Prosecuting International Crimes in Africa - PULP - University of ...

Prosecution and punishment of international crimes by the Special Court for Sierra Leone 105
with the accused on his role in the conflict clashed fundamentally with,
and would have grave ramifications on the accused’s presumption of
innocence protected under article 11(1) of the Universal Declaration of
Human Rights and article 17(3) of the Statute of the SCSL. 50 The Trial
Chamber found that to agree to the request by the TRC would ‘jeopardise
the accused’s right to a fair and public hearing and would constitute an
unprincipled departure from a well-established and widely accepted
judicial practice’. 51 In other words, the Chamber reasoned that to allow an
accused to testify before the TRC would mean ‘to incriminate himself
elsewhere’ 52 and therefore denied the request by the TRC to conduct a
public hearing in Norman. The Trial Chamber’s decision in Norman is the
same as in Gbao. 53
The position stated by the Trial Chamber suggests that prosecution is
the preferred way to satisfying the interests of the victims rather than telling
the truth about the past. In other words, the TRC may not prevail over
international courts with a mandate to prosecute international crimes.
However, it remains debatable whether this is the only solution for
post–conflict reconciliation in societies emerging from armed conflicts.
One is tempted to consider the position stated by the Appeals Chamber in
the Norman case regarding the request by the TRC to conduct a public
hearing with him.
On appeal by the TRC, 54 the Appeals Chamber differed with the
decision of the Trial Chamber. The Appeals Chamber viewed the work of
the TRC and the SCSL as complementary to each other, and that the two
institutions ‘must accommodate the existence of the other’. The Appeals
Chamber held that the TRC is not in a position to suspend its work once
trials begin. It emphasised that ‘the Special Court respects the TRC’s work
and will assist it so far as is possible and proper, subject to […] the
overriding duty to serve the interests of justice without which there may
not be the whole truth and there is unlikely to be reconciliation’. 55 The
authoritative position is that given by the Appeals Chamber – it is also the
correct approach because it harmonises the two competing and conflicting
norms of prosecution and reconciliation. Basically, the Appeals
Chamber’s decision echoes that ‘Truth Commissions and International
Courts are both instruments for effectuating the promises made by states
that victims of human rights violations shall have an effective remedy – a
trial, followed by punishment of those found guilty, in this case of those
50 Prosecutor v Norman para 10.
51 Prosecutor v Norman para 14.
52
Prosecutor v Norman para 14.
53 Prosecutor v Gbao (n 47 above) paras 11-16, 18.
54 Prosecutor v Norman Decision on appeal by the Truth and Reconciliation Commission
for Sierra Leone and Chief Samuel Hinga Norman JP against the decision of His
Lordship, Mr Justice Bankole Thompson delivered on 30 October 2003 to deny the
TRC’s request to hold a public hearing with Chief Samuel Hinga Norman JP, 28
November 2003.
55 Prosecutor v Norman (as above) para 44.