| Cite as: 2 Nw. U. J. Int'l Hum. Rts. 8 at http://www.law.northwestern.edu/journals/jihr/v2/8 | JIHR Home > Volume 2 (April 2004) |
¶ 1 In the aftermath of a ten-year civil war, the country of Sierra Leone is undergoing a lengthy process of recuperation and stabilization. During the decade-long war, thousands of innocent Sierra Leoneans endured extra-judicial killings, torture, rape, and abduction at the hands of two warring factions: the Sierra Leone Government and the Revolutionary United Front ("RUF"). Researchers estimate that at least five-thousand juvenile combatants actively participated in the war.1 While many children were conscripted into combat, a significant segment of juvenile soldiers voluntarily participated in the brutalities.2
¶ 2 At the conclusion of the war in 2000, the Government of Sierra Leone and the United Nations jointly established the Special Court for Sierra Leone to prosecute those "persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law . . .."3 Despite this strict statutory directive, juveniles between the ages of fifteen and eighteen determined to be guilty of committing heinous war crimes are not subject to imprisonment.4 Instead, juvenile criminals will be "sentenced" to a truth and reconciliation mechanism, where—regardless of culpability—they are ultimately released back into the very communities they once tortured.5
¶ 3 Punishment of juvenile soldiers challenges both the rehabilitative assumptions of truth and reconciliation mechanisms and the propriety of informal, nonpunitive, and relatively short-term social control.6 In a time of widespread exploitation of children, the Special Court is in a unique position to establish a precedential framework for future ad hoc tribunals addressing juvenile combatant issues.7 The Court's current policy towards juvenile punishment makes impossible the attainment of just results and neglects to effectuate fundamental notions of deterrence8 and retribution.9 The current rehabilitative approach is laudable, but from a real politik perspective, the Sierra Leoneans' demand for retributive punishment highlights the dire need for satisfactory sanctions vis-a-vis culpable combatants. In the absence of such punishments, Sierra Leone will remain unstable and the rule of law illusory.
¶ 4 The premise of this article is rather simple: The protection of human rights is a socially valuable and necessary good; as such, human rights violators must face adequate punishment when appropriate. Punishment must be rendered upon juvenile combatants who willingly desecrated human rights in Sierra Leone. The proposition that child soldiers were the first victims of human rights violations is a non-sequitor since this article advocates only that child soldiers who voluntarily joined a militia and voluntarily committed war crimes be susceptible to punishment. Ergo, in situations in which the child soldier was conscripted into warfare, punishment is proper only upon the conscriptor. When, however, the most culpable juveniles face no bona fide punishment, the decade-long war merely serves as a training ground to lead future rebellious revolts as skilled and undeterred leaders.
¶ 5 This article addresses the structural shortcomings of the current Court scheme and offers an alternative adjudicatory regime for juvenile soldier matters. Section I outlines the decade-long civil war and the futile peace agreements. Section II explores the nuances of the Court-enabling statute and the rationale underpinning the expansive statutory punishment-exclusion for juveniles. Section III evaluates contemporary proposals for adjudicating child soldier matters and discusses why these proposals insufficiently address the debacle. Section IV offers an alternative organizational framework for the tribunal which maximizes deterrence and retribution, and establishes, inter alia, stability and the rule of law. The conclusion is that in order to resolve the civil unrest in Sierra Leone, the Court must permit discretionary imprisonment of the most culpable juvenile combatants, while remaining cognizant of mitigating factors such as age and immaturity.
¶ 6 The Sierra Leonean civil war began in March 1991 amidst political upheaval over a multi-party democratic system of governance. Revolutionary United Front forces, influenced by local discontent and regional instability, attempted to overthrow the Government and exercise control over the country and its supreme economic resource—the diamond mines.10 Some commentators have intimated that the true motivation for RUF forces was continued profit from illegal diamond trade coupled with a perverse enjoyment of criminal activity.11
¶ 7 During the war, the Government was overtaken several times by intra-governmental factions.12 Taking full advantage of the regime changes, RUF forces advanced on government forces, eventually gaining substantial control of the diamond mines.13 The Government, in turn, engaged private security firms and the Nigerian-led Economic Community of West African States Monitoring Group ("ECOMOG") to shield against the RUF coup d'etat.14 Government forces were minimally successful in containing RUF forces.15
¶ 8 In 1996, pro-government forces successfully conducted a multi-party election and elected as president former U.N. official and leader of the Sierra Leone's People's Party, Ahmad Tejan Kabbah.16 Kabbah subsequently entered into the Abidjan peace agreement17 with the RUF in which the government granted amnesty to RUF combatants in exchange for an abrupt cease-fire, disarmament, and demobilization.18 The Abidjan Accord went unenforced, however, and the atrocities continued.19
¶ 9 In 1997, the Government again underwent a regime change, being replaced this time by the Armed Forces Revolutionary Council ("ARFC").20 Mayhem ultimately erupted when ARFC endeavored to share command with the RUF, leading to near-anarchy in the country. Regional instability prompted the U.N. to intervene and reinstate the Kabbah administration.21 The change did not alleviate the problem, however, since RUF forces maintained control of half the country and continued to launch attacks on the capital city of Freetown.22 By the time Government forces regained control of the capital following the notorious 1999 raid by RUF forces, an estimated six-thousand innocent civilians were left dead and thousands more mutilated and limbless.23
¶ 10 RUF forces—comprised of thirty percent juvenile soldiers—implemented a brutal war operation referred to by RUF commanders as "Operation No Living Thing," where rebel forces ripped through Freetown, raping thousands of women, killing innocent civilians, and destroying the capital city.24 This and numerous other brutal operations conferred upon juvenile soldiers the reputation as the cruelest combatants of the war.25
¶ 11 Throughout the conflict, RUF forces utilized a terroristic approach stylistically similar to that of their chief ally Charles Taylor of Liberia.26 This terror-based strategy included abducting children from their homes, forcing boys to engage in war and girls to perform sexual services, and raiding and killing entire villages.27 Thousands of innocent Sierra Leoneans suffered amputation and mutilation at the hands of rebel forces.28 The RUF's most notorious act of terror was chopping off the hands of those said to have cast votes in 1996 for pro-government candidate Ahmed Tejan Kabah.29 The Sierra Leonean Government, in response, adopted similarly gruesome war tactics.30
¶ 12 During the conflict, an estimated five-thousand juvenile soldiers committed widespread and systematic atrocities in defiance of international conventions.31 Large numbers of children were coerced to participate in the war, often facing death for noncompliance.32 Some juvenile soldiers, however, acted voluntarily, serving as commanders and foot soldiers during executions and mutilations.33 These juvenile soldiers earned a reputation throughout the region as fearless and blood-thirsty killers.34
¶ 13 In July 1999, U.S. diplomats brokered the Lome Peace Accord,35 which offered amnesty to all combatants and endowed the RUF regime with inclusion in the new government in exchange for disarmament and demobilization.36 The U.N. Secretary-General's Special Representative caveated the accords, insisting that "international crimes of genocide, crimes against humanity, war crimes, and other serious violations of international humanitarian law" would not be protected by the amnesty proviso.37 The Lome Accords established various victims' and refugees' programs, educational institutions, a Human Rights Commission, a Truth and Reconciliation Commission ("TRC"), a National Election Commission, and a Constitutional Review Committee.38 Despite the expansive amnesty provision, Sierra Leonean citizens staunchly supported the agreement, deeming the Accords a crucial stride towards peace and regional stability.39 To implement the Accords, the U.N. pledged nearly six-thousand peacekeeping troops to the region.40
¶ 14 Global optimism notwithstanding, trouble promptly ensued when RUF forces refused to adhere to the Accords and continued its brutal attacks on civilians.41 RUF forces failed to disarm and demobilize, and in May 2000, they took hostage five-hundred U.N. peacekeepers.42 U.N. Secretary General Kofi Annan noted in mid-2000 that "the situation in Sierra Leone remained tense and volatile under conditions that resemble civil war."43 In November 2000, Government and RUF forces attempted another cease-fire agreement by way of the Abaju agreement, which recommitted the parties to the Lome Accords.44 This effort was again futile. War continued to rage.
¶ 15 The conflict ultimately ceased when the U.N., Britain, and the United States dispatched to Sierra Leone the world's largest peacekeeping mission.45 RUF leader Sankoh was subsequently apprehended and has remained incarcerated in an undisclosed area ever since.46 Sierra Leone is currently recuperating from complete destruction and numerous efforts are underway to stabilize the country.
¶ 16 Cognizant of the importance of regional stability, the U.N. and the Government of Sierra Leone jointly established the Special Court.47 The Court is a hybrid judicial system administered concurrently by the U.N. and the Sierra Leone Government.48 The Court is composed of a trial chamber, an appellate chamber, the prosecutor's office, and the registry.49 The Court's express purpose is to prosecute those "persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law . . .."50 The U.N. Secretary General has cautioned that the term "persons who bear the greatest responsibility" does not limit the Court's personal jurisdiction to political and military leaders; it is meant to provide a prosecutorial strategy rather than an element of the crime.51
¶ 17 The Court is staffed with local and international judges and prosecutors.52 The Chief Prosecutor, appointed by the U.N. Secretary General, is to make the final decision on indictments.53 The Court adheres to the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda ("ICTR").54 The Court is located in Sierra Leone55 and imprisonment is to take place in Sierra Leone, provided that the prisons meet U.N. requirements, or in any third country that has signed an agreement with the ICTR or International Criminal Tribunal for the former Yugoslavia ("ICTY").56 U.N. member states will voluntarily fund the Court.57
¶ 18 Article 10 of the Court statute provides that, "[a]n Amnesty granted to any person falling within the jurisdiction of the Special Court in respect to the crimes referred to in articles 2 to 4 of the present Statute shall not be a bar to prosecution."58 This clause negates the broad amnesty granted combatants by way of Article XI of the Lome Accords.59 Some commentators have argued that RUF's material breach of the Lome Accords renders the amnesty clause void;60 while others have argued that the amnesty clause never protected war crimes and crimes against humanity.61 Whatever the case, the statute does not recognize amnesty as a bar to prosecution.
¶ 19 Arguably the most complex and contentious issue facing the Court is the mode of juvenile prosecution and the extent to which corporal punishment is proper. Punishment of juvenile soldiers challenges both the rehabilitative assumptions of the TRC and the propriety of informal, nonpunitive, and relatively short-term social control.62 The debacle poses complex questions of culpability, justice and impunity, as well as individual and social healing. The Court statute mandates that child soldiers under the age of fifteen at the time of the crime may not face prosecution.63 The Court statute does, however, permit prosecution of juveniles over the age of fifteen.64 As Article 7 of the Court statute states:
The Special Court shall have no jurisdiction over any person who was under the age of 15 at the time of the alleged commission of the crime. Should any person who was, at the time of the alleged commission of the crime, between 15 and 18 years of age come before the Court, he or she shall be treated with dignity and a sense of worth, taking into account his or her young age and the desirability of promoting his or her rehabilitation, reintegration into and assumption of a constructive role in society, and in accordance with international human rights standards, in particular the rights of the child.65
¶ 20 The Sierra Leonean Government and its citizenry demand punishment of all culpable parties, including juvenile soldiers.66 In sharp contrast, the Special Court statute aspires to rehabilitate and reintegrate juvenile soldiers back into their communities. Under the statute, a murderous combatant over the age of fifteen will face no real punishment.67 Pursuant to Article 7(7) of the Court statute:
In the Trial of a juvenile offender the Court shall, in the disposition of his or her case, order any of the following: care guidance and supervision orders, community service orders, counseling, foster care, correctional, educational and vocational training programmes, approved schools, as appropriate, and programmes of disarmament, demobilization and reintegration or programmes of child protection agencies.68
¶ 21 "Rehabilitative sentencing" via the TRC69 is the most readily available alternative to corporal punishment.70 The TRC permits perpetrators to divulge to the Commission their individual roles in the war without facing punishment.71 The TRC's paramount objective is to create a historical record of human rights violations committed during the civil war.72 TRC proponents argue that it is the most effective accountability mechanism for juveniles because "it allows the victim and perpetrator to heal emotionally and psychologically."73 The TRC will promulgate a final report discerning the causes, nature, and extent of the human rights violations in Sierra Leone. The Government will ultimately utilize these findings to help achieve improved insight into the causal factors of the war so to prevent future conflicts.74
¶ 22 The post-war landscape presents to the Court an anomalous situation: The victims demand severe punishment of the most culpable juvenile soldiers, while the Court statute seeks to rehabilitate and reintegrate the violent juveniles back into the very communities they once terrorized.75 In the absence of corporal punishment, this situation is extremely difficult, if not impossible, to reconcile.
¶ 23 Recent proposals advocate the establishment of a separate juvenile division to adjudicate juvenile matters.76 A separate juvenile division, the argument goes, would provide a more efficient and fairer means by which to adjudicate juvenile matters and maximize rehabilitative goals.77 Although U.N Secretary-General Annan recommended a comparable children's chamber, the Security Council expressly rejected the proposal,78 ostensibly regarding the idea as superfluous due to the Court's current capability of adequately addressing juvenile matters.79
¶ 24 The major premise underlying a separate chamber is that juvenile soldiers should be treated disparately from adult offenders because they are somehow less culpable and more easily rehabilitated.80 Advocates argue that this disparate treatment strictly adherences to fundamental principals of criminal justice.81 The ultimate goal of the proposal, however, remains rehabilitation and reintegration of juvenile soldiers into the very communities that demands their punishment. One commentator hopes, perhaps over-idealistically, that the Special Court will "lay a foundation for an effective system of decriminalizing the conduct of child soldiers, and bring a sense of order, fairness and dignity to those aggrieved."82
¶ 25 The argument that ignoring the horrendous behavior of juvenile soldiers will somehow bring "order, fairness and dignity"83 employs faulty logic and is pragmatically troubling. How will decriminalizing systematic murder and rape bring any sense of fairness, order, or dignity to the victims? The supposition counterintuitive, but is blatantly counterfactual, ignoring Sierra Leoneans' demand for punishment of all culpable combatants. Although child soldiers are chronologically juveniles, their criminal conduct is indistinguishable from that of their adult counterparts. In the absence of adequate punishment, mayhem and social disorder will result, since "decriminalizing" criminal behavior negates the deterrent and retributive hallmarks of criminal law, leaving the victim no remedy other than self-help.
¶ 26 Furthermore, the current proposal's presupposition that rehabilitation and reintegration are attainable ends is erroneous. In Sierra Leonean society, where the average male life span is thirty-seven, significant responsibility is assumed at an early age.84 A fifteen-year-old Sierra Leonean combatant is effectively middle-aged.85 To seek rehabilitation at that age in the absence of punishment would at best be extremely difficult and often futile. Violent juvenile soldiers have forfeited the special place in life they enjoyed before their crimes, so that society's benign attitude toward minors does not extend to embrace them.86 It is a truism that "victims of criminal acts suffer the same injuries, regardless of the age of the perpetrators."87 Without an adequate deterrent, the statutory goal of rehabilitation of learned and experienced combatants is an unattainable illusion.88 To be sure, the seminal report on child soldiers, conducted by child soldier expert Graca Machel for the U.N., concluded that "[i]t is difficult if not impossible, to achieve reconciliation without justice."89 Unpunished criminals produce justice for no one; the victim's grievances go unnoticed and unaddressed, and the criminal actor remains unattached to community norms and unscathed by disapproval. As a pragmatic matter, "[t]here can be no peace without justice, no justice without law, and no meaningful law without a court to decide what is just and lawful under any given circumstance."90 A fundamental ingredient inherent in any notion of "justice" is punishment for a wrong.
¶ 27 Deterrence and retribution must be the Court's primary objectives to realistically achieve stability in the country. Rehabilitation is a laudable goal, but given Sierra Leoneans' demand for punishment, it must exist as a secondary objective.91 In a country where juvenile soldiers deem human life worthless, the efficacy of rehabilitation is questionable, while the benefits of deterrence and retribution are more concrete. Criminal prosecution as a response to the mass atrocities will bring a measure of justice and recognition to the victims.92 Regional stability and the rule of law—the hallmark of democracy—necessitate the imposition of penal sanctions that maximize the deterrent and retributive goals of criminal law.
¶ 28 Policymakers must also remain aware of the message that the Court conveys to Sierra Leoneans. That is, it is crucial that policymakers focus on the message that civilians ultimately understand from the Court's policy rather than what policymakers intend.93 Inherent in a policy of strict adherence to rehabilitative principals is the message that murderous criminals will go unpunished, and will instead be "counseled" on the government's dime and then placed back into the very communities they tortured. Victim's families will be left to grieve with nothing save unresolved loss, mourning, and want for justice. The victim's family—by human nature—will resort to their own forms of retribution, usurping the Special Court's role and taking justice into their own hands, thus continuing the vicious cycle of violence in Sierra Leone. Furthermore, the strictly rehabilitative approach will teach future rebels that at the conclusion of war, rehabilitative benefits will accrue and no real punishment will be rendered. Subtextually, the current approach conveys a message that a new era of accountability is unrealistic, and when criminal accountability appears unrealistic to society, there is little hope for stability, especially in a region recovering from a decade-long civil war. As one learned commentator has noted, "[p]unishing those responsible for the atrocities in Sierra Leone, by conveying a concrete message of accountability, may begin to break that cycle of violence."94
¶ 29 The Court's scarce resources significantly hamper the potential for a separate juvenile's chamber. The Court is funded through voluntarily contributions from U.N. member-states.95 The U.N. originally planned to raise $32.2 million for the initial start-up and first-year of the Court, and $84.4 million for the next two years.96 The United Nations, however, endured significant problems raising the capital and consequently drastically reduced the budget to $16.8 million for the first year for a total of $57 million over the Court's first three years.97 Juxtaposed to the ICTR and the ICTY, which respectively receive $80 and $96 million annually, the Special Court is on a tight-rope budget.98 As a practical matter, "it will be very difficult for this Court to look productive given the [financial] constraints it will have operating in Sierra Leone."99 In light of the significant costs related to U.N. employees living in Freetown,100 additional U.N. personnel to staff a separate juvenile court simply is not feasible. The costs of separate trials in a separate court, which would be held to international standards, would quickly deplete the Court's minuscule budget.101
¶ 30 Moreover, prosecution of juveniles under the Court's current structure would produce similar results without the excessive cost. The Court statute already delineates standards by which child combatants are to be adjudicated,102 obviating the need for a separate chamber. A separate chamber would merely serve a semantically-oriented purpose, allowing proponents to postulate that children are being treated "fairly" because jurisdictional power is vested in a different court, where in fact the end-results would be the same. To be sure, when punishing juveniles, the Special Court can only prosecute the most culpable violators of human rights; inclusion of child combatants within the jurisdictional province of the Court will not increase its prosecutorial scope. A separate chamber would thus cause severe inefficiencies, hamper judicial economy, and impede justice in an area in dire need of swift and adequate justice.
¶ 31 Various non-governmental organizations ("NGO's") argue that the TRC is sufficient "punishment" for juvenile soldiers because prosecution would weaken rehabilitative efforts.103 The argument is based on the idea that prosecution stigmatizes defendants and adversely affects rehabilitation and reintegration. Some NGO's presume that every juvenile offender was forced into warfare. From this they deduce that holding juveniles accountable for their vicious crimes would endanger the efficacy of rehabilitation.104 According to Human Rights Watch:
Although we believe that children should be accountable for their offenses, in light of their inherent immaturity as well as the subjection of many child combatants to forcible abduction, brutalization and other forms of coercion, we recommend that the Special Court's limited resources would be far better used in pursuit of justice for adult offenders, rather than children.105
¶ 32 The statement fails, however, to articulate why the Court's limited resources would be better utilized prosecuting adult combatants while granting absolute immunity to juveniles. More importantly is the omission of any empirical evidence—or any other form of evidence—that justifies complete immunity for all juvenile soldiers under the age of eighteen.
¶ 33 The Court's scarce resources should indeed be utilized to prosecute the most culpable parties, but it does not follow that a fortiori violent juveniles should go unpunished. The Court is directed to "prosecute those persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean Law . . .."106 This clause textually confines the Court's prosecutorial scope, making it rather contradictory and arbitrary to postulate that violent juveniles should be categorically immune from prosecution because of their status as minors to assure that only the most culpable parties are prosecuted.
¶ 34 Juvenile soldiers were among the most violent actors in the war, and certain juvenile combatants voluntarily assumed key leadership roles.107 The unambiguous text of the statute should be effectuated irrespective of the artificial adult/minor dichotomy.108 One must recognize that "[t]he continuation of the artificial juvenile/adult dichotomization has [historically] resulted in a disservice to the public safety."109 It is the proper role of the Court to determine who is "most responsible" for the mutilations, rapes, and extra-judicial killings. If a juvenile soldier is one of the most culpable parties then appropriate punishment is necessary.110
¶ 35 The TRC permits juveniles to disclose their violent crimes to the Commission without facing any form of punishment.111 If rehabilitation is the main concern, one should consider the rehabilitative theory of criminal law: Imprisonment benefits the criminals themselves by reforming their characters so they are no longer motivated to engage in crime.112 Concededly, the TRC plays a valuable role in documenting the atrocities, but it is an idealistic fantasy to intimate that the Commission suffices as punishment for violent criminals. Moreover, sufficient documentation of war crimes can be accomplished through trial mechanisms.113
¶ 36 While one may justifiably seek emotional repair and rehabilitation for criminals via the TRC, the Court's paramount objectives must be deterrence and retribution. The only juveniles potentially facing punishment are those who voluntarily and intentionally committed war crimes.114 The true victims in this situation are not the murderers, but the grieving families and innocent civilians on the receiving end of the crime. Encouraging dangerous criminals to disclose their crimes without punishment will not prevent another war; it will merely serve as an opportunity to "reintegrate" until the next coup d'etat presents itself. The then-child soldier now becomes an experienced and undeterred leader of a lawless faction.
¶ 37 More subtly, what happens when a violent juvenile soldier is "reintegrated" into society and upon minimal provocation reverts to learned and unpunished war-like tactics? This scenario is sure to come to fruition if undeterred criminals are merely interviewed and released back into the very society they tortured. Will the criminal actor continue to avoid punishment? Or is punishment permissible at this point? The answer must be that punishment should occur at the time of the original crime to prevent subsequent crimes.
¶ 38 Admittedly, rehabilitation, when properly executed, negates some of the expected draconian reactions of juvenile soldiers, but not all of the adverse affects of non-punishment are alleviated. Withstanding complete rehabilitation, the fact still remains that victims' wrongs will not be righted absent putative sanctions vis-a-vis those responsible. The practical result of unredressed wrongs is regional instability as victims seek vindication by any means. If the Court is unable to prosecute the most culpable criminals, including juveniles, the goals sought by the Court—accountability, regional stability, and the rule of law—will remain unattainable.
¶ 39 As a basis for blanket immunity for juvenile soldiers, proponents postulate that putative punishment of juveniles runs counter to international norms.115 If, however, one looks at the enabling statute for the International Criminal Court ("ICC")—the epitome of international norms—punishment of juvenile criminals for crimes against humanity, genocide, and other horrific crimes is permissible.116 Moreover, many nation-states have implemented adjudicatory procedures for juveniles charged with conduct that would be criminal if committed by an adult.117 In determining punishment, Western nations have for some time treated violent juveniles as adults.118 More compelling, however, is non-Western acceptance of juvenile punishment.119 The fact is that prosecuting juvenile soldiers for their gruesome war crimes is in conformity with international norms and necessitated by the delicate post-war situation in Sierra Leone.
¶ 40 The Court must promote the integrity of the criminal law and assure accountability. To this end, the most effective solution is to treat juvenile soldiers (at least fifteen years old) similar to their adult counterparts upon a finding that they voluntarily joined a warring faction and voluntarily committed heinous crimes. The gravamen of the two-prong requirement is that the soldier possessed the requisite mens rea to join a warring faction and the mens rea to commit the crime. This high standard of criminal liability normatively corresponds with international criminal law jurisprudence, which requires one to possess an undiminished capacity to exercise free will in choosing between right and wrong.120 The second essential element is the age constraint: The child soldier must have been at least fifteen years old at the time of the crime's commission.121 Although "line-drawing" with regard to age and punishment is intrinsically arbitrary, it is necessary to effectuate the rule of law.122 Fifteen years of age is the minimum age under the current Court statute for prosecution123 and it was until recently the minimum age for recruitment into armies pursuant to the most widely ratified international convention.124 Furthermore, fifteen years of age has been deemed an appropriate age for prosecution by Western and non-Western nations alike.125
[O]ne of society's most basic tasks is that of protecting the lives of its citizens and one of the most basic ways in which it achieves the task is through criminal laws against murder.126
¶ 41 The Special Court's primary purpose is to punish those most responsible for grave human rights violations.127 The most culpable parties for the summary executions, rapes, mutilations, and other horrific crimes must face severe punishment for their actions.
¶ 42 While great significance should not be placed on rehabilitation and reintegration absent a punitive response, it is nonetheless a worthwhile ancillary goal. Despite skepticism surrounding the efficacy of rehabilitation and reintegration without "justice,"128 it nonetheless may be an attainable goal where the juvenile's culpability is minimal. Furthermore, given the Court's limited resources, rehabilitative measures will have to suffice as "punishment" for minimally culpable parties. Paramount attention and resources must be expended prosecuting the most culpable parties.129
¶ 43 To that end, proposed below is a procedural design for an ad hoc criminal tribunal in Sierra Leone that maximizes judicial economy and efficacy. The adjudicatory process consists of an initial fact-finding phase conducted by the prosecutor, followed by a trial when appropriate, and concludes with a sentencing phase, at which time the Court considers mitigating factors including age and immaturity. The adjudicatory process is the same for both adult and juvenile offenders, although the Court will formulate additional inquiries in juvenile cases. The macro-level focal point is on regional stabilization and the establishment of the rule of law by way of deterrence and retribution. To this end, the Special Court should follow the lead of the ICTY and impose "imprisonment to protect society from the hostile, predatory conduct of the guilty accused."130
¶ 44 The adjudicatory process for adult and juvenile soldiers should initially consist of a thorough fact-finding phase comprised of a preliminary investigation, legal analysis of the discovered facts, and a determination of prosecutorial success. The prosecutor should consider the culpability of the offender to determine whether punishment is warranted. The prosecutor must meticulously explore the nature of the crime and the suspected perpetrator to settle on the correct response. At the forefront of the prosecutorial decision-making process must be the Court's express statutory purpose of prosecuting only the most culpable combatants.131 This statutory limit necessarily fixes the prosecutor's outer-boundary in the fact-finding phase and serves to check unfettered discretion.132 The prosecutor should consider mitigating factors established by the Court.133 Only if there is clear and convincing admissible evidence to prove that the combatant voluntarily participated in the conflict should the investigative phase proceed.
¶ 45 Despite the pragmatic attractiveness of this approach, some commentators have argued that the judge in the case should serve as the prosecutorial decision-maker.134 This proposal, however, is extremely problematic in terms of procedural and substantive due process. To be sure, if a judge is permitted to evaluate a crime and determine the validity of the charge prior to hearing the case, the judge is no longer an unbiased adjudicator; the judge will have inevitably made a premature determination that the defendant is (or is not) culpable to some degree and should (or should not) face prosecution. Inherent in the prosecutorial decision-making process is the determination that the defendant is (in)sufficiently guilty to even face trial. The intermingling of the judicial and prosecutorial roles in the fact-finding phase permits the judge to take undue consideration of inadmissible evidence at trial. This approach directly contradicts rudimentary principals of fairness and due process—essential elements of any fair trial.135 The prosecutor must retain broad prosecutorial discretion pursuant to the current Court statute.136 Prosecutorial decision-making allows a fair determination of the legal sufficiency of a charge while liberating the judge from pretrial bias.137
¶ 46 When the accused is a juvenile, the prosecutor should first determine the manner in which the combatant became involved in the warring faction, namely whether association was voluntary or involuntary. This inquiry is critical since many juveniles were conscripted into battle.138 Cases involving conscription should not be prosecuted due to the actor's diminished capacity to exercise free will. Prosecution in these cases would not effectuate the statutory purpose.
¶ 47 Concededly, a determination of the voluntary nature of inculcation may be complicated in situations where child soldiers joined a faction out of economic desperation.139 Illustrative of this complexity are the remarks of an eight-year-old orphan who fought in Sierra Leone and Liberia:
There, there was tribal war. There, street children like me became child soldiers . . .. Small soldiers had it all. They had Kalashnikovs. Kalashnikovs, those are rifles invented by a Russian that shoot without stopping. With Kalashnikovs, child soldiers had it all. They had money, even American dollars. They had shoes, military stripes, radios, caps, and even cars, called 4 by 4's. I cried, 'Walahe! Walahe!' I wanted to go to Liberia. Quickly.140
¶ 48 The determination of volition must be made on a case-by-case basis, rather than a through a bright-line rule effectively allowing juveniles to avoid prosecution upon concocting a claim of "constructive coercion" via impoverishment. The prosecutor should consider the extent of poverty suffered and the causal connection between poverty and association with the faction. Prima facie the factual undertaking seems daunting, but recall that only those parties most responsible for the atrocities will be prosecuted, which necessarily limits the scope of inquiry.141 Although contemporary thought dictates that the intentional taking of a life without justification requires a punitive response when the offender has even minimal appreciation for the nature of her acts and their consequences,142 this is unachievable given the Court's limited scope and resources.143 As a protection to defendants, a determination of volition by the prosecutor is not a per se preclusion from raising the issue at trial as an affirmative defense.
¶ 49 If the juvenile was abducted and forced to engage in battle, culpability is minimal and the investigation should cease. If, however, clear and convincing evidence indicates that the juvenile voluntarily joined the faction—uninfluenced by coercive measures—the investigative phase should continue.
¶ 50 The prosecutor's next consideration is the volitional nature of the commission of the alleged crime. Investigation should halt when a child voluntarily joined a faction but was forced to commit a crime, since the actor lacked the requisite mens rea. Although the combatant is culpable of the actus reus of joining the faction, culpability is minimal because this actus reus was coerced.144
¶ 51 If the combatant intentionally committed the crime, the prosecutor should conduct a severity determination. If the alleged crime is of overall de minimus significance and prosecution would not further the Court's statutory purpose,145 the investigation should cease. Determinative factors may include: the gravity and severity of the crime, the effects of the crime on civilians, the violent nature of the crime, and the extent to which the crime violated international humanitarian law and Sierra Leonean law. The excuse that "some young people failed to exercise their evolving capacity to determine right from wrong in Sierra Leone" 146 should not preclude prosecution when the above-mentioned factors exist. If a thorough investigation reveals that a juvenile bears the greatest responsibility and that all acts were committed voluntarily, the Court should conduct a full trial.
¶ 52 The trial should resolve the factual determinations made during the investigative phase. The defendant is presumed innocent until proven guilty "beyond a reasonable doubt."147 The soldier should receive the assistance of competent counsel throughout the proceedings.148 The burden of proof and production remains on the prosecution except where the defendant is attempting to prove an affirmative defense, such as coercive indoctrination or insanity. The Rules of Evidence adopted from the ICTR will govern the admissibility of evidence.149 When the defendant is a juvenile, the Court must follow the prescribed statutory standards and treat all child soldiers "with dignity and a sense of worth . . . in accordance with international human rights standards . . .."150 The adjudicatory phase should "ensure that the most recalcitrant and feared young offenders, those perhaps least likely to seek programmatic and therapeutic support, are brought into a credible system of justice . . ."151 and tried before an impartial tribunal. The Court must "examine each offender's personal responsibility for the harm done, not only the degree of harm to the victims."152
¶ 53 Upon a finding of guilt, the adjudicatory process should continue to the sentencing phase. When a defendant is found not guilty, the Court should issue a memorandum opinion stating that the defendant underwent a full and fair trial and was found not guilty. The opinion could be published in a local paper to shred the clouds of public doubt and make reintegration more plausible.
¶ 54 The sentencing phase embodied in the current Court statute is the most noteworthy flaw in the Court's institutional design. Currently, it is impermissible to imprison a guilty juvenile between the ages of fifteen and eighteen.153 A culpable juvenile may only be assigned to a rehabilitative mechanism—typically the TRC—where the only "punishment" rendered is voluntary disclosure of the crimes.154 Upon "rehabilitative punishment" the convicted criminal is placed back into the very community she terrorized and the very community that demands her punishment.155
¶ 55 In determining the proper sentence, deterrence should guide the Court. The Court must send a message through the prospect of imprisonment that violent behavior in contravention of international social norms156 will be adequately punished. Imprisonment will signal to potential murderers that society will assuredly respond—and harshly so—to their actions.157
¶ 56 The deterrent effect of imprisonment will benefit all Sierra Leonean citizens. Imprisonment will specifically deter the perpetrator from taking up arms against her fellow citizens and convey the message that violence is an unacceptable means of dispute resolution. As the Machel Report stated, "[u]nless those at every level of political and military command fear that they will be held accountable for crimes and subject to prosecution, there is little prospect of restraining their behaviour . . .."158 Furthermore, the stigma of indictment attached to juvenile combatants will incapacitate them by discrediting their leadership potential and undermining their future political influence.159 Imprisonment will also deter Sierra Leoneans from perpetrating crimes. Such punishment disincentivizes citizens from criminal behavior as a means of ameliorating grievances.
¶ 57 Retributive goals should supply the second guiding principal for the Court. As the United States Supreme Court has stated:
[t]he instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they 'deserve,' then there are sown the seeds of anarchy of self-help, vigilante justice, and lynch law.160
¶ 58 The establishment of social stability necessitates the need for citizens to feel that true justice was served.161 The only civilized alternative to victims' desire for revenge is official rendering of justice.162 It is a truism that adequate "[p]unishment must be one of the appropriate responses of any legal authority . . ."163 especially for a legal authority seeking to establish governmental legitimacy and the rule of law.
¶ 59 Victims are particularly unlikely to believe that "justice" was fulfilled when convicted killers are "sentenced" to merely disclose the killings and subsequently released. The notion underlying retribution is that collective societal retribution vis-a-vis combatants will render the victims less likely to pursue self-help measures that would in and of themselves violate international humanitarian law.164 In the absence of official retributivism, regional stability will remain an unattainable fiction. If rehabilitative measures are the only "punishment" rendered then retributive goals cannot be met.165
¶ 60 The judge must have broad discretion in determining the appropriate punishment of juveniles. To minimize the risk that imprisonment will be imposed on a capriciously selected group, however, generalized standards should be formulated to focus the judge on the particularized circumstances of the crime and the defendant.166 The judge should consider the gravity of the crime, the manner in which it was committed, mitigating circumstances such as age and immaturity, the minor's attitude toward society and respect for the rule of law, and the prospect for a future constructive life in light of the circumstances.167
¶ 61 The Court should recognize as mitigating factors age and immaturity.168 Acknowledgement of age and immaturity as mitigating factors is quite distinct from granting juveniles blanket immunity. Under the mitigating-factor regime, one's prison term is discounted by age and immaturity. The most conceptually solid approach to mitigation is what criminal law scholars have termed the "discounting strategy."169 The initial inquiry of the discounting approach is the punishment of an adult offender for the same crime.170 The punishment of the hypothetical adult offender is then "discounted" by a predetermined percentage reduction for the youthful offender.171 In a nutshell, the discounting strategy operates as follows:
If adult burglars with particular criminal histories typically get four years of penal confinement at sentencing, the way to calculate the appropriate penalty for a fifteen-year-old burglar is to determine a discount from the secure confinement sentence of an adult that is appropriate for fifteen-year-olds and then apply it. If, on average, conditions of diminished responsibility for fifteen-year-olds should produce a fifty-percent punishment reduction, one calculates the punishment of the fifteen-year-old by multiplying the adult sentence times 1.0 minus the discount, or in this case: 4 years x (1.0-.5)= 2 years. 172
¶ 62 Discounting is directly dependent on the adult penalty for the type of punishment and its duration.173 One method of calculation is to discount certain types of crimes by predetermined percentages, e.g., all juvenile murderers are entitled to a thirty percent punishment reduction. Alternatively, a general rule could require all sentences rendered upon juvenile combatants be discounted by "x" percent irrespective of the crime. The discounting approach is attractive because the greatest benefits are reaped by the youngest offenders. For example:
A fourteen-year-old offender would receive . . . 25 percent of the adult penalty; a sixteen-year-old defendant, 50 percent; and an eighteen-year-old, the adult penalty, as is presently the case. The "deeper discounts" for younger offenders correspond to the developmental continuum of responsibility.174
The traditional discounting approach uses the same age-based discounts for all categories of offenses and liability.175
¶ 63 In recognition of normative international standards, juveniles should not face the death penalty.176 Although the Government of Sierra Leone initially demanded the death penalty for juveniles,177 the additional protocol to the Geneva Conventions states that "[t]he death penalty shall not be pronounced on persons who were under the age of eighteen years at the time of the offense."178 Western nations have imposed a somewhat similar ban on the juvenile death penalty.179 Without squarely addressing the issue, suffice it to say that external justifications (if nothing else) necessitate rejection of the death penalty in juvenile cases. The Special Court should adhere to international norms regarding juvenile death penalty policy in order to maintain international and domestic legitimacy. Great divergence from international norms would harvest unnecessary criticism for the Court.
¶ 64 The adjudicatory framework proposed in this article is more economically efficient than the creation of a separate child's court. The Special Court's restricted resources must be utilized for the solitary purpose of prosecuting those who bear the greatest responsibility, not on additional personnel and administrative expenditures that would flow from a separate child's chamber. There is no legitimate rationale for creating a separate chamber which would inevitably produce identical results.180 Instead of creating a children's court antithetical to the Court's purpose, the TRC should remain the primary forum for soldiers not among those most responsible for the atrocities. Functionally, the TRC renders the proposed child's court inapposite and would be a complete misuse of very limited funds.181
¶ 65 Furthermore, empowering the Court to imprison the most culpable juveniles will avoid expenditures on rehabilitative measures via a child's court, which are already provided for by the TRC. With the establishment of the TRC, there is no acceptable rationale for using the Court's resources to adjudicate all juvenile case when the statute dictates that "rehabilitative measures" must be rendered upon guilty juveniles regardless of the crime.182 By allowing the Court to imprison the most culpable combatants and using the TRC to "rehabilitate" the less culpable, the Court's limited resources can be used for essential investigations and adequate fact-finding procedures. These available resources will help assure prosecution of only the most culpable combatants and provide a fair and thorough trial.
¶ 66 The Special Court is the best-equipped institution to address the most violent juvenile soldiers. The proposed institutional design gives the Court a comparative advantage over other alternatives, with legally trained professionals and staff to determine the culpability of an individual on a case-by-case basis and determine proper punishment.
¶ 67 The Special Court is institutionally designed to treat all parties—both victims and perpetrators—fairly and justly. Each soldier brought before the Court is afforded fundamental due process rights including the opportunity to a have full, fair, and unbiased trial. A fair trial by a competent court gives Sierra Leoneans assurance that justice was rendered. Victims and defendants can trust that the Court has rendered fair results. Victim belief that adjudication is fair is essential to regional stability and the rule of law. In the absence of judicially-administered punishment, mayhem and conflict will prevail and a true democracy will remain impossibility.
¶ 68 Arbitrarily assigning violent juveniles to rehabilitative programs—such as the TRC—provides fairness and justice to no one. Under the current paradigm, the victims definitively know that a convicted juvenile will not receive the deserved punishment.183 Where the Special Court does not defer to the citizen's basic demands for fairness and justice, the entire legal system will fail.
¶ 69 The current regime is also unfair to juvenile perpetrators who are arbitrarily assigned to rehabilitative programs. Child combatants are entitled to a full and fair trial. It is fundamentally unfair to force a juvenile to come before the TRC and appear guilty in the public's eyes when in-fact she may not be. The proposed solution permits a tribunal to determine guilt and the proper sentence if required, rather than following an arbitrarily predetermined sanction, such as is the case with the TRC. A sentencing restriction is inherently unfair to the soldier in whose interest it may in be to develop a customized sentence which encompasses multi-faceted punishment mechanisms. All parties suffer where justice is unnecessarily restricted.
There can be no peace without justice, no justice without law, and no meaningful law without a court to decide what is just and lawful under any given circumstance. The process of codification, adjudication and enforcement is as vital to a tranquil international community as it is to any independent national state.184
¶ 70 The most fundamental element of a stable and prosperous nation is the rule of law. The essential premise underlying the rule of law is that "respect for the rule of law will create respect for legal processes and an internal moral barrier against conduct that legal institutions have condemned."185 Establishing respect for the law in Sierra Leone is the quintessential step to halting violence and fostering stability. Juvenile offender cases are "difficult but important tests of the general principals that are supposed to be in play throughout the [legal] system."186 The Special Court must, therefore, remain cognizant of the macro-level concerns such as stability and the rule of law in adjudicating juvenile soldier matters.
¶ 71 Imprisoning culpable juvenile combatants will solidify the role of the legal system in Sierra Leone and broadcast the message that the law must be followed or punitive sanctions will be imposed. Punishment encompassing imprisonment must be one of the appropriate responses of any legal authority responsible for addressing juvenile crimes.187
¶ 72 Prosecution of juvenile soldiers will also develop Sierra Leonean juvenile law jurisprudence.188 Domestic courts can learn much from the Special Court and implement progressive domestic changes. Sierra Leonean substantive law will evolve and develop as it is utilized in Special Court prosecutions.189
¶ 73 Prosecution and sufficient punishment will also establish the moral background upon which future generations will be taught right from wrong.190 Because positive ingrained societal norms are lacking in Sierra Leone, the Special Court will set a new moral code for future generations. It is very important in sentencing that the Court considers the "moral-education message to the present and the next generation of children in Sierra Leone."191
¶ 74 Furthermore, a legitimate legal system in Sierra Leone will directly affect the operation of a market economy.192 By establishing a legal system, market participants are more likely to invest in the region because they can enlist the help of the law in settling grievances.193 A solid legal system will help legitimize the diamond trade in Sierra Leone and provide investors incentive to further explore the region. Market growth in Sierra Leone will correspondingly provide citizens with jobs, making criminal behavior less attractive and assuring an improved quality of life. Regional stability necessarily follows from a legitimate and vibrant market economy.
¶ 75 Sierra Leone is currently juggling myriad grim and perplexing problems of global significance. The establishment of the Special Court is a momentous step towards reconciliation and regional stability, but officials must proceed cautiously, as the Court can either stabilize the region and the rule of law or it can further aggrieve the victims. Pursuant to its statutory directive to prosecute the most culpable criminals, the Court must utilize all available punitive mechanisms to seek truth-based justice and construct broad-based respect for the rule of law.
¶ 76 In a war involving scores of violent juvenile combatants, it is critical to the future of Sierra Leone that the Court is vested with jurisdictional authority to fully adjudicate these matters. The strict-rehabilitative approach is an insufficient response to the complex problems facing Sierra Leone.
¶ 77 The Court's primary focus in determining punishments must be both on the micro and societal impacts of the punishment, including the benefits of deterrence, retribution, regional stability, and the rule of law. Imprisoning the most culpable juveniles serves the macro-goals most beneficial to Sierra Leone. In the absence of regional stability, Sierra Leone will remain in its decade-long state of mayhem—the ultimate problem the Special Court is designed to remedy.
¶ 78 The organizational framework for the Special Court offered in this article will allow Sierra Leone to emerge from the decade-long conflict holding the key elements to a prosperous and stable nation. The U.N. and the Sierra Leonean Government must, however, proceed with caution in these volatile times; it must find the correct balance between effectuating its citizens' demands and legitimizing the region's institutional bodies.
| © Copyright 2004 by Northwestern University School of Law, Northwestern University Journal of International Human Rights | Volume 2 (April 2004) |