The Special Court for Sierra Leone: An Initial Comment

Leiden Journal of International Law

Volumn 14, Issue 3, 2001, Pages 635-651

  Beresford, Stuart ^a   Muller, A S ^a  

^a ICTY   (Netherlands)

Author keywords

crimes against humanity; international humanitarian law; Special Court for Sierra Leone; violations of the Geneva Conventions; war crimes

Indexed keywords

EID: 84969537759     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156501000310     Document Type: Article

References (67)

1. ECOMOG forces have maintained a presence in Sierra Leone, at the invitation of the Government, since 1991 when hostilities between the RUF and government forces commenced. Human Rights Watch, Sierra Leone: Getting Away with Murder, Mutilation and Rape, July 1999 (hereinafter ‘Human Rights Watch’), available at http:// www.hrw.org/ hrw/reports/1999/sierra/index.htm.
2. Id. For a more complete description of the atrocities that followed the occupation of Freetown, see Fifth Report of the Secretary-General on the United Nations Observer Mission in Sierra Leone, UN Doc. S/1999/237 (4 March 1999), at paras. 20-30.
3. Despite the fact that Sierra Leone is extremely resource-rich, with large deposits of diamonds, gold, rutile and bauxite, it is estimated to be one of the poorest countries in the world. Human Rights Watch, id. For an examination of the RUF, see I. Abdullah & P. Muana, The Revolutionary United Front of Sierra Leone, in C. Clapham (Ed.), African Guerrillas 173 (Oxford: James Currey, 1998).
4. See Report of the Secretary-General on Sierra Leone, UN Doc. S/1997/80 (1997) (21 October 1997).
5. The AFRC, which was led by army major Johnny Paul Koroma, cited the Government's failure to implement the Abijan Peace Agreement as the reason for the coup. Human Rights Watch, Report of the Secretary-General on Sierra Leone note 1.
6. Security Council Res. 1132, UN Doc. S/RES/1132 (1997) (8 October 1997). The AFRC/RUF alliance was able to evade the ban, however, by purchasing arms through the illegal diamond trade. See S. Dickey, Sierra Leone: Diamond for Arms, 7 Hum. Rts. Br. 9 (2000).
7. Human Rights Watch, Security Council Res. 1132 note 1.
8. Peace agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, UN Doc. S/1999/777, Annex; also available at http://www.sierraleone. org/lomeaccord.html (hereinafter ‘Lomé Peace Agreement’).
9. Security Council Res. 1270, UN Doc. S/RES/1270 (1999) (22 October 1999).
10. For a description of the attacks on and detention of United Nations personnel, see Fourth Report of the Secretary-General on the United Nations Mission in Sierra Leone, UN Doc. S/2000/455 (19 May 2000), at paras. 56-79.
11. See Human Rights Watch, Fresh Reports of RUF Terror Tactics, 26 May 2000, available at http://www.hrw.org/press/2000/05/s10526.htm.
12. The Abuja cease-fire agreement, which was signed on 10 November 2000, provided for a monitoring role for UNAMSIL; full liberty for the United Nations to deploy throughout the country; unimpeded movement of humanitarian workers, goods and people throughout the country; the return of UNAMSIL weapons and other equipment seized by the RUF; and the immediate resumption of the programme of disarmament, demobilisation and reintegration. See Eighth Report of the Secretary-General on the United Nations Mission in Sierra Leone, UN Doc. S/2000/1199 (15 December 2000) (hereinafter ‘Eighth Secretary-General's Report’).
13. See Letter from the President of Sierra Leone to the Secretary-General, UN Doc. S/2000/786 (12 June 2000).
14. Security Council Res. 1315, UN Doc. S/RES/1315 (2000) (14 August 2000).
15. Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915 (4 October 2000) (hereinafter ‘Secretary-General's Report’).
16. Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, annex to Secretary-General's Report, 4 October 2000 (hereinafter ‘Agreement’).
17. Statute of the Special Court for Sierra Leone, enclosure to Secretary-General's Report, 4 October 2000 (hereinafter ‘Statute’).
18. Secretary-General's Report, Statute of the Special Court for Sierra Leone note 18, at para. 9.
19. See the International Covenant on Civil and Political Rights, Art. 14; European Convention on Human Rights, Art. 6. See also, e.g., Prosecutor v. Tadić, Appeal on Jurisdiction, Case No. IT-94-1-PT, T.Ch. II, 2 October 1995 (‘Tadić Appeals Decision’), for an analysis of this decision see G.H. Aldrich, Jurisdiction of the International Criminal Tribunal for the Former Yugoslavia, 90 AJIL 64 (1996); Prosecutor v. Kanyabashi, Decision on the Defence Motion on Jurisdiction, Case No. ICTR-96-15-T, T.Ch. I, 18 June 1997, for an examination of this decision see V. Morris, International Decisions: Prosecutor v. Kanyabashi, Decision on Jurisdiction, 92 AJIL 66 (1997).
20. Tadić Appeals Decision, id., at para. 45.
21. Statute, Tadić Appeals Decision note 20, Art. 8(1).
22. Id., Art. 9.
23. Secretary-General's Report, Tadić Appeals Decision note 20 note 18, at para. 10.
24. See ICTY Statute, Art. 29; ICTR Statute, Art. 28.
25. Constitution of Sierra Leone, Sec. 122(1).
26. A. Tejan-Cole, The Special Court for Sierra Leone: Conceptual Concerns and Alternatives, 1 African Human Rights Law Journal 107, at 114 (2001).
27. Secretary-General's Report, The Special Court for Sierra Leone: Conceptual Concerns and Alternatives note 18, at para. 13.
28. The crimes under Sierra Leone law which are included within the Statute are: offences relating to the abuse of girls under the 1926 Prevention of Cruelty to Children Act (abuse of a girl under 13 years of age (Sec. 6), abuse of a girl between 13 and 14 years of age (Sec. 7) and abduction of a girl for immoral purposes (Sec. 12)) and the wanton destruction of property under the 1861 Malicious Damage Act (setting fire to dwelling-houses (Sec. 2), setting fire to public buildings (Secs. 5 and 6) and setting fire to other buildings (Sec. 6)). Statute, Secretary-General's Report note 20, Art. 5.
29. When making such amendments, the Judges may be guided, as appropriate, by the 1965 Criminal Procedure Act of Sierra Leone. Id., Art. 14.
30. Secretary-General's Report, When making such amendments, the Judges may be guided, as appropriate note 18, at para. 26.
31. Id., at para. 27.
32. Id., at para. 28.
33. Human Rights Watch, Letter to United Nations Security Council, 1 November 2000, available at http://www.hrw.org/press/2000/11/sl-ltr.htm; see also Tejan-Cole, Secretary-General's Report note 30, at 116.
34. See Tejan-Cole, id.
35. Statute, Tejan-Cole note 20, Art. 1.
36. See Secretary-General's Report, Tejan-Cole note 20 note 18, at paras. 29-30.
37. See ICTY Statute, Art. 1; ICTR Statute, Art. 1.
38. Lomé Peace Agreement, ICTY Statute note 9, Art. IX. For a critique of the amnesty provisions under this Agreement, see A. Tejan-Cole, Painful Peace-Amnesty under the Lomé Peace Agreement, 3 Law, Democracy and Development 239 (1999).
39. Secretary-General's Report, Lomé Peace Agreement note 18, at para. 22. Scharf points out, however, that while the substantive law establishing international offences is extensive, international procedural law imposing a duty to prosecute is far more limited. Consequently, since there is no duty to prosecute crimes against humanity or war crimes committed in a civil war, there are no legal constraints to the negotiation of an amnesty-for-peace arrangement in such conflicts. M.P. Scharf, The Amnesty Exception to the Jurisdiction of the International Criminal Court, 32 Cornell Int'l L.J. 507 (1999).
40. Secretary-General's Report, id., at para. 23.
41. Id., at para. 33.
42. Id., at para. 35.
43. Id., at para. 37. For an examination of the legal basis for the prosecution of children who commit atrocities in the course of internal strife, see C. Reis, Trying the Future, Avenging the Past: The Implications of Prosecuting Children for Participation in Internal Armed Conflict, 28 Colum. Human Rights L. Rev. 629 (1997).
44. Letter dated 22 December 2000 from the President of the Security Council addressed to the Secretary-General, UN Doc. S/2000/1234 (22 December 2000) (hereinafter ‘Security Council's Letter’).
45. Statute, Letter dated 22 December 2000 from the President of the Security Council addressed to the Secretary-General note 20, Art. 12(1)(a). It is noted that it was originally proposed that “one Sierra Leonean judge” should be appointed to each of the Trial Chambers. This phrase was replaced at the request of the government of Sierra Leone by “judges appointed by the government of Sierra Leone.” While this does not preclude the appointment of a Sierra Leone judge, it creates the possibility that Sierra Leoneans may not play any adjudicating role in the process. It has opined that in order to enhance the appearance of impartiality, it is crucial that Sierra Leoneans are appointed to serve as judges. Tejan-Cole, Letter dated 22 December 2000 from the President of the Security Council addressed to the Secretary-General note 30, at 119-120.
46. Statute, id., Art. 12(1)(b). This procedure differs to that followed by the ad hoc Tribunals where the judges are elected by the UN General Assembly, after candidates have been shortlisted by the Security Council, see ICTY Statute, Art. 13; ICTR Statute, Art. 12.
47. The judges, like those appointed to the ad hoc Tribunals, must be persons of high moral character, impartiality and integrity, who possess, in their respective countries, the qualifications required for appointment to the highest judicial office. They shall be independent in the performance of their functions, and shall not accept or seek instructions from any government or any other source. Statute, id., Art. 13.
48. The Prosecutor shall be appointed for a four-year term and shall be eligible for re-appointment. Agreement, The judges, like those appointed to the ad hoc Tribunals, must be persons of high moral character, impartiality and integrity, who possess, in their respective countries, the qualifications required for appointment to the highest judicial office. note 19, Art. 3(1).
49. See ICTY Statute, Art. 18(2); ICTR Statute, Art. 17(2).
50. For a discussion on a possible alternative host state, should it be necessary to convene the Special Court outside Sierra Leone, see Secretary-General's Report, ICTY Statute note 18, at paras. 51-54.
51. Statute, For a discussion on a possible alternative host state note 20, Art. 17(2) and (3).
52. A reasoned opinion made in writing, to which separate or dissenting opinions may be appended, must accompany the judgement. Id., Art. 18.
53. Id., Art. 19.
54. Id., Art. 20(1)(b) and (c).
55. Id., Art. 20(1)(a).
56. This provision follows the inquisitorial legal system in which appellate courts may determine questions of fact themselves: in adversarial legal systems, appellate courts usually remit such questions to the trial court. Id., Art. 20(2). See also ICTY Statute, Art. 25(2); ICTR Statute, Art. 24(2).
57. Statute, This provision follows the inquisitorial legal system in which appellate courts may determine questions of fact themselves: in adversarial legal systems, appellate courts usually remit such questions to the trial court. note 20, Art. 21.
58. The Special Court is also authorised to conclude agreements for the enforcement of sentences with other states, and, in light of the precarious security situation in Sierra Leone, it is likely that such agreements will need to be completed. Id., Art. 22.
59. Id., Art. 23.
60. Secretary-General's Report, The Special Court is also authorised to conclude agreements for the enforcement of sentences with other states, and, in light of the precarious security situation in Sierra Leone, it is likely that such agreements will need to be completed. note 18, at para. 70.
61. Voluntary contributions could include, besides funding, equipment and services and gratis personnel offered by states, inter-governmental organisations and non-governmental organisations. Security Council's Letter, Secretary-General's Report note 53.
62. See Letter dated 12 January 2001 from the Secretary-General addressed to the President of the Security Council, UN Doc. S/2001/40 (12 January 2001).
63. Security Council's Letter, Id. note 53.
64. Tejan-Cole, Security Council's Letter note 30, at 120.
65. As at 1 December 2000, 291 persons were detained without charge under the emergency powers. Eighth Secretary-General's Report, Security Council's Letter note 30 note 14, at para. 49.
66. For other negative perceptions that may be encountered, see Tejan-Cole, persons were detained without charge under the emergency powers. note 30, at 126.
67. For a discussion of how the establishment of an outreach programme for the ICTY has facilitated the realisation of some of the objectives of the Tribunal, see L. Vohrah & J. Cina, The Outreach Programme, in R. May et al. (Eds.), Essays on ICTY Procedure and Evidence: In Honour of Gabrielle Kirk McDonald 547 (The Hague: Kluwer Law International, 2000).