Background
To maintain international standards and fulfilment of the Special Court’s mandate, there are a number of legal and practical obligations that did not terminate upon the completion of trials and appeals. The term “residual functions” is used to describe the obligations which are derived from the core mandate of the SCSL as a criminal tribunal mandated to prosecute persons who bear the greatest responsibility for the war in Sierra Leone.
After the closure of the SCSL in 2013 a residual mechanism- the Residual Special Court for Sierra Leone (RSCSL) – will be established to manage the ongoing residual functions. In August 2010 the United Nations and the Government of Sierra Leone signed the Agreement on the Establishment of a Residual Special Court for Sierra Leone (RSCSL). The RSCSL shall carry out its functions at an interim seat in the Netherlands, with a branch or sub-office in Sierra Leone for witness protection and support, until such time as the UN and Government of Sierra Leone agree otherwise.
The 10 critical residual functions of the SCSL are broadly divided into two categories: “ongoing functions” and “ad hoc functions.” The ongoing functions will be managed by a small, permanent office. If any of the ad hoc functions trigger, the office will make all the necessary arrangements to convene the RSCSL as required.
Ongoing Functions
Maintenance, Preservation and Management of the Archive – Long-term preservation of SCSL records in a secure environment. The SCLS archives will be moved to the Dutch National Archive to be collocated with the Nuremberg records in December 2010. A copy of the archives public records remain in Freetown.
Witness Protection and Support – Respond to threats related to testimony given before the SCSL and provide appropriate protection and support measures. Witness protection officers will be located in Freetown. All communications with third States concerning relocations are managed by the permanent office.
Assistance to National Prosecution Authorities – Manage Governmental requests for evidence and information to support investigations, prosecutions, forfeiture proceedings and asylum cases. Ensure that confidentiality obligations are upheld. Manage the disclosure of exculpatory evidence and requests from other States for documents relevant to witness protection orders.
Supervision of Prison Sentences/Pardons/Commutations/Early Releases – The supervision of the enforcement of sentences is a continuing obligation that may extend until 2055. This supervision includes inspection of the conditions of imprisonment, as well as tracking of time served and dates of release, including early release, pardon or commutation.
Ad Hoc Functions
Trial of Johnny Paul Koroma – Koroma is the only person indicted by the SCSL who is not in custody. The RSCSL will have jurisdiction to try him if he is arrested after the closure of the Special Court. The RSCSL shall also have the power and shall undertake every effort to refer the case to a competent national jurisdiction for trial if, under the SCSL Rules of Procedure and Evidence, the Court has not referred the case before closure in 2012.
Review of Convictions and Acquittals – To guarantee the rights of those convicted, the RSCSL will have the authority to manage requests for review from convicted persons and this function may extend until 2055.
Contempt of Court Proceedings – The need to ensure respect for and implementation of court orders as well as the need to sanction persons who violate them is a continuing obligation.
Defence Counsel and Legal Aid Issues – The RSCSL will provide Defense Counsel for residual proceedings. Thus the RSCSL will contract and support Defense Counsel if they are required.
Claims for Compensation – Provision of information to claimants before Sierra Leonean courts.
Prevention of Double Jeopardy – No person shall be tried before a national court of Sierra Leone for acts which he has already been tried by the SCSL or the RSCSL. If JPK is tried by a national court the RSCSL may try him subsequently if the national proceedings were not impartial or independent or were designed to shield him from international justice.
Composition of the Residual Special Court for Sierra Leone
The RSCSL shall carry out its functions at an interim seat in the Netherlands, with a branch or sub-office in Sierra Leone for witness protection and support, until such time as the UN and Government of Sierra Leone agree otherwise. The RSCSL may meet away from its seat if it considers it necessary for the exercise of its functions. Discussions are ongoing in relation to the RSCSL sharing an administrative stage with another organization in the Netherlands and Freetown. The key services to be provided by the host institution would include security, procurement, finance, IT services and facilities management.
The RSCSL shall be composed of the Chambers, consisting of the President and when necessary a Trial Chamber and Appeals Chamber, the Prosecutor, and the Registrar. There shall be a roster of judges who may be assigned to the Trial and Appeals Chamber. The judges shall not receive any remuneration for being on the roster, but shall be remunerated on a pro-rata basis if called upon by the President to serve the RSCSL.
The judges on the roster shall elect a President, who shall serve as the duty judge of the RSCSL. The President shall in as far as possible carry out his or her functions remotely and shall be present at the seat of the RSCSL only as necessary. The President shall be remunerated on a pro-rata basis.
The Secretary-General, after consultation with the Government of Sierra Leone, shall appoint a Prosecutor. The Prosecutor shall in as far as possible carry out his or her functions remotely and shall be present at the seat of the RSCSL only as necessary. The Prosecutor shall be remunerated on a pro-rata basis.
The Secretary-General, in consultation with the President of the RSCSL, shall appoint a Registrar. The Registrar shall be based permanently at the seat of the RSCSL. The Registrar shall be responsible for the administration of the RSCSL and shall also administer the financial resources of the RSCSL. The RSCSL shall retain a small number of administrative staff commensurate with its functions.
The RSCSL shall have an oversight committee to assist in obtaining adequate funding and to provide advice and policy direction on all non-judicial aspects of its operations. The oversight committee shall consist of the UN, the Government of Sierra Leone and significant contributors to the RSCSL. The expenses of the RSCSL shall be borne by voluntary contributions.