Special Representative is a statement disclaiming the applicability, in the view of the UN, of the amnesty provisions in Lome to the international crimes of genocide, crimes against humanity and other serious violations of international humanitarian law. At the time this appeared to be merely a significant statement of law and principle, but not one that would threaten the impunity enjoyed by the war's many criminals.
On 14 August 2000, a year after the signing of Lome, following the release of UN peacekeepers who had been taken hostage by the RUF, and in the midst of renewed fighting across areas of Sierra Leone, the UN Security Council requested the Secretary-General to negotiate an agreement with the Government of Sierra Leone to create an independent special court to try those individuals responsible for grave war-time abuses. (7) The Council was deeply concerned "over the very serious crimes committed within the territory of Sierra Leone and at the prevailing situation of impunity" and felt that a credible system of justice and accountability would contribute to the process of national reconciliation and the maintenance of peace. (8)
CHILDREN AND THE SPECIAL COURT FOR SIERRA LEONE
Security Council resolution 1315 of 14 August 2000 sets out the essential characteristics of the Special Court that the Secretary General was asked to negotiate with the Government of Sierra Leone. The subject matter jurisdiction was to include crimes against humanity, war crimes and other serious violations of international humanitarian law, as well as crimes under Sierra Leonean law committed in the territory of Sierra Leone. Personal jurisdiction was to extend to persons "who bear the greatest responsibility" for such crimes, including those leaders whose criminal acts have threatened the peace process. As the drafting got underway, it soon became apparent that the way in which the Court's statute would address gross abuses perpetrated against and by children would be a matter of contention and international concern. International organizations, child rights advocates and NGOs disagree on whether and how children who commit international crimes should be addressed in judicial proceedings.
A. The debate over personal jurisdiction over former child soldiers
As the UN secretariat team of legal experts sets out to prepare and negotiate the draft Statute of a Special Court, their extensive discussions with representatives of the Government of Sierra Leone and their own visit to Sierra Leone made them increasingly aware of the role children had played in the perpetration of atrocities during the war. A question arose with regard to the extension of the Court's personal jurisdiction to persons who were juveniles at the time of the commission of serious crimes.
1. Understanding precedent: The legacy of the Rome Statute of the International Criminal Court
The question of personal jurisdiction over young people in an international tribunal had been debated for the first time during the drafting of the Rome Statute of the International Criminal Court (ICC), which was concluded in June 1998. (9) Delegates to the drafting process recognized that young people are capable of committing crimes of war; however, numerous factors contributed to the exclusion of persons under age 18 from the jurisdiction of the Court. (10) First, there was no consensus on a minimum age for the assignment of legal responsibility or the creation of an age range within which consideration might be given to a person's maturity. Second, the drafters feared creating a conflict with regulations in different national criminal jurisdictions regarding age of criminal responsibility. Third, evaluations of maturity might be handled differently in different countries and require particular expertise and familiarity with a child's social context. Fourth, special care and resources would be required to manage a juvenile detention system and the execution of sentences for juvenile offenders. And finally, some felt that the special regime that would be required to prosecute minors within the ICC would not be the best way to use the Court's limited resources. The drafters ultimately decided to leave the prosecution of juveniles to the national courts, if the national law in question in fact provides for such jurisdiction over minors.
In choosing to exclude all persons under age 18 from the jurisdiction of the International Criminal Court, the drafters did not establish a minimum age for international criminal responsibility. (11) Later, the language of the Rome Statute was to be incorrectly cited by some NGOs and international organizations that opposed prosecution of juveniles by the Special Court for Sierra Leone on the basis that this would deviate from a standard set by the ICC. The Rome Statute, it must be stressed, does not represent international consensus that persons under age 18 are not competent to commit, or should not be held criminally responsible for the commission of offenses, including war crimes, genocide or crimes …