War Don Don: Raising questions about the SCSL

Last night, in the context of the Movies that Matter festival that opened in The Hague, I saw the documentary called War Don Don, which followed several actors involved in the Issa Sessay trial at the Special Court for Sierra Leone. The film was interesting in many ways, most notably in not trying to take sides.

For one, it gives an opportunity to both the defense team and the prosecutors to express their views. This allows us to see how personal such a trial can be, with one Prosecutor, David Crane, saying that he looked into Sessay’s eyes and saw no soul, and the lead defense counsel, Wayne Jordash, saying how likeable Sessay was and how in other circumstances they could have been friends. Both statements can be unsettling, but I must say, and this is probably my defense bias, that I’m much more uneasy with Crane’s statement, because this quasi-religious crusade of Good Vs Evil transpired in court, when he referred to Dante’s inferno in his opening statement.
More generally, I tend to side with the criticism of the prosecution case of JCE that seems to strip all political motive from the actions of the RUF. The fact that the country was, and still is, a corrupt ridden place, where basic social welfare is not insured, which could explain that part of the population might legitimately want to get rid of their leaders, is generally absent from the story as told by the prosecution. Moreover, I’ve always been struck by the parallels in narrative between Sierra Leone and Rwanda. Indeed, the story of greed and power grabbing as sold to us by the SCSL, with Foday Sankho being an outsider financed by a foreign head of state, Charles Taylor, can very well apply to Kagame and Museveni. But the genocide that occurred in Rwanda has been clouding the issue, which means that while Kagame and Museveni are in power and will probably never face trial for having destabilised the whole region for so long, Foday Sankho died in custody and Charles Taylor is currently in the UN Detention center in the Hague…

Another issue raised in the movie is the question of the rights of the defense. I’ve never worked at the the SCSL, but everybody i’ve met from the institution and a lot of the decisions i’ve read so far seem to show that the legal reasoning is often sloppy and doesn’t give a very positive image of the Court’s capacity to render justice in a satisfying way. As pointed out by Jordash at one point, what is even more worrying is the institution’s incapacity to reflect on its own flaws…

The question of Peace and Justice is also present in the documentary. How much credit should Sessay have received for enacting the disarmament of the RUF after Sankho’s death? Apparently, he got none and is going to spend most of the rest of his life in jail. What message does it send to future negotiators? Should they not sign a peace treaty, given that they will end up in court anyway? The question arose at the Special Court with the issue of the amnesty granted by the Lomé peace agreement. In a notably badly reasoned series of decisions, the SCSL rejected its application. This was legally justified by the Statute itself, but is this extreme position of the international legal community against amnesties really politically sound (as well as not necessarily being legally so absolutely clear, as I argue in an upcoming publication)?

Another issue is the question of the goals of international justice. One example is the opening statement by the President of the Chamber who starts by saying that the tribunal is there for “justice for victims and reconciliation”. I find that quite shocking. That the moral background of international tribunals is broader societal aims is one thing. That such a goal is the only statement made during the opening line of the trial itself by the presiding judge is another. Trial transcripts of international trials are full of these examples.
Another example, at several moments in the film, the question of truth is mentioned. Jordash regrets that the way the judges conducted the trial did not lead to truth, except if the defense team does “a good job”. Later, he denounces the arrogance of people from the outside wanting to tell a population about its own history. During the debate after the film, I asked him if a criminal trial should at all be about the “truth”. It should be about the innocence or guilt of an individual in an adversarial system that cannot be tailored for establishing a neutral historical truth. This idea is an illusion of the transitional justice field and allegedly justifies the right of victims to get a trial.

Which leads me to the last interesting aspect. The film shows interviews of Sierra Leonians which illustrate the difficulty in identifying exactly what the victims want and how they feel. One man wishes Sessay to spend the rest of his life in jail, while one woman calls for forgiveness. This highlights one fallacy of debates in the field of international criminal justice, that there is this monolithic discourse of Victims who would all want the same thing: international prosecutions. This is a handy argument, because it takes the moral high ground and portrays any doubter as a cynical cold-hearted person. But ultimately, it does not really help in advancing the resolution of the difficult issues surrounding the implementation of international justice.

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