Amnesties in international law: The experience of the Special Court for Sierra Leone

Human Rights Law Review

Volumn 5, Issue 2, 2005, Pages 271-309

  Williams, Sarah ^a  

^a DURHAM UNIVERSITY   (United Kingdom)

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EID: 30844454471     PISSN: 14617781     EISSN: None     Source Type: Journal    
DOI: 10.1093/hrlr/ngi016     Document Type: Review

References (223)

1. Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, 16 January 2002. The agreed Statute of the Court was attached ('Statute'). Available at: www.sc-sl.org.
2. Article 1, Agreement.
3. For a more detailed analysis of the jurisdiction of the Court see: Cryer, 'A "Special Court" for Sierra Leone', (2001) 50 International and Comparative Law Quarterly 435
4. Frulli, 'The Special Court for Sierra Leone: Some Preliminary Comments', (2000) 11 European Journal of International Law 857
5. McDonald, 'Sierra Leone's Shoestring Special Court', (2002) 84 Review of the International Red Cross 121
6. Linton, 'Cambodia, East Timor and Sierra Leone: Experiments in International Justice', (2001) 12 Criminal Law Forum 185
7. Scharf, 'The Special Court for Sierra Leone', (2000) ASIL Insights available at: www.asil.org;
8. Jallow, 'The Legal Framework of the Special Court for Sierra Leone', in Ambos and Othman (eds), New Approaches in International Criminal Justice: Kosovo, East Timor, Sierra Leone and Cambodia (Freiburg: Max-Planck Institute, 2003) 149
9. and Stafford, 'A Model War Crimes Court: Sierra Leone', (2003) 10 ILSA Journal of International and Comparative Law 117.
10. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 1949, 75 UNTS 31 (Geneva Convention I);
11. Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea 1949, 75 UNTS 85 (Geneva Convention II);
12. Geneva Convention Relative to the Treatment of Prisoners of War 1949, 75 UNTS 135 (Geneva Convention III);
13. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287 (Geneva Convention IV).
14. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts 1977, 1125 UNTS 609.
15. Offences relating to the abuse of girls under the Prevention of Cruelty to Children Act 1926, and offences relating to the wanton destruction of property under the Malicious Damage Act 1861.
16. The indictments are available on the Special Court website at: www.sc-sl.org. Two indictments have been discontinued due to the death of the accused persons. Two accused persons have not been transferred to the jurisdiction of the Court, although they have filed, through their lawyers, challenges to the Court's jurisdiction.
17. See, for example, Prosecutor v Norman, Preliminary Motion Based on Lack of Jurisdiction (Judicial Independence) Case No. SCSL-2004-14-AR72(E) (2004);
18. Prosecutor v Fofana, Preliminary Motion on Lack of Jurisdiction Materiae: Illegal Delegation of Powers by the United Nations Case No. SCSL-2004-14-AR72(E) (2004);
19. Prosecutor v Kallon, Preliminary Motion Based on Lack of Jurisdiction: Establishment of Special Court Violates Constitution of Sierra Leone Case No. SCSL-2004-15-AR72(E) (2004). All cases had originally been filed under different case numbers. However, following decisions for joinder on 28 January 2004, the Registry decided to assign new case numbers: See Decision for the Assignment of a New Case Number, SCSL-2003-014-PT (2004). All decisions are available from the Special Court website,
20. ibid.
21. The amnesty provision is contained in Article 9 of the Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, 7 July 1999 ('Lomé Accord) available at: www.sierra-leone.org/lomeaccord.html. For the text of Article 9 see infra.
22. Decision of the Appeals Chamber, SCSL-04-15-PT-060.
23. Decision of the Appeals Chamber, SCSL-04-14-T128-7347.
24. Decision of the Appeals Chamber, SCSL-04-15-PT-141.
25. Decision of the Appeals Chamber, SCSL-04-14-PT-102.
26. This brief outline of the history of the conflict is based on several sources. See: Anthony, 'Historical and Political Background to the Conflict in Sierra Leone', in Ambos and Othman (eds), supra n. 3, 131
27. Stafford, supra n. 3,
28. and Human Rights Watch, The Jury is Still Out, Briefing Paper on Sierra Leone, 11 July 2002.
29. For further details of the atrocities committed see: Human Rights Watch, We'll Kill You if You Cry: Sexual Violence in the Sierra Leone Conflict, January 2003. Both Human Rights Watch papers are available at: www.hrw.org.
30. International Centre for Transitional Justice, The Special Court for Sierra Leone: The First Eighteen Months, March 2004, 1.
31. Peace Agreement between the Government of the Republic of Sierra Leone and the Revolutionary United Front of Sierra Leone, 30 November 1996 ('Abidjan Accord'). Available at: www.sc-sl.org.
32. The CDF was aligned to the Government and the regular army of Sierra Leone.
33. Fifth Report of the Secretary-General on the United Nations Observer Mission in Sierra Leone, 4 March 1999, S/1999/237 at paras 2-3. ECOMOG is the military arm of ECOWAS.
34. This was the parties' fourth attempt at peace negotiations, and the second 'comprehensive' peace agreement signed.
35. Article 1, Lomé Accord.
36. See SC Res. 1270, 22 October 1999, S/RES/1270 (1999).
37. UNAMSIL was preceded by an observer mission, see SC Res. 1181, 13 July 1998, S/RES/1181 (1998)
38. and SC Res. 1260, 20 August 1999, S/RES/1260 (1999).
39. See various reports of the United Nations Secretary-General to the Security Council on the situation in Sierra Leone during this period, in particular: Second Report, 11 January 2000, S/2000/13
40. Third Report, 7 March 2000, S/2000/186
41. Fourth Report, 19 May 2000, S/2000/455
42. Fifth Report, 31 July 2000, S/2000/751
43. Sixth Report, 24 August 2000, S/2000/832
44. and Seventh Report, 31 October 2000, S/2000/1055.
45. Ibid.
46. See also Human Rights Watch, We'll Kill You if You Cry, supra n. 14.
47. Annex to letter dated 9 August 2000 from the Permanent Representative of Sierra Leone to the United Nations addressed to the President of the Security Council, S/2000/786, quoted in full by the Appeals Chamber in the Lomé Amnesty Decision, at para. 9.
48. SC Res. 1315, 14 August 2000, S/RES/1315 (2000).
49. Ibid. at para. 1.
50. Ibid. at paras 2, 3 and 8.
51. Ibid. at para. 6.
52. Report of the Secretary-General on the Establishment of the Special Court for Sierra Leone, 4 October 2000, S/2000/915 ('Secretary-General's Report'), at para. 23.
53. UN Press Release, Sierra Leone: UN, Government Sign Historic Accord to Set Up Special War Crimes Court, 16 January 2002.
54. These included the Republic of Togo, Burkina Faso, Ghana, Liberia, Nigeria and Cote d'Ivoire.
55. This follows from the Court's conclusion that it was not bound by the provisions of the amnesty, see below.
56. Vienna Convention on the Law of Treaties 1969, 1155 UNTS 331.
57. There is some confusion as to when the statement was included, and as to whether the statement was made in writing or orally.
58. Quoted from Kondewa Amnesty Decision at para. 8.
59. Secretary-General's Report, supra n. 29 at para. 24.
60. Preamble, SC Res. 1315, supra n. 25.
61. Prosecutor v Kallon, Preliminary Motion Based on Lack of Jurisdiction/ Abuse of Process: Amnesty Provided by the Lomé Accord, filed under Case No. SCSL-2003-07 on 16 June 2003. Prosecutor v Kamara, Application by Brima Bazzy Kamara in respect of Jurisdiction and Defects in Indictment, filed under Case No. SCSL-2003-10 on 22 September 2003 (Section 3 relates to the Lomé Accord amnesty). The Redress Trust, the Lawyers Committee for Human Rights and the International Commission of Jurists were granted leave, and Professor Orentlicher was invited, to make written and oral submissions as amicae curiae: Prosecutor v Kallon, Case No. SCSL-2003-07, Decision on Application by the Redress Trust, Lawyers Committee for Human Rights and the International Commission of Jurists for Leave to file Amicus Curiae Brief and to present oral submissions, 1 November 2003. Leave was also granted for two other defendants, Fofana and Gbao, to intervene, with both filing written submissions in support of oral argument.
62. Rule 72(E) of the Rules of Procedure and Evidence (RPE) (available at www.sc-sl.org) provides that preliminary motions made in the Trial Chamber prior to the Prosecutor's opening statement which raise a serious issue relating to jurisdiction shall be referred to a bench of at least three Appeals Chamber Justices, where they will proceed to a determination as soon as practicable. Rule 72(F) provides that preliminary motions made in the Trial Chamber prior to the Prosecutor's opening statement which, in the opinion of the Trial Chamber, raise an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of a trial shall be referred to a bench of at least three Appeals Chamber Justices, where they will proceed to a determination as soon as practicable. For purpose and/or lawfulness of Rule 72 see: Prosecutor v Norman (Case No. SCSL-2003-08);
63. Prosecutor v Kallon (Case No. SCSL-2003-07);
64. and Prosecutor v Gbao (Case No. SCSL-2003-09), Decision on the Applications for a Stay of Proceedings and Denial of Right to Appeal, Appeals Chamber, SCSL-03-07-PT-127.
65. See decisions on 30 September 2003 (Kallon) and 9 October 2003 (Kamara).
66. Counsel for Fofana and Gbao also submitted that the Lomé Accord was an international agreement, this submission being based upon the signatures of the United Nations and the other States and international organisations to the Lomé Accord.
67. The signatures of the United Nations and other international organisations and States did not demonstrate that these entities were parties to the Lomé Accord. Instead, these entities attached their signatures in their capacity as moral guarantors of the obligations in the Lomé Accord, see Article 34 of the Lomé Accord.
68. Common Article 3 provides, inter alia: 'The parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention'.
69. The Court's conclusion is contrary to the view expressed by Professor Kooijmans (now a judge of the International Court of Justice), that the Lusaka Protocol, the peace agreement which ended the conflict in Angola and was signed by the President of the Republic of Angola, UNITA, the SRSG of the United Nations as a mediator in the presence of representatives of the United States, Russia and Portugal, was international in character. Professor Kooijmans noted that 'the fact that it is concluded between a government and an insurrectionist party does not in itself detract from its international character.' The significant involvement of the United Nations, in particular the Security Council, in the conflict and its end, provided the agreement with its international character. See Kooijmans, 'The Security Council and Non-State Entities as Parties to Conflicts', in Wellens (ed.), International Law: Theory and Practice, Essays in Honour of Eric Suy (The Hague: Martinus Nijhoff, 1998) 333 at 338. The Sierra Leone Court rejected this analysis, finding that the Lomé Accord did not create either rights obligations under international law, as any breach of the agreement would be subject to action in domestic law only. Even the involvement of the Security Council could not transform a domestic agreement into an international agreement.
70. Jean-Bosco Barayagwiza v The Prosecutor, Appeal, ICTR-97-19-AR72 (1999).
71. Prosecutor v Dusko Tadić, Decision on the Defence Motion on Jurisdiction, IT-94-1 (1995).
72. Para. 60, Lomé Amnesty Decision. However, this submission was based on the argument that the Lomé Agreement created 'an internationally binding obligation', thus the creation of the special court was an 'abuse of the international legal system'. The submission also perceives the Court as a 'mechanism for maintaining international peace and security', suggesting that this argument may also be based on a Chapter VII mandate, an argument that was rejected by the Court in Prosecutor v Morris Kallon et al, Decision on Constitutionality and Lack of Jurisdiction, SCSL-2004-14-AR72E (2004), at paras 42-3.
73. Para. 76, Lomé Amnesty Decision.
74. On the basis of the Court's assessment that the Agreement was a treaty, and Articles 53 and 64 of the VCLT.
75. Para. 62, Lomé Amnesty Decision.
76. Supra n. 46.
77. Para. 62, Lomé Amnesty Decision.
78. Articles 46, 48, 49, 51, 52 and 50, VCLT respectively.
79. Para. 64, Lomé Amnesty Decision.
80. Para. 80, ibid.
81. The Court had already considered this inherent jurisdiction, but said that it did not apply to Article 10, see above.
82. Para. 84, Lomé Amnesty Decision.
83. Para. 69, Lomé Amnesty Decision.
84. For example, see Prosecutor v Sesay, Kallon and Gbao, Amended Consolidated Indictment, 13 May 2004. Count 14 relates to the unlawful taking and destruction of civilian property, which is charged as pillage, a violation of Common Article 3. Counts 6-9 include sexual violence against women and girls, which are charged as crimes against humanity (rape, sexual slavery and forced marriage) and a violation of Common Article 3 (outrages on personal dignity).
85. The Prosecutor has brought charges for events occurring after the Lomé Accord: Counts 15-18, which relate to attacks from April to September 2000,
86. ibid.
87. Counsel for Fofana made similar submissions, arguing that international law does not prohibit the granting of amnesties.
88. Letter to the Security Council, supra n. 24.
89. SC Res. 1260, supra n. 21 at para. 1.
90. Ibid. at para. 2.
91. Ibid. at para. 10.
92. Para. 67, Lomé Amnesty Decision.
93. Para. 69, ibid.
94. Attorney General of the Government of Israel v Eichmann (1961) 36 ILR 5.
95. Para. 70, Lomé Amnesty Decision.
96. Case Concerning Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) ICJ Reports, 2002, in particular para. 61, which establishes the principle that 'an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction'.
97. Prosecutor v Anto Furundžija, Trial Chamber, IT-95-17/1-T (1998), in particular para. 14 of the Trial Chamber's judgment, which relies upon a statement by the Trial Chamber in Tadić that the ICTY has jurisdiction over all serious violations of international humanitarian law in accordance with its Statute.
98. Para. 70, Lomé Amnesty Decision.
99. The Court quotes Cassese's conclusions in Cassese, International Criminal Law (Oxford: Oxford University Press, 2003) at 315
100. see para. 71, Lomé Amnesty Decision.
101. Para. 71, ibid (emphasis added).
102. Para. 72, ibid.
103. See, for discussion: Cassese, supra n. 73 at 284-95
104. Hall, 'Universal Jurisdiction: New Uses for an Old Tool', in Lattimer and Sands (eds), Justice for Crimes Against Humanity (Oxford: Hart Publishing, 2003) 47
105. and Joyner, 'Arresting Impunity: The Case for Universal Jurisdiction in Bringing War Criminals to Accountability', (1996) 59 Law and Contemporary Problems 151.
106. See also the Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal in Democratic Republic of Congo v Belgium, supra n. 70.
107. For example, Article 4(c) of the Statute empowers the Court to prosecute persons accused of '[c]onscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities'. However, this is not accepted as giving rise to universal jurisdiction. In Prosecutor v Sam Hinga Norman, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), SCSL-2004-14-AR72(E) (2004), the Appeals Chamber considered whether Article 4(c) was representative even of customary international law at the relevant time.
108. Both Spain and Belgium have passed legislation conferring upon their courts jurisdiction for crimes committed outside their territory. For further discussion, see Cassese, supra n. 73 at 286-91.
109. See: Morris, 'High Crimes and Misconceptions: The ICC and Non-Party States', (2001) 64 Law and Contemporary Problems 13
110. Scheffer, 'The International Criminal Court: The Challenge of Jurisdiction', (1999) ASIL Proceedings 68
111. and Akande, 'The Jurisdiction of the ICC over Nationals of Non-Parties: Legal Basis and Limits', (2003) 1 Journal of International Criminal justice 618.
112. Morris, ibid. at 29.
113. Ibid.
114. Ibid. at 27-35.
115. For further discussion, see Williams, 'The Jurisdictional Basis of the Special Court for Sierra Leone' (forthcoming).
116. Scharf, 'The ICC's Jurisdiction over the Nationals of Non-Party States: A Critique of the US Position', (2001) 64 Law and Contemporary Problems 67 at 76.
117. See also Sadat and Carden, 'The New International Criminal Court: An Uneasy Revolution', (2000) 88 Georgetown Law Journal 381 at 413
118. and Paust, 'The Reach of ICC Jurisdiction over Non-Signatory Nationals', (2000) 33 Vanderbilt Journal of International Law 1 at 7.
119. Submission quoted by the Court; para. 82, Lomé Amnesty Decision.
120. Redress submissions, available at: www.redress.org.
121. These included the Convention on the Prevention and Punishment of Genocide 1948, 78 UNTS 277; the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, 1465 UNTS 85; and the Geneva Conventions I-IV: See para. 82, Lomé Amnesty Decision. The Court was also referred to the relevant General Assembly resolutions, and certain Security Council resolutions which were argued to reaffirm a state's obligation to extradite or prosecute: See Redress submissions.
122. Orentlicher brief, discussed at para. 83, Lomé Amnesty Decision.
123. Stahn, 'United Nations Peace-Building, Amnesties and Alternative Forms of Justice: A Change in Practice?', (2002) 84 Review of the International Red Cross 191.
124. See also Report of the Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, 3 August 2004, S/2004/616.
125. Suggestions that certain violations of international duties should give rise to a duty to the wider international community, and that breaches of that duty may be enforced by any State have been incorporated into Article 40 of the International Law Commission's Draft Articles on Responsibility of States for Internationally Wrongful Acts 2001. The inclusion of this provision was controversial, and the duty is limited to serious breaches of peremptory norms. See Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge: Cambridge University Press, 2002) at 245-8.
126. Para. 73, Lomé Amnesty Decision (emphasis added).
127. Para 82, ibid.
128. This duty is set out in Article 7, CAT. Sierra Leone is not a party to the Convention on the Prevention and Punishment of the Crime of Genocide 1948, and it is doubtful that the crimes committed in Sierra Leone amounted to genocide. Sierra Leone is a party to the 1949 Geneva Conventions (from 6 October 1965) and Additional Protocols I and II (from 21 October 1986). However, the obligation to prosecute or extradite persons who have committed grave breaches is limited to international armed conflicts and does not apply to the internal armed conflict in Sierra Leone (for example, see Article 49, Geneva Convention I). Sierra Leone acceded to the International Covenant on Civil and Political Rights 1996, 999 UNTS 171 (ICCPR) on 23 November 1996. Some commentators have suggested that international human rights law requires States to prosecute violations, and thus precludes amnesties;
129. see: Orentlicher, 'Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime', (1991) 100 Yale Law journal 2537
130. Roht-Arriaza, 'The Developing Jurisprudence on Amnesty', (1998) 20 Human Rights Quarterly 953. However, it is submitted that the obligation only extends to the investigation of the violation, not to criminal prosecution, as other measures, such as non-judicial procedures or compensation may satisfy the State's positive obligation to prevent further violations.
131. Article 1, CAT.
132. For a good discussion of the arguments see: Scharf, 'The Letter of the Law: The Scope of the International Legal Obligation to Prosecute Human Rights Crimes', (1996) 59 Law and Contemporary Problems 41.
133. See also: Orentlicher, supra n. 93
134. Roht-Arriaza, supra n. 93
135. Ratner, 'New Democracies, Old Atrocities: An Inquiry in International Law', (1999) 87 Georgetown Law Journal 707
136. Gavron, 'Amnesties in the Light of Developments in International Law and the Establishment of the International Criminal Court', (2002) 51 International and Comparative Law Quarterly 91
137. and Scharf, 'Swapping Amnesty for Peace: Was There a Duty to Prosecute International Crimes in Haiti?', (1996) 31 Texas International Law Journal 1.
138. Recent examples include Timor Leste, where the legislature is considering introducing a qualified amnesty provision (See Draft Law 24/ I/2 On Amnesty and Other Clemency Measures);
139. Liberia (Article 34, Agreement on Ceasefire and Cessation of Hostilities, 17 June 2003, available at: www sc-sl.org);
140. and Uganda (Amnesty Act 1999).
141. In 1998, the United Nations issued a series of guidelines to staff engaged in negotiating peace settlements. While the text of the guidelines is not publicly available, the guidelines provide that no person representing the Secretary-General may support an amnesty for crimes against humanity, genocide or war crimes or which would encourage a state to breach treaty obligations.
142. Stahn, supra n. 89.
143. Scharf, 'The Letter of the Law', supra n. 95 at 57.
144. Scharf, 'The Amnesty Exception to the Jurisdiction of the International Criminal Court', (1999) 32 Cornell International Law Journal 507 at 512.
145. Azanian Peoples Organization (AZAPO) v President of the Republic of South Africa (1996) 4 SA 672.
146. For more detailed analysis of the AZAPO decision, see O'Shea, Amnesty for Crime in International Law and Practice (The Hague: Kluwer International, 2002) at 47-55.
147. Post-conflict amnesties can be distinguished from self-excusing amnesties (granted by governments for their own human rights violations, for example in Peru) and transitional amnesties (where a transitional government grants an amnesty for acts committed during the state's previous regime, for example the amnesty granted in South Africa);
148. see: Gallagher, 'No Justice, No Peace: The Legalities and Realities of Amnesty in Sierra Leone', (2000) 23 Thomas Jefferson Law Review 149.
149. The possible exception to this is Norman, who was the Minister of the Interior for Sierra Leone when the indictment was issued under power sharing arrangements. He had led the Civil Defence Forces (CDF), an organisation that had some support from the State.
150. See, for example: Dugard, 'Dealing With Crimes of a Past Regime. Is Amnesty Still an Option?', (1999) 12 Leiden Journal of International Law 1001
151. and Slye, 'The Legitimacy of Amnesties under International Law and General Principles of Anglo-American Law: Is a Legitimate Amnesty Possible?', (2002) 43 Virginia Journal of International Law 174.
152. For a discussion of the relationship between the TRC and the Court, see: Schabas, 'The Relationship between Truth Commissions and International Courts: The Case of Sierra Leone', (2003) 25 Human Rights Quarterly 1035
153. and Evenson, 'Truth and Justice in Sierra Leone: Coordination Between Commission and Court', (2004) 104 Columbia Law Review 730.
154. For truth commissions generally, see Landsman, 'Alternative Responses to Serious Human Rights Abuses: Of Prosecution and Truth Commissions', (1996) 59 Law and Contemporary Problems 81
155. and Robinson, 'Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court', (2003) 14 European Journal of International Law 481.
156. See, for example, Dugard, supra n. 105
157. and Slye, supra n. 105.
158. Justice Robertson had not participated in the judgment on the first application as he had been precluded from adjudicating on motions involving alleged members of the RUF before the Appeals Chamber (Kallon being an alleged leader of the RUF): Prosecutor v Sessay, Decision on Defence Motion Seeking the Disqualification of Justice Robertson from the Appeals Chamber, SCSL-2004-15 (1201-1208).
159. '[W]e find nothing that adds to the various arguments that were dealt with in the Lomé Amnesty Decision', thus the majority dismissed the preliminary motion; para. 2, Kondewa Amnesty Decision.
160. Justice Robertson agreed with the Court's conclusion in the Lomé Amnesty Decision, and also agreed with the finding that that decision forecloses any new decision in Kondewa;
161. see para. 4, ibid.
162. The Appeals Chamber in the Lomé Amnesty Decision did not consider a textual or interpretative approach to the amnesty issue.
163. Para. 12, Kondewa Amnesty Decision.
164. [1995] 1 AC 396. This case concerned a pardon granted to insurgents who had seized the Parliament building, along with hostages, in an armed insurrection designed to overthrow the government of Trinidad and Tobago. The Privy Council held that the pardon was conditional upon the release and safe return of the hostages within a reasonable time. This condition had not been complied with, thus rendering the pardon invalid.
165. Para. 23, Kondewa Amnesty Decision.
166. Ibid.
167. Ibid.
168. Para. 24, ibid.
169. Para. 27, ibid.
170. Ibid.
171. Para. 28, ibid.
172. Statement, infra n. 127, at paras 37-8
173. and Letter, supra n. 24.
174. Ceasefire Agreement Between the Government of Sierra Leone and the RUF, Abuja, 10 November 2000. The preamble to the agreement reaffirms the parties' commitment to the Lomé Accord 'as the framework for the restoration of genuine and lasting peace to the country'.
175. For a discussion of the 2000 ceasefire agreement and the Lomé Accord, see Macaluso, 'Absolute and Free Pardon: The Effect of the Amnesty Provision in the Lomé Peace Agreement on the Jurisdiction of the Special Court for Sierra Leone', (2001) 27 Brooklyn Journal of International Law 347.
176. Article 1, Statute.
177. This can be contrasted with the prosecutorial discretion accorded to the ICC Prosecutor. Article 53 of the Rome Statute of the International Criminal Court 1998, 2187 UNTS 90 ('Rome Statute') empowers the Prosecutor to decline to initiate a prosecution on the grounds that: there is an insufficient legal or factual basis; the case is inadmissible under the complementarity provisions; or the prosecution is not in the interests of justice. Whilst a decision on the final ground is subject to review by the Pre-Trial Chamber of its own initiative or on the request of a referring state (Article 53(3)), the Rome Statute accords greater discretion to the Prosecutor to examine the merit of national amnesty provisions. Several writers have suggested that prosecutorial discretion is one of the mechanisms (if not the only) for the ICC to determine the applicability of amnesty provisions: See, for example, Gavron, supra n. 95,
178. Scharf, supra n. 100.
179. For submissions on the contrary argument, see below.
180. Statement by President Kabbah made before the Truth and Reconciliation Commission on 5 August 2003, available at: www.sierra-leone.org.
181. Ibid. at para. 35 (emphasis added).
182. Supra n. 24.
183. Secretary-General's Report, supra n. 29 at para. 23.
184. Para. 10, Kondewa Amnesty Decision.
185. Para. 11, ibid.
186. Para. 12, ibid.
187. Para. 63, Lomé Amnesty Decision.
188. Para. 53, Kondewa Amnesty Decision. Justice Robertson disagreed with the approach adopted by the ICTR in Barayagwiza as 'an unsatisfactory approach', as negligence or prosecutorial misconduct would not normally preclude a fair trial.
189. Para. 25, Kondewa Amnesty Decision.
190. Ibid.
191. Paras 30 and 31, ibid.
192. Justice Robertson relied upon a BBC interview with the UK Foreign Secretary on 10 January 2003, and the comments of the UK Prime Minister in HC Deb., Vol. 401, col. 936 (19 March 2003).
193. Comprehensive Peace Agreement Between the Government of Liberia and the Liberians United for Reconciliation and Democracy (LURD) and the Movement for Democracy in Liberia (MODEL), August 2003. Article 34 provides that 'The NTGL [National Transitional Government of Liberia] shall give consideration to a recommendation for general amnesty to all persons and parties engaged or involved in military activities during the Liberian civil conflict that is the subject of this Agreement.'
194. This states: 'At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons relating to the armed conflict, whether or not they are interned or detained.'
195. Para. 32, Kondewa Amnesty Decision.
196. Para. 33, ibid.
197. See paras. 34-46, ibid.
198. Para. 47, ibid.
199. Para. 48, ibid.
200. Justice Robertson considered the 'exception or justification' approach discussed by the International Court of Justice in the Nicaragua decision (Nicaragua v United States, Merits, Judgment, ICJ Reports, 1996 at para. 186). States being questioned or condemned regarding the grant of an amnesty are increasingly showing embarrassment, and recognising that the amnesty may violate international obligations. Thus, the reliance on exceptional circumstances to justify their approach may confirm rather than weaken the rule'.
201. See para. 47, ibid.
202. Para. 48, ibid.
203. Article 1, Rome Statute.
204. Article 53(2)(c) provides that the Prosecutor may conclude that there is not a sufficient basis for prosecution because the prosecution 'is not in the interests of justice'. This decision may be subject to review by the Pre-Trial Chamber under Article 53(3)(b). For amnesties and the Rome Statute see: Scharf, supra n. 100
205. Gavron, supra n. 95
206. O'Shea, supra n.102
207. Robinson, supra n. 106
208. and Mazjub, 'Peace or Justice? Amnesties and the International Criminal Court', (2002) 3 Melbourne Journal of International Law 247.
209. See sources cited ibid.
210. The recent referral to the ICC of the situation in Uganda seems likely to require both the Prosecutor and the ICC itself to adopt a stance on the effect of domestic amnesties on the ICUs jurisdiction. The ICC and the Government of Uganda have entered into an agreement which will modify the effect of the Amnesty Act 2000, which pardoned all combatants in rebel activities in Uganda since 1986; see: International Law in Brief, 15 October 2004.
211. Para. 1(3), Gbao Amnesty Decision.
212. Ibid.
213. Composed of Justices Winter, Gelaga King, Ayoola and Fernando.
214. Para. 5, Gbao Amnesty Decision.
215. Para. 6, ibid.
216. Para. 7, ibid.
217. Para. 8, ibid.
218. In particular see Akande, supra n. 79, and the sources cited therein.
219. It was the Agreement that established the Court, not Resolution 1315: Article 1 of the Agreement provides 'There is hereby established a Special Court for Sierra Leone...'.
220. Para. 1(4), Gbao Amnesty Decision.
221. Para. 11, ibid.
222. Paras 4 and 5, Fofana Amnesty Decision.
223. Para. 3, ibid.