Prosecutor v. Taylor: The Status of the Special Court for Sierra Leone and Its Implications for Immunity

Leiden Journal of International Law

Volumn 18, Issue 2, 2005, Pages 299-322

  Deen Racsmány, Zsuzsanna ^a  

^a UPPSALA UNIVERSITY   (Sweden)

Author keywords

Chapter VII powers; Head of State immunity ratione personae; internationalized criminal courts; personal jurisdiction; Special Court of Sierra Leone; treaties concluded by the United Nations

Indexed keywords

EID: 84996790052     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156505002657     Document Type: Article

References (94)

1. See Fifth Report of the Secretary-General on the United Nations Mission in Sierra Leone (31 July 2000), UN Doc. S/2000/751, para. 9.
2. Available online at http://www.sc-sl.org (last visited 13 December 2004).
3. Statute of the SpecialCourt for Sierra Leone, available online athttp://www.sc-sl.org (last visited 13December 2004).
4. Art. 1(1), Statute of the SpecialCourt for Sierra Leone.Another category of persons thatmay under certain circumstances be prosecuted by the Court are UN peacekeepers present in Sierra Leone. (Art. 1(2)-(3), Statute of the SpecialCourt for Sierra Leone.)
5. Arts. 3-5, Art., respectively.
6. Art. 6, Arts.
7. Indictment against Charles Ghankay Taylor, para. 23, available online at http://www.sc-sl.org (last visited 13 December 2004).
8. The indictment remained formally undisclosed until 12 June 2003. See First Annual Report of the President of the Special Court for Sierra Leone for the Period of 2 December 2002-1 December 2003, 9, available online at http://www.sc-sl.org/specialcourtannualreport2002-2003.pdf (last visited 13 December 2004).
9. Case concerning ArrestWarrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, available online at http://www.icj-cij.org (last visited 13 December 2004).
10. The defence arguments are summarized in Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-2003-01-I, ‘Decision on Immunity from Jurisdiction’, SCSL, Appeals Chamber, Decision of 31 May 2004, available online at http://www.sc-sl.org (last visited 13 December 2004), paras. 6-8. See text accompanying note 21, infra.
11. ArrestWarrant judgment, The defence arguments are summarized in Prosecutor v. Charles Ghankay Taylor note 9, para. 56.
12. ArrestWarrant judgment., para. 61.
13. E.g. H. G. Schermers and N. M. Blokker, International Institutional Law (2003), 1002, para. 1579; C. F. Amerasinghe, Principles of the Institutional Law of International Organizations (1996) 240-1; I. Seidl-Hohenveldern and G. Loibl, Das Recht der internationalen Organisationen einschlieβlich der supranationalen Gemeinschaften (1996) 216-17, para. 1512.
14. ArrestWarrant judgment, International Institutional Law note 9, para. 53.
15. Prosecutor v. Taylor, ArrestWarrant judgment note 10, para. 6.
16. Sands andMacdonald, Prosecutor v. Taylor note 20; Orentlicher, Prosecutor v. Taylor note 20. (Cf. Prosecutor v. Taylor, Prosecutor v. Taylor note 9, para. 2.) Thethird amicus brief, that of theAfricanBar Association, hasnot been available to the author. It appears from theAppeals Chamber decision that referring to various cases (Noriega, Pinochet and Milosevic) and documents (Rome Statute of the International Criminal Court and the conclusions of the 1993 World Conference of Human Rights) that the relevant part of this submission denied the availability of immunities to Taylor before the SCSL. (Prosecutor v. Taylor, Prosecutor v. Taylor note 10, para. 19.)
17. The relevant part of the judgment has attracted strong criticism in dissenting and separate opinions and in legal doctrine, potentially opening up a way for the SCSL to reject it. See note 99, infra.
18. Prosecutor v. Taylor, The relevant part of the judgment has attracted strong criticism in dissenting and separate opinions and in legal doctrine, potentially opening up a way for the SCSL to reject it note 10, para. 34.
19. Prosecutor v. Taylor., para. 37. Emphasis added.
20. Previous SCSL decisions (seeAppealsChamber decisions on defence motions inProsecutor v. Fofana, Prosecutor v. Gbao, Prosecutor v. Taylor note 13) were less precise in locating the relevant provisions of the UN Charter. They merely emphasized the nearly unlimited nature of the powers of the SC.
21. Prosecutor v. Taylor, Previous SCSL decisions (seeAppealsChamber decisions on defence motions inProsecutor v. Fofana note 10, para. 38. Emphasis in original, footnotes omitted.
22. Prosecutor v. Taylor., para. 39.
23. Prosecutor v. Taylor., paras 40-2. In its limited substantive reasoning, the Appeals Chamber relied on Sands’ amicus curiae submissions (Prosecutor v. Taylor note 20 cited in Prosecutor v. Taylor., para. 41) that the SCSL was not a national court, it was established by a treaty with characteristics of an international organization (e.g. international legal personality) and its competence ratione materiae and ratione personae (including the provision on the irrelevance of immunities) was similar to those of the ICTY, the ICTR and the ICC.
24. Art. 6(2) of the Statute, Prosecutor v. Taylor note 3.
25. Prosecutor v. Taylor, Art note 10, para. 49.
26. Prosecutor v. Taylor., para. 51.
27. In relation to the issue of the transmission of an arrest warrant to Ghana, theChamber wasmerely concerned with the question whether this violated Ghana's sovereignty. Asserting that such a warrant by one state transmitted to another is not self-executing, and that the state on the receiving end does not have any obligation to comply-at least in the absence of Chapter VII powers or a treaty obligation-the judges concluded that the transmission of the warrant could not be seen as an infringement of the sovereignty of Ghana. (Prosecutor v. Taylor., para. 57.) This position-and the power of the SCSL to issue such a warrant-is far from self-evident. However, the consideration of this problem is not strictly necessary to answering the question of Mr Taylor's immunities before the SCSL itself. It will thus not form part of the present analysis.
28. relation to the issue of the transmission of an arrest warrant to Ghana, theChamber wasmerely concerned with the question whether this violated Ghana's sovereignty., para. 59.
29. A recent comment referred to the decision as ‘the first application of the ICJ's decision in the ArrestWarrant case to a former Head of State.’ (C. Jalloh, ‘Immunity from Prosecution for International Crimes: The Case of Charles Taylor at the Special Court for Sierra Leone’, ASIL Insights, October 2004, available online at http://www.asil.org/insights (last visited 13 December 2004), emphasis added.) This submission is, however, incorrect inasmuch as the arrest warrant was transmitted toGhana whileTaylor was still President of Liberia, and in fact the Appeals Chamber decision does not even raise the issue of his loss of office until the very end. Accordingly, the decision is better seen as the first application of the ICJ decision to an incumbent Head of State.
30. See e.g.D.Akande, ‘International Law Immunities and the International Criminal Court’, (2004) 98AJIL 407, at 416-18.
31. Jalloh, ‘International Law Immunities and the International Criminal Court’ note 35, Sec. VII.
32. SomeauthorsdiscussedissuessimilartothoseraisedbyTaylor'sdefencemotionprior totheAppealsChamber decision. Referring shortly to the ICJ judgment in the ArrestWarrant case, they came to the conclusion that the SCSL is an international court and is competent to adjudge the case due to the irrelevance of Taylor's immunities. (Meisenberg, Jalloh note 20; A. Mbata B.Mangu, ‘Immunities ofHeads of State and Government: A Comment on the Indictment of Liberia's President Charles Taylor by the Special Court for Sierra Leone and the Reaction of the Ghanaian Government’, (2003) 28 South African Yearbook of International Law 238.) However, in the opinion of this author none of these analyses deals with the issue of the immunities of an incumbent president satisfactorily.
33. See, however, Prosecutor v. Fofana, ‘Decision on PreliminaryMotion on Lack of Jurisdiction: IllegalDelegation of Jurisdiction by Sierra Leone’ (SomeauthorsdiscussedissuessimilartothoseraisedbyTaylor'sdefencemotionprior totheAppealsChamber decision note 13) on the competence of Sierra Leone.
34. UN Doc. S/RES/1315 (2000).
35. Cf. P. C. Szasz, ‘The Security Council Starts Legislating’, 96 AJIL 901, at 902; E. Suy, ‘Article 25’, in J.-P. Cot and A. Pellet (eds.), La Charte des Nations Unies: Commentaire article par article (Paris: Economica; 1991), 476 on relevant UN terminology.
36. These consequences in terms of the (ir)relevance of immunities will be dealt with in section 4.2, infra. Suffice it to mention at this point that had the SCSL been established in a Chapter VII resolution like the ICTY and the ICTR, the provision of its Statute on the irrelevance of official capacity identical to those found in the ICTY and ICTR Statutes could be invoked to justify the irrelevance of Taylor's immunities.
37. See text accompanying note 25, These consequences in terms of the (ir)relevance of immunities will be dealt with in section 4.2.
38. The request and consent of Sierra Leone does not, however, necessarily have a bearing on the legal basis of the Courts’ establishment. The ICTR too was established following a request by the Government of Rwanda. Yet, Resolution 955 (UN Doc. S/RES/955 (1994)), establishing that Tribunal, explicitly locates the competence of the SC under Chapter VII of the UN Charter. Resolution 1315 (text accompanying note 25 note 41), in contrast, fails to do so.
39. See e.g. E. Suy, ‘Peacekeeping as an Operational Activity of International Organizations’ in R.-J. Dupuy (ed.), A Handbook on International Organizations (1998), 539, at 544; N. D. White, The United Nations System: Toward International Justice (2002), 162.
40. See, e.g., Case concerning Certain Expenses of the UnitedNations, [1962] ICJ Advisory Opinion of 20 July 1962, ICJ Rep. 151, at 177.
41. In the Namibia advisory opinion the ICJ noted that ‘Article 24 of theUNCharter vests in the Security Council thenecessary authority to take actionsuchas that taken inthepresent case (i.e. theadoption ofResolution276 (1970)). The reference in paragraph 2 of this Article to specific powers of the Security Council under certain chapters of the Charter does not exclude the existence of general powers to discharge the responsibilities conferred in paragraph 1.’ (Legal Consequences for States of the Continued Presence of South Africa in Namibia (SouthWest Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, [1971] ICJ Rep. 14, at 52-3, para. 110, emphases added. Cf. J. Delbrü ck, ‘Article 24’, in B. Simma (ed.), The Charter of the United Nations: A Commentary (2002), 442, at 448.)
42. the Namibia advisory opinion the ICJ noted that ‘Article 24 of theUNCharter vests in the Security Council thenecessary authority to take actionsuchas that taken inthepresent case., paras. 112-13.
43. Prosecutor v. Taylor, the Namibia advisory opinion the ICJ noted that ‘Article 24 of theUNCharter vests in the Security Council thenecessary authority to take actionsuchas that taken inthepresent case note 10, para. 38.
44. Report of the Secretary-General, Prosecutor v. Taylor note 51, para. 9. Emphasis added.
45. Prosecutor v. Taylor, Report of the Secretary-General note 10, para. 38. It may be noted that the Appeals Chamber made this statement following its attempt nonetheless to demonstrate a Chapter VII legal basis.
46. Report of the SG on the establishment of the SCSL, Prosecutor v. Taylor note 51, paras. 9-10; G. Sluiter, ‘Assistance to Internationalized Criminal Courts and Tribunals’, in C. P. R. Romano, A. Nollkaemper, and J. K. Kleffner (eds.), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia (2004), 379 at 386. Sed contra decision ondefence motion in Prosecutor v. Gbao, Prosecutor v. Taylor note 13, para. 5 (referring to the SCSL as anorgan of the SC). Notably, in her amicus curiae brief Orentlicher refers to the SCSL as a ‘UN institution’, submitting that ‘[a]s with other UN institutions., the immunities of the personnel and property of the SCSL as well as the Court's own legal capacity are governed by a bilateral agreement between the United Nations and the host state, in this case Sierra Leone’ (Prosecutor v. Taylor note 20, at 21).However, the Statute of the SCSL and theUN-Sierra Leone agreement fail to confirm this-unmotivated-submission regarding the status of the Special Court.
47. See e.g. provisions of the Statute (Report of the SG on the establishment of the SCSL note 3) related to Concurrent Jurisdiction (Art. 8), Non bis in idem (Art. 9(2)), the composition of the Chambers (Art. 12), Rules of Procedure and Evidence (Art. 14), Prosecutor (Art. 15), Registry (Art. 16).
48. See e.g. matters regulated in the Agreement (provisions of the Statute (Report of the SG on the establishment of the SCSL note 3) related to Concurrent Jurisdiction (Art. 8) note 2) related to the Establishment of the Special Court (Art. 1(2)), the Expenses of the Special Court (Art. 6), Management Committee (Art. 7), Judicial Capacity (Art. 11), Privileges and immunities (Arts. 8-9, 12-13).
49. Special Court Agreement (2002) Ratification Act, available online at http://www.sc-sl.org/documents.html (last visited 13 December 2004). The Act largely confirms the provisions of the Statute and Agreement cited in notes 57-8, matters regulated in the Agreement (provisions of the Statute (Report of the SG on the establishment of the SCSL note 3) related to Concurrent Jurisdiction (Art. 8) note 2) related to the Establishment of the Special Court (Art. 1(2)). See, in particular, Arts. 11(2) and 13 on the independence of the SCSL from the judiciary of Sierra Leone.
50. Orentlicher brief, Special Court Agreement note 20, at 19.
51. Prosecutor v. Taylor, Orentlicher brief note 10, para. 38.
52. Prosecutor v. Taylor., para. 38.
53. Schermers and Blokker, Prosecutor v. Taylor note 18, paras. 1787-8 at 1143. Cassese,however, submittedwriting specifically about the UN-Sierra Leone Agreement that it ‘is only binding upon the United Nations and Sierra Leone. It is not binding upon third countries, in particular, neighbouring countries.’ (A. Cassese, ‘The Role of Internationalized Courts and Tribunals in the Fight Against International Criminality’, in Romano, Nollkaemper and Kleffner, Prosecutor v. Taylor note 56, 3 at 9. Cf. L. Condorelli and T. Boutruche, ‘Internationalized Criminal Courts and Tribunals: Are They Necessary’, in Prosecutor v. Taylor., 427, at 434; Sluiter, Prosecutor v. Taylor note 56, at 402 to the same effect.)
54. Reparation for Injuries Suffered in the Service of the United Nations, Schermers and Blokker note 17, at 180.
55. Schermers and Blokker, Reparation for Injuries Suffered in the Service of the United Nations note 18, para. 1787 at 1143.
56. See notes 48-50 and accompanying text, Schermers and Blokker.
57. District Court of Haifa, Judgment of 10May [1979], summary in United Nations Juridical Yearbook 1979, 205.
58. District Court of Haifa., at 208.
59. Arts. 34-8 of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 25ILM543. This convention hasnot yet entered into force.However, the same principles apply to treaties between states under Arts. 34-8 of theVienna Convention on the Law of Treaties, 1155 UNTS 331. While the author is not aware of these particular provisions having been declared to reflect customary international law, it is logical that the rule that a treaty cannot create obligations for third parties applies to all treaties as a consequence of the sovereign equality of states and/or the functional independence of international organizations possessing an international legal personality.
60. ArrestWarrant judgment, Arts. 34-8 of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations note 9, para. 61.
61. E.g., A. Cassese, International Criminal Law (2003) 265-6; S. Zappala’, ‘Do Heads of State in Office Enjoy Immunityfrom Jurisdiction for International Crimes?The Ghaddafi Case Before the French Cour de Cassation’, (2001) 12 EJIL 595, at 597-600.
62. This article does not address the issue of the (ir)relevance of immunities ratione materiae of state agents (for official acts) in the context of war crimes prosecutions. On these issues, see “e.g.” Gaeta, ‘Ratione Materiae Immunities’, International Criminal Law note 20, at 186-96; Cassese, International Criminal Law note 20; Akande, International Criminal Law note 37, at 412-15.
63. This article does not address the issue of the (ir)relevance of immunities ratione materiae of state agents (for official acts) in the context of war crimes prosecutions note 18.
64. See Gaeta, ‘Ratione Materiae Immunities’, This article does not address the issue of the (ir)relevance of immunities ratione materiae of state agents (for official acts) in the context of war crimes prosecutions note note 20, at 194 (raising this argument in the context of immunities ratione materiae);Meisenberg, This article does not address the issue of the (ir)relevance of immunities ratione materiae of state agents (for official acts) in the context of war crimes prosecutions note note 20, at 38.
65. R. Y. Jennings and A.Watts (eds.), Oppenheim's International Law (1996), 1034; Cassese, International Criminal Law, ‘Ratione Materiae Immunities’ note 76, at 265; ArrestWarrant judgment, ‘Ratione Materiae Immunities’ note 9, para. 53.
66. Oppenheim's International Law note 22, at 43.
67. Oppenheim's International Law note 22., at 43.
68. Oppenheim's International Law note 22 note 41, para. 2.
69. Oppenheim's International Law note 22 note 41 note 51, paras. 29-31
70. Art. 11 of theAgreement (Oppenheim's International Law note 22 note 41 note 51 note 2) endows the SCSLwith an international legal personality.Accordingly, it is bound by customary international law (cf. note 18, Oppenheim's International Law note 22 note 41 note 51). It is thus also bound by the relevant rules of customary international law on immunities of Heads of State. As concluded by the ICJ in the Arrest Warrant case (Oppenheim's International Law note 22 note 41 note 51 note 9; cf. section 2, Oppenheim's International Law note 22 note 41 note 51) these do not provide for a general exception applicable to all international courts.
71. See note 48-50, Art and accompanying text.
72. UNTS 279, Art. 7.
73. TIAS No. 1589, Art. 6.
74. UN Doc. A/1316 (1950), Art. 3
75. Convention on the Prevention and Suppression of the Crime of Genocide, 78 UNTS 277, Art. IV.
76. Yearbook of the International Law Commission 1996, vol. II(2), Art. 7.
77. (1993) ILM 1192, Art. 7(2).
78. (1994) ILM 1598, Art. 6(2).
79. (1998) ILM 999, Art. 27.
80. Sed contra text accompanying note 107, infra.
81. ArrestWarrant judgment, Sed contra text accompanying note 107 note 9, para. 58.
82. ArrestWarrant judgment., para. 61. Emphasis added.
83. E.g.,Dissenting Opinion of Judge AdHocVan denWyngaert in the same case, ArrestWarrant judgment., paras. 26-8; Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal in the same case, ArrestWarrant judgment., paras. 78, 85; Cassese, ‘When May Senior Officials’, ArrestWarrant judgment note 20 at 862-6;Wouters, ArrestWarrant judgment note 20 at 257, 259-61.
84. E.g. Gaeta, RationeMateriae Immunities, Dissenting Opinion of Judge AdHocVan denWyngaert in the same case note 20, at 194 (in the context of immunities ratione materiae); Meisenberg, Dissenting Opinion of Judge AdHocVan denWyngaert in the same case note 20, at 38. Cf. Robert Jennings, ‘The Pinochet Extradition Case in the English Courts’, in L. Boisson de Chazournes and V. Gowlland-Debbas (eds.), The International Legal System in Quest of Equity and Universality: Liber Amicorum Georges Abi-Saab (2001), 676, at 693 (raising this argument outside of the context of the ArrestWarrant case).
85. Akande, this case, due to the Chapter VII mandate, this conclusion is arguably valid even with regard to officials of states not predecessors of the former Yugoslavia note 37, at 421;Wirth, ‘Immunities, Related Problems’, this case, due to the Chapter VII mandate, this conclusion is arguably valid even with regard to officials of states not predecessors of the former Yugoslavia note 102, at 452-3. Cf. P. Gaeta, ‘Official Capacity and Immunities’, in A. Cassese, P. Gaeta, and J. R. W. D. Jones (eds.), The Rome Statute for an International Criminal Court (2002), 975, at 994-5 (submitting that while Art. 27(2) gives the ICC jurisdiction even over officials of third parties who enjoy personal immunities in foreign states under customary international law, due to Art. 98(1) the ICC Statute does not violate the personal immunities of officials of non-party states under international criminal law);D. Robinson, ‘The RomeStatute and its Impact on National Law’, in this case, due to the Chapter VII mandate, this conclusion is arguably valid even with regard to officials of states not predecessors of the former Yugoslavia., 1849, at 1856-7 (acknowledging opinions to this effect but denying their validity in the context of SC referrals under Chapter VII).
86. This position admittedly fails to account for the Statutes of the Nuremberg and Tokyo Tribunals and their jurisprudence. However, it is notable that even proponents of the ICC's jurisdiction over incumbent officials of non-party states acknowledge that two (or a couple) of states cannot contract to establish a-thus international-court to exercise jurisdiction over incumbent officials of third states. This conclusion applies even to the prosecution of international crimes. (Sands, Akande note 74 and accompanying text note 20, at 43, para. 78.)Moreover, the Nuremberg and Tokyo Tribunals, often seen as ‘victors’ justice’, may not constitute the best precedents in this regard. It should also be recalled that the Tokyo Tribunal failed to hold Emperor Hirohito accountable. As Hitler committed suicide prior to the setting up of the Nuremberg Tribunal, no Heads of State were thus in fact prosecuted by these Tribunals. Cf. text accompanying note 107, infra.
87. See note 80, This position admittedly fails to account for the Statutes of the Nuremberg and Tokyo Tribunals and their jurisprudence, and accompanying text.
88. See “e.g.” Gaeta, ‘Official Capacity and Immunities’, note 80 note 103, at 990-2; cf. Akande (considering rather that Art. 27(2) is merely included as a safety precaution to remove all doubts as to the irrelevance of personal immunities), note 80 note 37, at 420. Under this interpretation, possibly even the prosecution of President SlobodanMilošević by the ICTYmay be difficult to justify. (See, however, Gaeta, note 80., at 989.)
89. This is due to the absence of express stipulation to such effect and to the fact that the resolution was not adopted and/or the SCSLwas not setupunder ChapterVII of theUnitedNations, hence requiring compliance with Art. 2(7) of the Charter. See notes 83 and 48-9, ‘Official Capacity and Immunities’, and accompanying text.
90. Orentlicher, This is due to the absence of express stipulation to such effect and to the fact that the resolution was not adopted and/or the SCSLwas not setupunder ChapterVII of theUnitedNations, hence requiring compliance with Art note 20, at 7.
91. Prosecutor v. Taylor, Orentlicher note 10, para. 59.
92. Pinochet No. 3, Prosecutor v. Taylor note 83; Cassese, International Criminal Law, Prosecutor v. Taylor note 76, at 267-73; Cassese, ‘When May Senior Officials’, Prosecutor v. Taylor note 20, at 864-70; Gaeta, ‘Ratione Materiae Immunities’, Prosecutor v. Taylor note 20; Akande, Prosecutor v. Taylor note 37 at 412-15;Wirth, note 20, at 888-9; Zappala’, note 76, at 601-5.
93. UN Docs. S/RES/1408 (2002); S/RES/1478 (2003).
94. S. de Bertodano, ‘Current Developments in Internationalized Courts’, (2003) 1 Journal of InternationalCriminal Justice 226 at 244.