The Sierra Leone Special Court

During the war years from 1998 to 2000, one of the main tasks of the UN human rights programme in Sierra Leone was to accurately and comprehensively report on the human rights situation so that the Security Council and other policy and advocacy actors could address the patterns of abuse which underlay the conflict. In order to undertake this monitoring task, the UN programme engaged closely with national and international humanitarian partners. On numerous occasions aid workers were the primary source of human rights-related information; over time, a trusting and effective partnership developed between aid workers and monitors .

Five years later, on the basis of the monitoring reports, the first author was called as a witness for the prosecution in the various trials under way at the Sierra Leone Special Court. He gave evidence for the first time in June 2005 in a closed session. Since the proceedings were closed the details cannot be published here. Suffice to say that he refused to name an information source and only avoided being held in contempt by virtue of a procedural device. He returned to the Court in September 2005 to give evidence in another trial chamber. This time he was willing to give evidence only if the court first issued an order to the effect that it would not compel him to identify sources. The trial chamber declined to so do. In a majority decision it decided that the issue of confidentiality/safety of sources was sufficiently addressed by the fact that evidence would be given in closed session. As a result, he was not called as a witness. The issues are now the subject of an appeal by the Special Court Prosecutor to an Appeal Chamber.

Experience from Yugoslavia

In examining the case, the Appeals Chamber can find some limited guidance in the approach adopted by the International Criminal Tribunal for the former Yugoslavia (ICTY). While the ICTY has not specifically considered the situation of human rights monitors, its findings regarding humanitarian personnel and journalists are relevant.

In the Simic Decision, the ICTY had to determine whether it might compel staff of the International Committee of the Red Cross (ICRC) to testify. The ICTY decided that, due to the ICRC’s reliance on the strictest confidentiality, its officials should benefit from absolute immunity from testifying in international criminal proceedings. The ICTY referred to the ICRC’s mandate under the Geneva Conventions, and suggested that compelling its officials to testify would infringe the ICRC’s impartiality. Tellingly, the ICTY Decision referred to a public interest in ensuring the access and safety of ICRC officials. The Simic Decision, focusing as it does on the specifics of the ICRC, is not, however, immediately applicable to other humanitarian personnel, and many issues of their status before international courts have yet to be decided.

The ICTY outlined a qualified testimonial privilege for war correspondents in the Brdjanin Decision. The court again called attention to the public interest, in this case with reference to the information-gathering function of war correspondents. It was decided that correspondents could only be compelled to testify when their evidence was of direct and critical value in determining a core issue of the case, and could not be obtained elsewhere. On the specific issue of disclosure of sources the court emphasised the importance of maintaining the conditions which sustain a free press.

Some implications for human rights monitoring

Considerations such as these seem directly relevant to the role of human rights monitors. As in the case of ICRC personnel, there is an obvious public interest in protecting their access and ensuring their safety. The arguments regarding the need to protect a free press and how to do so also seem pertinent. It has to be acknowledged, though, that the situation of human rights monitors does raise some specific and distinct issues which were not considered by the ICTY. As a result, the Sierra Leone appeal will have to address a number of novel considerations, as well as revisiting some core concerns.

In the first place, it can be assumed that human rights monitors, unlike some other categories of field worker and journalists, will usually be willing to cooperate with international trials which are intended to ensure individual accountability for crimes such as war crimes and crimes against humanity. After all, international criminal justice is considered to be a bedrock of the system for the enforcement of international human rights law and the application of information gathered by human rights monitors for purposes of prosecutions seems to be proper and appropriate.

Second, the issue of non-disclosure of sources will not arise in every situation in which a monitor gives evidence. For instance, it is irrelevant to situations where the human rights monitor is the primary source of information – where the monitor actually witnessed or experienced the facts being described (a proportion of the first author’s evidence provided to the Special Court was of this nature).

Third, it could also be argued that disclosure of sources is permissible in cases where the original informant has actually given consent. However, there is a need for care here since consent will commonly be neither full nor free. More generally, informants are often in no state to make informed decisions, for instance because they are traumatised or because they are otherwise incapable of assessing the possible implications of their decision. In any case, there will be cases where the human rights monitor may consider that, notwithstanding a fully informed consent, it is imprudent to disclose the source, for instance for reasons of the safety of the source or of others.

Fourth, in the absence of a full, free, informed and otherwise prudent consent the issue of safety remains an obvious consideration. It is sometimes argued (most recently in the Sierra Leone Special Court) that this should be the sole criterion for non-disclosure. But what is not clear is how the assessment of risk is undertaken. Who is to undertake this assessment, and on what basis? How will the accuracy of the assessment be assured? Does it make a difference if information is disclosed in a closed session of court? In Sierra Leone the view was expressed that there is no risk in such conditions. This is nonsense: courts are like sieves and it is impossible to effectively police their multiple actors, at least in the context of international courts. Leaks are even more likely when the court, as in Sierra Leone, is located in the affected country.

Finally, a broader and fundamentally important consideration concerns the impact of a practice of non-consensual disclosure on human rights information-gathering. A considerable amount of the information collected by human rights monitors is of a secondary nature, provided to them by informants. A very high proportion of this information is provided on the understanding, sometimes explicit but often implicit, that the source will not be identified – from religious leaders who fear the impact of disclosure on their pastoral work, from humanitarian workers who fear for their programmes, from government officials who fear for their jobs or worse, from activists who fear for their place in the local community, and so on. It would be extremely difficult to maintain working relations with such informants if it became known that their identities might be revealed at some time in the future. In the case of humanitarian workers, for instance, it is likely that the existing commonplace disinclination to collaborate with human rights monitors would be exacerbated, with obvious implications for the effectiveness of human rights reporting. The chances of there ever again being partnerships as intimate and effective as those in the Sierra Leone war years would appear very remote. The forced disclosure of humanitarian sources might also run counter to any privilege accorded to humanitarian personnel on the basis of the Simic Decision.

Considerations such as these suggest that, in the absence of full, free, informed and prudent consent, it is never appropriate for a human rights monitor to disclose the identity of a source. But what of the rights of the defendant to a fair trial? It might be thought that this approach precludes the possibility of the defence examining the source of what might be damning evidence. This concern does not seem to stand up to close scrutiny. In the first place, one can envisage situations where the human rights monitor may be a witness for the defence. Of course, the monitor is far more likely to be a prosecution witness, but it needs to be kept in mind that the information at issue will in all cases be categorised as of a hearsay nature, with all that this implies in terms of its evidentiary value. In every case the court will need to carefully assess its value, including in the context of any corroborative information which may be presented. It is also the case that, in international courts, evidence will be presented to benches of experienced judges, rather than to lay juries.

Conclusion

It remains to be seen whether the Sierra Leone Appeals Chamber will take account of arguments such as these and the extent to which it may shape some form of evidentiary privilege for human rights monitors.

Much rides on the decision. Without some form of privilege, the basis for cooperation between monitors and courts is put in question – an otherwise obvious partnership thrown into jeopardy. Indeed, if the decision were to result in a refusal of monitors to appear before courts it would raise issues of the monitors themselves coming into violation of court rules (an issue which was explored in the article by Kate Mackintosh in the December 2005 edition of Humanitarian Exchange). If, on the contrary, the decision were actually to encourage the disclosure of sources by monitors it would unravel the systems of information gathering partnership with the humanitarian and other communities.

The implications go beyond the specific issue of human rights monitors and their partnerships. They also raise serious concerns for all other field operations which are considering their relationship with international criminal trials. Most obviously, they cast a shadow over the emerging willingness on the part of some humanitarian actors to provide prosecution evidence. For all the merit of helping secure convictions, what humanitarian organisation or worker could countenance a form of cooperation which would result in the violation of confidences, the jeopardising of safety and the undermining of programmes?

This article has been written in the context of an international and inter-institutional project in support of the professionalisation of human rights field work. For further information, see www.humanrightsprofessionals.org.