International Humanitarian Law, War Criminality and Child Recruitment: The Special Court for Sierra Leone's Decision in Prosecutor v. Samuel Hinga Norman

Leiden Journal of International Law

Volumn 18, Issue 2, 2005, Pages 283-297

  Happold, Matthew ^a  

^a UNIVERSITY OF NOTTINGHAM   (United Kingdom)

Author keywords

child recruitment; International criminal law; violations of the international humanitarian law as war crimes

Indexed keywords

EID: 33748112040     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156505002645     Document Type: Article

References (80)

1. See Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915 (4 October 2000), paras. 26-7.
2. See the Sierra Leone Truth and Reconciliation Commission Report, 27 October 2004, Vol. 2, ch. 2, para. 331.
3. the Sierra Leone Truth and Reconciliation Commission Report., para. 332.
4. For a description of the circumstances of Hinga Norman's arrest, see the testimony of Desmond de Silva QC, DeputyProsecutor of theSpecial Court, inHouse ofCommonsInternationalDevelopmentSelectCommittee, Minutes of Evidences, 18March 2003, HC 548, para. 19. According to the Deputy Prosecutor, Hinga Norman was arrested at his desk, with British forces (the Gurkhas and HMS Iron Duke-which had its guns trained on Freetown) on full alert to counter feared demonstrations in his support.
5. Prosecutor v. Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa, Case No. SCSL-03-14-I, Consolidated indictment, 4 February 2004.
6. Rules of Evidence and Procedure, adopted on 16 January 2002, as amended on 7March 2003, 1 August 2003, 30 October 2003, 14 March 2004 and 29 May 2004. Rule 72(E) requires preliminary motions which ‘raise a serious issue relating to jurisdiction’ to be referred directly to the Appeals Chamber. For criticisms of the Rule on fair trial grounds, see A. Smith, ‘Child Recruitment and the Special Court for Sierra Leone’, (2004) 2 JICJ 1141, at 1149-52.
7. Prosecutor v. Samuel HingaNorman,CaseNo. SCSL-2004-14-AR729E,AppealsChamber, Special Court for Sierra Leone, Decision on preliminarymotion based on lack of jurisdiction (child recruitment), 31May 2004.
8. Art. 1(1), Statute of the Special Court for Sierra Leone, Prosecutor v. Samuel HingaNorman note 2.
9. This article will follow the convention of defining as children all persons under 18 years of age. See Art. 1 of the Convention on the Rights of the Child (1577 UNTS 3 (1989)), which states that: ‘For the purposes of the present Convention a child means every human being below the age of eighteen years unless, under the law applicable to the child,majority is attained earlier.’
10. Art. 77(2), Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3 (1977).
11. Art. 4(2)(c), Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609 (1977).
12. Art. 38, Convention on the Rights of the Child, Art note 11. Art. 38 provides, inter alia, that states parties ‘shall take all feasiblemeasures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities’ and ‘shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces’.
13. For further analysis of theOP-CRC, seeM.Happold, ‘The Optional Protocol to theConvention onthe Rights of the Child on the Involvement of Children in Armed Conflict’, (2000) 3 Yearbook of InternationalHumanitarian Law 226.
14. OAU Doc. CAB/LEG/24.9/49 (1990).
15. Art. 8(b)(xxvi) and 8(c)(vii), Rome Statute of the International Criminal Court, UN Doc. A/CONF.189/5* (1998).
16. Report of the Secretary-General Art note 3.
17. Report of the Secretary-General Art note., at paras 17-18 (paragraph numbers omitted).
18. See “e.g.” Amnesty International news release, ‘The Special Court for Sierra Leone’, 20 October 2000, AFR 51/081/2000; Human Rights Watch, ‘Justice and the Special Court: Letter to the United Nations Security Council’, 1 November 2000; and Coalition to Stop the Use of Child Soldiers, ‘Appeal on Sierra Leone: Special Court should prosecute recruiters, not child soldiers’, 7 November 2000.
19. Letter dated 22 December from the President of the Security Council addressed to the Secretary-General,UN Doc. S/2000/1234, 2.
20. Letter dated 22 December from the President of the Security Council addressed to the Secretary-General., Annex.
21. It is also of interest because, as Security Council presidential statements are adopted by consensus, it marked the reversal of the US position on the criminality of child recruitment. During the negotiation of the Rome Statute, the USA had argued that violations of the prohibition of child recruitmentwere not criminal, as the prohibition was a provision of human rights rather than humanitarian law. See text to note 42 infra.
22. Ninth report of the Secretary-General on the United Nations Mission in Sierra Leone, UN Doc. S/2001/228 (14March 2001), para. 54.
23. Norman, Ninth report of the Secretary-General on the United Nations Mission in Sierra Leone note 9, para. 1.
24. Norman., para. 26.
25. Statute of the International Criminal Tribunal for the Former Yugoslavia, Annex, SC Res. 827 (25May 1993).
26. Prosecutor v. Tadić, Case No. IT-94-1-A, Appeals Chamber, International Criminal Tribunal for the former Yugoslavia, decision of 2 October 1995, para. 94.
27. Norman, Prosecutor v. Tadić note 9, para. 17.
28. Norman., para. 20.
29. This has become known as the ‘Baxter paradox’. See R. R. Baxter, ‘Treaties and Custom’ (1970) 129 Recueil des cours 27, 64-73; and T.Meron, Human Rights and Humanitarian Norms (1989), 50-1.
30. Iran, for example,has stated that it ‘reserves the right not to apply any provisions or articles of the Convention that are incompatiblewith Islamic laws and the internal legislation ineffect’. Given its conduct inthe 1980-8 Gulf War, it is arguable that the reservation is intended to exempt Iran from the obligations contained in Art. 38. For further discussion, see M. Happold, ‘Child Soldiers in International Law: The Legal Regulation of Children's Participation in Hostilities’, (2000) 47 Netherlands International Law Review 27, at 44.
31. For a more in-depth discussion of the issue, see Iran, for example,has stated that it ‘reserves the right not to apply any provisions or articles of the Convention that are incompatiblewith Islamic laws and the internal legislation ineffect’., 43-8.
32. Both the International Committee of the Red Cross and the United Nations Commission on Human Rights relied upon Art. 77(2) in the 1980-8 GulfWar.However, AP Iwas not in force between Iran and Iraq. Iran had signed but not ratified the treaty,whilst Iraq had neither signed nor ratified it. See C.Greenwood, ‘Customary Status of the 1977 Geneva Protocols’, in A. J. M. Delissen and G. J. Tanja (eds.), Humanitarian Law of Armed Conflict: Challenges Ahead: Essays in Honour of Frits Kalshoven (1991), 101-2.
33. Assuming that the correct approach is to interpret active participation as having the samemeaning as direct participation in hostilities. See Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Chamber, International Criminal Tribunal for Rwanda, judgment of 2 September 1998, para. 629; and Prosecutor v. Rutaganda, Case No. ICTR-1993-3-T, Trial Chamber, International Criminal Tribunal for Rwanda, judgment of 6 December 1999, para. 100. For a different view, see Smith, Both the International Committee of the Red Cross and the United Nations Commission on Human Rights relied upon Art note 8, 1144-6.
34. It might be remarked that Art. 20(3) of the Special Court's Statute (Assuming that the correct approach is to interpret active participation as having the samemeaning as direct participation in hostilities note 2) only provides that the Appeals Chamber shall be ‘guided’ by the decisions of the Appeals Chambers of the International Criminal Tribunals for the former Yugoslavia and Rwanda. It is not bound by them.
35. See H. Lauterpacht, ‘The Law of Nations and the Punishment of War Criminals’, (1994) 58 BYIL 78-9; and B. V. A. Röling, The Law of War and the National Jurisdiction since 1945’, (1960) 100 Recueil des cours 323, at 340.
36. This is, of course, simply the third of the Tadić conditions. See text to note 28 ‘The Law of Nations and the Punishment of War Criminals’. In consequence, one can see this approach as requiring only proof of the first three of the Tadić criteria.
37. This is, of course, simply the third of the Tadić conditions note 9, para. 33.
38. See Greenwood, This is, of course, simply the third of the Tadić conditions note 9 note 34, 113.
39. See H. von Hebel and D. Robinson, ‘Crimes within the Jurisdiction of the Court’, in R. S. Lee (ed.), The International Criminal Court: TheMaking of the Rome Statute: Issues, Negotiations, Results (1999), 117.
40. ‘Crimes within the Jurisdiction of the Court’. It is generally accepted that individual breaches of human rights norms are not per se criminal unless specifically criminalized. For a telling example, see Art. 4 of the Convention Against Torture, 1465 UNTS 65 (1989). Crimes against humanity must be part of a widespread or systematic attack against a civilian population.
41. ‘Crimes within the Jurisdiction of the Court’., 117-18.
42. Norman, Although the stance taken does indicate that the customary status of the prohibition of child recruitment didmatter to the negotiators note 9, para. 35.
43. Norman., para. 41.
44. This in itself was not uncontroversial, as the defence had applied (unsuccessfully) to have Justice Winter recused from deliberating on the motion on the ground of an alleged disqualifying connectionwithUNICEF. See Prosecutor v. Samuel Hinga Norman, Case No. SCSL-04-14, Appeals Chamber, Special Court for Sierra Leone, Decision on themotion to recuse JusticeWinter from deliberating in the preliminarymotion on the recruitment of child soldiers, 28 May 2004. For commentary, see J. Cockayne, ‘The Special Court for Sierra Leone: Decisions on the Recusal of Judges Robertson andWinter’, (2004) 2 JICJ 1154.
45. Norman, This in itself was not uncontroversial, as the defence had applied (unsuccessfully) to have Justice Winter recused from deliberating on the motion on the ground of an alleged disqualifying connectionwithUNICEF note 9, para. 45.
46. Norman., para. 47.
47. In a number of countries, military recruiters have frequently recruited persons below the minimum legal age for recruitment. This has been particularly the casewhenindividuals lack documentation verifying their age. See R. Brett and M.McCallin, Children: The Invisible Soldiers (1998), 80-3.
48. Norman, a number of countries, military recruiters have frequently recruited persons below the minimum legal age for recruitment note 9, para. 45. The three states are Argentina, Ireland and Norway. The latter two states’ legislation simply criminalizes all breaches of AP II.
49. Norman., para. 39.
50. Prosecutor v. Samuel Hinga Norman, Case No. SCSL-2004-14-AR729E, Appeals Chamber, Special Court for Sierra Leone, Decision on preliminarymotion based on lack of jurisdiction (child recruitment), 31May 2004, Dissenting Opinion of Justice Robertson, para. 4.
51. Prosecutor v. Samuel Hinga Norman., para. 5
52. Prosecutor v. Samuel Hinga Norman., para. 6.
53. Prosecutor v. Samuel Hinga Norman., para. 9.
54. Prosecutor v. Samuel Hinga Norman., para. 10.
55. Tadić, Prosecutor v. Samuel Hinga Norman note 28, para. 128.
56. Norman, Tadić note 53, para. 22.
57. Norman., para. 33.
58. Report of the Secretary-General, Norman note 3, para. 18.
59. The emphasis on child enlistment is revealing. The CDF indictment does not charge the forcible or compulsory recruitment of children: see text to note 7 Report of the Secretary-General. The TRC's report, which stated that other groups had been responsible for the abduction and forcible recruitment of children during the civil war, merely found that the CDF was ‘responsible for recruiting children for the purpose of compelling them to become soldiers in the conflict’, a rathermore ambiguous finding. See Report of the Secretary-General note 4, para. 478.
60. See A. Cassese, International Criminal Law (2003), 317-9 for discussion of the issue.
61. UNTS 150 (1951). See also the Protocol Relating to the Status of Refugees, 606 UNTS 267 (1967). Art. 1F provides, inter alia, that the Refugee Convention: ‘shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up tomake provision in respect of such crimes.’
62. Such as the failure by a commander of a prisoner of war camp to keep a complete record of disciplinary punishments in breach of Art. 96 of GC III (an example given in S. R. Ratner, ‘War Crimes, Categories of’, in R.GutmanandD. Rieff (eds.), Crimes ofWar:Whatthe Public ShouldKnow(1999)) or the failure of a commander of a civilian internment camp to ensure that its canteen sells tobacco or soap ‘at prices not higher than local market prices’ in breach of Art. 87 of GC IV (an example given in Y. Sandoz, ‘Penal Aspects of International Humanitarian Law’, inM. Cherif Bassiouni (ed.), International Criminal Law (1999), 408).
63. G. Abi-Saab, ‘The Concept of ‘War Crimes'’, in S. Yee andW. Tieya (eds.), International Law in the post-ColdWar World: Essays inMemory of Li Haopei (2001), 112.
64. Cassese, ‘The Concept of ‘War Crimes'’ note 63, at 51.
65. Although one might consider that the appearance of the rule in the statute of an international criminal tribunal cannot, of itself, be decisive. That would be bootstrapping and violate the principle of nullum crimen sine lege.
66. Cassese, Although one might consider that the appearance of the rule in the statute of an international criminal tribunal cannot, of itself, be decisive note 63.
67. See C. Greenwood, ‘International Humanitarian Law and the Tadić Case’, (1996) 7 EJIL 265, 279-81.
68. ‘International Humanitarian Law and the Tadić Case’., at 280.
69. See the provisions in the UK, US and Canadianmilitarymanuals cited by Greenwood, ‘International Humanitarian Law and the Tadić Case’., at 280, n. 49 and accompanying text.
70. At least one of the Nigerian prosecutions relied on (Pius Nwaoga v. The State, (1972) 55 ILR 494) was a trial for murder under Nigerian domestic law (see Greenwood, the provisions in the UK., at 278), whilst the Appeals Chamber's conclusion that the Yugoslav criminal code permitted the prosecution of persons for violations of international humanitarian law in internal armed conflicts was by no means an obvious interpretation of the provisions and failed to refer to any supporting Yugoslav authority.
71. Tadić, At least one of the Nigerian prosecutions relied on note 28, para.129.
72. Trial of Major German War Criminals: Proceedings of the International Military Tribunal sitting at Nuremberg Germany, Part 22 (1950), 445-7, cited in Tadić., para. 128.
73. 1907 Hague Convention IV Respecting the Laws and Customs ofWar on Land, UKTS 9 (1910), Cd. 5030.
74. GermanWar Criminals, 1907 Hague Convention IV Respecting the Laws and Customs ofWar on Land note 80, at 467. Indeed, owing to the si omnes clause in the Hague Convention, the IMT could only apply its provisions as customary international law.
75. Those of the USA and the UK: see Tadić, GermanWar Criminals note 28, para. 131.
76. Perhaps in an adaptation of the notion of ‘custom on a sliding scale’: see F. L. Kirgis Jr., ‘Custom on a Sliding Scale’, (1987) 81 AJIL 146.
77. For a recent discussion of the issue, see M. Shahabuddeen, ‘Does the Principle of Legality Stand in theWay of Progressive Development of Law?’, (2004) 2 JICJ 1007.
78. See Rv. R, [1991]1WLR767,wheretheHouseofLords abolished themarital exceptionto rape.Onasubsequent application by the defendant to the European Court ofHuman Rights, the Court found no violation of Art. 7 of the European Convention (no punishment without law): see C.R. v. UK, judgment of 22 November 1995, ECHR Series A No. 335-C.
79. Prosecutor v. Galić, Trial Chamber, International Criminal Tribunal for the former Yugoslavia, judgment of 5 December 2003, Case No. 98-29-T. For commentary on this aspect of the judgment, see R. Cryer, ‘Prosecutor v. Galić and theWar Crime of Terror Bombing’, (2005) 2 IDF Law Review (forthcoming).
80. Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao, Case No. SCSL-2004-15-PT, and Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Case No. SCSL-04-16-PT, Trial Chamber, Special Court for Sierra Leone, decision of 7May 2004.