Chief Prosecutor of the Special Court for Sierra Leone Lectures

Chief Prosecutor of the Special Court for Sierra Leone Lectures
"The UN’s Special International Criminal Courts Are Now Exceeding Expectations"
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November 11, 2008 (NEW YORK) – The special international criminal courts set up by the United Nations to address genocide, war crimes and other atrocities have been quite successful, according to Stephen Rapp, Chief Prosecutor of the Special Court for Sierra Leone. Yet challenges remain, not the least of which is how to successfully close them down.

“They had slow starts, but they are now exceeding expectations,” said Rapp, who spoke at a Human Rights Institute panel at Columbia Law School on October 30. Professor Sarah Cleveland, Co-Director of the Human Rights Institute, introduced Rapp, who is a former U.S. attorney from the Northern District of Iowa and who has been Chief Prosecutor for the Sierra Leone court since December 2006. Previously he served as Chief of Prosecutions for the International Criminal Tribunal for Rwanda (ICTR).  

The U.N. created special courts to bring justice to victims of genocide and war crimes, and to deter future atrocities by bringing perpetrators to justice. Rapp discussed three courts: Rwanda’s, the International Criminal Tribunal in Yugoslavia (ICTY) and Sierra Leone’s (SCSL).

The achievements include bringing former Yugoslavian President Slobodan Milosevic to trial and prosecuting Charles Taylor, the former president of Liberia for atrocities in Sierra Leone. Milosevic died of heart failure in custody in the fourth year of his trial at The Hague in the Netherlands. Taylor’s trial, which Rapp is prosecuting at The Hague, is expected to be concluded by the end of the year. The successful trial of Taylor, is critical, said Rapp.
“It’s proving that it is possible to bring a chief of state to due process, in a fair trial that is communicated well to the people affected and the international community. If it does not succeed than it does not bode well for the future of the International Criminal Court [ICC],” said Rapp. The ICC, a permanent outgrowth of these tribunals, was established in 2002 and is housed at The Hague.

In Yugoslavia, 160 people have been brought to trial, with only two suspects remaining at large. In Rwanda, where it has been difficult to get cooperation from governments where the crimes occurred, 30 people have been brought to trial.

Key challenges to the courts remain. They struggle with everything from obtaining funds for ongoing trials to figuring out how to ensure the security of witnesses and sealed archives after these temporary courts shut down. 

The sheer magnitude of these international criminal trials has required extraordinary measures. Suspected criminals have been rounded up from countries around the globe. Hundreds of witnesses have testified. The Taylor trial has already had 77 witnesses. The influx of legal teams from countries around the world is also striking – the Rwanda tribunal alone employs people from 90 countries.

Lawyers from internationally diverse legal systems must also converge toward a common goal. Even among U.S. and British attorneys, who practice under the same common law system, stark differences exist, said Rapp. For instance, witness preparation: The U.S. believes preparing witnesses for trial is critical, while British attorneys believe witnesses should go straight to the stand so the judge can share in the revelatory moments.

“British attorneys believe that if a witness says something incriminating during prep, than it should be shared with the judge. Americans say, ‘Get rid of that witness!’ said Rapp, to laughter in the audience.  

Also, there is controversy over whether or not to make the trials “crime-based.” Normally, in domestic trials a great deal of time is spent on documenting the crime. For genocides that happened years ago, however, this can be difficult and extraordinarily time-consuming. Rapp believes these trials should focus on witnesses. “Everyone knows 10,000 people died,” said Rapp. “The issue is who is responsible for it?” 

The U.N. established the International Criminal Tribunals for Rwanda and Yugoslavia in the 1990’s. The Sierra Leone court was created in 2002 as a hybrid—it has some backing from the U.N. but relies heavily on donations from individual countries. Raising money is a constant issue, said Rapp. Last August, the court was down to $6,000. It raised money, but that won’t carry it for long. “We can hold on until February and then we’ll have to see,” he said.

Rapp said he has already been forced to take a 50 percent reduction in staff at the Sierra Leone court. “It’s a very challenging time. Very important work is being done now, judgments are coming down, while boxes are being loaded.” 

The trials for the Yugoslavia and Rwanda courts are supposed to end this year, with all appeals exhausted by 2010. But Rapp said they will need to 2009 or ’10 to finish the trials. Whether the UN will provide for it is still undetermined. The General Assembly is sympathetic but the Security Council is much tougher, mainly because Russia has apprehensions about the Yugoslavian court. (The extensions are only granted by Security Council Resolution to approve by all five permanent members, including Russia.)

While staying open is a struggle, ultimately, it is closing the courts that may pose the greatest challenges. “Courts go out of business, but the business of courts is still there,” said Rapp. He explained that habeas corpus appeals by prisoners go on, and witnesses could be harassed or even attacked. There is also the question of what to do with the protected archives containing confidential testimony – how to close and leave a protected legacy for the victims. “That,” Rapp said, “is the greatest challenge of the courts’ existence.”

 — Jane Flanagan

Columbia Law School, founded in 1858, stands at the forefront of legal education and of the law in a global society. Columbia Law School joins traditional strengths in international and comparative law, constitutional law, administrative law, business law and human rights law with pioneering work in the areas of intellectual property, digital technology, sexuality and gender, and criminal law.