by Rosemary Grey, Australia
The highlight of Monday’s visit to the Special Court for Sierra Leone (SCSL) was an insightful address by Brenda Hollis, Chief Prosecutor of SCSL. In a comment that reflected the influence of restorative justice principles on international criminal law, Madame Hollis named the victims in Sierra Leone as the primary stakeholders of the Court. It was fitting, therefore, that she prefaced her remarks on the successes of the Court by saying that ultimately, it is the victims’ opinions that matter the most.
But from her perspective, the Court could be deemed a success because it has fulfilled its mandate to investigate and prosecute those who bore the greatest responsibility for the crimes committed in the conflict in Sierra Leone. In doing so, it made salient contributions to the jurisprudence in the areas of sexual violence, forced marriage, the recruitment and use of child soldiers, and attacks on peacekeepers. Prosecutor Hollis also praised the Court’s outreach program for managing the victims’ expectations and ensuring that they felt connected to the work of the Court, notwithstanding its relocation to The Hague for the Taylor trial.
The Prosecutor’s approach to evaluating the SCSL’s success by reference to its mandate echoed the words of Professor Dov Jacobs, who on the first day of this symposium suggested that institutions should be judged according to their function – a court should not be judged on its value as a truth commission; a truth commission should not be judged on its adherence to fair trial standards.
This lesson about judging institutions on the basis of their function will serve us well in our work as critical participants in the transitional justice process. However, as potential architects of that process, we should go beyond asking “what is the mandate of this institution?” and also consider what the institutions’ mandate should be, mindful of the context in which it operates.
Did the situation in Sierra Leone call for a court with a mandate to try those most responsible for the crimes? Did the situation in South Africa call for a court with a mandate to try those responsible for the violence of apartheid alongside the truth commission What other mandates should be given to institutions in response to a particular conflict? These questions are difficult, perhaps unanswerable, but they are worth reflecting on as we design our framework for approaching transitional justice in future conflicts.