Effective, Efficient, and Fair: an Inquiry into the Investigative Practices of the Office of the Prosecutor at the SCSL
Special Court for Sierra Leone
This report began with a series of troubling insights into Prosecution investigative protocol at the Special Court for Sierra Leone (the Special Court or SCSL). During the summer 2007 trial session of the Prosecutor v. Sesay, Kallon, and Gbao, Trial Chamber I called a voir dire to determine the admissibility of post-arrest statements made by the first accused, Issa Sesay, during eleven days of custodial interviews in March and April of 2003. During the voir dire, documentary evidence and Prosecution witnesses confirmed, among other things, that for days immediately following his arrest, Mr. Sesay was isolated in Prosecution custody, questioned at length outside the presence of counsel, offered the prospect of an insider deal without fully understanding the charges against him, and subjected to various forms of off-the-record pressure and inducement. The deeper the Court inquired into the circumstances surrounding Mr. Sesay’s arrest and interrogation, the more evidence of irregularities it revealed. These revelations were compounded by the defensive, evasive, and internally inconsistent testimony of senior investigators, through which they impeached their own credibility. When taken together and considered alongside the testimony of the accused, the voir dire proceedings raised some serious questions about the work quality and oversight provisions maintained within this powerful section of the Special Court.
Based on the evidence presented during the voir dire proceedings, Trial Chamber I ruled in favor of the Defense. The unanimous decision rendered over a thousand pages of custodial interrogation transcripts inadmissible on the grounds that the statements had been obtained involuntarily from the accused “by fear of prejudice and hope of advantage, held out by persons in authority.” Beyond the individual piece of jurisprudence it produced, the voir dire was noteworthy insofar as it exposed the OTP and its Investigations Section to greater public scrutiny. By shedding light on theinternal management of this particularly opaque section of the SCSL, the proceedings offered a rare opportunity for reflection on certain institutional practices which had, up till that point, remained largely impenetrable to outside observers. The Special Court’s founding Prosecutor, David Crane has insisted that, “the Special Court for Sierra Leone is showing the international community that international justice can be fairly, efficiently, and effectively delivered to a war-torn part of the world in a way that allows the people to see that the rule of law is more powerful than the rule of the gun.” However, the voir dire proceedings raised several questions and doubts about investigative procedure at the SCSL: Why did investigators feel at liberty to maintain ongoing off-the record custodial contacts with an unrepresented accused person? Why didn’t the OTP have more explicit internal operating procedures to govern the conduct of its investigators and to guarantee both consistency and transparency in investigative practices? To whom were investigators accountable, and were those supervisors aware of the protocol followed and the tactics being employed off-the-record by their subordinates? How did the organ’s overall prosecution strategy affect the approach to investigations?