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Donors' Justice: Recasting International Criminal Accountability

Abstract
Abstract

International legal scholarship to date has largely neglected the donor-driven dynamics of international criminal justice. This article advances what I term ‘donors’ justice’ as an analytic frame for interpreting the work of international criminal tribunals. Donors’ justice is defined as third-party financial support for tribunal activity. It imports market rationalities into the field of criminal accountability, which assume overlapping discursive, political, and economic forms. The Special Court for Sierra Leone provides a case study of the implications of donor-driven logics for international criminal justice, particularly the material problems of insecure funding and the ethical problems of limited personal jurisdiction.

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1 C. Del Ponte, ‘The Dividends of International Criminal Justice’, 6 October 2005, text available online at http://www.icty.org/x/file/Press/PR_attachments/cdp-goldmansachs-050610-e.htm.

2 According to the then-UN Secretary-General, as of 2004, the ad hoc tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY) were consuming roughly 15 per cent of the UN's budget; see the UNSC, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, Report of the Secretary-General, UN Doc. S/2004/616 (2004). Estimates of the average cost of trials vary, with Rupert Skilbeck arguing that ICTY and ICTR trials cost between $10 and $15 million per accused and Mark Drumbl noting that convictions at the ICTR cost in the region of $25 million each. See Drumbl M., ‘Collective Violence and Individual Punishment: The Criminality of Mass Atrocity’, (2005) 99 Northwestern University Law Review 539; and Skilbeck R., ‘Funding Justice: The Price of War Crimes Trials’, (2008) 15 (3)Human Rights Brief 6. A recent article on the Special Court for Sierra Leone claims that this tribunal has spent roughly $23 million per trial; see Jalloh C., ‘Special Court for Sierra Leone: Achieving Justice?’, (2011) 32 Mich. JIL 395.

3 Michel Foucault's description of the American form of neo-liberalism that emerged in the first half of the twentieth century accurately captures the phenomenon that I wish to describe here: ‘generalizing [the economic form of the market] throughout the social body and including the whole of the social system not usually conducted through or sanctioned by monetary exchanges.’ As a consequence, ‘analysis in terms of the market economy or, in other words, of supply and demand, can function as a schema which is applicable to non-economic domains’; see M. Foucault, The Birth of Biopolitics: Lectures at the College de France, 1978–1979 (2008), 243.

4 M. Heikkilä, ‘The Balanced Scorecard of International Criminal Tribunals’, in C. Ryngaert (ed.), The Effectiveness of International Criminal Justice (2009), 27, at 42. The author grants that ‘[i]n contrast to most business enterprises, the tribunals are primarily legal actors and only secondary economic actors.’

5 Wippman D., ‘The Costs of International Justice’, (2006) 100 AJIL 861, at 862, quoting Raab D., ‘Evaluating the ICTY and Its Completion Strategy: Efforts to Achieve Accountability for War Crimes and Their Tribunals’, (2005) 3 JICJ 82.

6 See Romano C., ‘The Price of International Justice’, (2005) 4 Law and Practice of International Courts and Tribunals 281. Tribunal funding is generally divided into ‘voluntary’ and ‘assessed’ contributions. The ad hoc tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY) are funded through assessed contributions from the UN budget; similarly, the International Criminal Court (ICC) is funded through assessed contributions from ICC member states.

7 This third-party status distinguishes ‘donors’ justice’ from ‘victor's justice’, the common criticism of post-Second World War tribunals set up by the victorious allied powers. The founders and funders of tribunals at Nuremberg and Tokyo had been parties to the conflicts, whereas the contemporary international criminal tribunal is typically supported by third-party states. This is partly due to the fact that armed conflicts are increasingly of an internal rather than an international character. A related logic may also be at work in externally funded domestic court structures, such as the partially donor-financed War Crimes Chamber in the Courts of Bosnia–Herzegovina, but this article focuses primarily on tribunals that have been described as international in character.

8 The former registrar of the Special Court for Sierra Leone reportedly attended 250 meetings in 15 months, according to a leaked US diplomatic briefing, ‘to drum up support from potential donor countries.’ See ‘US Embassy Cables: The Protracted Case against Charles Taylor’, The Guardian, 17 December 2010, available online at www.guardian.co.uk/world/us-embassy-cables-documents/196077.

9 Much of this literature considers the ICTY. For example, Martti Koskenniemi argues that ‘there is no doubt that the The Hague trials are an effect of Western policy. The Tribunal would not have come to existence without pressure from the Clinton administration and quarters in the French government’. Koskenniemi M., ‘Between Impunity and Show Trials’, (2002) 6 MPYUNL 1, at 18. See also J. Laughland, Travesty: The Trial of Slobodan Milosevic and the Corruption of International Justice (2006); P. Hazan, Justice in a Time of War: The True Story behind the International Criminal Tribunal for the Former Yugoslavia (2004); D. Zolo, Invoking Humanity: War, Law and Global Order (2002); H. Köchler, Global Justice or Global Revenge? International Criminal Justice at the Crossroads (2008); and J. Maogoto, War Crimes and Realpolitik: International Justice from World War I to the 21st Century (2004).

10 M. Findlay, Governing through Globalised Crime: Futures for International Criminal Justice (2008).

11 T. Kelsall, Culture under Cross-Examination: International Justice at the Special Court for Sierra Leone (2009); K. Clarke, Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa (2009).

12 Miller Z., ‘Effects of Invisibility: In Search of the “Economic” in Transitional Justice’, (2008) 2 The International Journal of Transitional Justice 266.

13 Baylis E., ‘Tribunal Hopping with the Post-Conflict Justice Junkies’, (2008) 10 Oregon RIL 361.

14 See, e.g., T. Ingadottir, ‘The Financing of Internationalized Criminal Courts and Tribunals’, in C. Romano, J. Kleffner, and A. Nollkaemper (eds.), Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo and Cambodia (2004).

15 For some exceptions, see Oomen B., ‘Donor-Driven Justice and Its Discontents: The Case of Rwanda’, (2005) 35 Development & Change 887910; Romano, supra note 6, at 281; and S. Petersen, I. Samset, and V. Wang, ‘Foreign Aid to Transitional Justice: The Cases of Rwanda and Guatemala, 1995–2005’, in K. Ambos, J. Large, and M. Wierde (eds.), Building a Future on Peace and Justice: Studies on Transitional Justice, Peace and Development (2009), at 438.

16 Prior to the Special Court's creation the then-UN Secretary-General suggested funding the Court by assessed contributions as ‘the only realistic solution’ that would ‘produce a viable and sustainable financial mechanism affording secure and continuous funding’. UN Secretary-General, Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915 (2000), para. 71. Instead, the SCSL was established with a voluntary funding mechanism that has been heavily criticized in the scholarly literature; for a recent example, see Jalloh, supra note 2.

17 Although a detailed account of other tribunals is beyond the scope of this article, all currently operating internationalized tribunals bear some elements of ‘donors’ justice’. The ICC's independent Trust Fund for Victims is one of the more obvious examples, as it receives support from voluntary contributions that may be earmarked for particular projects. Following the UK government's £500,000 donation to the Trust Fund, the British ambassador to the Netherlands stated that ‘the UK has called on the Court to take tough decisions in response to the continuing global economic crisis. But we recognize that states also have a responsibility to ensure that the Court has sufficient resources to carry out its task. That is why the UK made a donation of 200 000 pounds to support witness relocation in the Kenyan investigation’; press release, ‘UK Donates Over 550,000 Euros to Trust Fund for Victims’, 22 March 2011, available online at www.hirondellenews.com/content/view/14175/1184/.

18 For example, legal anthropologist Kamari Clarke notes how the attorney for International Criminal Court (ICC) indictee Thomas Lumbanga criticized what he termed ‘NGO justice’ or, as Clarke described it, ‘highly biased data fuelled through donor-sponsored agendas’, Clarke, supra note 11, at 2. At the Special Court for Sierra Leone, defence counsel for Charles Taylor alleged that ‘the impartiality and independence of the Court may have been compromised’ based on suggestions in diplomatic cables that ‘sensitive information about the trials has been leaked to the United States Embassy in The Hague by unnamed contacts in the Trial Chamber, the Office of the Prosecutor (OTP) and the Registry’. See Prosecutor v. Taylor, Defence Motion for Disclosure and/or Investigation of United States Government Sources within the Trial Chamber, The Prosecution and the Registry Based on Leaked USG Cables, Case No. SCSL-03–01-T, T.Ch. II, 10 January 2011.

19 Skouteris T., ‘The New Tribunalism: Strategies of (De)Legitimation in the Era of International Adjudication’, (2006) 17 Finnish Yearbook of International Law 307.

20 For a critical view on both the progressive narrative of the field's development and the ‘developments’ themselves, see T. Skouteris, The Notion of Progress in International Law Discourse (2010).

21 Del Ponte, supra note 1.

22 The conference, which was hosted by the International Center for Transitional Justice and the British Department for International Development, sought to develop means of evaluating progress in the field of transitional justice. It included representatives from the United Kingdom, Canada, Belgium, Finland, the Netherlands, Germany, Morocco, and Liberia, as well as representatives from private grant-making bodies such as the Oak Foundation and Aegis Trust. The conference report's executive summary credits ‘international donors’ for playing an ‘immense role’ in the growth of the field of transitional justice. See ‘Donor Strategies for Transitional Justice: Taking Stock and Moving Forward’, Seminar Report, 15–16 October 2007, London.

23 Kennedy D., ‘Challenging Expert Rule: The Politics of Global Governance’, (2005) 22 Sydney Journal of International Law 5.

24 D. Kennedy, ‘The “Rule of Law”, Political Choices, and Development Common Sense’, in D. Trubeck and A. Santos (eds.), The New Law and Economic Development: A Critical Appraisal (2006), 158–9.

25 J. Otto, ‘The Odds of “Liberalisation” as an Informing Principle of Law, Governance and Development’, in E. Niewenhuys (ed.), Neo-Liberal Globalism and Social Sustainable Globalisation (2006), 150.

26 Petersen, Samset, and Wang, supra note 15, at 464.

27 T. Carothers, ‘Rule of Law Temptations’, in J. Heckman, R. Nelson, and L. Cabatingan (eds.), Global Perspectives on the Rule of Law (2010), 19.

28 T. Carothers, ‘The Rule-of-Law Revival’, in T. Carothers (ed.), Promoting the Rule of Law Abroad: in Search of Knowledge (2006), 3.

29 W. Channell, ‘Lessons Not Learned about Legal Reform’, in Carothers, ibid., at 137.

30 Scheffer D., ‘International Judicial Intervention’, (1996) 102 FP 51.

31 T. Addison, ‘The Political Economy of the Transition from Authoritarianism’, in P. De Greiff and R. Duthie (eds.), Transitional Justice and Development: Making Connections (2009), 114.

32 The Human Rights Commission of Sierra Leone, Press Release No. 21: ‘Transfer of “Blood Diamonds” to War Victims Fund in Sierra Leone’, 10 August 2010.

33 Charles Jalloh writes that ‘it would appear highly unlikely that, even without the creation of the tribunal, the money that was spent on the Court would have ended up in the impoverished country to fund development projects or other things deemed more desirable by Sierra Leoneans’, Jalloh, supra note 2, at 450–1.

34 Goldston J., ‘The Rule of Law at Home and Abroad’, (2009) 1 Hague Journal on the Rule of Law 41.

35 G. Bass, Stay the Hand of Vengeance: The Politics of War Crimes Trials (2000).

36 At the Special Court for Sierra Leone, for example, many donor states assumed positions on the Court's ‘Management Committee’, an administrative body that provided advice and assistance on the non-judicial aspects of the Court's work.

37 Koskenniemi, supra note 9, at 9.

38 L. Gberie, A Dirty War in West Africa: the RUF and the Destruction of Sierra Leone (2005); P. Richards, Fighting for the Rain Forest: War, Youth and Resources in Sierra Leone (1996); Abdullah I., ‘Bush Path to Destruction: The Origin and Character of the Revolutionary United Front (RUF/SL)’, (1998) 36 Journal of Modern African Studies 203; J. Hirsch, Sierra Leone: Diamonds and the Struggle for Democracy (2001); D. Keen, Conflict and Collusion in Sierra Leone (2005); Sawyer A., ‘Violent Conflicts and Governance Challenges in West Africa: The Case of the Mano River Basin Area’, (2004) 42 Journal of Modern African Studies 437. Sawyer argues that ‘African intrastate conflicts typically reveal complex patterns in which issues of identity, greed and the consequences of a changed global order may all be interlinked in contexts laden with injustice, predation and repression’, at 439.

39 According to the Court's first prosecutor, David Crane, ‘Fundamentally the cause of this war was to control a commodity and that was diamonds’. Press conference in Freetown, 18 March 2003, as quoted in International Crisis Group (ICG), The Special Court for Sierra Leone: Promises and Pitfalls of a ‘New Model’ (2003), 14, available online at www.unhcr.org/refworld/docid/3f5218d64.html.

40 Sierra Leone Truth and Reconciliation Commission Report, Executive Summary, para. 16.

41 C. Sriram, Globalizing Justice for Mass Atrocity: A Revolution in Accountability (2005), 101. This concern was also noted by Thierry Cruvellier: ‘some have argued that the United States is deliberately promoting the Special Court as an alternative to the International Criminal Court’, International Center for Transitional Justice, The Special Court for Sierra Leone: The First Eighteen Months (2004), 7. The Special Court was established around the time that the ICC Rome Statute came into effect.

42 A. Cassese, Report on the Special Court for Sierra Leone (2006), 8, available online at www.sc-sl.org/DOCUMENTS/tabid/176/Default.aspx.

43 Fifth Report of the Secretary General on the United Nations Mission in Sierra Leone, UN Doc. S/2000/751 (2000), para. 9.

44 Despite the advantages of locating the tribunal in situ, the SCSL President made an administrative decision to relocate the trial of former Liberian president Charles Taylor to The Hague in 2006 due to security concerns. Representatives from Sierra Leonean civil-society groups challenged the move, arguing that it ‘to a large extent dissipates the hybrid nature of the Court and would likely reduce the impact of the legacy of the Court to the people in West Africa in particular’; see Prosecutor v. Taylor, Civil Society Amicus Curiae Brief Regarding Change of Venue of Taylor Trial Back to Freetown, Case No. SCSL-2003–01-PT, T.Ch. II, 9 March 2007, para. 5.

45 As the Court's first prosecutor put it, the people of Sierra Leone ‘must come to understand three things related to the law, that it is fair, that no one is above it, and that the rule of law is far more powerful than the rule of the gun’. Crane D., ‘Dancing with the Devil: Prosecuting West Africa's Warlords: Building Initial Prosecutorial Strategy for an International Tribunal after Third World Armed Conflicts’, (2005) 37 CWRJIL 8.

46 See, e.g., Dickinson L., ‘The Promise of Hybrid Courts’, (2003) 97 AJIL 295; Dougherty B., ‘Right-Sizing International Criminal Justice: The Hybrid Experiment at the Special Court for Sierra Leone’, (2004) 80 Int.Aff. 311; McAuliffe P., ‘Transitional Justice in Transit: Why Transferring a Special Court for Sierra Leone Trial to The Hague Defeats the Purposes of Hybrid Tribunals’, (2008) 55 NILR 365; Mayr-Singer J., ‘Hybridgerichte: Eine neue Generation international Strafgerichte (I). Der Sondergerichtshof für Sierra Leone’, (2008) 56 VN 68; Rapp S., ‘The Compact Model in International Criminal Justice: The Special Court for Sierra Leone’, (2008) 57 Drake Law Review 11.

47 While the Court does include elements of international criminal law and Sierra Leonean law in its governing statute, none of the indictments include counts under Sierra Leonean law. See Kendall S., ‘“Hybrid” Justice at the Special Court for Sierra Leone’, (2010) 51 Studies in Law, Politics and Society 1. Nevertheless, some scholars continue to claim that the Court drew upon both bodies of law in practice. For example, McAuliffe claims the Court ‘was a typically hybrid tribunal in terms of law applied and the personnel employed’ and adds, ‘[t]he law applied was a combination of international and domestic’; see McAuliffe, ibid. Goldmann M. also writes that ‘the Special Court relies heavily on Sierra Leonean law and lawyers’ in ‘Sierra Leone: African Solutions to African Problems?’, (2005) 9 MPYUNL 457, at 459.

48 Ahmad Tejan Kabbah, Annex to the Letter dated 9 August 2000 from the Permanent Representative of Sierra Leone to the United Nations addressed to the President of the Security Council, UN Doc. S/2000/786 (2000).

49 Stef Vandeginste recounts the failed attempts to establish a tribunal for Burundi in ‘Power-Sharing, Conflict and Transition in Burundi: Twenty Years of Trial and Error’, (2009) 3 Africa Spectrum 63. On the absence of political will to prosecute crimes in Liberia, see Jalloh C. and Marong A., ‘Ending Impunity: The Case for War Crimes Trials in Liberia’, (2005) 1 African Journal of Legal Studies 53.

50 Cerone J., ‘Dynamic Equilibrium: The Evolution of US Attitudes toward International Criminal Courts and Tribunals’, (2007) 18 EJIL 277.

51 R. Kaplan, ‘The Coming Anarchy: How Scarcity, Crime, Overpopulation and Disease Are Rapidly Destroying the Social Fabric of Our Planet’, Atlantic Monthly, February 1994, 44. Paul Richards notes that Kaplan's article was ‘faxed to every American embassy in Africa, and has undoubtedly influenced U.S. policy’; see Richards, supra note 38, at xv. The Sierra Leonean Truth and Reconciliation Commission also highlighted the significance of Kaplan's article in their Executive Summary: see Witness to Truth: Report of the Sierra Leone Truth & Reconciliation Commission (2004), available online at www.sierra-leone.org/TRCDocuments.html.

52 Senate Committee on Foreign Relations, United States Policy in Sierra Leone: Hearing and Public Meeting before the Subcommittee on African Affairs of the Committee on Foreign Relations, 106th Cong., 2d sess., 2000, 4.

53 Richards P., ‘War and Peace in Sierra Leone’, (2001) 25 (2)Fletcher Forum of World Affairs 41, at 47.

54 A report marked ‘Confidential’ from the SCSL Office of the Prosecutor detailing links between al-Qaeda operatives and Charles Taylor as well as co-operation between SCSL investigations and CIA operations is available at journalist Douglas Farah's website: see ‘Special Court for Sierra Leone Report on al Qaeda ties to the Diamond Trade’, available online at www.douglasfarah.com/materials.php.

55 Rapp, supra note 46, at 15.

56 US House of Representatives, The Impact of Liberia's Election on West Africa: Hearing before the Subcommittee on Africa, Global Human Rights and International Operations of the Committee on International Relations, 109th Cong., 2d sess., 2006, 76.

57 Roper S. and Barria L., ‘Gatekeeping versus Allocating in Foreign Assistance: Donor Motivations and Contributions to War Crimes Tribunals’, (2007) 51 JCR 285, at 300–1.

58 Cassese, supra note 42.

59 Seventh Annual Report of the President for the Special Court for Sierra Leone (June 2009–May 2010), 39.

60 A 2007 Investment Climate Statement published through the US State Department's webpage notes that ‘[a]lthough Sierra Leone is a “fragile state”, the country is calm so insurance costs and risk premiums should not reflect the earlier realities of the 1990s’, US Department of State, 2007 Investment Climate Statement – Sierra Leone’, available online at www.state.gov. The statements are published through the State Department Bureau of Economic and Business Affairs International Finance and Development unit.

61 ‘US Embassy Cables: The Protracted Case against Charles Taylor’, The Guardian, 17 December 2010, available online at www.guardian.co.uk. The cable, dated 15 April 2009, is entitled ‘SCSL's Taylor Trial Meets Key Milestone, But SCSL Still Faces Serious Hurdles’.

62 Supra note 16.

63 In practice, however, the Court has had to draw on a UN ‘subvention fund’ of unallocated assessed contributions to fund its operations in 2004–05 and again in 2010–11.

64 International Center for Transitional Justice, supra note 41, at 10.

65 Press Release, ‘The US Provides $4.5 million to Fund Special Court for Sierra Leone Trial of Charles Taylor’, 23 November 2010, available online at www.state.gov/r/pa/prs/ps/2010/11/151810.htm. At the time of the press release, the USA had contributed $81,189,445 to the Special Court.

66 International Center for Transitional Justice, supra note 41, at 10.

67 Prosecutor v. Norman, Decision on Preliminary Motion Based on Lack of Jurisdiction (Judicial Independence), SCSL-2004–14-AR72(E), A.Ch., 13 March 2004, para. 41.

68 Sixth Annual Report of the President for the Special Court for Sierra Leone (2008–2009), 67.

69 ‘Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone’, 16 January 2002, Art. 7.

70 T. Periello and M. Wierda, ‘The Special Court for Sierra Leone under Scrutiny’, International Center for Transitional Justice Prosecution Case Studies Series (March 2006), 1. Human Rights Watch expressed a similar concern: ‘Special Court staff expressed frustration that the Management Committee has tended to focus its attention more on where to cut budgets proposed by the Registry than on zealously advocating with governments and the United Nations as to why additional funding is necessary to ensure that the court can function fairly and effectively’, Human Rights Watch, ‘Bringing Justice: The Special Court for Sierra Leone’, September 2004, Section IX(B), available online at www.hrw.org/reports/2004/sierraleone0904/. A management committee has been established for the Special Tribunal for Lebanon, which is also funded through voluntary contributions.

71 Sriram, supra note 41, at 97. See also Sriram , ‘Wrong-Sizing International Justice? The Hybrid Tribunal in Sierra Leone’, (2006) 29 Fordham ILJ 472.

72 Romano, supra note 6, at 309.

73 Cockayne J., ‘The Fraying Shoestring: Rethinking Hybrid War Crimes Tribunals’, (2004) 29 Fordham International Law Review 616, at 630.

74 Wald P., ‘International Criminal Courts: Some Kudos and Concerns’, (2006) 150 Proceedings of the American Philosophical Association 241, at 254.

75 Cassese, supra note 42, at 2.

76 Ibid., at 11.

77 Seventh Annual Report of the President of the Special Court for Sierra Leone (2009–2010), 40, available online at www.sc-sl.org/DOCUMENTS/tabid/176/Default.aspx.

78 X. Rice, ‘Civil War Crimes Tribunal under Threat as Donations Dry Up’, The Guardian, 25 February 2009, available online at www.guardian.co.uk/world/2009/feb/25/civil-war-crimes-tribunal. Rapp's remarks were criticized as ‘ill considered’ in a diplomatic cable and ostensibly ‘raised anxiety here [in Liberia] about Taylor's imminent return’, ‘US Embassy Cables: The Protracted Case against Charles Taylor’, The Guardian, 17 December 2010, available online at www.guardian.co.uk/world/us-embassy-cables-documents/196077.

79 United Kingdom Foreign and Commonwealth Office, ‘United Kingdom Statement to the Sixth Committee Debate on the Rule of Law and the National and International Levels’, 13 October 2010, available online at www.ukun.fco.gov.uk/en/news/?view=Speech&id=23024295.

80 General Assembly Department of Public Information, ‘Fifth Committee Takes Up First Performance Report for 2010–2011 Budget Cycle: Increased Regular Budget Funding for Sierra Leone Tribunal’, UN Doc. GA/AB/3976, Sixty-Fifth General Assembly Fifth Committee (2010); a 2010 report of the UN Secretary-General noted that ‘since 2009, 174 fund-raising meetings have been held by the [Special Court for Sierra Leone] across capitals and diplomatic missions, and 225 fund-raising appeal letters have been sent to capitals and diplomatic missions. Despite these efforts it has proved impossible to secure voluntary contributions sufficient to complete the mandate of the Special Court’, ‘Report of the UN Secretary-General, Request for a subvention to the Special Court for Sierra Leone’, UN Doc. A/65/570, Sixty-Fifth Session of the United Nations General Assembly, Agenda Item 129, Programme Budget for the Biennium 2010–2011 (2010).

81 The United States released a $4.5 million grant early, which was slated for the Court's 2011 operating costs, but ‘was expedited due to the financial crisis the Court is currently facing’, Department of State, supra note 60.

82 G. Anders, ‘The New Global Legal Order as Local Phenomenon: The Special Court for Sierra Leone’, in F. von Benda Beckmann, K. von Benda Beckmann, and A. Griffiths (eds.), Spatializing Law: An Anthropological Geography of Law in Society (2009), 142.

83 Jalloh, supra note 2, at 422.

84 Cockayne, supra note 73, at 628.

85 International Crisis Group, supra note 39. The International Criminal Court's Office of the Prosecutor has adopted a similar policy.

86 Prosecutor David Crane referred to this strategy of relying upon high-level commanders for insider witness testimony as ‘dancing with the devil’; see Crane D., ‘Dancing with the Devil: Prosecuting West Africa's Warlords: Building Initial Prosecutorial Strategy for an International Tribunal after Third World Armed Conflicts’, (2005) 37 CWRJIL 1.

87 Charles Jalloh writes that ‘Kabbah had stated his initial expectation that with a jurisdictional provision focused on those most responsible, the number of persons tried could be limited to “dozens” . . .. Similarly, Ralph Zacklin, the legal counsel to the United Nations who negotiated the SCSL Agreement reportedly stated in September 2000 that between twenty-five and thirty persons were expected to be prosecuted before the Court’; see Jalloh, supra note 2, at 420.

88 Defence counsel for some of the accused claimed that the prosecution had effectively offered amnesty to individuals who had committed similar offences as those allegedly committed by their clients, speculating that those individuals may have been offered immunity as a result of working as witnesses for the prosecution. See Prosecutor v. Kallon and Kamara, Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, Case No. SCSL-2004–15-AR72(E) and SCSL-2004–16-AR72(E), A.Ch., 13 March 2004, para. 59. Particularly striking in this regard was the testimony of Albert Nallo, former CDF director of Operations for the Southeastern Region and National Deputy Director of Operations, who planned one of the most notorious CDF attacks on suspected RUF rebel collaborators; testimony of Borbor Tucker, head of the CDF ‘Death Squad’ that tortured and killed suspected junta collaborators; and the testimony of Osman Vandi, former CDF batallion commander, who allegedly commanded one of the most brutal attacks attributed to the CDF. Former AFRC commander George Johnson gave evidence of his own high-level involvement in operations and leadership, and other witnesses claimed that he had ordered attacks on towns and killings of suspected CDF collaborators. In the case against Charles Taylor, several high-level commanders admitted to directly participating in atrocities that included killing civilians, ordering amputations, engaging in cannibalism, and keeping women as sexual slaves (see the testimony of Isaac Mongor, former RUF commander and member of the RUF/AFRC Supreme Council; Alimamy Bobson Sesay, officer in the Sierra Leone Army and later in the AFRC, and Joseph Marzah, Taylor's former Chief of Operations). Insider witnesses at the Court benefited from a number of material privileges, which, in some instances, included relocation outside Sierra Leone along with related expenses, such as school fees for their children in addition to rent and public transportation costs, and some insider witnesses may have strategically opted to disclose their identities and testify openly in order to be relocated.

89 International Crisis Group, supra note 39.

90 As quoted by Charles Cobb Jr in ‘Sierra Leone's Special Court: Will It Hinder or Help?’, an interview with Alan White for Allafrica.com, 21 November 2002, available online at www.allafrica.com/stories/200211210289.html.

91 Skouteris, supra note 20, at 209.

92 For examples of the work of the CW Group, see their training slides made available through Foreign Policy: ‘The Ultimate Idiot's Guide to Being an African Junta’, 24 February 2010, available online at www.foreignpolicy.com/articles/2010/02/24/the_ultimate_idiots_guide_to_being_an_african_junta.

93 See ‘The Junta Explains’, Africa Confidential, 19 February 2010. See also C. Lynch, ‘Guinea's Junta Hires Ex-War Crimes Prosecutors – and Gets a Favorable Report’, FP, 24 February 2010.

94 H. Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (1994), 253.

95 Felman S., ‘Theaters of Justice: Arendt in Jerusalem, the Eichmann Trial, and the Redefinition of Legal Meaning in the Wake of the Holocaust’, (2000) 1 Theoretical Inquiries in Law 201.

96 Oomen, supra note 15, at 907.

* MA, PhD (Berkeley), PhD Researcher at the Grotius Centre for International Legal Studies, Leiden University []. The author thanks Tanja Aalberts, Christian De Vos, Charles Jalloh, Christine Schwöbel, and the anonymous reviewers for their excellent suggestions.

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