In October 2017, the Army revised Field Manual (FM) 3-0, Operations, the capstone doctrine on unified land operations, to focus on conducting and sustaining large-scale combat operations. Large-scale combat operations are the employment of the range of military operations occurring at the extremes of the conflict continuum. The purpose of FM 3-0 is to reorient the Army’s training and education curricula on decisive action, which is the heart of the Army’s operating concept. Decisive action is “the continuous, simultaneous combinations of offensive, defensive, and stability or defense support of civil authorities tasks” in the broader context of the ways of unified action to achieve national strategic ends.
A crucial element of the stability component of decisive action is establishing civil control, which fosters the rule of law. The rule of law is the fundamental principle of human rights that “all persons, institutions, and entities—public and private, including the state itself—are accountable to laws . . . equally enforced [and] independently adjudicated . . . .”
However, according to FM 3-0, paragraph 1-4:
Large-scale combat operations are intense, lethal, and brutal. Their conditions include complexity, chaos, fear, violence, fatigue, and uncertainty. Future battlefields will include noncombatants, and they will be crowded in and around large cities. Enemies will employ conventional tactics, terror, criminal activity, and information warfare to further complicate operations. To an ever-increasing degree, activities in the information environment are inseparable from ground operations. Large-scale combat operations present the greatest challenge for Army forces.
Given the unavoidable destructive nature of large-scale combat operations, FM 3-0 does not provide a framework for establishing the rule of law when civil infrastructure has been destroyed and critical civic institutions, like the judicial system, are no longer functioning. Neither is there any framework found in joint doctrine, the Uniform Code of Military Justice, or the Military Commissions Act. If the U.S. Army were tasked to conduct conflict resolution after large-scale combat operations, it would not have an existing framework for constructing a legal system to reestablish the rule of law. In other words, there is a capability gap in the Army’s ability to conduct Phase IV stability operations.
The Special Court for Sierra Leone, an ad hoc international tribunal, provides an instructive example for addressing this gap:
In April 2012, the Special Court for Sierra Leone (SCSL) convicted Charles Taylor, the former president of Liberia, of war crimes, human rights violations, and crimes against humanity for his involvement in Sierra Leone’s ten-year civil war. The same court later sentenced Taylor to fifty years in prison. The SCSL’s conviction made Taylor the first former head of state to be convicted by an international court since the Nuremberg trials that followed World War II.
The SCSL, though flawed and imperfect, can provide a workable model for restoring the rule of law and establishing civil control, in the final phases of decisive action, where national courts or the International Criminal Court (ICC) cannot.
Eighteen years ago, as Sierra Leone’s civil war began to wind down, the country’s president, Ahmed Tejan Kabbah, asked the United Nations Security Council to develop an international tribunal to assist in prosecuting members of the rebelling Revolutionary United Front for crimes against the country’s citizens and United Nations peacekeepers. In response, the Security Council passed Resolution 1315 that authorized the United Nations’ Secretary-General to develop a special ad hoc tribunal in cooperation with Sierra Leone’s government. Both the United Nations (U.N.) and the Sierra Leonean government agreed to the resulting draft legislation and the Special Court for Sierra Leone (SCSL) was born.
Many in the international community met the creation of the SCSL with high expectations, believing its success would be a watershed event for the future use of ad hoc international criminal courts. The court’s conception sought to avoid the difficulties and setbacks of previous ad hoc international criminal tribunals and the shortcomings of the ICC.
This article will begin by briefly discussing Sierra Leone’s civil war and the genesis of the SCSL. It will then explore the framework and jurisdiction of the Court, the precedents upon which it was based, and its unique composition as an international hybrid tribunal. From there, the article will discuss the court’s prosecutions, particularly that of Charles Taylor. The article will argue that there is an accountability gap between the ICC and national courts. Finally, the article will conclude that the SCSL, though far from perfect, has made important contributions to the field of international criminal law and is a practical and necessary model for the future of international ad hoc tribunals. These contributions may be instructive if the U.S. military seeks to impose the rule of law in the stability phase of large-scale combat operations.
II. The Genesis of the Special Court for Sierra Leone
A. Sierra Leone’s Civil War
1. A Savage Conflict
In March of 1991, the Revolutionary United Front (RUF), a group of Sierra Leonean dissidents based in Liberia and linked to Libyan president Mohamar Qaddafi, invaded Sierra Leone with support and direction from Charles Taylor. The RUF’s pretext was liberating Sierra Leone from its corrupt dictatorship, but after looting the country’s eastern diamond mines and massacring the civilian population, the RUF proved to be nothing more than a bloodthirsty criminal enterprise.
The decade-long conflict that followed was waged almost entirely against civilians and characterized by systematic atrocities such as the mass executions of noncombatants, rape, mutilations, and the forced conscription of child soldiers. The death toll is estimated to be 50,000. In explaining that the combatants’ behavior amounted to “some of the most heinous, brutal, and atrocious crimes ever recorded in human history,” the SCSL noted:
Innocent civilians – babies, children, men and women of all ages – were murdered by being shot, hacked to death, burned alive, beaten to death. Women and young girls were gang raped to death. Some had their genitals mutilated by the insertion of foreign objects. Sons were forced to rape mothers, brothers were forced to rape sisters. Pregnant women were killed by having their stomachs split open and the [fetus] removed merely to settle a bet amongst the troops as to the gender of the [fetus] . . . . Hacking off the limbs of innocent civilians was commonplace. . . . Children were forcibly taken away from their families, often drugged and used as child soldiers who were trained to kill and commit other brutal crimes against the civilian population.
2. The Lomé Agreement
After a particularly heinous and shocking RUF attack on the capital city of Freetown, which killed 6,000 civilians in just two weeks, the international community finally forced the combatants to the negotiating table. The subsequent peace agreement, signed in Lomé, Togo, and known as the Lomé Agreement, folded the RUF into the government and established a truth and reconciliation commission.
Controversially, the Lomé Agreement contained an amnesty provision, which conferred immunity from any legal or official adverse action by the government of Sierra Leone on any member of the conflict’s principal combatants: the RUF, the Sierra Leone Army (SLA), the Armed Forces Revolutionary Council (AFRC), and the Civilian Defense Force (CDF). In a belated act of protest to the amnesty clause, the United Nations Special Representative to the Lomé negotiations appended a handwritten statement to the agreement stating that the U.N. would not endorse amnesty for “international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law.”
3. The Conflict’s End
As part of the Lomé Agreement, the U.N. also agreed to deploy 6,000 additional soldiers to Sierra Leone, whom the RUF immediately attacked. Furthermore, the RUF leadership, now government ministers, resumed plundering the diamond mines. With violence spinning out of control yet again, the British government forcefully intervened and largely pacified Sierra Leone by the end of 2001. After Charles Taylor pulled his support for the RUF under international pressure, its leadership disarmed, and Sierra Leone’s civil war finally ended.
B. Establishing the Special Court for Sierra Leone
1. The Need for a Hybrid Tribunal
The Lomé Agreement’s failure forced Sierra Leone’s government to rethink the controversial amnesty provision and consider a different approach to a stable peace. On 12 June 2000, Sierra Leone’s president, Ahmed Tejan Kabbah, wrote to the United Nations Security Council requesting international support for a “special court” to “bring credible justice” to the RUF for its crimes against Sierra Leone’s people and U.N. peacekeepers. Kabbah argued that the RUF had “reneged” on the Lomé Agreement and would continue its violence with impunity if its members were not prosecuted. Citing the U.N.’s response to crimes against humanity in Rwanda and the former Yugoslavia, Kabbah argued that a similar legal framework was needed given the magnitude of the RUF’s atrocities.
Kabbah suggested a tribunal with a framework and mandate to apply both a blend of international and domestic Sierra Leonean law. This was necessary because the gaps in the country’s existing criminal legal code and the extensive nature of the RUF’s crimes were well beyond the capacity of the country’s existing judicial infrastructure. However, Kabbah was concerned that serious crimes like kidnapping and arson were unlikely to be prosecuted through international law.
2. Security Council Resolution 1315
In response to Kabbah’s letter, the United Nations Security Council passed Resolution (UNSCR) 1315, which authorized the Secretary-General to begin working with the Sierra Leonean government to establish a special court. United Nations Security Council Resolution 1315 noted an earlier reservation by the UN Special Representative to the Lomé Agreement’s amnesty provision, but curiously made no mention of the RUF. Instead, UNSCR 1315 recommended that the proposed special court “have personal jurisdiction over persons who bear the greatest responsibility” for “crimes against humanity, war crimes and other serious violations of international humanitarian law . . . .” The language, “greatest responsibility,” would become especially significant later.
3. The Court’s Structure: A New Model
Despite UNSCR 1315, there was no political will in the international community for setting up another international criminal tribunal because of the expense and longevity of the existing tribunals. To address these concerns, the SCSL’s framework was designed to operate more efficiently than its predecessors. The tribunals on which the SCSL was based, the International Criminal Tribunals for Rwanda and Yugoslavia (ICTR and ICTY, respectively), were subsidiary organs of the United Nations and subject to unavoidable delays and bureaucracy. The SCSL was its own independent entity and could function faster and more economically. The SCSL was also independent of Sierra Leone’s judiciary, which was an effort to make the court more credible.
The court was divided into three principal branches: chambers, registry, and prosecution. The chambers branch consisted of two trial courts and one appellate court, with the latter’s presiding judge serving as the President of the Court. The head prosecutor, appointed by the U.N. Secretary-General, was responsible for investigating and prosecuting cases before the court. The registry, the administrative branch of the court, was responsible for the court’s operation, and housed the Office of the Principal Defender.
Significant criticism of the previous ad hoc international tribunals has much to do with their expense. Rwanda’s government criticized the ICTR for spending $1.5 billion over eleven years to secure fewer than forty verdicts. The country’s government complained that the ICTR’s slow pace damaged the perception among Rwandans that the tribunal would achieve justice. Similarly, the ICTY has spent well over a billion dollars, at a cost of approximately $10 million per defendant.
This frustration and dissatisfaction with the cost of the ICTY and ICTR drove the Security Council to institute a novel method of funding the SCSL—voluntary donations.
Those countries that donated to the SCSL comprised a Management Committee to handle the general administration of the court. The advantage to having the court funded through donations was that the SCSL would be accountable to its donors.
c. Temporal Jurisdiction
One of the most controversial decisions made by the tribunal was the SCSL’s expansive temporal jurisdiction, implemented because the amnesty provision of the 1999 Lomé Agreement posed a significant hurdle to prosecuting members of the RUF, many of whom may not have ceased fighting without it. If the amnesty provision was valid, the SCSL would only have jurisdiction for offenses that took place after 7 July 1999. Conversely, if the SCSL disregarded the provision, offenses could be prosecuted dating back to 30 November 1996, when the Abidjan Peace Agreement failed.
Furthermore, given the sheer number and atrocious nature of the crimes committed during the conflict, the parties to the Lomé Agreement believed that a truth and reconciliation commission was necessary for the country to properly heal. In order to do so, amnesty would encourage those responsible for the conflict’s crimes to testify before the commission without risk of penal consequences. Yet UNSCR 1315’s preamble noted that the Secretary-General’s Special Representative had appended to the Lomé Agreement the U.N.’s understanding that the amnesty provision would not apply to international crimes. Disregarding the amnesty provision, the Security Council proposed:
[T]hat the special court should have personal jurisdiction over persons who bear the greatest responsibility for the commission of [crimes against humanity, war crimes and other serious violations of international humanitarian law, as well as crimes under relevant Sierra Leonean law], including those leaders, who in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone.
The Government of Sierra Leone, which never supported the 1996 amnesty provision, agreed with the draft jurisdictional language and expressed its belief that the Lomé Agreement did not bar prosecution for international crimes or crimes under Sierra Leonean law. Though negotiations over the draft statute continued for more than a year, there is no evidence of either party revisiting the issue. The draft language remained and was incorporated into the Special Court’s statute in Article 10.
d. Personal Jurisdiction
As noted above, the personal jurisdiction of the SCSL extended to those “who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone.” Out of concern that the language would be interpreted to allow for the prosecution of peacekeepers and child soldiers, the Security Council restricted jurisdiction over peacekeepers to the sending state and barred prosecution of anyone under the age of 15.
4. The World’s First International Hybrid Tribunal
On 16 January 2002, the U.N. and Sierra Leone reached an agreement establishing the SCSL. Appended to the agreement was a statute passed by Sierra Leone’s government that established the court under Sierra Leonean law making the SCSL the world’s first international hybrid tribunal. In July 2002, the court began operating.
IV. The Special Court’s Prosecutions Begin
In March 2003, the SCSL Chief Prosecutor announced seven initial indictments against the RUF leader, Foday Sankoh, his chief of staff, Sam Bockarie, RUF commanders, Issa Hassan Sessay and Morris Kallon, AFRC leaders, Johnny Paul Koroma and Alex Brima, and Sierra Leone’s interior minister, Sam Hinga Norman, who founded the CDF and served as President Kabbah’s deputy defense minister during the fighting. The indictments against the RUF leader, the RUF chief of staff, and Sierra Leone’s interior minister were later dismissed due to their deaths. Johnny Koroma fled to Liberia and died under mysterious circumstances.
Within the next few months, the Chief Prosecutor also indicted Augustine Gbao of the RUF, Ibrahim Kamara and Santigie Kanu of the AFRC, and Moinina Fofana and Allieu Kondewa of the CDF. All of the defendants were charged with war crimes, crimes against humanity, and serious violations of international humanitarian law.
B. Jurisdictional Challenges
As expected, the Lomé Agreement’s amnesty clause was the first major hurdle to prosecution. Article IX of the Agreement stated:
To consolidate peace and promote the cause of national reconciliation, the Government of Sierra Leone shall ensure that no official or judicial action is taken against any member of the RUF/SL, ex-AFRC, ex-SLA or CDF in respect of anything done by them in pursuit of their objectives as members of those [organizations] since March 1991, up to the signing of the present Agreement.
Morris Kallon, Ibrahim Kamara, Moinina Fofana, and Augustine Gbao all filed preliminary motions with the Special Court arguing that the amnesty provision of the Lomé Agreement barred their prosecutions. The argument was not without merit. The defendants claimed that the entire purpose of the Lomé Agreement was irreconcilable with the establishment of the SCSL. Furthermore, they argued, it was arbitrary and capricious for the government of Sierra Leone to honor its commitments to the Abidjan Agreement and the U.N., but disregard its commitments under the Lomé Agreement.
The Appeals Chamber for the Special Court disagreed. Ruling that domestic amnesty laws cannot prohibit prosecutions under international law for crimes of universal jurisdiction by simple decree, the court noted:
The Lomé Agreement created neither rights nor obligations capable of being regulated by international law. An agreement such as the Lomé Agreement which brings to an end an internal armed conflict no doubt creates a factual situation of restoration of peace that the international community acting through the Security Council may take note of. That, however, will not convert it to an international agreement which creates an obligation enforceable in international, as distinguished from municipal law.
“States cannot use domestic legislation to bar international criminal liability.” The prosecution could now present its case.
In 2007, Alex Brima, Ibrahim Kamara, and Santigie Kanu were all convicted of war crimes, crimes against humanity, and serious violations of international humanitarian law. Brima and Kanu each received fifty years in prison, while Kamara received forty-five years.
The next year, Issa Hassan Sessay, Morris Kallon, Augustine Gbao, Allieu Kondewa, and Moinina Fofana were all convicted and sentenced to fifty-two, forty, twenty-five, twenty, and fifteen years respectively.
D. Prosecutor vs. Taylor
The SCSL was under serious threat of losing credibility in Sierra Leone if Charles Taylor was not brought to justice. Taylor was widely believed to have directed the RUF to invade Sierra Leone to support his own civil war in Liberia. His warlord economy prolonged both conflicts, especially Sierra Leone’s, because he traded logistical and operational support to the RUF for access to Sierra Leone’s eastern diamond mines. Taylor would then sell these diamonds for an enormous profit. Yet, indicting Taylor would be immensely problematic because he was still Liberia’s sitting president at a time when the country was fighting its own civil war. If Taylor were indicted, there would be no incentive for him to make peace.
1. The Indictment
In March 2003, the SCSL’s chief prosecutor, David Crane, indicted Charles Taylor under seal for crimes against humanity, war crimes, and other serious violations of international humanitarian law. The indictment was sealed because Crane feared that publicizing it would destabilize Sierra Leone and increase violence in Liberia. Hoping to seize an opportunity to apprehend Taylor outside Liberia, Crane unsealed the indictment while Taylor was in Ghana for peace talks. Yet, Ghanaian authorities balked at apprehending Taylor and he fled back to Liberia. Later, as part of a compromise to bring peace to Liberia, Nigeria offered Taylor asylum if he stepped down as president, which he accepted under intense international pressure. After Taylor violated the terms of his asylum by attempting to flee to Cameroon, Nigeria extradited him to Sierra Leone. Taylor was then transferred from Sierra Leone to The Hague, where a branch of the SCSL had opened amid security concerns in Freetown.
2. Head of State Immunity
Shortly after Taylor was indicted, his attorneys filed a motion to quash the SCSL’s indictment citing head of state immunity. Taylor argued that customary international law did not give the national courts of another sovereign an exception to head of state immunity.
The SCSL rejected Taylor’s argument and ruled that heads of state are not immune from international tribunals. The Court further held that, even though the SCSL originated with a treaty between the U.N. and Sierra Leone, as opposed to Chapter VII of the U.N. Charter, the fact that the Security Council passed a resolution creating the SCSL gave it distinct international characteristics trumping head of state immunity.
Charles Taylor’s trial began in June of 2007, but was postponed when Taylor, in behavior typical of a despot facing trial, fired his defense attorneys and boycotted the proceedings. The trial resumed in January 2008 and concluded on 11 March 2011 after the presentation of tens of thousands of pages of evidence, more than 1,000 exhibits, and testimony from 120 witnesses, including Taylor himself. On 26 April 2012, after thirteen months of deliberation, the panel of three judges, from Uganda, Samoa, and Ireland, convicted Taylor of aiding, abetting, and planning the atrocities committed by the RUF and AFRC during the war. One month later, the same three judges sentenced Taylor to fifty years in prison.
E. Criticisms of the Special Court for Sierra Leone
Though successful in its limited prosecutions, the SCSL is far from perfect and the Court is not without its critics.
1. Lack of Resources
Many of the SCSL’s problems revolved around funding. The UNSC established the SCSL to be funded with voluntary contributions from U.N. member states. This meant that those most interested in the SCSL’s success, the U.N. and the people of Sierra Leone, were now entirely dependent on donations. At one point, the Court became so cash-strapped that it needed a bailout from the U.N. just to meet its mandate.
The SCSL’s limited budget significantly restricted its capabilities and forced the court’s chief prosecutor to limit the number of indictments and prosecutions.
b. Support to the Defense Office
The Court’s shoestring budget also limited the resources that could be provided to the defense attorneys. Though Taylor sat atop a vast and lucrative criminal enterprise, investigators were never able to track down the millions of dollars he allegedly sent offshore. As a result of Taylor’s penury, the SCSL funded Taylor’s defense, which cost $100,000 a month. Even so, Taylor’s defense attorneys complained that they were significantly underfunded and that the Registrar often asked the Defense Office to make decisions that undermined the representation of its clients.
2. Narrow Interpretation
The SCSL’s mandate was to “prosecute persons who bear the greatest responsibility” for the conflict’s violence. Obviously, there were differing opinions on whom and how many were most responsible for the atrocities in Sierra Leone. This was, after all, a decade long conflict waged primarily against a civilian population. Concerned that the phrasing of the mandate would overly restrict the number of prosecutions, the U.N. Secretary General urged the Security Council to widen the personal jurisdiction of the Court’s mandate. His proposal was rejected.
The limited funding available and the SCSL’s narrow jurisdiction lead the Prosecutor to charge only a tiny fraction of the conflict’s worst perpetrators, allowing some of the most notorious to escape justice.
3. Selective Prosecutions
At the SCSL’s formation, juveniles and peacekeepers were specifically excluded from prosecution. These exclusions were controversial in Sierra Leone. Though there was a segment of the population that wanted to see juveniles prosecuted, the United Nations Children’s Fund and other human rights organizations were adamantly against it. In contrast, the failure to hold peacekeepers accountable, especially those assigned to the Economic Community of West African States Monitoring Group (ECOMOG), caused outrage and instantly damaged the SCSL’s credibility. The ECOMOG was responsible for crimes against Sierra Leone’s population, including summary executions, rape, and looting.
Finally, Sierra Leone’s civil war began, almost inevitably, because of terrible governance, rampant corruption, and regional instability. Yet the conflict was fueled and perpetuated by the factions’ exploitation of the country’s diamond mines, both for greed and revenue. These “conflict diamonds” were sold on the international market with the complicity of the diamond industry. The SCSL’s failure to hold foreign businesses accountable for knowingly profiting from conflict diamonds diminished the court’s legitimacy.
VII. The Special Court for Sierra Leone’s Legacy and the Future of International Hybrid Tribunals
1. A “Nationalized” International Tribunal
The SCSL was the world’s first international hybrid tribunal empowered to adjudicate its cases under both international and national law. The use of national law can be important to a country as devastated as Sierra Leone and trying to regain a sense of nationhood and seeking a return to normalcy. In other words, the hybrid nature of the court can give a country a feeling of “ownership” over the process, even where international law is necessary because national courts and law are not capable.
The rule of law had effectively vanished in Sierra Leone. Though the government was functioning at the time of the SCSL’s creation, its civil and judicial infrastructure had been destroyed and the RUF was on the verge of another coup. Exposure to highly publicized and fair trials held in locus criminis would significantly improve Sierra Leone’s rule of law.
2. Bilateral Creation
The SCSL, in contrast to the ICTR and ICTY, was the first criminal tribunal created by treaty between the U.N. and a member state. The ICTR and ICTY were created by the Security Council under its Chapter VII authority and imposed on Rwanda and the former Yugoslavia. As Charles Jalloh, a law professor and SCSL scholar noted:
While Chapter VII resolutions are coercive in the sense of being binding on all UN Member States, the SCSL consensual bilateral treaty approach offers a practical alternative to the use of such exceptional powers where the affected State is willing to prosecute serious international law violations but is unable to do so for some reason . . . .
The SCSL’s model may also assist a U.N. member state in sparking interest among the international community for assistance in resolving a conflict. For instance, the international community had no real interest or motivation to resolve Sierra Leone’s conflict until the jaw-dropping horror of the RUF’s attack on Freetown. When the international community finally intervened, it obviously did not understand the war. The resulting and doomed Lomé Agreement and its amnesty clause, which President Kabbah was pressured into signing, were a give-away to the RUF. It was only through the creation of the SCSL that the conflict could end with any sense of justice.
3. An Existing Template
The SCSL was designed to avoid the deficiencies of the ICTR and ICTY. Yet it also borrowed from what the two previous tribunals used effectively, such as rules of evidence, procedure, and the jurisprudence of their appellate chambers. Future hybrid tribunals can benefit by inheriting and employing the robust contributions and precedents these tribunals have made to international criminal law.
B. Did the Special Court “Work”?
Sierra Leone is unquestionably better off than it was in 2002. Since the SCSL began operating, the country has had four transparent, fair elections with relatively peaceful transfers of power. Though still plagued by government corruption, tribalism, and regionalism, the country has endured economic turmoil and devastating natural disasters, including an Ebola outbreak that killed 4,000, without mass violence or breakdown of civil-society.
It is impossible to gauge how much of progress was due to the SCSL. Post-conflict tribunals are relatively new initiatives in international law and their contributions to conflict resolution may take decades to accurately access. In the short term, the prosecution and incarceration of Charles Taylor was vital to stabilizing West Africa.
C. Bridging the Accountability Gap
1. A Supplement to the International Criminal Court
The United States is not a party to the ICC. Neither are China, India, Pakistan, Indonesia, Turkey, and a number of other states. Therefore, resorting to the ICC may not be feasible after a large-scale conflict. Furthermore, while the ICC was intended to be a court of last resort, there are many instances where the national courts of countries victimized by war are not capable of handling the conflict’s fallout. In protracted internal armed conflicts like in Sierra Leone and Liberia, a devastated judicial infrastructure, corruption, or bias may render domestic prosecutions impossible. Furthermore, given the dissatisfaction with the cost and inefficiencies of the ICTR and ITCY, it is unlikely that the U.N. will return to Chapter VII tribunals that are centrally funded by its member states. International hybrid tribunals, like the SCSL, can be used to effectively bridge the existing gap between the ICC and incapacitated, incapable, or overwhelmed national courts.
Funding will continue to be a problem for future hybrid tribunals. For the ICTR and ICTY, the costs were too high. For the SCSL, there was never enough money in the first place, which damaged its credibility. Ideally, the U.N. would consider setting up a standing global fund that its member states can augment through voluntary donations when the next hybrid tribunal is established. The next hybrid tribunal should also have a clear mandate and jurisdiction before its creation. This will allow for a better prediction of its costs.
Finally, the U.N. should create a workable template for the logistics of physically setting up and running a tribunal. This includes office management, translation equipment, case file management systems, and witness accommodations. This type of institutional knowledge can lower initial startup costs.
b. Chapter VII Authority
Tribunals created by bilateral treaty do not have extraterritorial jurisdiction or extradition authority. This could have been problematic for the SCSL given the cross-border nature of the conflict and that three of the principle defendants—Taylor, Bockarie, and Koroma—were in Liberia while under indictment. The U.N. Security Council should consider augmenting a hybrid tribunal with Chapter VII authority to allow for extradition.
There will never be a one-sized approach for hybrid tribunals and conflict resolution. What worked in Sierra Leone may not work in Syria or the Democratic Republic of the Congo. Despite valid criticism, the SCSL made important contributions to the field of international criminal law and Sierra Leone has been at peace for nearly two decades.
The worst evils of war too often fall on those who have no stake in it. The culture of impunity and the willingness of combatants to terrorize civilians are too common in the world. The SCSL is a necessary and practical model for providing justice and establishing the rule of law where the ICC and national courts cannot. If the United States finds itself prosecuting large-scale combat operations, something akin to the Special Court for Sierra Leone may become necessary.