The Peril of Good Intentions

November 19, 2003

The Peril of Good Intentions

Buried in the recent $87.

Buried in the recent $87.5 billion Emergency Supplemental Appropriations Act, under provisions for "emergencies in the diplomatic and consular service," was a rather extraneous line item that authorized a $2 million bounty "for an indictee of the Special Court for Sierra Leone" without mentioning anyone by name.  The staff of the House Appropriations Committee has subsequently confirmed that reward is for former Liberian leader Charles Ghankay Taylor. Taylor has been living in exile in Nigeria since resigning the Liberian presidency on August 11 under military assault by rebels of the Liberian United for Reconciliation and Democracy (LURD) and the Movement for Democracy in Liberia (MODEL), as well as diplomatic pressure international leaders, including President George W. Bush.

According to the indictment unsealed on June 4, 2003, Taylor is charged with trying "to obtain access to the mineral wealth of the Republic of Sierra Leone, in particular the diamond wealth of Sierra Leone and to destabilize the State" and with having "provided financial support, military training, personnel, arms, ammunition and other support and encouragement to the Revolutionary United Front (RUF), led by Foday Saybana Sankoh, in preparation for RUF armed action in the Republic of Sierra Leone, and during the subsequent armed conflict in Sierra Leone."  While the spokesman for the congressional committee was unable to tell the New York Times when the bounty clause was added to the legislation or by whom, no doubt the action was motivated by sincere desire to bring the former Liberian warlord to justice. As I noted in these pages earlier this year ("A Realistic Commitment: Balancing National Interests and American Ideals in Liberia," In the National Interest, July 16, 2003), Taylor is probably guilty as charged.  Not only has he contributed more than his share to the regional conflict that has engulfed West Africa for nearly a decade, he is also responsible for a host of human rights and other abuses inflict on his own people, both during the Liberian civil war and during the subsequent misrule following his 1997 presidential election. However, all this notwithstanding, is it in the national interest of the U.S. to be backing the Special Court for Sierra Leone (SCSL), much less offering rewards for the capture of those indicted by the war crimes tribunal?

At stake are issues that go far beyond the scope of brutalities of the West African conflicts. In the immediate horizon looms the shadow of Iraq. There is little dispute that  Saddam Hussein - if indeed he is still at large and can be captured alive - and his closest collaborators in the Ba‘athist dictatorship should be made to answer for the crimes that they committed, not only against the Iraqi people, but also against their neighbors, especially the Kuwaitis whose country they devastated during their 1990 occupation, and, in a larger sense, against the international community that they defied up until the end. While the Bush Administration's official position is that those who committed offenses against the rules of war - the mistreatment or worse of prisoners of war, false surrenders-cum-ambushes, the coordination of suicide attacks, etc. - would be tried by courts martial, as provided for by the 1949 Geneva Convention (III) on the Treatment of Prisoners of War, while those charged with other crimes would be tried by Iraqi courts - a reasonable enough approach given that the worst abuses of Saddam's regime were those perpetrated against Iraqis and giving them the chance to judge the offenders would not only permit Iraqis to air their country's past, but would empower them to establish for themselves both the rule of law and the basis for a new judicial system.  However, pressure has been mounting for the Coalition Provisional Authority to accept some sort of internationalized solution such as a special ad hoc tribunal of foreign jurists sitting alongside Iraqi judges.  The model proposed is the SCSL which, in fact, is the only example of a mixed-membership international tribunal. Furthermore, if the Sierra Leone tribunal succeeds in becoming the model for eventual war crimes proceedings in Iraq, a precedent will be consolidated - with U.S. complicity, no less - that would entangle our country in exactly the type of international criminal courts that American political leaders, military officials, and jurists have been uneasy about.  

For these reasons, the SCSL deserves closer scrutiny, especially by the U.S. which, with its annual contribution of $5 million, is the tribunal's biggest bankroller.  Unfortunately, this attention has not been forthcoming, not only because of scant attention generally paid to African affairs by American policy-makers, but because the atrocities committed during the Sierra Leonean civil war were so brutal that righteous indignation seems to have gotten the better of statecraft. While a complete analysis of the SCSL is beyond the scope of this short essay, there are two broad areas of concern.

First, did United Nations Secretary-General Kofi A. Annan exceed his mandate in concluding the agreement with the Sierra Leonean government for the war crimes tribunal? Security Council Resolution 1315 (August 14, 2000) authorized the Secretary-General to negotiate such an agreement and to report back to the Council which declared itself "to remain actively seized of the matter." On December 26, 2001, Annan announced to the Council that he had authorized the Special Court to commence operations and would sign the necessary protocols with the Sierra Leonean authorities.  Security Council Resolution 1400 (March 28, 2002) "welcomed the signature of the agreement," without explicitly approving the SCSL's structure.  More troubling is the lack of checks on the Secretary-General's discretion in the matter of appointments to the SCSL: the chief prosecutor and a majority of the judges are appointed by the Secretary-General without confirmation (in contrast, the judges of International Court of Justice and the international criminal tribunals for the former Yugoslavia and Rwanda are elected by the UN General Assembly, while the judges of the International Criminal Court are elected by an assembly of the countries that ratified the Rome Statute). Is the U.S. acquiescing to an unprecedented expansion of bureaucratic authority at the UN?

Second, is the United States, by not only accepting, but also generously funding, the SCSL, accepting a lower standard of legal procedures and guarantees? For example, the SCSL statute stipulates that "judgment shall be rendered by a majority of judges of the trial chamber or the appeals chamber" of the tribunal. Since there are only three judges in the trial chamber, only two votes are needed to convict a defendant.  Given that the judges are unconfirmed political appointees, how does that square away with the American tradition of that findings of guilt in such serious cases must be made unanimously beyond a reasonable doubt? In fact, the SCSL is legislator, policeman, prosecutor, judge, jury, and jailer - with only the bare minimum of control through the unchecked power of appointment exercised by the UN Secretary-General and the president of Sierra Leone (who appoints the deputy prosecutor and some of the judges).  Quis custodiet ipsos custodes? 

For these reasons, as well as the long-term interests of U.S. and its service personnel overseas, the administration should be demanding greater accountability from the Sierra Leone tribunal itself, rather than offering bounties for those it indicts.  The lesson to be learned from the West African court's experience is that the following should be among the conditions sine qua non for American acceptance of - much less financial support for - such international tribunals:

  • Insist that international tribunals be specifically authorized by the UN Security Council, that their statutes be approved by the same body and that international judges and other officials appointed to the tribunals be elected by the Security Council for fixed terms and subject to impeachment and removal by the same body.  While the Security Council's shortcomings were more than evidenced in recent months, it nonetheless remains a forum where, with its right to veto, the U.S. can still check runaway international legal innovation.  The SCSL was essentially a creation of the UN Secretariat, which presented the Security Council with a fait accompli.  Given the often anti-personal liberties (to say nothing of the anti-American) bias of many in the UN bureaucracy, it would behoove U.S. policymakers to rein in the pretensions of the UN Secretary-General and restrict his role to that of the executor of the deliberations of sovereign states rather than that of de facto initiator.
  • Require the statutes of the tribunals to clearly spell out their competence ratione temporis (for crimes committed during a certain period of time), ratione personae (for certain categories of persons only) and ratione materiae (for certain crimes only).  This would limit the potential mischief from judicial "fishing expeditions" or politicized prosecutions.  Furthermore, the authorization for the courts needs to have a determined expiration date to prevent the creation of an ad hoc body that succumbs to the bureaucratic temptation of permanence. In the case of SCSL, nothing is more indicative of its inclination for continuing existence than its holding of a $5 million international competition for the design of its courthouse.
  • Demand that budgets for the tribunals should likewise be subject to the approval of a management commission composed of those states actually paying the bills, and not merely the administrative oversight of the UN bureaucracy.  The management committee's deliberations should also be weighted according to the respective contributions of its members.  While in the ideal world, no price can be set for justice, resources are limited in this very real material world.  The SCSL spent an estimated $22 million ($5 million of which came from American taxpayers) in its first year of operation alone, which leaves one to contemplate on the value being delivered for that kind of money in a country where the GDP per capita is estimated to be only approximately $175 per annum