Keynote Address on the Legacy of the Special Court for Sierra Leone

As Delivered

Good evening. It is a pleasure to be with you tonight to acknowledge and celebrate of the legacy of the Special Court for Sierra Leone (SCSL). I am thrilled to be here with so many distinguished colleagues and those who were instrumental in shaping the history and legacy of the SCSL. I know that at this point, protocol would advise that I identify the many dignitaries and experts present here with us, but we would be here all evening, so I will simply say what an inspiration it was to see so many of you reuniting with old friends and former colleagues over the course of this remarkable day. It’s an honor to be invited to reflect on this institution and its impact with so many of you who worked directly with the people of Sierra Leone to advance justice.

When I consider the ongoing evolution of the field of transitional justice, it is difficult to overstate the impact of the SCSL. When it was conceptualized and established in 2002, we operated in a very different environment. The focus in post-conflict situations was overwhelmingly on large, generally expensive, internationally-run tribunals, most notably the International Criminal Tribunals for Rwanda and the former Yugoslavia, but also the International Criminal Court (ICC), whose Rome Statute came into force later that same year.

These were and remain extremely valuable institutions in their own right, but the international community at the time did not yet recognize many of the standards for successful transitional justice that we now take as givens: the importance of integrating criminal institutions with other transitional justice mechanisms; the incorporation of domestic law and the cultural context; and the imperative of taking a survivor-centered approach that specifically addresses crimes committed against marginalized or vulnerable groups, like women and children, and is responsive to their unique needs. The SCSL advanced the state-of-the-art in all of these areas. The SCSL also showed that justice could be delivered with a more reasonable price-tag.

Of course, some of the Court’s innovations are those we still apply today, and some demonstrated where improvement or a course correction was needed. We should be open about talking about any missteps. But even in areas where the SCSL fell short, it provided valuable lessons for the institutions that came after it and indelibly shaped the future of international criminal justice.

First, and perhaps most importantly, the SCSL was the world’s first hybrid tribunal created by UN treaty with a member state. The Government of Sierra Leone requested that the United Nations work with it to create the tribunal—an admirable example of a state acknowledging harm done, including by state actors, and accepting the need to hold those responsible accountable. This is something we see too little of today.

At a time when the norm was UN-run courts staffed by internationals, the SCSL incorporated Sierra Leonean law and had both domestic and international staff. By being located largely in Freetown, it was accessible to Sierra Leoneans in a way the Rwandan and Yugoslav tribunals were not.

The ICC has always been envisioned as a court of last resort, only stepping in when domestic jurisdictions are unable or unwilling to prosecute perpetrators themselves. But as we know, legacies of mass atrocities often render domestic justice systems ill-equipped to deal with their aftermath. Increasingly, hybrid courts are emerging as the ideal model, which can benefit from international expertise while remaining tailored to the local context and victims’ needs.

Innovative hybrid courts in the decades since the SCSL have included the Extraordinary Chambers in the Courts of Cambodia (a model of hybridity not to be repeated); the Extraordinary African Chambers, created with Senegal for the trial of Hissène Habré; and the CAR Special Criminal Court, which is part of a unique three-tiered justice system that also includes the ICC. Indeed, my Deputy and a team from my office are in CAR now looking for ways to strengthen the SCC.

The success and promise of these endeavors were at top of mind as the United States developed our views on a special tribunal to prosecute the crime of aggression against Ukraine, championing the benefits of an internationalized model. The SCSL model is not one that will work in this context, however, because the UN General Assembly does not have the power under the UN Charter to create a coercive institution that can hold Russians to account. However, other hybridity options exist and are being explored now by a core group of states committed to seeing the crime of aggression prosecuted with international assistance.

None of these efforts would have been possible without the SCSL paving the way.

The SCSL made so many contributions to the field of international justice—in institutional design, jurisprudence, and procedure, including establishing the essentiality of outreach processes. In a notable achievement, the SCSL orchestrated the first conviction of a former head of state by an internationalized tribunal, demonstrating that no one is above the law. The Court found former Liberian President Charles Taylor guilty of war crimes and crimes against humanity for planning, aiding, and abetting acts in Sierra Leone, though he reportedly never set foot in the country during the period in which the crimes occurred. This case is often cited for the proposition that members of the so-called troika (heads of state, heads of government, and foreign ministers) do not enjoy head-of-state immunity before an international tribunal, since Taylor was indicted while he was still in power in neighboring Liberia.

The SCSL also generated important jurisprudence on aiding and abetting liability when it ruled that customary international law requires evidence that the accomplice knowingly made a substantial contribution to criminal conduct by the direct perpetrator. In so ruling, it rejected an alternative formulation that required proof that the accomplice intended for the crimes to be committed. This precedent has been picked up by other courts around the world, including in our own system.

Taylor’s transfer to The Hague for trial was not without controversy, a valuable consideration for future tribunals weighing security risks against the needs and desires of victims and the importance of seeing justice served at home. However, the fact that the SCSL envisioned the possibility that some trials might need to take place outside the country—and created dedicated provisions for this contingency—is groundbreaking. It shows that even in a difficult operating environment, justice can find a way. It also demonstrates that the strongman who flees their country to seek safe harbor elsewhere cannot escape justice. Nor can they use the threat of destabilization if they return to avoid facing trial: we can simply relocate the proceedings. The Rome Statute contains a similar provision for sitting outside of The Hague, and it is hoped that someday the ICC will be able to hold hearings in situ within affected communities.

One final point: The SCSL Prosecutors and judges exhibited great courage in prosecuting—in equal measure—members of the Civil Defense Forces (CDF), who were viewed by many as war heroes, rather than war criminals, because they were attempting to restore peace in Sierra Leone by opposing the Armed Forces Revolutionary Council (AFRC) and Revolutionary United Front (RUF). This, too, demonstrates that international law applies to all armed actors, no matter how just their cause.

The SCSL’s legal legacy is particularly important for crimes committed against women and children, who suffered disproportionately in the Sierra Leonean war. It was the first UN court to convict defendants for recruiting and using child soldiers, which established precedent for numerous judgments in the ICC and elsewhere.

From the very beginning, the SCSL’s prosecution teams prioritized the investigation of sexual and gender-based crimes by integrating gender expertise into multi-disciplinary investigation teams. Combined with the court’s presence in country and sensitivity to the local context, this undoubtedly contributed to the collection of strong evidence on sexual and gender-based crimes, which is often challenging when survivors unfairly face stigma for the crimes committed against them.

The SCSL issued the first conviction for the crime against humanity of sexual slavery, building upon the precedent that had been set by the International Criminal Tribunal for the former Yugoslavia, which prosecuted the crime of enslavement. It also found that forced marriage constitutes an inhumane act, thus allowing it to be prosecuted as a crime against humanity. The Prosecutor, Judge Theresa Dougherty in dissent, and the Appeals Chamber of the SCSL all recognized that forced conjugal associations impose multifaceted harms and undermine different values than the concepts of sexual slavery or rape alone. This precedent paved the way for similar judgments in the Extraordinary Chambers in the Courts of Cambodia and at the ICC. Indeed, the Appeals Chamber of the ECCC built on this precedent by recognizing that men subjected to mass forced marriages by the Khmer Rouge can also be victims of forced marriage.

Finally, the SCSL was the first special court to operate simultaneously alongside a truth commission. Innovators made a considered choice to erect a fire wall between these two institutions. By determining that the Truth Commission would not give information to the Court, it created space for perpetrators to speak before the Truth Commission without fear of being prosecuted as a result of their testimony.

This was another controversial decision, and one that led to some friction between the institutions. However, regardless of what lessons future models can derive from the specifics of this arrangement, the interaction of the two at the time was groundbreaking in and of itself. It demonstrated that criminal prosecutions could and must operate within the larger framework of other transitional justice mechanisms, that criminal trials are not the only source of justice, and that justice architects must take a holistic approach to address victims’ needs. We now recognize the value of other forms of justice—truth-telling, restorative justice and restitution, rehabilitation, memorialization, guarantees of non-repetition, and even reconciliation, but only if the spirit moves victims. In terms of guarantees of non-repetition, Sierra Leone established a number of important new human rights bodies, all inspired by the work of the TRC and SCSL.

The SCSL was not without its flaws: it bears emphasizing the untenability of creating justice institutions that are entirely reliant upon voluntary funding, an arrangement that consigns court principals to spend valuable time fundraising from donors rather than delivering justice. This funding formula also raised concerns about equality of arms and the risk of political manipulation by donors. We do see some evolution within the United Nations on this front. There is a greater willingness today to commit UN-assessed funds to justice mechanisms, such as the International, Impartial, and Independent Mechanism (IIIM) devoted to investigating crimes in Syria. In this regard, a recent resolution by the UN Security Council allowing for UN-assessed funds to support African Union peacekeeping operations when they are doing the business of the United Nations is notable. This should enable more reliable funding for justice efforts and institutions that are proceeding with a UN imprimatur, including potentially ICC cases stemming from a UN Security Council referral—something that is envisioned by the Rome Statute but that some Council members have resisted to date.

Of course, the most important legacy of the SCSL is not found in its establishment of a viable hybrid model, or in its contributions to international criminal jurisprudence, or in its novel approaches to transitional justice. Rather, the most important legacy is reserved for Sierra Leonean victims and survivors. This is not because of the impact of the Court on their lives or their country, though those are substantial. It is because they are the ones who fought for justice. They stood up and testified before the Court, came forward with their stories, and refused to accept that crimes committed against them would go unpunished. They reinforced for the world that there is no peace without justice. This precedent continues to inspire civil society actors today seeking justice in their own systems.

Which brings us to today, and what the SCSL and Sierra Leonean story can show us as we all continue to fight for justice worldwide.

It would be understandable to see a legacy conference devoted to the SCSL reflecting solely on the past. But we must see it also as a call to action. Unfortunately, we need only look around the world today to know that our work fighting for justice is far from over.

In a few days, I will travel to Liberia. The Liberian civil wars ran parallel to Sierra Leone’s in many ways. However, while the Liberian Truth and Reconciliation Commission was admirable, none of its recommendations has been implemented in Liberia. To this day not one person has been held accountable for war crimes in Liberian courts. Instead, courts around the world—including in my own system—are delivering justice under extraterritorial jurisdictional principles that apply to international crimes. Justice in Liberia has been blocked in part because those accused of some of the most atrocious acts remain in positions of power. And those fighting for justice too often face threats to their safety, as we have heard today. The legacy of impunity continues to infect society today.

But, as we have seen time and time again, justice delayed is not always justice denied. I am inspired by the Liberians—many of whom are here today—who continue to demand accountability and will not let their stories be forgotten, even decades after the conflict. Their work is paying off. Just a few weeks ago, newly elected President Joseph Boakai announced in his inaugural address his intention to create the long-awaited War Crimes and Economic Crimes Court. The United States continues to stand with Liberians as they take on these challenges.

They are not alone in the region. Take Guinea, where in 2022 a trial commenced for the 2009 Stadium Massacre, in which more than 150 protestors were killed and dozens more injured and subject to sexual violence. Fourteen years later, the people of Guinea saw the start of the trial of those deemed responsible. Or Chad, where victims never stopped fighting for the prosecution of former dictator Hissène Habré. Habré was convicted by the Extraordinary African Chambers in Senegal in 2016, twenty-six years after he fell from power.

Finally, I want to highlight the extraordinary work being done in The Gambia, which is building on the SCSL’s legacy with a hybrid court of its own. In the aftermath of horrific atrocities committed under the regime of Yahya Jammeh, Gambia’s Truth, Reconciliation, and Reparations Commission heard from more than 400 witnesses. In response to its recommendations, the Government of The Gambia is now creating the framework for trials in both the domestic system and in a hybrid court in partnership with ECOWAS.

This creative arrangement innovates on the SCSL’s hybrid model to be even more regionally and culturally suited to the West African context and acknowledges that the abuses of the Jammeh regime had lasting impacts, including on victims, throughout the region. We applaud ECOWAS for taking on this role. Indeed, these countries, following the lead of Sierra Leone and building on the legacy of the SCSL, are poised to become leaders in transitional justice for the continent and the world. It falls to us to support these efforts by standing with The Gambia and ECOWAS as they take on new challenges, by refusing to rest until we see justice in Liberia, and by continuing to amplify the voices of victims in Guinea, Chad, and beyond to end impunity once and for all.

I hope that as these efforts continue, these countries will offer examples of how justice contributes to lasting peace, how victims can step forward and speak their truths, and how there is no safe haven for those who are responsible for international crimes. As Dr. Martin Luther King, Jr. said, “the arc of the moral universe is long, but it bends towards justice.” But it doesn’t bend on its own; rather, it requires people like you all—whether you are a diplomat, a survivor, a private lawyer, a human rights advocate, a policymaker, a young person—to exert the effort.

And we need your leadership to spread these lessons throughout the African continent and inspire the rest of the world. We are ready to stand with you as you carry on this admirable institution’s legacy. Thank you for this valuable moment of reflection, discussion, and, I hope, inspiration for the future. I look forward to partnering with all of you as we continue the fight.